HP 
 8/0 
 
 cogy 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 JUDQE DOUQLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter ■ 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 810.W87 
 
 A treatise on the statute of frauds. 
 
 3 1924 018 824 551 
 
A Cornell University 
 J Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018824551 
 
TREATISE 
 
 Statute of Frauds. 
 
 
 '^OOD, 
 
 AuTHOB OP " FiEE Insurance," " Lakdlobd and Tenant," 
 "Slander," Etc., Etc. 
 
 o»;o 
 
 BANKS & BROTHERS, 
 
 144 Nassau Street, New York ; 
 473 AND 475 Broadway, Albany, N.Y. 
 
 1884. 
 
Entered, according to Act of Congress, in the year 1884, by 
 
 BAITKS & BROTHERS, 
 in the OfSce of the Librarian of Congress at Washington. 
 
 J. B. CnsHiNG & Co., Pbihtsbs, Bostoh. 
 
PEEFAOE. 
 
 ^ I IHERE is probably no field of the law in which judicial legis- 
 -^ lation has been more vigorously indulged than in the con- 
 struction and application of the Statute of Fj-auds, and none in 
 which there is more needless conflict than has arisen upon the 
 construction of this celebrated statute, which, to the common 
 mind, seems so plain as to be incapable of misconstruction or 
 doubt. But the amount of litigation arising under it has grown 
 into enormous proportions, and the number of cases which have 
 been before the appellate courts for decision can be counted by 
 the thousands ; and now, after the lapse of nearly two centuries, 
 many of the questions arising under it are not definitely settled, 
 and the conflict of doctrine upon some portions of it is remark- 
 able. If any argument is needed to show the advantage of the 
 elastic principles of the common law, as applied to the business re- 
 lations of mankind, over the arbitrary provisions of a statute, it 
 seems to me that the experiences developed by this statute aflibrd it. 
 
 When I started out in this field of the law, it was with the pur- 
 pose simply to give the profession a revised and Americanized 
 edition of Mr. Agnew's excellent work upon this topic ; but I soon 
 found that ray own work would so largelj- exceed that of the 
 author that it would be unjust to him, as well as to myself, to pur- 
 sue that course ; therefore, I concluded that it would be better to 
 write an original work, using such portions of Mr. Agnew's work 
 as are applicable to the state of the law in this country. 
 
 "Where the conflict of doctrine in the various States is real, and 
 incapable of being reconciled, I have stated the rules adopted in 
 the diflferent States ; and, where there is merely an apparent but 
 no real conflict, I have endeavored to point out the real doctrine, 
 and to show that no substantial difference exists. 
 
 I have endeavored to present the different phases of the topic 
 
11 PREFACE. ' 
 
 fully, and to make the work as practical as possible, by giving apt 
 illustrations of the rules from the cases. 
 
 I have given the gist of several hundred cases, English and 
 American, in the notes and text ; and in the prosecution of my 
 work have aimed to make it a useful book to those having occa- 
 sion to use it, rather than a symmetrical or interesting one. 
 
 In the index, under the most vexed heads of the subject, I have 
 called attention to the leading cases, the gist of which is given in 
 the work, with a view to calling attention directly to those cases 
 whose doctrine is the most approved upon the question involved. 
 I make this explanation because a similar course pursued by me 
 in the index to my work upon "The Statute of Limitations " was 
 criticized somewhat sharply, and said to be meaningless and illog- 
 ical; but, from the very large number of letters received by me 
 from members of the profession in different sections of the country 
 commending this course, I yield to the convenience of the profes- 
 sion, rather than to the really logical method of preparing an 
 index. 
 
 Hoping this work will lighten somewhat the labors of the pro- 
 fession in investigating questions arising under these statutes, I 
 submit it to their criticism. 
 
 H. G. "WOOD. 
 Boston, April 4, 1884. 
 
TABLE OF OOIiJ'TElsrTS. 
 
 — »^— 
 
 CHAPTER I. 
 
 PAGES 
 
 Parol Leases 4-70 
 
 CHAPTER II. 
 Assignment and Sukhender > . 71-136 
 
 CHAPTER m. 
 Guaranties, Promise by Executors, Etc 137-148 
 
 CHAPTER rV". 
 Guaranties 149-310 
 
 , CHAPTER V. 
 
 Agreements in Consideration of Marriage . . . 311-338 
 
 CHAPTER VI. 
 Interest in Lands 340-461 
 
 CHAPTER Vn. 
 Contracts not Pbrformable in a Year .... 463-500 
 
 CHAPTER Vin. 
 What is a Sale op Goods? 502-509 
 
 CHAPTER IX. 
 Price or Value of £10 510-514 
 
 CHAPTER X. 
 Earnest and Part Payment 514-526 
 
IV CONTENTS. 
 
 CHAPTER XI. 
 
 PAGES 
 
 Executory Sales 528-555 
 
 CHAPTER XII. 
 Acceptance and Receipt 556-644 
 
 CHAPTER Xni. 
 Memorandum or Note in Writing 645-762 
 
 CHAPTER XIV. 
 Signature to the Memorandum 763-777 
 
 CHAPTER XV. 
 Contracts by Agents 778-796 
 
 CHAPTER XVI. 
 Declarations of Trust 798-803 
 
 CHAPTER XVII. 
 Resulting Trusts 804-817 
 
 CHAPTER XVin. 
 Specific Performance 819-873 
 
 CHAPTER XIX. 
 Pleadings 874-878 
 
 APPENDIX 879 
 
TABLE OF OASES. 
 
 Abbott V. Draper, 428, 432, 433, 435. 
 
 c7. Gilchrist, 645. 
 
 V. Gilman, 546. 
 
 V. Inskep, 469. 
 
 V. Mills, 420. 
 
 c. Parsons, 123. 
 
 V. Shepard, 703. 
 Abeel V. Kadcliffe, 647, 656, 659, 716. 
 Abel V. Wilder, 263. 
 Abell V. Douglass, 414. 
 Ablett, in re, 454. 
 Acebal v. Levy, 558, 615,642, 643,647, 
 
 655, 680, 737, 746, 782, 786. 
 Acherley v. Acherley, 798. 
 Ackerman v. Ackerman, 845. 
 Ackla V. Ackla, 439. 
 Ackland v. Lutley, 88, 102, 106, 107. 
 Ackroyd v. Smithson, 806. 
 Acland v. Lewis, 396. 
 Acraman v. Morrice, 520, 588, 621. 
 Acton V. Peirce, 317. 
 Adams v. Adams, 485, 497. 
 
 V. Anderson, 306. 
 
 V. Andrews, 9. 
 
 u. Claxton, 454. 
 
 V. Densey, 160, 297. 
 
 V. Foley, 637. 
 
 V. FuUam, 827. 
 
 V. Hill, 310. 
 
 V. Honess, 495. 
 
 V. McKinney, 25. 
 
 V. McMillan, 647, 655, 678, 724, 
 726, 739, 781. 
 
 V. Patrick, 874. 
 
 V. Eockwell, 839. 
 
 V. Scales, 720, 726. 
 
 u. Smilie, 431. 
 
 V. Townsend, 434. 
 Aday v. Echols, 64. 
 Addison v. Dark, 30. 
 
 V. Hack, 36. 
 Adlard v. Booth, 554. 
 Adkinson v. Barfield, 259. 
 
 Adlington v. Cann, 798, 799, 802. 
 Adncy, ex parte, 273. 
 Adsetts V. Hives, 678. 
 Agand v. King, 56. 
 Agar V. Brown, 76. 
 Agard v. Valentia, 845. 
 Agate V. Gignough, 414. 
 Aicarde v. Craig, 158, 878. 
 Aiken v. Duren, 195, 208. 
 Albertson v. Ashton, 779. 
 Alcalda v. Morales, 161, 209, 210. 
 Alchin V. Hopkins, 414. 
 Alcock V. Delay, 707. 
 Aldenburgh v. People, 85, 103. 
 Alderman v. Chester, 469, 484. 
 Aldrich v. Ames, 198, 275, 292, 295. 
 
 V. Jewell, 155, 156. 
 
 V. Pyatt, 510, 511. 
 Aldridge i\ Johnson, 624. 
 Alexander, ex parte, 454. 
 
 V. Bonnin, 43. 
 
 V. Combes, 518. 
 
 V. Guiselin, 186, 507. 
 Alger !•. Johnson, 875. 
 
 V. Scoville, 154, 198, 201, 260, 264, 
 265, 277, 295. 
 Allaire v. Crawford, 160. 
 AUard v. Greasart, 510, 511, 596, 613, 
 
 614, 615, 641, 042. 
 Allen V. Addington, 306. 
 
 c. Aguira, 395, 425. 
 
 0. Bennett, 652, 655, 661, 688, 694, 
 
 700, 709, 710, 730, 740, 766. 
 
 1 . Bower, 846. 
 V. Brown, 79. 
 
 r. Devlin, 82, 96. 
 
 V. Eighme, 171, 299. 
 
 V. Feland, 24. 
 
 V. Fiske, 14, 22. 
 
 u. Jaquish, 108. 
 
 V. Jarvis, 550. 
 
 V. Leonard, 185. 
 
 V. Pryor, 183, 243, 436. 
 
 V. Scarff, 155, 165, 262. 
 
 V. Thompson, 152, 175, 228, 267. 
 
Yl 
 
 TABLE OF CASES. 
 
 Allen V. Webb, 845, 846. 
 
 Allen's Estate, 824, 826. 
 
 AUetson v. Chichester, 445. 
 
 Allhouse V. Ramsay, 156, 195, 214. 
 
 AUis V. Eead, 432. 
 
 AUnutt V. Ashenden, 181. 
 
 AUwin V. Garbenick, 266. 
 
 Alna .!). Plummer, 726, 780, 782, 787. 
 
 Alt V. Alt, 331. 
 
 Alvanley v. Kinnaird, 866, 870. 
 
 Amburger v. Marvin, 474, 480, 485, 
 
 486, 874. 
 Ambrose v. Ambrose, 803. 
 Ames V. Poster, 155, 196, 261, 266. 
 
 V. Jackson, 148, 158. 
 Amory v. Kanoffsky, 76, 95, 102. 
 Amsinck v. Am. Ins. Co., 15. 
 Amson v. Dreber, 559. 
 Anderson v. Chick, 726, 780, 824. 
 
 ,,. Davis, 207, 214. 
 
 V. Eaulke, 458, 459. 
 
 V. Harrold, 764, 772, 773. 
 
 V. Hayman, 166, 167, 194, 205, 
 216. 
 
 V. Midland R. R. Co., 54. 
 
 V. Prindle, 48. 
 
 V. Scott, 365, 366, 597, 617, 618, 
 619, 630. 
 
 V. Simpson, 357, 367, 826, 835. 
 
 V. Spence, 140, 275, 288, 290, 292. 
 Andre u. Badman, 195, 214, 245. 
 Andrews v. Dietrich, 566. 
 
 V. Jones, 337, 424. 
 
 u. Scottin, 458, 459. 
 
 V. Smith, 207, 218, 231, 247. 
 Androscoggin Bridge Co. v. Bragg, 
 
 28, 35. 
 Angell V. Duke, 186, 350, 423, 425. 
 Ann Berta Lodge v. Lenerton, 828. 
 Annan v. Morritt, 492. 
 Anon. (Dal. 74, pi. 58), 115. 
 
 (2 Dyer, 112 a, pi. 49), 82. 
 
 (Leon. 30, pi. 83), 116. 
 
 (1 Ld, Eayd. 182), 383. 
 
 (Salk. 519), 138. 
 
 (1 Salk. 280), 314, 468, 483. 
 
 (3 Salk. 223), 26, 27. 
 
 (5 Yin. Abr. pi. 38), 863. 
 Anstey v. Marden, 196, 225, 227, 229, 
 
 268. 
 Anthony v. Haney, 23. 
 
 ■u. Leftwych, 835. 
 
 V. Wheatons, 638. 
 Antonio v. Clissey, 156, 216, 231, 240. 
 Apgar V. Finney, 550. 
 
 Apgar V. Hiler, 160, 292. 
 Appleton V. Bancroft, 620, 627. > 
 Arbuckle v. Hawks, 151, 156,206,211, 
 
 216, 221. 
 Archbold v. Lord Howth, 839. 
 Archer v. Baynes, 660, 711, 730, 732. 
 Arden v. Rowney, 205, 281. 
 
 V. Sullivan, 46, 48, 66. 
 Argeubright v. Campbell, 320, 337, 
 
 772, 854, 878. 
 Argus Co. V. Albany, 652, 666, 669, 
 
 675. 
 Arkwright, ex parte, 454. 
 Armington v. Houston, 624. 
 Armstrong v. Baldwin, 198. 
 
 V. Mora, 156, 214. 
 
 V. Katterhorn, 835. 
 
 o. LawBon, 359, 361, 363. 
 
 V. Vroman, 457, 460, 729. 
 Arnold v. Delano, 631. 
 
 V. Stedman, 154, 160, 260. 
 Arnot V. Erie R. R. Co., 171. 
 Arrington v. Larrabee, 8, 19, 30. 
 
 V. Porter, 762, 826. 
 Artcher v. Zeb, 395, 484, 498, 518, 521, 
 
 523, 525. 
 Arthur v. Midland Railway Co., 807. 
 Arundale v. Gray, 115. 
 Arz V. Grove, 854. 
 Ashcroft V. Morrin, 680, 734. 
 Ashford v. Robinson, 61, 210. 
 Ashley v. Warren, 49. 
 Ashman v. Williams, 26. 
 Ashmore v. Evans, 493, 877. 
 Ashton V. Dalton, 443, 449. 
 
 V. Lord Langdale, 393, 396. 
 Astey V. Emery, 614. 
 Aston V. Wood, 806. 
 Atherton v. Newhall, 558, 574, 607, 
 
 612, 615, 641. 
 Atkin V. Young, 832. 
 Atkins V. Hill, 148. 
 Atkinson, in re, 445. 
 Atkinson v. Bell, 529, 533, 534, 535, 
 
 536. 
 Attorney General v. Cox, 134. 
 
 V. Day, 457, 822, 832, 856. 
 
 u. Dean and Can. of Windsor, 
 806. 
 
 V. Sitwell, 856. 
 Atwater v. Hough, 550, S53. 
 Atwell V. Miller, 637. 
 Atwood V. Cobb, 663, 680, 684, 686, 
 765. 
 
 V. Fox, 463, 480. 
 
TABLE OF CASES. 
 
 vu 
 
 Atwood V. Lucas, 578, 574. 
 
 V. Norton, 463, 464, 497. 
 Auer V. Penu, 95. 
 AufEman v. Stark, 45. 
 Austen v. Baker, 213, 218. 
 
 V. Bewley, 143. 
 Austin V. Burbank, 439. 
 
 V. Sawyer, 352, 353, 360, 377, 384. 
 Aveline v. Whisson, 44. 
 Avery v. Baum, 421. 
 
 V. Halsey, 293. 
 AylifEe o. Tracy, 317, 330, 670, 716, 
 
 716. 
 Ayres v. Herbert, 162. 
 
 B. 
 
 Baba v. Richmoiid, 421. 
 Babbett v. Young, 723. 
 Babcock v. Meek, 876. 
 Babcock v. Stanley, 638. 
 
 V. Terry, 294. 
 
 V. Utter, 10. 
 Bach V. Owen, 518, 520, 602. 
 Back V. Andrews, 810, 814. 
 Backus V. Clark, 151, 211, 221. 
 Bacon v. Brown, 104. 
 
 V. Daniels, 713. 
 
 V. Eccles, 572, 580, 642. 
 Badeley v. "Vigurs, 121. 
 Bagley v. Moulton, 278. 
 
 V. Sasser, 174. 
 Baigg V. Brooks, 208. 
 Bailey v. Ackerman, 705. 
 
 V. Bensley, 752. 
 
 c. Delaplaine, 104, 106. 
 
 u. Freeman, 172. 
 
 V. Harris, 624. 
 
 V. Jones, 421. 
 
 V. Ogden, 61, 576, 621, 631, 638, 
 647, 689, 770, 773. 
 
 V. Eutjes, 284. 
 
 V. Sweeting, 647, 649, 650, 653, 
 660, 695, 702. 
 
 V. Wells, 831 
 Bainbridge v. Wade, 181, 750. 
 Baines v. Ewing, 788. 
 
 V. Jevons, 575, 585. 
 Baker, in re, 444. 
 
 V. Bourcicault, 555. 
 
 V. Cuyler, 621. 
 
 V. Dillman, 160. 
 
 V. Glass, 843. 
 
 V. HoUobough, 854. 
 
 Baker v. IngersoU, 178. 
 
 V. Jameson, 876. 
 
 V. Pratt, 97, 104. 
 
 V. Reynolds, 45. 
 
 ... Scott, 429. 
 
 .-. Sutton, 393. 
 
 o: Willoughby, 117. 
 
 V. Wimpee, 439. 
 Baldey v. Parker, 510, 597, 598, 600, 
 
 619, 620, 623, 642. 
 Baldwin v. Breed, 26. 
 
 V. Kerlin, 684. 
 
 „. Palmer, 428, 434. 
 
 r. Williams, 395, 503. 
 Ball V. CuUimore, 48. 
 
 ■V. Dunsterville, 45. 
 Ballard v. Bond, 410. 
 
 V. Walker, 663, 764. 
 Balliet v. Scott, 160, 196, 209. 
 Ballingall v. Bradley, 648, 714, 762. 
 Ballou V. Hale, 419. 
 Baltzer v. Nicolay, 158, 728. 
 Bambier v. Savage, 723, 780, 783. 
 Bampton v. Paulin, 154, 269. 
 Banchor w. Warren, 640. 
 Bane's Case, 148. 
 Bank v. Eccles, 765. 
 Bank of Lansingburg v. Crary, 368, 
 
 403, 440. 
 Bankart v. Tennant, 10, 834. 
 Banker v. Allen, 60. 
 Bankhardt v. Houghton, 23. 
 Banks v. Crossland, 150, 472, 485. 
 Bankworth v. Young, 150. 
 Bannon v. Bean, 410. 
 
 V. Urton, 406. 
 Baptist Church v. Bigelow, 723, 726. 
 Barber v. Fox, 141, 143, 144, 146, 173, 
 
 206, 206. 
 Barclay v. Bates, 723. 
 Barker v. Birt, 208, 270. 
 
 u. Borzone, 752. 
 
 V. Bradley, 234, 251. 
 
 V. Bucklin, 198, 201, 209, 233, 234, 
 250. 
 
 V. Guillard, 272. 
 
 V. Seudder, 299. 
 Barkworth v. Young, 334, 649, 700, 
 
 803, 855, 877. 
 Barlow v. Myers, 233. 
 
 V. Rhodes, 6. 
 
 V. Wainwright, 53. 
 Barnard v. Cave, 865, 867. 
 
 I;. Pumfrett, 137, 147, 148. 
 
 V. Whipple, 422. 
 
Till 
 
 TABLE OP CASES. 
 
 Barnes v. Barnes, 22, 25, 360. 
 
 V. Boston & Maine R. E. Co., 819. 
 
 V. League, 878. 
 
 V. Pevine, 351. 
 Barney v. Ball, 479, 480. 
 
 V. Brown, 009. 
 
 V. Patterson, 458, 461, 729. 
 Barrack v. McCulIoch, 812. 
 Barrel! v. Trussell, 173, 208, 270. 
 Barrett v. Goddard, 630, 631. 
 
 V. Hyndman, 268. 
 
 o. McHugh, 164, 165, 216. 
 
 V. Eolph, 74. 
 Bafrickman v. Kuykendall, 428, 432, 
 
 433, 655, 656, 678. 
 Barringer v. Warden, 161, 209, 211. 
 Barrs v. Eewkes, 806. 
 Barry v. Coombs, 648, 655, 684, 714, 
 779. 
 
 V. Law, 677, 688, 770, 773, 779. 
 
 V. Ransom, 160, 198, 235, 293. 
 
 V. Rush, 138, 139, 140. 
 Barstow v. Gray, 663, 666, 764, 765. 
 Bartlett v. Downs, 132. 
 
 a. Pickersgill, 808, 809. 
 
 V. Pumell, 781. 
 
 V. Wheeler, 427, 434, 495, 497. 
 Bartow v. Cox, 48, 49, 54. 
 Bash V. Bash, 427. 
 Baskett v. Cafe, 857. 
 Bason v. Hughart, 171. 
 Bass u. Walsh, 571, 626, 632. 
 Bassett v. Camp, 626. 
 Bassford v. Pearson, 407, 652. 
 Bassler v. Mesly, 826. 
 Bateman v. Phillips, 178, 213, 670, 681, 
 
 688, 751. 
 Bates ?;. Chesboro, 521. 
 
 r. Coster, 538, 539, 543. 
 
 V. Moore, 494. 
 
 V. Starr, 172, 216. 
 Batsford v. Morehouse, 412. 
 Batson v. liing, 206, 274, 287, 291. 
 Batstone v. Salter, 807, 812. 
 Battersbee v. Harrington, 337. 
 Batturs v. Sellers, 649, 656, 772. 
 Baumann v. James, 697, 702, 704, 705, 
 
 708, 739, 850. 
 Baumgarten v. Fowler, 553. 
 Bawdes v. Amhurst, 61, 316, 773. 
 Baxendale v. Seale, 870. 
 Baxter v. Brown, 396. 
 Bayley v. Boulcott, 799. 
 
 u. Pitzmaurice, 718. 
 
 u. M. of Conyngham, 7. 
 
 Eaynard v. Wooley, 447, 451. 
 Beach v. Allen, 351, 402. 
 
 V. Hungerford, 151. 
 Beaden v. Pyke, 78. 
 Beal V. Brown, 158, 424. 
 
 V. Sanders, 50, 56, 66, 68. 
 Beall V. White, 105, 106. 
 Beaman v. Eusaell, 160, 198, 235, 292, 
 
 298. 
 Beard v. Converse, 875. 
 
 0. Liticum, 846. 
 Beardman v. Wilson, 75. 
 Beardslee v. Morgner, 233. 
 Bearshears v. Eowe, 209. 
 Beatson v. Nicholson, 854. 
 Beatty v. Grim, 229, 290. 
 Beaumann v. James, 718. 
 Beaumont v. Brengeri, 587, 630, 634. 
 
 V. Carter, 332. 
 Beckford v. Beckford, 811. 
 Beckwith v. Talbot, 647, 654, 703, 705, 
 
 706, 709, 742, 776. 
 Bedford v. Terhune, 110, 132. 
 Bedinger v. Whittemore, 432. 
 Beebe v. Moore, 171. 
 Beecher v. Major, 807, 808. 
 Beer u. London & Paris Hotel Co., 
 
 688, 690, 692, 693, 765, 781. 
 Beers v. Crowell, 395, 503. 
 Bees V. Williams, 97, 102, 127. 
 Beeston v. Collyer, 466, 472, 485. 
 Belcher v. Costello, 308. 
 Belknap v. Bender, 278, 279. 
 Bell V. Bruen, 846. 
 Bell V. Elliott, 22. 
 
 V. Hewitt, 470, 484. 
 
 ». Howard, 747. 
 
 V. Thompson, 409. 
 
 V. Warren, 846. 
 
 V. Welch, 181. 
 Bellamy v. Burrow, 803. 
 
 V. Ragsdale, 435. 
 Bellasis v. Compton, 798, 800, 808. 
 Beller v. Black, 566. 
 Belt V. Marriott, 562. 
 Beubow V. Townsend, 799, 800, 808. 
 Benecke v. Chadwick, 734. 
 Benedict v. Beebe, 351, 359, 369, 402, 
 403. 
 
 V. Benedict, 29, 35, 41. 
 
 V. Dunning, 151, 223. 
 Benford v. Schell, 639. 
 Bennett v. Blain, 393, 396. 
 
 I/, Brumfitt, 770. 
 
 V. Carter, 726. 
 
TABLE OF CASES. 
 
 IX 
 
 Bennett v. Hull, 542. 
 
 V. Ireland, 52, 66. 
 
 V. Lent, 359. 
 
 V. Nye, 537. 
 
 V. Scott, 360, 369. 
 
 V. Sims, 624. 
 Bennett's Case, 83. 
 Bennett's Settlement Trust, 808. 
 Benson v. Walker, 204. 
 Bent V. Cobb, 721, 781, 783. 
 Bentall v. Burn, 585, 626, 628, 639. 
 Bentham v. Cooper, 179. 
 Bentley v. Mackay, 808. 
 Benton v. Pratt, 306. 
 Benzlger v. Miller, 649. 
 Berkeley v. York, 103, 118. 
 Berkley v. R. & S. R. R. Co., 609. 
 Berkshire v. Young, 240. 
 Bemal v. Hoyious, 352, 384. 
 Bernard v. Bonner, 119, 124. 
 Bernier v. Cabot Mf'g Co., 471. 
 Berrey v. Lindley, 47, 51, 66, 69, 70. 
 Berrisford ti . Milward, 332. y 
 Berry v. Doremus, 172, 195, 209, 240, 
 
 469, 494. 
 Besar v. Flues, 45. 
 Bessell v. Landsberg, 84 93, 94, 107, 
 
 112, 118, 120, 126. 
 Besshears v. Rowe, 160, 245. 
 Bethel Steam Mill Co. v. Brown, 638. 
 Bicknell v. Bicknell, 442. 
 Bidden v. Leeder, 186. 
 Biddle v. Ash, 6. 
 Biddulph V. Poole, 96, 108, 124. 
 Bigelow V. Huntley, 624. 
 Bigg V. Strong, 787. 
 
 V. Wheeling, 598. 
 Bill V. Bament, 568, 585, 597, 620, 621, 
 
 623, 628, 649, 704. 
 Billingsley v. Dempewolf, 155, 203, 
 
 216, 233, 290. 
 Bingham v. Sprague, 51. 
 Binney v. Ince Hall Coal Co., 445. 
 Binstead v. Coleman, 862. 
 Birch V. Earl of Liverpool, '485, 494. 
 
 V. Wright, 56. 
 Birchard v. Booth, 233. 
 Birchell v. Neaster, 184, 211. 
 Bird V. Blosse, 190,' 319, 653, 702, 731, 
 764. 
 
 V. Boulter, 781, 783, 787. 
 
 V. Defonvielle, 46. 
 
 V. Gammon, 207, 274, 275, 276, 
 286. 
 
 o. Gt. Eastern R. R. Co., 18. 
 
 Bird V. Higginson, 7, 28. 
 
 fc. Muhlenbrink, 550, 553. 
 
 V. Munroe, 649, 658, 704. 
 
 ■u. Riehdrdson, 680. 
 Birkmyr v. Darnall, 151, 159, 160, 
 
 206, 218, 272. 
 Bisdee, ex parte, 444. 
 Bishop V. Bishop, 369.- 
 Bishop of Rochester v. Bridges, 117. 
 Bissell V. Balcom, 521. 
 Bissig V. Britton, 292, 293. 
 Blachford v. Ifirkpatrick, 823. 
 Black V. Black, 423. 
 Blackburn v. Mann, 497. 
 Blackford v. Plainfield Gas Co., 257. 
 Blacknall v. Pariah, 782. 
 Blacknell v. Plowman, 132. 
 Blagden v. Bradbear, 456, 457, 699, 
 
 716, 730, 857, 878. 
 Blair v. Smith, 421. 
 Blair &c. Land Co. v. Walker, 247, 
 
 466, 483. 
 Blaisdell v. Portsmouth &c. R. R. Co., 
 
 88. 
 Blake v. Blake, 817. 
 
 ■- . Cole, 198, 292, 469, 481, 484, 485. 
 
 V. Jerome, 27. 
 
 V. Parlin, 194, 216. 
 Blakeney v. Ferguson, 839. 
 
 V. Goode, 469, 497. 
 Blakey v. Dinsdale, 518, 519. 
 Blanchard v. Child, 624. 
 
 ^. Detroit &c. R. R., 845. 
 
 V. Weeks, 466, 480, 484, 497. 
 Blanding v. Sargent, 466, 467, 479, 
 
 484, 495. 
 Blank v. Dreher, 161. 
 Blanton v. Knox, 494. 
 Bleakley u. Smith, 60, 682, 684, 772, 773. 
 Bleecker v. Franklin, 725. 
 Blenkinsop v. Clayton, 519, 585, 618. 
 Bligh V. Brent, 393. 
 Bliss V. Thompson, 348, 414. 
 Blodgett V. Lowell, 216, 309. 
 Blood V. Goodrich, 754. 
 
 „: Hardy, 348, 779, 782. 
 
 w. Keller, 11. 
 Bloom V. McGrath, 169, 204, 205, 217. 
 Bloomer v. Merrill, 100. 
 Blore V. Sutton, 61, 783, 787, 832, 846. 
 Blount V. Hawkins, 206. 
 Blow V. Maynard, 337. 
 Bluck V. Gompertz, 678. 
 Blunt I!. Tomlin, 836. 
 Blyer v. MulhoUand, 235. 
 
TABLE OF OASES. 
 
 Boardman v. Cutter, 395, 503. 
 
 V. Mostyn, 826, 846, 848. 
 
 .,. Spooner, 557, 571, 614,626,627, 
 641, 654, 702, 703, 709, 726, 
 737, 752, 769, 770. 
 Bock V. Healy, 669. 
 Boehm v. Campbell, 179. 
 Bog Lead Mining Co. v. Montague, 
 
 561, 566, 603, 667. 
 Bogert V. Dean, 83. 
 Bogie V. Bogie, 412. 
 Bohannon v. Jones, 290. 
 Bolckow V. Seymour, 743, 746. 
 Bold V. Hutchinson, 327. 
 
 V. Raynor, 739, 750. 
 Bolton V. Bishop of Carlisle, 90. 
 
 V. Lancashire Railway Co., 608. 
 
 V. Tomlin, 52, 436. 
 Bomier v. Caldwell, 839. 
 Bond V. Hopkins, 820. 
 
 V. Rosling, 63. 
 Bone V. Pollard, 816. 
 Bonine v. Denniston, 205. 
 Booker v. Tally, 215. 
 Boone v. Storer, 16. 
 Booth V. Eighmie, 156, 195, 214. 
 
 f. Heist, 284. 
 
 o. Turle, 853. 
 Borat V. Carey, 337. 
 Borchsensius v. Canutson, 225. 
 Borrett v. Gomserra, 826. 
 Borrodaile, ex parte, 451. 
 Borron, in re, 455. 
 Borrowman v. Free, 601. 
 Borrowscale v. Bosworth, 578. 
 Bosford V. Pearson, 425, 429. 
 Boson V. Stathara, 799. 
 Bostock' V. Jardine, 788. 
 Boston V. NichoUs, 874. 
 Boston Duck Co. v. Dewey, 875. 
 Bostwick V. Leach, 349, 359, 362, 402, 
 
 407. 
 Botsford V. Morehouse, 92. 
 Bott V. Burnell, 729. . 
 Botting V. Martin, 74, 102. 
 Boult, in re, 445. 
 Boulter v. Arnott, 597. 
 Boulton, ex parte, 445. 
 Bourgeoise v. Blank, 419. 
 Bourland v. County of Peoria, 655. 
 Bovy's Case, 337. 
 Bowen i>. Kurtz, 277. 
 
 V. Morris, 663. 
 Bowens v. Anderson, 571. 
 Bowerhank v. Monteiro, 148. 
 
 Bowerman v. Sybourn, 132. 
 Bowers v. Cator, 826, 875. 
 
 V. Bowers, 359, 362. 
 Bowery v. Oystfer, 443. 
 Bowes V. Pontifex, 572, 605. 
 Bowlby V. Bell, 393, 503. 
 Bowman v. Com, 385, 513. 
 
 V. Stilwell, 843. 
 Box V. Stanford, 434. 
 Boyce v. Green, 396, 691, 709. 
 
 V. McCuUoeh, 95. 
 
 „. Owens, 154, 162, 260. 
 
 V. Washburn, 356, 359, 369, 383. 
 Boyd V. Croydon Ry. Co., 308. 
 
 V. Graves, 420, 421. 
 
 V. Moyle, 173, 176, 181. 
 
 V. Stone, 437. 
 Boydell v. Drummond, 463, 473, 475, 
 477, 478, 485, 487, 496, 709,737. 
 Boyers v. Elliott, 423. 
 Boykin v. Dohlonde, 194. 
 
 K. Smith, 460. 
 Boynton v. Veazie, 626, 638. 
 Boys V. Hyerst, 735, 765. 
 Bozon V. Williams, 443, 451. 
 Brabin v. Hyde, 506, 523, 526, 571. 
 Bracegirdle <;. Heald, 465, 472, 474, 
 
 485, 486, 487, 495. 
 Brackett v. Evans, 407, 425. 
 Bradford v. Roulston, 650, 669. 
 Bradley v. Blodgett, 408. 
 
 V. Gill, 6. 
 
 V. Heath, 146. 
 
 V. Holdsworth, 393, 503. 
 
 V. Richardson, 302. 
 
 V. Wheeler, 568. 
 Bradshaw v. Thomas, 624. 
 Brady v. Hauahy, 526. 
 
 V. Oastler, 743. 
 
 V. Peiper, 83. 
 
 V. Stackrider, 155, 262. 
 Bragg V. Cole, 436. 
 Braksley v. Sharp, 6. 
 Branch v. Doane, 26. 
 
 V. Palmer, 752. 
 Brand v. Focht, 570, 571, 621. 
 Brandao v. Barnett, 791, 795. 
 Brander v. Boles, 450. 
 Brandon v. Calvert, 132. 
 Brasher v. Cortland, 458. 
 Btayley v. Kelly, 770. 
 Braythwayte v. Hitchcock, 47, 48, 52. 
 Breed v. Hillhouse, 173. 
 Breese v. Bangs, 119. 
 Brennan v. Bolton, 836. 
 
TABLE OF CASES. 
 
 XI 
 
 Brenner v. Brenner, 315. 
 
 Brent v. Green, 457, 458, 460, 726, 781. 
 
 Bresler v. Pendell, 161, 194, 221. 
 
 Brettel v. Williams, 764. 
 
 Brewer v. Boston &c. 11. R. Co., 421. 
 
 V. Dyer, 232. 
 
 v. Wilson, 846. 
 Brewster v. Parrot, 117. 
 
 V. Silence, 299. 
 
 V. Taylor, 571. 
 Brian v. Salter, 146. 
 Brice v. King, 199. 
 Bricker v. Hughes, 386. 
 Bridge v. Bridge, 803. 
 Bridge Co. v. Bragg, 22. 
 Bridges v. Blanchard, 6. 
 
 V. Duke of Chandos, 132. 
 
 V. Purcell, 21, 30, 37, 38, 40, 400. 
 Briggs V. Evans, 155, 211, 216, 219, 
 257. 
 
 V. Munchon, 654; 709. 
 
 V. P^tridge, 796. 
 Bright V. Bright, 827. 
 
 V. McQuat, 58. 
 Brightman v. Hicks, 153, 259, 260. 
 Brisker v. Hughes, 352, 384. 
 Britain v. Thraikill, 195, 211, 214. 
 British Empire Mutual Life Assur- 
 ance Co. V. Browne, 766. 
 British Ins. Co. v. Commissioners of 
 
 Texas, 308. 
 Britton v. Angier, 198, 245. 
 Brizeck v. Manners, 450. 
 Broadbent, ex parte, 455. 
 Broadwell v. Getman, 434, 466, 468, 
 
 474, 475. 
 Brock V. Cook, 839. 
 Brockway v. Thomas, 45. 
 Brodie v. St. Paul, 671, 712, 716, 749. 
 Bromley v. Stanley, 108, 117, 123. 
 Bronson v. Shroud, 161. 
 
 V. Wyman, 543. 
 Brook V. Goring, 122. 
 Brooklyn Oil Refinery v. Brown, 650. 
 Brooks !). Haigh, 180, 181. 
 Broom v. Batchelor, 175, 180, 181. 
 Broughton v. Griffin, 65. 
 
 17. Hutt, 872. 
 Brown v. Allen, 550. 
 
 V. Atwood, 277. 
 
 V. Barnes, 153, 876. 
 
 V. Bellows, 647, 843. 
 
 V. Bowen, 20, 22. 
 
 V. Bradshaw, 155, 262. 
 
 V. Brown, 198, 200, 245, 350, 821. 
 
 Brown v. Burtinshaw, 94, 96. 
 
 V. Bussey, 174. 
 
 V. Conger, 315, ,322. 
 
 V. Curtis, 156, ^65, 298. 
 
 V. Finney, 846. 
 
 V. Poster, 752. 
 
 V. George, 151, 211, 221, 233. 
 
 V. Hall, 630. 
 
 V. Hazen, 195, 211, 214, 245. 
 
 u. Jones, 836. 
 
 V. Morris, 351, 367, 423. 
 
 V. Sanborn, 513. 
 
 V. Strait, 209. 
 
 V. Symons, 489. 
 
 V. Wadsworth, 19. 
 
 V. Weber, 155, 223, 245, 253. 
 
 V. Whipple, 688, 689, 705, 742. 
 
 V. Wiman, 532. 
 
 V. Woodworth, 15, 34. 
 Browne ». Warner, 70. 
 Browning v. Stallard, 208, 275, 285. 
 Brownson v. Crosby, 439. 
 Bruce, ex parte, 450. 
 
 u. Burr, 298, 299, 301. 
 
 v. Hastings, 423. 
 Brumfield v. Karson, 666. 
 Brunton v. DuUens, 178, 230. 
 Brush V. Carpenter, 289, 290, 291, 293. 
 Bryan v. Hunt, 754. 
 
 I/. Johnson, 414. 
 
 V. Whistler, 6, 9, 22, 28. 
 Bryant t;. Crosby, 352, 359, 384, 506. 
 Bryson v. Peak, 873. 
 Buchanan v. Logansport &c. R. R. 
 Co., 16, 35. 
 
 V. Paddleford, 196, 199, 209. 
 Buck V. Hurst, 425. 
 
 V. Pickwell, 352, 358, 359, 362, 506, 
 669, 678, 714. 
 Buckingham v. Osborne, 559, 560, 607. 
 Buckley v. Beardslee, 61. 
 Buckmaster v. Harrop, 456, 72.3, 727, 
 823, 832. 
 
 V. Russell, 696. 
 
 V. Smith, 624. 
 
 V. Thompson, 844, 845. 
 Budd V. Thurber, 240. 
 Buell V. Miller, 758. 
 Bugbee v. Kendrickson, 205. 
 Bulfin V. Dunne, 450. 
 Bull V. McCrea, 466, 467, 469, 470. 
 
 V. Grissey, 352. 
 
 V. Griswold, 384, 506. 
 BuUard v. Wait, 620. 
 Bullion V. Campbell, 411. 
 
xu 
 
 TABLE OF CASES. 
 
 Bullock V. Lloyd, 296. 
 Bulmer v. Norris, 393, 396. 
 Bult V. Morrell, 769. 
 Bulteel, ex parte, 450. 
 Bumford v. Purcell, 162, 
 Bunnell v. Tainter, 423. 
 Bunting v. Darbyshire, 156, 173. 
 Bunton v. Smith, 65. 
 Burdett v. Wright, 132. 
 Burges v. Wiekham, 746. 
 Burgess v. Moxon, 447. 
 Burke v. Creditors, 844; 
 
 V. Haley, 726, 781, 874. 
 Burkhalter v. Farmer, 216, 218. 
 Burkham v. Maston, 870. 
 Burkhill, in re, 447. 
 Burlingame v. Burlingame, 405, 429, 
 
 489. 
 Burn V. Phelps, 134. 
 Burnard v. Nerat, 494. 
 Burnet v. Dougherty, 414. 
 Burney v. Ball, 466, 469. 
 Bumham v. Hubbard, 104. 
 Bums V. Lynde, 45. 
 
 „. Sutherland, 846. 
 Burnside v. Merrick, 423. 
 Burr V. Beers, 235. 
 
 V. Wilcox, 154, 160, 196, 254, 260. 
 Burt V. Wilson, 854, 878. 
 Burton v. Barclay, 76, 86. 
 
 V. Curyea, 626. 
 
 V. Reevell, 46, 63. 
 
 V. Scherff, 7. 
 Bush V. Cole, 722. 
 
 V. Holmes, 559, 573, 574. 
 
 V. Sprague, 309. 
 Bushell V. Allen, 156, 194, 309. 
 
 V. Beavan, 190. 
 
 V. Wheeler, 502, 576, 584, 605, 615. 
 Bushnell v. Passmore, 412. 
 Buskirk v. Cleaveland, 526. 
 Bussell V. Gallagher, 419, 420. 
 Butcher v. Stapely, 826. 
 
 V. Stewart, 180, 207, 214, 275, 749. 
 Butler V. Thompson, 788, 790. 
 Butterfield v. Hartshorn, 276. 
 Buttermere „. Hayes, 350, 399, 412, 
 
 875. 
 Butters v. Glass, 790. 
 Buxton V. Lister, 370. 
 
 V. Eust, 60, 652, 654,669,695,705, 
 709, 710, 742. 
 Byasse v. Reese, 351, 362, 363, 383, 
 
 597. 
 Byrd v. Odem, 839. 
 
 Oaballero v. Slater, 182. 
 Cabot V. Haskins, 312, 495, 773. 
 V. Winsor, 663, 738, 744. 
 Cabot Bank v. Morton, 308. 
 Caddick v. Skidmore, 422, 718. 
 Cadle V. Moody, 128, 133. 
 Cadwalader v. App, 685. 
 Cady V. Quarterman, 66. 
 Cagger v. Lansing, 827. 
 Cahill V. Bigelow, 15, 148, 155, 158, 
 
 194, 219, 262. 
 Cailleux v. Hall, 198. 
 Cain V. McGuire, 351, 362, 363, 383, 386. 
 Calder v. Dobell, 753. 
 Caldwell v. McKain, 174. 
 Calhoun v. Hays, 420. 
 Calkins v. Chandler, 233, 243, 246. 
 
 V. Falk, 648, 689. 
 
 V. Lockwood, 571, 631, 638. 
 Callaghan v. Callaghan, 870. 
 Callis V. Bothamley, 507, 668. 
 Calverley v. Williams, 869. 
 Calvin v. Williams, 395, 503. 
 Cameron v. Clark, 240. 
 
 V. Spiking, 689. 
 Campbell v. Campbell, 434. 
 
 V. Eindley, 162, 199, 235. 
 
 «. Smith, 236. 
 Cannan v. Hartley, 92, 93, 106, 135. 
 Cannel v. Buckle, 317, 716. 
 Caperton v. Gray, 162, 194. 
 Card V. Jaffray, 680, 767. 
 Cardell v. McNiel, 298, 299, 301. 
 Carlisle v. Cooper, 6. 
 Carlton v. Redington, 8, 15. 
 Carmack v. Masterton", 684. 
 Carpenter v. Galloway, 513. 
 
 V. United States, 48. 
 Carr v. Benson, 17. 
 
 V. Dooley, 407. 
 
 V. Passaic Land &c. Co., 680, 846. 
 Carraway v. Andersen, 876. 
 Carrington v. Roots, 42, 353, 384, 887, 
 
 491, 652. 
 Carroll v. Cowell, 717. 
 
 V. Powell, 456, 461. 
 Carstrike v. Mason, 56. 
 Carter, in re, 453. 
 
 V. Brown, 479, 492. 
 
 V. Hamilton, 658, 714. 
 
 u. Harlan, 9, 15, 30, 32, 34, 36. 
 
 V. Thomas, 140. . 
 
 V. Touissant, 619, 620, 621, 635. 
 
TABLE OF CASES. 
 
 jdii 
 
 Carter v. "Willard, 620. 
 Carton v. Moss, 153. 
 Cartwright v. Pinkney, 83, 124. 
 Carver v. Lane, 674. 
 Carville v. Crane, 155, 219, 262. 
 Carey v. Rawson, 442. 
 Carey v. Ins. Co., 22. 
 
 V. Whitney, 420. 
 Casler i>. Thompson, 839. 
 Cason V. Chesley, 537, 550, 551. 
 Cass ('. Waterhouse, 708. 
 Cassell V. Collins, 351, 402. 
 Casslt V. Hobbs, 703. 
 Castle V. Bcjardsley, 61. 
 
 V. Sworder, 671, 578, 616, 621, 636. 
 Castleman v. Harnish, 169. 
 Castling v. Aubert, 152, 196, 208, 226, 
 
 227, 228, 267, 303. 
 Caston V. Moss, 162. 
 Castro V. lilies, 437. 
 Catlett V. Bacon, 826. 
 Catlin V. Gratz, 457. 
 Caton V. Caton, 316, 322,326, 330, 331, 
 
 415, 768, 774. 
 Caulkins v. Hellman, 558, 662, 570, 
 571, 578, 587, 595, 596, 609, 
 612, 614, 681, 750. 
 Causton v. Chapman, 512. 
 Cave 1/. Hastings, 650, 663, 655, 695, 
 
 696, 704, 705, 739. 
 Cawthorne v. Cawdrey, 472. 
 Cawthors v. Carden, 487. 
 Cayuga R. R. Co. v. Niles, 19. 
 Chadbum v. Green, 56. 
 Chadwick v. Maden, 809. 
 Challoner v. Davis, 87. 
 Chamberlain y. Dunham, 52. 
 
 V. Ingalls, 247. 
 Chamberlaine's Case, 82. 
 Chambers v. Bedell, 27. 
 
 t,. Kelly, 681. 
 
 V. Leversadge, 145. 
 
 V. Massey, 875, 878. 
 Champion v. Doty, 216, 218, 233. 
 
 V. Plummer, 61, 666, 677, 691, 
 688, 779. 
 Champlin v. Parrish, 726, 875, 878. 
 Chandler v. Spear, 32. 
 Chapin v. Lapham, 156, 198, 289, 290, 
 292, 296, 304. 
 
 V. Merrill, 198, 290, 295. 
 
 V. Potter, 559, 560. 
 Chaplin v. Rogers, 366, 576, 584, 585, 
 
 617, 630, 632, 633, 639. 
 Chapma;n v. Bluck, 62. 
 
 Chapman v. Callis, 739. 
 
 V. Chapman, 447. 
 
 u. Morton, 685. 
 
 V. Ross, 160. 
 
 V. Searle, 627. 
 
 V. Sutton, 176. 
 
 p. Thumblethorpe, 27. 
 
 . . Towner, 47, 51, 62, 69, 70. 
 Chappel V. Marvin, 638, 639. 
 Chappell V. Dann, 723. 
 Charlewood v. Duke of Bedford, 717, 
 
 786, 838. 
 Chamley «. Hansbury, 846. 
 Chase v. Day, 194, 204, 216, 233. 
 
 V, Jefferson, 27. 
 
 0. Long, 19. 
 
 V. Lowell, 675. 
 
 V. Willard, 627, 631. 
 Chater v. Beckett, 184, 186, 229, 274, 
 
 487. 
 Chenery v. Dole, 419. 
 Cheney v. Cook, 174. 
 Cherry v. Heming, 44, 468, 473, 485, 
 
 497. 
 Chesapeake & Ohio Canal Co. </. 
 
 Young, 846. 
 Chessman v. Whittemore, 92, 412, 413. 
 Chester v. Dickinson, 422. 
 Chesterman v. McCosttin, 223. 
 Chetham 7). Williamson, 17. 
 Chetwood v. Britain, 854. 
 Cheveley v. Fuller, 730. 
 Chicago &c. Coal Co. <>. Liddell, 160, 
 
 220, 875. 
 Chicago Dock Co. k. Kenzie, 15, 158, 
 
 878. 
 Chichester v. Cobb, 771. 
 
 V. Vass, 320, 336. 
 Chidister v. Springfield &c. R. R. Co., 
 
 846. 
 Child V. Comber, 663, 680. 
 
 V. Godolphin, 856. 
 
 V. Monins, 147. 
 
 V. Pearl, 314. 
 Childers v. Childers, 801, 803. 
 Chinnock v. Marchioness of Ely, 680, 
 
 731, 735. 
 Chippendale, ex parte, 464. 
 Chissum v. Dewes, 444. 
 Christie v. Simpson, 726. 
 Christmas v. Oliver, 98. 
 Christ's Hospital v. Budgin, 810. 
 Christy v. Courtenay, 812, 815. 
 Church V. Brown,' 705. 
 Church &c. v. Farron, 684, 824. 
 
XIT 
 
 TABLE OF CASES. 
 
 Clabaugh v. Byerly, 437. 
 Claggett V. ICllbourne, 422, 423. 
 Claflin V. Carpenter, 20, 351, 358, 359, 
 ' 361, 363, 383, 440. 
 
 V. Parm &e. Bank, 612. 
 Clancy v. Piggott, 213, 268. 
 Clapham v. Langton, 746. 
 Clapp V. Draper, 358. 
 
 V. Lawton, 199, 235, 240, 283. 
 
 V. Webb, 261. 
 Clark V. Baker, 752. 
 
 V. Bulmer, 504. 
 
 V. Burnham, 683. 
 
 V. Carpenter, 409. 
 
 V. Chamberlin, 654, 659, 682, 709. 
 
 „. Clark, 843. 
 
 V. Gondii, 414. 
 
 V. Draper, 639. 
 
 V. Duffy, 507. 
 
 V. Graham, 415, 506. 
 
 V. Hall, 154, 231, 233, 240. 
 
 V. Levi, 156, 304. 
 
 V. N. Y. Life Ins. Co., 657, 713. 
 
 V. Nichols, 538, 547. 
 
 V. Pendleton, 313, 469, 470, 479, 
 484, 485, 498, 499. 
 
 V. Schultz, 351,402. 
 
 V. Smaridge, 56. 
 
 V. Smith, 56. 
 
 V. Tucker, 523, 562, 570. 
 
 V. Vt. Cent. K. R. Co., 24, 25. 
 
 V, Wright, 575. 
 Clarke v. Callaw, 874. 
 
 V, Davidson, 405. 
 
 V. Fuller, 60, 61, 656, 718. 
 
 V. Grant, 858, 861, 863, 866, 868. 
 
 V. Marriatt, 578. 
 
 V. Eeilly, 839. 
 
 V. Eussel, 162. 
 Clason V. Bailey, 661, 663, 666, 725, 
 
 764, 769. 
 Clavering's Case, 830. 
 Clay V. Rufford, 866. 
 
 V. Walton, 161. 
 
 V. Yates, 529, 534, 535, 537, 550. 
 Clayton v. Andrews, 527, 529, 532, 533. 
 
 V. Blakely, 47, 50, 56. 
 Cleaveland v. Rogers, 409. 
 Cleaves v. Foss, 726, 780. 
 Clemay v. Piggott, 208. 
 Clemens v. Broomfield, 108. 
 Clement v. Durgin, 35, 36, 400, 402. 
 Clerk V. Wright, 670, 715, 716, 823. 
 Cleveland v. Williams, 640. 
 Cleverley v. Brett, 138. 
 
 Click V. McAffee, 156, 195, 214. 
 Clifford V. Luhriug, 216, 224. 
 Clinan v. Cooke, 44, 61, 684, 707, 712, 
 716, 730, 742, 743, 778, 821, 
 824, 826, 833, 846, 858, 863. 
 Clive V. Beaumont, 732. 
 Clopper V. Poland, 240, 264. 
 Close V. McCuUough, 83, 89. 
 Clouter, ex parte, 452. 
 Clowes V. Higginson, 859, 869. 
 Clute V. Carr, 9, 19, 30, 35. 
 Clymer v. De Young, 161, 211, 245, 
 
 246. 
 Coan V. Mole, 66. 
 Coard v. Holdemess, 806. 
 Coats V. Chaplin, 558, 643, 717. 
 Cobb V. Arundell, 641. 
 
 V. Fisher, 13, 20, 31. 
 
 V. Hall, 433. 
 Cobold V. Caxton, 553. 
 Coburn, ex parte, 21. 
 
 V. Elmwood, 420. 
 Cock V. Baker, 311, 313. 
 Cocker v. Cowper, 9, 22. 
 Cocking V. Ward, 84, 126, 348, 350, 
 
 397, 425. 
 Coddington v. Goddard, 663, 688, 738, 
 
 744, 745, 772, 788. 
 Codman v. Bailey, 778. 
 
 V. Winslow, 420. 
 Cody V. Cadwell, 494. 
 Coe V. Clay, 5. 
 
 V. Duffield, 176, 653, 702. 
 
 V. Hobby, 108, 109. 
 
 V. Turner, 92, 412. 
 Coffman v. Campbell, 752. 
 
 V. Hampton, 512. 
 Coggs V. Bernard, 163. 
 Cohen v. Piatt, 600. 
 Colbourn v. Dawson, 181, 751. 
 Colburn v. ToUes, 171. 
 Colby V. Norton, 421. 
 Coldham v. Showier, 181, 771, 772. 
 Cole V. Dyer, 182. 
 
 V. Potts, 824, 835. 
 
 V. Shurtliff, 174. 
 
 V. White, 823, 834. 
 Coleman v. Chester, 402. 
 
 u. Foster, 15, 31. . 
 
 V. Garrignes, 778. 
 
 V. Gibson, 605. 
 
 V. Maherly, 102. 
 
 V. Upcot, 190, 654, 663, 667, 690. 
 Colerick v. Hooper, 684, 844, 845. 
 Coles i>. Coles, 423. 
 
TABLE OF CASES. 
 
 XV 
 
 Coles V. Pack, 180. 
 
 V. Pilkington, 326, 820, 832, 839, 
 840. 
 
 V. Trecothick, 654, 699, 709, 720, 
 726, 728, 768, 778. 
 Colles V. Evanson, 80, 135. 
 Collier v. Coates, 432. 
 Collins, in re, 452. 
 
 V. Collins, 843. 
 
 V. Thayer, 432. 
 Collins Co. V. Marcy, 6, 19, 30. 
 Collinson i\ CoUinson, 814, 815. 
 CoUis V. Bothamley, 466. 
 Colman v. Eyles, 203, 230. 
 
 V. Packard, 411. 
 Colson V. Thompson, 843. 
 Colt V. Netterville, 394, 395. 
 
 V. Root, 151, 160, 196, 206, 209. 
 Com V. Rigney, 25. 
 Combe's Case, 45, 725. 
 Comes V. Lamson, 486, 490, 491. 
 Comfor^; v. Kierstead, 554. 
 Coming, ex parte, 442, 446, 452. 
 Commins v. Scott, 654, 684, 688, 692, 
 
 693. 
 Compton V. Martin, 480, 494. 
 Comstock V. Morton, 160, 292. 
 
 V. Smith, 624. 
 
 V. Ward, 463, 464, 473, 474, 485. 
 Cone V. Dudley, 413. 
 Conington v. Anderson, 726. 
 Conkey v. Hopkins, 160, 198, 289, 293. 
 Connally v. Kettlewell, 164, 194, 216, 
 
 218. 
 Connecticut &c. Ins. Co. v. Cleveland 
 
 &c. E. R. Co., 173. 
 Connelly v. Doe, 92. 
 Connerat v. Goldsmith, 156. 
 Connor v. Williams, 232. 
 Conradt v. Sullivan, 154, 199, 262. 
 Consociated &c. Society v. Staples, 246. 
 Converse v. Harzfeldt, 752. 
 Conway v. Starkweather, 58. 
 Cooeh V. Goodman, 4, 44. 
 Cood V. Cood, 850. 
 Cook V. Anderson, 663. 
 
 V. Barrett, 161, 209, 210. 
 
 V. Daggett, 428. 
 
 V. Elliott, 171. 
 
 V. Gwavas, 805. 
 
 V. Moore, 232. 
 
 ,/. Prigdon, 16, 21, 22, 28, 36, 37. 
 
 u. Steams, 13, 14, 15, 20, 21, 30, 
 35, 400. 
 Cooke, in re, 444. 
 
 Cooke V. Chapman, 637. 
 
 V. Millard, 5S0, 542, 543, 544, 545, 
 550, 551, 552. 
 
 V. Tombs, 184, 397, 609, 708, 823. 
 Cookes r. Maskall, 318, 332. 
 Coorabe, ex parte, 451, 452. 
 Coombs V. Bateman, 518, 522, 523. 
 
 V. Bristol &e. Exeter R. Co., 566, 
 678, 590, 603, 013. 
 Coon V. Smith, 421. 
 Cooper V. Bill, 626, 630. 
 
 V. Chambers, 153, 156, 195, 207, 214. 
 
 V. Dedrick, 174. 
 
 V. Elston, 527, 532, 533, 542, 574. 
 
 o. Hood, 687, 719, 847. 
 
 V. Phibbs, 871. 
 
 V. Smith, 660, 693, 701, 710, 732, 
 739, 741. 
 
 V. Worraald, 322, 336. 
 Coote V. Jecks, 446. 
 Cooth V. Jackson, 698, 823, 854, 857, 
 
 875. 
 Cope V. Williams, 435. 
 Copeland v. Gubbins, 133. 
 
 V. Watts, 90, 104, 132. 
 Copper &c. Co. u. Spencer, 411. 
 Coquard v. Union Depot Co., 257. 
 Coquillard v. Suydam, 877. 
 Corbet's Case, 117. 
 Corbett v. Cochran, 156, 206, 214, 215. 
 
 V. Norcross, 420. 
 Corbin v. McChesney, 246. 
 Corder v. Drakeford, 184. 
 Corkins i-. Collins, 154, 260. 
 Cormack v. Masterton, 787. 
 Corner v. Shew, 148. 
 Cornish r. Searell, 88. 
 
 V. Stubbs, 15, 25, 42. 
 Cornthwaite v. First National Bank, 
 
 140, 147. 
 Cosack V. Descourdes, 656. 
 Cothcart v. Kernahan, 781. 
 Cottee V. Richardson, 75. 
 Cotterell v. Stevens, 161, 210, 526. 
 Cotting I'. King, 877. 
 Cottington v. Fletcher, 803, 805, 856. 
 Cottrell V. Apsey, 504. 
 
 «. Hughes, 132, 183. 
 Couch V. Goodman, 485. 
 
 V. Meeker, 187. 
 Coughlin V. Knowles, 433. 
 Coulton V. Ambler, 357. 
 Coupland v. Maynard, 84. 
 Courtail v. Thomas, 89, 90, 103, 124. 
 Courtney, in re, 446. 
 
XVI 
 
 TABLE OP CASES. 
 
 Courtwright v. Leonard, 640. 
 
 V. Stewart, 543, 544. 
 Cousins V. Phillips, 86. 
 Coutourier v. Hastie, 206, 207, 209, 302, 
 
 303. 
 Cowden v. Gottgetreau, 155, 217, 353. 
 Cowen V. PhUlips, 63. 
 CowenhaTcn v. Howell, 263. 
 Cowie V. Kemfry, 794. 
 'Cowles V. Bawne, 844. 
 
 V. Marble, 414. 
 
 V. Warner, 500. 
 Cowley V. Watts, 682, 687, 730. 
 Cpx V. Bray, 411. 
 
 V. Burt, 51, 52. 
 
 V. Cox, 832. 
 
 V. Middleton, 718. > 
 
 u. Peeble, 438. " 
 
 V. Weller, 278. 
 Coziue V. Graham, 854, 875. 
 Crahb v. Crabb, 800, 814, 816. 
 Crabs v. Fetick, 26. 
 Crabtree v. Welles, 433. 
 Crackwell v. Owerell, 56. 
 Craddock v. Eiddlesburger, 377. 
 Craig V. Godfrey, 781. 
 
 V. Van Pelt, 424. 
 Cram v. Fitch, 209. 
 Crampton v. Varna Railway Co., 831. 
 Crane v. Bullock, 156, 172, 178. 
 
 t). Gouch, 424. 
 
 w. Powell, 710. 
 Cranston v. Smith, 876. 
 Craske v. Christian Union Publishing 
 
 Co., 66. 
 Cravener v. Bowser, 412. 
 Cravens v. Kiser, 409. 
 Crawford v. King, 154, 260, 263, 290. 
 
 V. Morrell, 186. 
 
 V. Woods, 158, 878. 
 Crawshay v. Maule, 423. 
 Creagh v. Blood, 97, 98, 103, 129, 
 
 130. 
 Creech v. Crochett, 51. 
 Creel v. Bell, 153, 161, 209, 210. 
 Cresswell v. Wood, 289. 
 Crira V. Fitch, 196. 
 
 Cripps V. Hartnoll, 198, 274, 287, 291. 
 Crocker v. Cowper, 6. 
 Crockett v. Scribner, 546, 553. 
 Croft V. Smallwood, 217. 
 Crofts V. Beale, 173. 
 Cromeliu v. Thiess, 48, 51. 
 Crook V. Corporation of Seaford, 63, 
 829, 839, 851. 
 
 Crookshank v. Burrell, 206, 537, 542, 
 
 554. 
 Croome v. Lediard, 868. 
 Crop V. Norton, 803, 807, 809. 
 Cropper v. Cook, 753. 
 
 V. Pitman, 155, 219, 262. 
 Crosby v. Joralemon, 195, 209, 293. 
 
 V. Wadsworth, 4, 150, 353, 355, 
 360, 374, 383, 384, 387, 396. 
 Cross V. Ballard, 198. 
 
 V. Ererts, 876. 
 
 V. O'Donnell, 558, 571, 613, 621, 
 642. 
 
 V. Richardson, 155, 175, 260, 265, 
 267. 
 
 V. Williams, 218. 
 Crossflcld, ex parte, 449. 
 Crossly v. Maycock, 680, 732, 733. 
 Croswell v. Crane, 45. 
 
 V. Currie, 235. 
 Crouk V. Trumble, 824. 
 Crowell V. Maugh, 421. 
 Crowfoot V. Guerney, 285. 
 Crowley v. Vitty, 68, 93, 108, 119, 121. 
 Crull V. Dodson, 394, 503. 
 Crutchfleld v. Donathan, 189,686, 764, 
 
 765. 
 Cudlip V. Randall, 50. 
 Cuff V. Penn, 754. 
 Culpepper v. Aston, 805. 
 Cumberland &c. R. E. Co. v. McLana- 
 
 han, 15, 28, 36. 
 Cumming v. Roebuck, 789, 790, 792, 
 
 794. 
 Cummings v. Arnold, 758. 
 
 V. Dennett, 545. 
 
 V. Gill, 839. 
 Cummins v. Nutt, 420, 839. 
 CunliSe v. Harrison, 572, 601, 604, 606. 
 Cunningham v. Ashbrook, 566. 
 Curie V. Eddy, 437. 
 Curling v. Flight, 393. 
 Curnutt V. Roberts, 435. 
 Currant v. Jago, 811. 
 Currey v. Lackey, 843. 
 Currie v. Anderson, 584, 591, 593. 
 
 V. McLean, 473. 
 Curry v. Com. Ins. Co., 26. 
 Curteis' Trusts, in re, 800. 
 Curtis V. Blair, 778. 
 
 V. Brown, 152, 155, 195, 196, 214, 
 225, 261, 264. 
 
 V. Hoyt, 26. 
 
 V. Noonan, 31, 34. 
 
 V. Pugh, 580, 604. 
 
TABLE OP CASES. 
 
 XVU 
 
 Curtis V. Sage, 494, 500. 
 
 Cusack V. Robinson, 560, 562, 560, 
 
 615, 621, 631, 034, 641, 667. 
 Gushing v. Breed, 626, 638. 
 Cutler V. Collison, 421. 
 
 V. Pope, 363, 355, 359, 361, 362, 
 883, 606. 
 Cutter V. Emery, 292. 
 
 V. Hinton, 155, 217, 219, 262. 
 Cutting V. King, 688, 690. 
 Cutts, ex parte, 457. 
 Cuxon V. Cliadley, 286. 
 
 D. 
 
 Dack V. Hart, 186. 
 Daggett V. Patterson, 407, 876. 
 Daintry, in re, 454. 
 
 Dale V. Hamilton, 422, 822, 823, 827, 
 840, 846, 854. 
 
 V. Stimpson, 634. 
 Dalton V. Rust, 409. 
 Daly V. Wilder, 725. 
 Dames v. Peck, 615. 
 Damon v. Osborn, 559, 560, 580. 
 Dana v. Hancock, 737, 754, 758. 
 Danf orth v. Laney, 826, 835. 
 
 V. Lowry, 414. 
 
 V. Walker, 559, 573, 574, 616. 
 Daniels r. Bailey, 352, 413, 415. 
 
 V. Davison, 61, 681, 846. 
 Dankersley v. Levy, 117. 
 Dannef elser v. Weigel, 624. 
 Darby v. Darby, 854. 
 
 V. Whittaker, 843. 
 Dark v. Johnston, 15. 
 Darlington v. McCann, 156, 223. 
 Darnell v. Trott, 212, 218. 
 Damley v. London &c. Railway Co., 
 
 843. 
 Darst V. Bates, 199. 
 Dauber v. Blackney, 175, 267, 298, 
 
 300. 
 Davenish v. Moffatt, 52, 57. 
 Davenport v. Gentry, 429, 472. 
 Davenport's Case, 77. 
 Davey v. Shannon, 497, 498, 499. 
 Davidson v. Cooper, 677. 
 
 V. Green, 337. 
 Davies, in re, 443. 
 
 •,. Marshall, 11, 31. 
 
 V. Otty, 801, 802, 809, 855. 
 Davis V. Banks, 245, 247. 
 
 V. Calloway, 235. 
 
 Davis V. Eastman, 573, 621. 
 
 V. Henry, 421. 
 
 V. Hill, 666. 
 
 o. Jones, 718, 752. 
 
 V. Judge, 420. 
 
 V. Moore, 559, 560, 670. 
 
 V. Parish, 437. 
 
 V. Reyner, 141, 146. 
 
 V. Robertson, 762. 
 
 V. Sander, 15. 
 
 V. Shields, 656, 737, 764, 765, 772, 
 796. 
 
 V. Symonds, 858. 
 
 V. Thompson, 51. 
 
 V. Townsend, 421. 
 
 V. Walker, 405, 410. 
 
 V. Wright, 141. 
 Davison v. Davison, 826. 
 
 V. Gent, 96, 126, 131, 132, 133. 
 
 V. Stanley, 124. 
 Davone v. Finnell, 566. 
 Daw V. Jewell, 420. 
 
 V. Terrell, 453. 
 Dawes :;. Eastman, 574, 
 
 t. Peck, 641. 
 
 c. Shields, 714. 
 
 V. Young, 156. 
 Dawson v. Clarke, 806. 
 Day V. Cloe, 214. 
 
 V. Elmore, 174. 
 
 V. N. Y. Centl. R. R. Co., 428, 430, 
 471, 475. 
 
 <,. WUson, 432. 
 Dayton v. Craik, 97. 
 
 V. Williams, 876. 
 Deacon v. Colquhoun, 808. 
 Deal V. Maxwell, 543, 544, 545, 550. 
 D'Almaine v. Moseley, 806. 
 Dean v. Anderson, 820. 
 
 V. Dean, 854. ' 
 
 V. Tallman, 169, 217. 
 
 V. Walker, 236. 
 Deane v. Caldwell, 96. 
 D'Aquillar v. Drinkwater, 336. 
 Dearborn v. Parks, 209, 276. 
 D' Arras v. Keyser, 830. 
 De Biel v. Thompson, 327, 334, 709. 
 Decker v. Schaffer, 198. 
 De Cordova v. Smith, 666, 764. 
 Deg V. Deg, 803. 
 Delane v. Delane, 807. 
 Delaney v. Root, 351, 354, 358, 359, 
 
 361, 363. 
 Delano v. Montague, 45. 
 Delarnoix v. Bulkley, 111. 
 
XVIU 
 
 TABLE OF CASES. 
 
 De Manneville v. Crompton, 332. 
 De Medina v. Poison, 70. 
 Dement v. Williams, 418. 
 De Merrett v. Bickford, 235. 
 Deming v. Kemp, 510. 
 Dempsey v. Kipp, 7, 14, 22, 39. 
 Denison v. Wertz, 117. 
 Denmead v. Glass Co., 614, 641. 
 Denn v. Fearnside, 48, 55. 
 .Denne v. Light, 847. 
 Denny v. Hancock, 870. 
 
 0. Williams, 557, 571, 576, 577. 
 Denton v. Davies, 802. 
 
 V. McKenzie, 770. 
 
 V. Stewart, 872. 
 De Porquet v. Page, 709. 
 Derby v. Phelps, 311, 312, 463,470. 
 Derrick v. Brown, 469, 470. 
 Deshon v. Bigelow, 624. 
 Deslage v. Pearee, 30, 35. 
 Despain v. Carter, 839. 
 Devaux v. Steinkeller, 308. 
 Deven v. Thomas, 61. 
 Devenish v. Baines, 798. 
 De Visme, in re, 811, 812. 
 Devlin v. Woodgate, 151, 223. 
 Devoy v. Devoy, 815. 
 Dewey v. Bardwell, 421. 
 De Wolf V. Eabaud, 178, 290. 
 Dexter t). Blanchard, 156, 158, 261, 304. 
 Dickerson v. Chrisman, 64. 
 Dickinson v. Colter, 198, 222, 288. 
 
 V. Dickinson, 509. 
 
 V. Gay, 752. 
 
 V. Marrow, 627. 
 
 V. Silwall, 788, 792. 
 Dickson v. Frisbie, 472, 487, 488. 
 Dighton V. Greenvil, 87. 
 Dike V. Green, 843. 
 Dillwyn v. Llewellyn, 821. 
 Dilts V. Parke, 162, 252. 
 Dilworth, in re, 445. 
 Dinkel v. Gundelfinger, 493, 874. 
 Dipples V. Corles, 799. 
 District &c. v. Moorhead, 498. 
 
 of Columbia v. Johnson, 675, 677. 
 Dix V. Marcy, 427, 428. 
 Dixie V. Davis, 54, 55. 
 Dixon V. Bromfield, 778, 779. 
 
 V. Fletcher, 601. 
 
 V. Frazer, 155, 165, 216, 218, 262. 
 
 V. Hatfield, 213, 231. 
 
 V. Mucklestone, 455. 
 
 V. Oliver, 830. 
 Doane v. Dunham, 752. 
 
 Doane v. Newman, 165, 229. 
 
 Dobell 0. Hutchinson, 653, 654, 697, 
 
 702, 730. 
 Dobson, ex parte, 445. 
 
 V. CoUis, 494. 
 
 V. Litton, 684, 844, 845. 
 Dock V. Boyd, 241. 
 
 Dodd V. Acklom, 96, 100, 104, 106, 134. 
 Dodge V. Crandall, 495. 
 
 V. Dodge, 92, 413. 
 
 V. Lean, 647. 
 
 V. McClintock, 15, 19, 23, 28, 33, 
 35, 36, 38. 
 Dodsley v. Varley, 622, 623, 625. 
 Doe V. Amey, 47, 52, 67. 
 
 V. Bell, 66, 70. 
 
 V. Benjamin, 134. 
 
 V. Breach, 66. 
 
 V. Bridges, 125. 
 
 V. Browne, 47, 70. 
 
 u. Burdett, 769. 
 
 V. Calling, 52. 
 
 u. Cochran, 414. 
 
 V. Collings, 56. 
 
 V. Cooke, 133. 
 
 V. Courtenay, 120, 123, 125. 
 
 V. Cox, 47. 
 
 V. Crago, 62. 
 
 v. Davies, 47. 
 
 V. Dignowitty, 413. 
 
 V. Downs, 222. 
 
 V. Forwood, 125. 
 
 V. Gardner, 48. 
 
 V. Geekie, 93. 
 
 V. Glenn, 88. 
 
 V. Guy, 148. 
 
 V. Jackson, 48. 
 
 V. Johnstone, 94, 126. 
 
 V. Jones, 123. 
 
 V. Marchetti, 86. 
 
 V. Milward, 84, 94, 108, 121. 
 
 V. Moifatt, 46, 47, 63, 66, 70. 
 
 V. Oliver, 131. 
 
 V. Pedgriph, 654, 767. 
 
 v. Poole, 84, 123, 125. 
 
 V. Pyke, 77. 
 
 u. Ridout, 94. 
 
 V. Smith, 52. 
 
 V. Stagg, 81, 87. 
 
 V. Stanion, 94. 
 
 V. Stratton, 70. 
 
 V. Taniere, 52, 62. 
 
 V. Thomas, 90, 91, 138. 
 
 V. Walker, 85. 
 
 V. Watts, 47. 
 
TABLE OF CASES. 
 
 XIX 
 
 Doe V. "Wells, 93. 
 
 V. Williams, 128. 
 
 V. Wood, 13, 47, 128, 133. 
 Doidge V. Bowers, 47, 55. 
 Dole V. Stdmpson, 557, 570, 639. 
 
 V. Young, 288. 
 Dolling V. Evans, 717. 
 Donaldson v. Waters, 432. 
 Donellan v. Read, 69, 93, 399, 468, 
 
 495, 496, 497. 
 Donnison v. People's Caffi Co., 689. 
 Donnorau v. Wilson, 642, 544. 
 Donohoe v. Conrahy, 802, 803. 
 Dooley v. Eilbert, 571. 
 Doolittle V. Taylor, 228. 
 
 Dorr V. Barney, 57. 
 
 Dorwin «. Smith, 160, 295,' 296. 
 
 Doscher v. Shaw, 80. 
 Doty V. Wilder, 656, 724, 726, 782. 
 Dougan v. Blocher, 827, 828. 
 Douglas V. Jones, 156, 220. 
 
 V. Shumway, 351, 363, 440. 
 
 V. Spiers, 661, 666, 764. 
 
 V. Vincent, 317. 
 Dow V. Brown, 419. 
 
 V. Terrell, 456. 
 Dowdle V. Camp, 432. 
 Dowell V. Dew, 65, 837. 
 Dowling V. McKenney, 185, 428, 506. 
 Downey v. Hinchman, 156, 158, 292. 
 Downs V. Marsh, 605. 
 
 V. Ross, 537, 539, 543, 544. 
 Dows V. Montgomery, 624. 
 
 V. Swett, 299, 300. 
 Dowse V. Coxe, 148. 
 Doyle V. Dixon, 466, 467, 469, 471, 485, 
 498. 
 
 <,. White, 156, 203, 207, 219, 233, 
 276. 
 Drake v. Fleurellen, 196, 289, 304. 
 
 c/. Newton, 51, 66. 
 
 V. Seaman, 648. 
 
 V. Wells, 8, 9, 13, 19, 23, 29, 351, 
 354, 360, 361, 363, 384. 
 Draper v. Pattina, 769. 
 
 .;. Snow, 299. 
 Draughan u. Bunting, 156, 234, 252,292. 
 Dressel v. Jordan, 666, 765. 
 Dresser v. Dresser, 312, 465, 466, 467, 
 
 469, 481. 
 Drew V. Martin, 810, 812, 814. 
 DriscoU V. Marshall, 25. 
 Druly V. Hunt, 293. 
 Drummond v. Burrell, 463, 474, 486, 
 500. 
 
 Drury v. MacNamara, 63. 
 
 V. Young, 054, 656, 669, 673, 698, 
 729, 769, 770, 772. 
 Druse v. Wheeler, 9, 14, 19, 23, 39, 42. 
 Dubois v. Kelly, 349, 359, 369. 
 Dubuque v. Miller, 52. 
 Dudley v. Littlefield, 422. 
 
 ■0. Sawyer, 624. 
 Duf alt V. Gorman, 204. 
 Duff V. Snider, 495, 497. 
 Duffy !!. O'Donovan, 875. 
 
 V. Wunsch, 156,160,220,253,266. 
 Dugan V. Colville, 839. 
 
 V. Cowzleman, 161. 
 Duineen v. Rich, 9, 30, 35. 
 Duke V. Harper, 48, 56. 
 
 of Beaufort v. Patrick, 831. 
 
 of Devons v. Eglin, 830. 
 
 of Leeds v. Earl of Amherst, 821. 
 
 bf Norfolk v. Browne, 809. 
 Dummer v. Pitcher, 812, 814, 816. 
 Dumper v. Dumper, 815. 
 Duncan v. Blair, 186. 
 
 u. Sylvester, 419. 
 Duncombe v. Tickridge, 196, 207, 304. 
 Duncroft v. Albrecht, 393, 503. 
 Dundas v. Dutens, 321, 322, 334, 335, 
 
 337. 
 Dung V. Parker, 158, 315. 
 Dunlap V. Thome, 259, 260. 
 Dunlop V. Higgins, 654. 
 
 V. Lambert, 641. 
 
 V. Perry, 640. 
 Dunn V. Trustees &c., 48. 
 
 V. West, 198, 235, 290, 292, 295. 
 Dunnage v. White, 806. 
 Dunne v. Ferguson, 352, 354, 356, 383, 
 
 386, 387. 
 Dunning v. Roberts, 156, 219. 
 Dupont V. Starring, 421. 
 Duppa V. Mayo, 355, 364, 366, 874. 
 Durand v. Wyman, 76. 
 Durant v. Allen, 263. 
 
 V. Rogers, 875. 
 Durham v. Arledge, 174, 206, 272. 
 
 V. Munrow, 195, 208, 298. 
 Durrell v. Evans, 612, 773, 775, 776, 
 
 780, 782, 783, 785, 786. 
 Dutchman v. Tooth, 180. 
 Dutton V. Solomonson, 641. 
 Duval V. Getting, 325. 
 Duvall V. Peach, 414. 
 Dyas V. Cruise, 778, 787. 
 Dyer v. Clark, 423. 
 
 u. Dyer, 806, 810, 811. 
 
XX 
 
 TABLE OF CASES. 
 
 Dyer v. Forrest, 609. 
 
 V. Gibson, 175, 267. 
 
 v. Graves, 186, 408, 410. 
 
 V. Libby, 597. 
 
 o. Martin, 854. 
 
 V. Sandford, 31, 34. 
 Dygert v. Eemorshnider, 315. 
 Dykers v. Townsend, 250. 
 Dynes v. O'NeU, 425. 
 
 E. 
 
 Eager v. Eichelberger, 640. 
 
 Eagle Mowg. and Eeapg. Mach. Co. v. 
 
 Shattuck, 298. 
 Earl V. Rogers, 82. 
 
 of Arundel v. Lord Gray, 122. 
 
 of Aylesford's Case, 826. 
 
 of Berkeley v. Abp. of York, 90, 
 
 117, 123, 124. 
 of Carnarvon u. Villebois, 118, 
 
 123. 
 of Damley v. London, Chatham, 
 
 and Dover R. C, 859, 866. 
 of Egremont v. Courtenay, 123, 
 
 124. 
 of Egremont v. Forwood, 124. 
 of Falmouth v. Thomas„184, 354, 
 857, 382,391,.S99,436,496, 644. 
 of Plymouth v. Hickman, 803. 
 East Tenn. &c. R. E. Co. v. Staub,469, 
 
 470. 
 Easter v. White, 293. 
 Eastern R. R. Co. v. Benedict, 503. 
 Eastler v. Henderson, 100. 
 Eastman v. Anderson, 350, 425. 
 
 V. Foster, 440. 
 Eastwood V. Kenyon, 175, 196, 197, 
 
 198, 201, 277, 292. 
 Eaton V. Eaton, 429. 
 
 V. Whitaker, 64, 477, 824, 826. 
 V. Winne, 22, 24. 
 Eberly v. Lehman, 830. 
 Ebert v. Wood, 420. 
 Ebrand v. Dancer, 807, 811. 
 Ecker v. Bohn, 267, 876. 
 Edan v. Dudfleld, 575, 576, 584, 620, 
 
 625. 
 Eddy V. Davenport, 278. 
 V. Davidson, 163. 
 V. Roberts, 161, 214, 245. 
 Ede V. Knowles, 447, 451. 
 Eden v. Blake, 657. 
 Edge V. Frost, 212. 
 
 Edge V. Strafford, 5, 18, 348, 398. 
 
 V. Worthington, 450, 451. 
 Edgerton v, Hodges, 518. 
 Edinfield v. Canady, 241, 290. 
 Edmunds v. Bushell, 753. 
 
 V. Downes, 739, 752. 
 Edwards, ex parte, 453. 
 
 V. Baugh, 179, 180. 
 
 V. Clemens, 51. ' 
 
 V. Fidel, 807. 
 
 V. Fry, 832, 836. 
 
 V. Grand Trunk R. R. Co., 530, 
 537, 545, 546, 550, 657, 570. 
 593, 614, 621, 641. 
 
 V. Hall, 393. 
 
 V. Jevons, 181. 
 
 V. Johnson, 778. 
 
 V. Kelly, 154, 208, 269. 
 
 u. Martin, 445. 
 
 V. Wickwar, 87. 
 Egerton v. Matthews, 646, 765. 
 Eggleston v. N. Y. &c. R. R. Co., 9, 
 22, 32. 
 
 V. Wagner, 681, 684, 782. 
 Egremont v. Courtnay, 118. 
 Eichelberger v. McCauley, 532, 550, 
 
 551, 552. 
 Elder v. Warfleld, 162, 216. 
 Eleyr.Positive Assurance Co., 465, 766. 
 Elfe V. Gadsden, 656, 714, 729. 
 Elkins V. Heart, 273. 
 EUenwood v. Fultz, 198. 
 EUet V. Faxon, 427. 
 Ellicott V. Peterson, 466,468,479,480. 
 
 V. Turner, 469, 470, 494. 
 Elliot V. Elliot, 815, 816. 
 ElUott V. Giese, 156, 162, 178. 
 
 V. Jenness, 876. 
 
 V. Thomas, 581, 599, 604, 875. 
 Ellis V. Deadman, 655, 678, 685, 714. 
 
 V. Grubb, 369. 
 
 V. Levy, 182. 
 
 V. Paige, 51. 
 Ellison V. Brigham, 550. 
 
 V. Jackson, 247, 284. 
 
 o. Wisehart, 174, 266, 293, 296. 
 Ellwood V. Monk, 234. 
 Elmendorf v. Harris, 843. 
 Elmore v. Kingscote, 655, 679, 715, 
 716, 737, 746. 
 
 V. Stone, 618, 619, 620, 626, 630, 
 631, 632, 633. 
 Else V. Barnard, 778. 
 Elting V. Vanderlyn, 243. 
 Elwell V. Shaw, 45. 
 
TABLE OP CASES. 
 
 XXI 
 
 Ely V. McKnight, 407. 
 
 V. Ormsbeo, 620. 
 Embury v. Connor, 402. 
 Emerick v. Sanders, 243. 
 Emerson v. Slater, 224, 290, 309, 758. 
 Emery v. Smith, 463, 471, 479. 
 Emley v. Drumm, 456, 407, 401. 
 Emmerson v. Heelis, 360, 375, 386, 
 
 512, 699, 773, 778, 780, 781. 
 Emmett v. Dewhurst, 268, 736. 
 Emmons v. Scudder, 48. 
 Emmott V. Kearns, 179. 
 Endicott v. Penny, 726. 
 Ennis v. Waller, 726. 
 Eno V. Woodworth, 508. 
 Entwhistle v. Davis, 393. 
 Episcopal Church i-. Wiley, 726. 
 Erben v. Lorillard, 405, 427, 429, 430. 
 Erskine v. Adeane, 423. 
 
 V. Plummer, 30, 359, 361, 362. 
 Eshleman v. Harnish, 217. 
 Esling V. Williams, 6. 
 Esmay v. Grotser, 854. 
 Espy -v. Anderson, 758. 
 Essex V. Essex, 422, 423, 500. 
 Estabrook v. Gebhart, 233. 
 Estes V. China, 14, 22. 
 Esty V. Aldrich, 466, 469, 479. 
 Eton V. Luyster, 124. 
 Etting V. Vanderlyn, 173. 
 Eutz V. Mills, 787. 
 Evans v. Dunscombe, 805. 
 
 u. Green, 423. 
 
 V. Hardman, 407. 
 
 V. Harris, 567. 
 
 V. Lohr, 297. 
 
 i;. Mason, 160. 
 
 V. Prothero, 655. 
 
 V. Roberts, 352, 354, 355, 360, 374, 
 375, 376, 378, 383, 384, 386, 
 391, 392. 
 
 V. Thompson, 111. 
 Everett v. Clements, 640. 
 
 V. Parks, 641. 
 Ewins V. Calhoun, 306. 
 Exchange Bank v. Rice, 199, 232, 235. 
 Eyre v. Eyre, 846. 
 
 V. McDowell, 453. 
 Ezelle V. Parker, 48. 
 
 Fairchild v. Pairchild, 423. 
 Eairlie v. Denton, 276, 285, 286. 
 
 Fall V. Hazleregg, 828. 
 
 Fall River Whaling Co. v. Borden, 
 
 423. 
 Fallraer v. Dale, 220. 
 Falls V. Miller, 634. 
 Fane v. Fane, 799. 
 Farebrother v. Simmons, 779, 780, 781, 
 
 783. 
 Farina v. Home, 585, 607, 626, 629, 
 
 636. 
 Parish v. Wilson, 173. 
 Farley, ex parte, 444, 448. 
 
 V. Cleaveland, 196, 231, 234, 240, 
 244. 
 
 V. Stokes, 839. 
 Farmer v. Robinson, 796. 
 
 V. Rogers, 73, 81, 82, 83, 87. 
 Farmers' Bank of Amsterdam v. Blair, 
 
 215. 
 Famam v. Davis, 428. 
 Farrall v. Davenport, 833. 
 Farrar v. Farrar, 413. 
 Farrell v. Maxwell, 294. 
 Farrington v. Donohoe, 467. 
 Farson v. Goodale, 118. 
 Farwell v. Lowther, 047, 678, 688, 690. 
 
 V. Mather, 684, 686, 687, 714, 742, 
 750. 
 Fawkes v. Lamb, 753. 
 Fay V. Bell, 259, 260. 
 
 V. Smith, 567. 
 
 V. Wheeler, 395, 503, 507, 508. 
 Fears v. Story, 260. 
 Featherstone v. Fenwick, 443. 
 Felch V. Taylor, 350, 436. 
 Fell V. Chamberlain, 864. 
 Feltham v. Cartwright, 12. 
 Felthouse v. Bindley, 60, 730. 
 Fenley v. Stewart, 660, 764. 
 Fenner v. Hepburn, 63. 
 Fentimau v. Smith, 9, 22, 30, 43. 
 Fenton v. Emblers, 314,468, 474, 480, 
 
 482, 484, 485. 
 Fenwick v. Floyd, 729. 
 
 V. Potts, 450. 
 Ferguson v. Dunne, 371. 
 
 0. Storer, 656, 084. 
 Ferrell v. Maxwell, 100, 292. 
 Ferren v. O'Hara, 544. 
 Ferris v. Barlow, 174, 297. 
 
 V. Irving, 845. 
 
 V. MuUins, 445, 453. 
 Ferry v. Pfeiffer, 65. 
 Fessenden v. Mussey, 656, 721, 772. 
 Fickett V. Swift, 545, 546, 550. 
 
xxu 
 
 TABLE OP CASES. 
 
 Field, in re, 771. 
 
 «. BoUand, 765. 
 
 V. Kunk, 560, 598, 609. 
 Piero V. Eiero, 405. 
 riles V. MoLeod, 160, 195, 208. 
 Einch V. Finch, 810, 814. 
 Findley v. Wilson, 435. 
 Finney v. Apgar, 540, 547, 549. 
 
 V. Finney, 422. 
 Pinucane v. Kearney, 839. 
 First National Bank u. Bennett, 204, 
 
 293. 
 Fish V. Campion, 118, 123. 
 
 V. Hutchinson, 154, 173, 272. 
 
 v. Eichardson, 141, 144. 
 
 „. Thomas, 152, 174, 195, 196, 
 209,254,261,297. 
 Fisher v. Kerlin, 684. 
 Fiske V. McGregory, 198, 781. 
 Fitch V. Burk, 352. 
 
 V. Constantine &c. Co., 39. 
 
 V. Sargent, 102. 
 
 V. Seymour, 402. 
 Fitzgerald v. Dressier,, 192, 206, 209, 
 254, 268, 287, 292. 
 
 V. Fitzgerald, 317. 
 
 V. Morrissey, 264. 
 
 V. Vickers, 719, 847. 
 Fitzmaurice v. Bayley, 61, 656, 703, 
 
 705, 718, 737, 782, 786. 
 Fitzpatrick v. Beatty, 844. 
 Fitzsimmons v. "Woodruff, 539. 
 Flanders v. Crolius, 219. 
 Fleeman v. McKean, 624. 
 Fleet V. Murton, 753. 
 Fleming v. Easter, 234. 
 
 u. Kamsay, 407. 
 Flemm v. Whitmore, 160, 198. 
 Fletcher v. McFarlane, 436. 
 Flight V. BoUand, 663. 
 Flint V. Corbitt, 538, 543, 544, 545, 550. 
 Flintofe v. Elmore, 780. 
 Flood V. Einlay, 867. 
 Floyd V. Buckland, 829, 839. 
 Folger V. Mitchell, 420. 
 Foligno V. Martin, 767. 
 Folsom V. Great Falls Co., 348. 
 Foot V. New Haven &c. E. E. Co., 15, 
 
 19, 20, 22, 32, 400. 
 Foote V. Emerson, 473, 481. 
 Foquet v. Moore, 84, 108, 110, 121. 
 Forbes v. Hamilton, 361, 403, 404. 
 
 V. Shattler, 754. 
 Force v. Butcher, 684, 846. 
 Ford V. Finney, 245, 407. 
 
 Ford V. Eockwell, 221. 
 
 V. Tates, 714, 738. 
 Ford's Estate, in re, 86. 
 Fordyce v. Willis, 798, 799, 809. 
 Forrest v. Forrest, 811. 
 Forster v. Hale, 422, 798, 802, 803, 846. 
 
 V. Eowland, 60, 730, 7.34, 767. 
 Forsyth v. Dickson, 554. 
 Fort V. Gooding, 489. ^ 
 Forth V. Stanton, 141, 143, 145, 173, 
 
 215, 256, 266, 269, 874. 
 Foss V. Haynes, 872. 
 Foster v. Browning, 9, 19, 30, 35. 
 
 V. Charles, 306. 
 
 u. Frampton, 572. 
 
 V. McO'Blenis, 479, 480. 
 
 V. Eockwell, 641. 
 
 V. Sleeper, 702. 
 Foulks V. Burns, 413. 
 Fowkes V. Pascoe, 812, 813. 
 Fowle V. Freeman, 663, 680, 764, 765. 
 Fowler v. Burget, 158. 
 
 V, Clearwater, 298. 
 
 V. Lewis, 875. 
 
 V. Moller, 172. 
 
 V. Radicon, 739, 846. 
 Fox, in re, 395. 
 
 V. Nathans, 56. 
 Foxeraft v. Lyster, 819, 820, 829, 833. 
 Fragano v. Long, 641. 
 Frame v. Dawson, 65, 830, 832, 836, 842. 
 Francam v. Foster, 468. 
 France v. August, 234. 
 Francis, The, 571, 614. 
 Frank w. Harrington, 352, 360, 383, 388, 
 392. 
 
 V. Miller, 486, 659, 662. 
 Franklin v. Long, 626. 
 Frary v. Sterling, 495, 500. 
 Frash v. Polk, 288. 
 Frazer v. Child, 408. 
 Frear v. Hardenburgh, 351, 403. 
 Freeman v. Freeman, 827. 
 
 V. Gainsford, 393, 396. 
 
 o. Hadley, 22. 
 
 u. Underwood, 18. 
 Freeport v. Bartol, 654, 709, 739. 
 French v. Freeman, 630. 
 
 ... French, 173, 175, 273. 
 
 V. Thompson, 152, 228. 
 Fricker v. Tomlinson, 568, 649. 
 Frith V. Midland Eailway, 843. 
 Frogley v. Lovelace, 45. 
 Frost V. Deering, 45. 
 
 V. Hill, 726, 787. 
 
TABLE OP CASES. 
 
 xxm 
 
 Frost II. Moulton, 844. 
 V. Tarr, 469, 498. 
 Frostburgh Mining Co. v. N. E. Glass 
 Co., 558, 575, 584, 587, 596, 
 597, 609, 614, 041. 
 Frye v. Shepler, 846. 
 Fryer v. Warne, 35. 
 Fugate V. Hanaford, 647. 
 Fuhr V. Dean, 6, 19. 
 FuUam v. Adams, 232, 245, 261, 277, 
 
 281. 
 Fuller V. Bean, 566. 
 V. Reed, 410. 
 
 V. Plymouth Commissioners, 401. 
 Fulmerston v. Steward, 123. 
 Fulton V. Moore, 460. 
 V. Robinson, 750. 
 Funk V. Haldeman, 15, 17. 
 Furbish v. Goodnow, 172, 263, 276. 
 Fumess i'. Meek, 74(5. 
 Furniss v. Sawers, 526. 
 Furnivall i: Grove, 62, 77, 100, 106, 108, 
 
 119, 134. 
 Fyson v. Kitton, 696, 698, 713. 
 
 G. 
 
 Gadbury, in re, 816. 
 
 Gadden v. Pierson, 158, 292. 
 
 Gaddis v. Leeson, 523. 
 
 Gadsden v. Lance, 479. 
 
 Gaetz V. Foos, 198, 292. 
 
 Galbraith v. Gedge, 423. 
 
 Galbreath v. Galbreath, 420, 827. 
 
 Gale V. Kixon, 663, 712. 
 
 Gallairt v. Roberts, 573. 
 
 Galloway !■. Herbert, 48. 
 
 Galston v. Sigmund, 844. 
 
 Galvin v. Prentice, 426, 429, 430, 431, 
 
 479. 
 Galway v. Shields, 432. 
 Gammon v. Butler, 433. 
 Garbutt v. Watson, 527, 529, 533, 539. 
 Gardener v. Fenner, 145. 
 Gardiner v. Fell, 802. 
 
 u. Gray, 649. 
 
 V. Hopkins, 152, 219, 228. 
 
 V. Snydam, 568, 640. 
 Gardner v. Armstrong, 874. 
 
 !;. Gardner, 44, 45. 
 
 V. Grout, 572, 574. 
 
 V. Hazleton, 718. 
 
 V. Howland, 639. 
 
 V. Joy, 547. 
 
 Gardner v. Rowe, 803. 
 
 V. Rowland, 25. 
 Gardom, ex parte, 176, 181. 
 Garfield v. Paris, 571, 573, 576. 
 Garner v. Hodgkius, 292. 
 
 V. Shebblefiekl, 854. 
 Garr v. Gomer, 843. 
 Garrard v. Grinling, 867. 
 
 V. Tuck, 132. 
 Garred v. Macey, 843. 
 Garrett v. Garrett, 158. 
 
 V. Handlcy, 670. 
 
 V. Malone, 408. 
 
 V. Wilkinson, 812. 
 Garrick v. Taylor, 807, 808. 
 Gartnell v. Stafford, 063, 764. 
 Garver i-. McNulty, 413. 
 Gascoigne v. Thwing, 808. 
 Gates V. Salmon, 419. 
 Gault V. Brown, 498, 499, 510, 511, 
 
 521, 602, 758. 
 Gaunt V. Hill, 191, 048, 714. 
 Gaussen v. Morton, 14, 31. 
 Gauther v. Atkinson, 30. 
 Gay V. Mitchell, 48. 
 Geary v. Physic, 725, 769, 771. 
 Geddis v. Leeson, 526. 
 Geekie v. Monk, 93. 
 Gehegan v. Young, 97. 
 Gelstron v. Sigisnmnd, 845. 
 George v. Bank of England, 799. 
 Georgia Co. v. Castleberry, 208. 
 Geraltney v. Wheeler, 407. 
 Gerish v. Chartier, 207, 231. 
 German v. Machin, 832, 846. 
 Getchell v. Jewett, 003, 704, 765. 
 Gett V. Bickell, 787. 
 Gibbins u. North Eastern Metropoli- 
 tan Asylum District, 080, 732. 
 Gibbons v. Bell, 422. 
 Gibbs V. Benjamin, 557, 558, 568, 571, 
 621, 6.39, 041. 
 
 V. Blanchard, 156, 103, 245. 
 
 V. Rumsey, 806. 
 Gibson v. Holland, 649, 652, 669, 674, 
 
 695, 704. 
 Gie V. Rider, 113, 116, 117, 122. 
 Gigas V. Cochran, 085. 
 Gilbert v. Bulkley, 92, 411, 412. 
 
 V. Sykes, 409, 470, 484. 
 Gilchrist v. Herbert, 329. 
 Giles V. Simonds, 19, 22, 30, 351, 355, 
 359, 361, 363. 
 
 V. Spencer, 121. 
 Giimian v. Snow, 204. 
 
XXIV 
 
 TABLE OF CASES. 
 
 Gill V. Bicknell, 723, 726, 780, 781. 
 
 V. Herrick, 210, 263. 
 
 .;. Hewitt, 720, 726. 
 Gillanders v. Lord Eossmore, 400. 
 Gillespie v. Battle, 435, 766. 
 Gillett V. Burr, 408. 
 
 V. Maynard, 428. 
 Gillighan v. Boardman, 61, 156, 171, 
 
 178. 
 Oilman v. Hill, 510, 523, 526, 541, 562, 
 
 566, 570, 602. 
 Gilmore v. Wilson, 33. 
 Giraud ,;. Richmond, 466, 472, 474, 
 
 500, 736. 
 Girgins v. Van Gorger, 412. 
 Gist V. Eubank, 876. 
 Givens v. Calder, 824. 
 Gladsden v. Lance, 466. 
 Glaister ;;. Hewer, 812. 
 Glass V. Hulbert, 65, 824, 827, 828. 
 Gleason v. Briggs, 195, 214. 
 
 V. Drew, 507. 
 Glen V. Whitaker, 558, 643. 
 Glengal v. Barnard, 778. 
 Glenn v. Lehman, 164, 217. " 
 Glover v. Coles, 373, 392. 
 
 V. Halkett, 178. 
 Glyn, ex parte, 444. 
 Glynn v. George, 32. 
 Goar V. Cockridge, 428. 
 Goddard v. Binney, 538, 547, 548, 549, 
 
 550, 554, 555. 
 Godden v. Pierson, 222, 878. 
 Godet V- Cowdry, 655. 
 Godfrey v. Moser, 252. 
 Godts V. Base, 626, 629. 
 Godwin v. Francis, 771, 788. 
 Goelet V. Farley, 262. 
 Goetz V. Foss, 245. 
 GofE V. Kilts, 25. 
 
 V. Obertuffer, 19. 
 
 V. Sims, 288. 
 Gold V. Phillips, 151, 161, 209, 210, 
 
 234. 
 Goldicutt V. Townsend, 323, 329, 336. 
 Goldshede v. Swan, 180, 749. 
 Gooch V. Holmes, 395, 503. 
 Good V. Curtis, 570, 577. 
 Goodall V. Skelton, 518. 
 Gooderham v. Dash, 534. 
 Goodhue v. Barnwell, 419, 420. 
 Goodman v. Chase, 176, 207, 214, 275. 
 
 V. Griffiths, 660, 679, 715, 737, 746. 
 Goodnow V. Gilbert, 183. 
 Goodrich v. Dustin, 421. 
 
 Goodrich v. Johnson, 465. 
 
 V. Nichols, 189. 
 Goodspeed v. Fuller, 100, 295, 296. 
 Goodtitle v. Duke of Chandos, 133. 
 
 V. Herbert, 47, 48, 55. 
 Goodwin v. Bond, 181, 266. 
 
 V. Fielding, 669. 
 
 V. Gilbert, 350, 436. 
 
 V. Lyon, 846. 
 
 V. May, 624. 
 Goom V. Afflalo, 789, 790, 792, 793. 
 Gordon ;;. Gordon, 422. 
 
 V. Martin, 211. 
 
 V. Sims, 726, 729, 781. 
 
 V. Trevelyan, 61, 718. 
 Gore V. Wright, 96, 102, 126, 130, 134, 
 
 135. 
 Gorham v. Fisher, 550, 562, 570. 
 Goring v. Goring, 141, 146. 
 Gorman v. Boddy, 572, 601, 606. 
 Gorrie v. Woodley, 771. 
 Gorton v. Dyson, 148. 
 Gosbell V. Archer, 428, 696, 699, 769, 
 
 771, 782, 786. 
 Gosling V. Gosling, 810. 
 Goss V. Lord Nugent, 305, 745, 747, 
 
 748, 754, 757. 
 Gothard v. Flynn, 442. 
 Gottsschalk v. Wittes, 498. 
 Gough V. Crane,- 325. 
 
 V. Dennis, 306. 
 Gould V. Mansfield, 414, 415. 
 Goweu 0. Klous, 680, 683, 688, 690, 
 
 745. 
 Gower v. Stuart, 234. 
 Grace v. Dennison, 684, 843. 
 Graff V. Fitch, 360, 369. 
 Grafton v. Armitage, 529, 530, 534, 
 535, 536. 
 
 V. Cummings, 648, 649, 688, 723. 
 Grafton Bank v. Woodward, 754. 
 Graham v. Call, 843, 844. 
 
 V. Fretwell, 677, 783, 786. 
 
 V. Musson, 655, 677, 691, 778, 779, 
 782, 783, 784, 785, 786. 
 
 V. O'Neill, 206, 222. 
 
 V. Thers, 826. 
 
 V. Wichels, 102, 105, 128, 133. 
 Grant v. Campbell, 191. 
 
 V. Fletcher, 790, 792, 794, 796. 
 
 V. Grant, 799. 
 
 V. Levan, 672. 
 
 V. Naylor, 671, 690. 
 
 V. Shaw, 231. 
 Gratz V. Catlln, 457. 
 
TABLE OF CASES. 
 
 XXV 
 
 Graves v. Dyer, 408. 
 
 u. Graves, 407. 
 
 V. Weld, 879, 392. 
 Gray v. Convillon, 421. 
 
 V. Davis, 570, 584, 639. 
 
 V. Gray, 429. 
 
 V. Hill, 428, 436. 
 
 V. Stanion, 101, 117. 
 Grayson v. Richards, 92. 
 Great Western Railway Co. v. Cripps, 
 
 872. 
 Greaves, in re, 305. 
 
 Green v. Armstrong, 352, 353, 358, 359, 
 369, 372. 
 
 V. Bank of England, 807. 
 
 V. Brookins, 292. 
 
 V. Cresswell, 192, 266, 274, 287, 
 288, 291, 292, 293. 
 
 u. Disbrow, 165, 166. 
 
 V. Finin, 827. 
 
 V. Green, 432. 
 
 V. Hart, 439. 
 
 t7. Ingram, 445. 
 
 V. Low, 871. 
 
 V. Merriam, 571, 621, 630, 631. 
 
 V. N. C. R. R. Co., 383, 431. 
 
 V. Randall, 235. 
 
 V. Saddllngton, 425. 
 
 o. Vardiman, 351, 403, 408. 
 Greene v. Cramer, 703, 713. 
 
 V. Harris, 466, 469, 470, 480, 482, 
 483. 
 Greenlee v. Greenlee, 835, 846. 
 Greer v. Greer, 429. 
 Gregg V. Hamilton, 828. 
 
 V. Patterson, 830. 
 Gregory v. Gleed, 210. 
 
 V. Mighell, 826, 828, 834, 850. 
 
 V. Williams, 143, 197. 
 
 V. Wilson, 840, 849. 
 Gregson v. Ruck, 790, 794, 796. 
 Greider's Appeal, 83. 
 Grey v. Berry, 421. 
 
 V. Gary, 630. 
 
 V. Grey, 810, 814, 815, 816. 
 Gridley v. Capen, 263. 
 Griffin v. Coffey, 438. 
 
 V. Derby, 156, 220. 
 
 V. Rembert, 666, 670, 688, 690, 764. 
 Griffith V. Hodges, 99, 104, 107. 
 
 0. Jenkins, 400. 
 
 V. Sheffield, 143. 
 
 V. Young, 304, 350, 424. 
 Griffiths V. Puleston, 353, 391. 
 Grimes v. Butts, 418. 
 
 Grimes i'. Van Vechten, 432, 614. 
 Grimman v. Legge, 90, 102, 104, 106, 
 
 134. 
 Grimoldby v. Wells, 591, 596, 604. 
 Griswold v. Griswold, 214. 
 Groat V. Gile, 520, 568. 
 u. Story, 057, 713. 
 Groover v. Warfield, 677. 
 Groves o. Buck, 374, 413, 415, 527, 
 
 529, 532. 
 V. Grooves, 49, 801, 808. 
 Grubb V. Bayard, 17. 
 Grlindy v. Grundy, 409. 
 Guerard v. Daudelet, 467. 
 Guishaber v. Hairman, 175. 
 Gull V. Lindsay, 256, 268. 
 Gulliver v. Gulliver, 336. 
 Gully V. Grubbs, 494. 
 Gonnels v. Stewart, 195, 211, 214. 
 Gunter v. Halsey, 823, 854, 856. 
 Gupton V. Gupton, 826. 
 Gumsey v. Rogers, 236. 
 Guyn V. McAuley, 827. 
 Gwins V. Calder, 875. 
 Gwynn v. McCauley, 874. 
 Gybson v. Searle, 113, 115, 116, 119, 
 
 121, 122. 
 Gye, in re, 454. 
 
 H. 
 
 Hacker v. Gentry, 875. 
 Hackett v. Reynolds, 442. 
 Hackleman v. Miller, 140. 
 Haddeson Gas Co. v. Haslcwood, 668. 
 Hagan v. Domestic S. M. Co., 659, 
 
 663. 
 Hagar v. King, 395. 
 Hagey v. Detweiler, 421. 
 Haggerty v. Johnson, 156, 195, 214. 
 Haigh, ex parte, 442. 
 
 V. Brooks, 179, 180, 749. 
 
 t,. Kaye, 801, 853. 
 Hairston v. Jaudon, 827. 
 Hakes v. Hotchkiss, 243, 658. 
 Halbut V. Forest City, 350. 
 Halifax, ex parte, 452. 
 Hall V. Betty, 709. 
 
 V. Boyd, 6. 
 
 V. Burgess, 102, 103, 127, 134. 
 
 V. Chaffee, 19, 30, 33, 35, 36. 
 
 a. Hall, 422, 854, 875, 878. 
 
 V. McDuff, 413, 442. 
 
 V. Myers, 56, 58. 
 
 V. Robinson, 234, 2.52. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Hall V. Eodgers, 174, 206 
 
 V. Rowley, 473. 
 
 V. Seabright, 26. 
 
 V. Soule, 158, 432. 
 
 V. Wood, 155, 194, 219, 233. 
 
 V. "Woodin, 263. 
 Halleck v. Guy, 457, 460. 
 Hallen v. Runder, 351, 353, 377, 378, 
 
 379, 386, 392, 402. 
 Hallenback v. Cochran, 577. 
 Halsa D. Halsa, 61, 686. 
 Halstead v. Francis, 199. 
 Halterline v. Rice, 567. 
 Ham V. Goodrich, 405, 824, 832. 
 
 V. Van Orden, 570, 571, 576, 577, 
 597. 
 Hamerton v. Stead, 49, 93, 102, 103, 
 
 117, 120, 125, 126. 
 Hamilton v. Incledon, 144, 
 
 V. McDonnell, 369. 
 
 V. Terry, 143, 438, 707. 
 
 V. "Windolf, 22, 26. 
 Hamlyn Buck, in re, 447. 
 Hammer v. McEldowney, 844, 845. 
 Hammersley v. De Biel, 316, 322, 323, 
 324, 325, 327j 329, 830, 331, 
 334, 337, 730, 772. 
 Hampton v. Paulin, 208. 
 
 V. Spencer, 803. 
 Hanchett v. "Whitney, 53, 56. 
 Hand v. Grant, 727. 
 Handcoek v. Austin, 18. 
 Hander v. Hander, 415. 
 Hanford v. Higgins, 233. 
 Hanham v. Sherman, 95, 100. 
 Hankey v. Vernon, 443. 
 Hanlon v. Wilson, 828. 
 Hanson v. Armitage, 558, 585, 615, 
 643. 
 
 V. Barnes, 723, 729. 
 Harden v. Hays, 428. 
 Harder v. Harder, 839. 
 Hardesty «. Jones, 494. 
 
 V. Richardson, 845. 
 Hardman v. Bradley, 217. 
 Hare v. Celey, 27. 
 
 V. Sherwood, 852, 862. 
 Hargraves v. Cooke, 61. 
 Hargreaves v. Parsons, 197, 198, 200, 
 
 201, 206, 213. 
 Harkins v. Baker, 626, 627. 
 Harland v. Brawley, 100. 
 Harraan v. Anderson, 627, 628, 639. 
 
 V. Reeve, 184, 528, 602. 
 Harnor v. Groves, 585, 737, 
 
 Harper v. Charlesworth, 43. 
 
 V. Harper, 469. 
 
 V. Miller, 877. 
 
 V. Spainhour, 443. 
 Harrell v. Milner, 360, 361. 
 Harrington v. Rich, 153, 173, 214, 215, 
 
 264. 
 Harris v. Bell, 830. 
 
 u. Crenshaw, 826. 
 
 V. Frink, 48, 429, 430. 
 
 K. Huntback,158,196,207,289,304. 
 
 V. Knickerbocker, 854, 875. 
 
 <;. Porter, 463, 468, 473, 485. 
 
 V. Sawtelle, 290. 
 
 V. Tunbridge, 752. 
 
 V. Wing, 117. 
 
 V. Young, 215, 222. 
 Harrison, ex parte, 445. 
 
 u. Blackburn, 73, 82. 
 
 V. Cage, 311. 
 
 V. Harrison, 458, 839, 874. 
 
 V. Jackson, 782. 
 
 V. Sawtel, 198, 235, 289, 295. 
 Harriston v. Jordan, 432. 
 Harrop v. Cooke, 132. 
 Hartr. Bush, 615, 641. 
 
 V. Carroll, 362, 649. 
 
 V. Hammett, 681, 750. 
 
 ^. McClellan, 824. 
 
 V. Mills, 601. 
 
 u. Nash, 524. 
 
 V. Sattley, 615. 
 
 V. Tallmadge, 306. 
 
 V. Woods, 726, 780, 787. 
 Hartley v. Varner, 184, 290. 
 
 V. Wharton, 739, 752. 
 Hartnell v. Yeilding, 684. 
 Harvey v. Grabham, 354, 391, 743, 745, 
 747, 754. 
 
 V. Stevens, 688, 690, 693, 780, 787. 
 Harwood v. Goodright, 415. 
 Hasbrouck v. Tappen, 111. 
 Haskins v. Warren, 752. 
 Hassinger v. Newman, 298. 
 Hatch V. Bayley, 627. 
 
 V. Hatch, 91. 
 
 V. Lincoln, 627, 631. 
 Hatcher v. Hatcher, 846. 
 Hatton V. Gray, 663, 765. 
 Haudlette v. Tallman, 566. 
 HaufE V. Howard, 423. 
 Haugh V. Blythe, 494. 
 Haughabaugh v. Honald, 417. 
 Haughton v. Morton, 701. 
 Hausman v. Nye, 614, 621, 641. 
 
TABLE OF CASES. 
 
 XXVll 
 
 Haux i>. Seat, 19, 80. 
 Hayen ;;. Adams, 438. 
 Haverly v. Merian, 204, 216. 
 Havland v. Bromley, 96. 
 Hawes v. Armstrong, 179. 
 
 a. Torster, 789, 790, 793, 796. 
 
 t,. Martin, 195. 
 
 V. Smith, 144. 
 
 V. Watson, 621. 
 Hawkes v. Saunders, 138, 148. 
 Hawkins v. Baker, 779. 
 
 ... Chase, 656, 663, 738, 744, 772, 
 778, 782. 
 
 V. Gardiner, 799. 
 
 V. Holmes, 768, 771, 773, 823, 832. 
 Hawley v. Keeler, 521, 571. 
 
 V. Moody, 349, 431, 435. 
 Haycroft v. Creasey, 306. 
 Hayden v. Dunets, 638. 
 
 I . Weldon, 204. 
 Hayes v. Kindersley, 816. 
 
 V. Skidmore, 411. 
 Hayler v. Atwood, 235. 
 
 V. Cummings, 57, 63. 
 Haynes v. Burham, 263. 
 
 c. Nice, 185. 
 Hayes v. Richardson, 35. 
 Hayter v. Tucker, 393. 
 Hayton v. Benson, 78. 
 Haywood v. Cope, 60, 687, 848. 
 Hazard v. Day, 648, 702, 703, 714. 
 Hazeltine c. Rice, 534. 
 Hazen v. Barnett, 419. 
 
 V. Bearden, 165, 216. 
 Hazleton v. Putnam, 10, 400. 
 Hazlett V. Hazlett, 362. 
 Head ;;. Baldrey, 184. 
 Headrick v. Wisehart, 160, 195, 209. 
 Healey v. Tenant, 575. 
 Heard v. Pilley, 778, 782, 809. 
 Hearing v. Dettinan, 266. 
 Heam, ex parte, 447. 
 Heame v. Chadbourne, 473, 474. 
 Heath v. Heath, 469. 
 
 V. Randall, 360, 401, 624. 
 Heathcote, ex parte, 453. 
 Heavilon v. Hearilon, 352, 404. 
 Hebbard v. Whitney, 434. 
 ' Heermance v. Taylor, 561. 
 Heilbutt V. Hickson, 603, 604. . 
 Heinekey v. Earle, 572. 
 Heffield v. Meadows, 180. 
 Heflin v. Bingham, 43. 
 Hegeman v. McArthur, 100, 104. 
 Helm V. Logan, 162. 
 
 Helms V. Kearns, 160, 209. 
 Ilelshaw r. Langloy, 771. 
 Hemenway v. Bassett, 439. 
 Henderson v. Barnewall, 726, 787. 
 
 V. Hudson, 186, 422, 423. 
 Hendrick v. Lindsey, 235. 
 Hendricks v. Mosby, 409. 
 
 V. Robinson, 182, 217. 
 Henry, in re, 449. 
 
 V. Henry, 315. 
 Hepburn v. McDowell, 22. 
 Hepworth v. Hepworth, 811, 812, 816. 
 Herbert v. Fowls, 138, 143. 
 Hermance v. Vernay, 27. 
 Herrell v. Sizeland, 47, 49. 
 Herrin v. Butters, 463, 473, 474, 476, 
 
 477, 481, 485. 
 Herring v. Hoppock, 624. 
 
 V. Willard, 624. 
 Hersey v. Giblett, 61. 
 Herzog v. Herzog, 427. 
 Heseltine v. Leary, 97. 
 
 ... Siggers, 394, 503. 
 Hesseltino v. Seaver, 83. 
 Hetfield v. Central R. R. Co., 9, 20, 21. 
 
 V. Dow, 155, 103, 216, 219, 262. 
 Heth V. Woolridge, 409. 
 Hew V. Jones, 48. 
 
 Hewes v. Jordan, 557, 559, 560, 570, 
 578, 587, 590, 593, 621, 641. 
 
 V. Taylor, 723. 
 Hewett, in re, 449. 
 
 V. Isham, 43. 
 Hewlins v. Shippam, 5, 6, 9, 10, 22. 
 Heyman v. Neale, 789, 791, 794. 
 Heys V. Astley, 857. 
 Heyward v. Barnes, 732. 
 Heywood v. Cope, 844. 
 
 V. Styles, 166. 
 Heyworth v. Knight, 790, 794. 
 Hibblewhite v. McMorine, 393. 
 Hibhert v. Aylott, 828, 836. 
 Hickman v. Haynes, 745, 749, 758, 759, 
 
 760, 761. 
 Hicks V. Critcher, 234, 252. 
 Hidden v. Jordan, 493. 
 Hiem v. Mill, 452. 
 Higdon V. Thomas, 772. 
 Higgins V. Andrews, 27. 
 
 V. Murray, 554. 
 
 V. Senior!! 753, 779. 
 Higginson v. Clowes, 456, 865. 
 Highmore r. Primrose, 425. 
 Hight V. Ripley, 545, 546, 550. 
 Hildyard, in re, 444, 448, 453. 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Hill V. Heller, 558, 601. 
 
 u. Hooper, 463, 471, 491, 500. 
 
 V. Jamieson, 480, 497. 
 
 V. Lord, 7. 
 
 V. Raymond, 155, 203, 219, 262. 
 
 V. Robinson, 104. 
 
 u. Rowe, 681. 
 
 V. Tupper, 15, 18. 
 
 V. "Wells, 221. 
 Hilraart v. Christian, 412. 
 Hilton V. Giraud, 393. 
 
 V. Dinsmore, 153, 206, 240, 266, 
 276, 277. 
 Hilts V. Scully, 223. 
 Himrod Furnace Co. v. Cleveland R.R. 
 
 Co., 650, 754, 764. 
 Hinchcliff v. Hinman, 412. 
 Hinckley v. Arey, 788. 
 
 V. Southgate, 473, 476, 481, 485. 
 Hinde v. Whitehouse, 573, 647, 654, 
 
 709, 720, 739, 780, 781, 789. 
 Hindman v. Langford, 152, 175, 228, 
 
 267. 
 Hine v. Robbins, 92, 412. 
 Hinman v. Booth, 412. 
 Hirchborn v. Stewart, 605. 
 Hitchcock V. Lukens, 247. 
 Hitckins v. Shaller, 14, 39. 
 Hite V. Wells, 223, 241. 
 Hoad V, Grace, 180. 
 Hoadley v. McLaine, 655, 680, 752, 
 
 760. 
 Hoare v. Hindley, 500. 
 Hobbs V. Wetherwax, 354, 359, 369, 
 
 410. 
 Hobson V. Cowley, 103, 127, 305. 
 Hoby V. Roebuck, 68, 350, 399, 495. 
 Hockley v. Bantock, 450. 
 Hodges V. Hall, 154, 211, 223. 
 
 V. Howard, 61, 656, 714. 
 
 V. Richmond Mfg. Co., 470, 480, 
 482. 
 
 V. Strong, 497. 
 Hodgkins v. Henney, 260. 
 
 V. Jackson, 199. 
 
 V. Kearney, 155. 
 Hodgkinson v. Wyatt, 449. 
 Hodgson V. Anderson, 202, 206, 207, 
 285, 286. 
 
 V. Davies, 791, 795. 
 
 V. Hutchinson, 190, 334. 
 
 V. Johnson, 184, 398, 424. 
 
 V. Le Bret, 365, 366, 597, 600, 617, 
 619, 771, 778. 
 
 V. Lee, 621, 643. 
 
 Hodgsons v. Jeffries, 14. 
 Hodson V. Staple, 132. 
 Hoffman v. Fett, 827. 
 Hogarth v. Phillips, 336. 
 Hogg V. Snaith, 862. 
 
 V. Wilkins, 414. 
 Holbrook v. Armstrong, 490, 494. 
 
 V. Tirrell, 91, 413. 
 Holden v. Hearn, 451. 
 Holderbaugh v. Turpin, 140. 
 Holding V. Barton, 855. 
 Holland v. Eyre, 732. 
 
 V. Hoyt, 779. 
 HoUingshead v. McKenzie, 854, 878. 
 Hollingworth v. Napier, 633. 
 
 V. Stennett, 48, 50. 
 HoUis V. Edwards, 832. 
 
 V. Pool, 51. 
 Holloway v. Hampton, 471, 473, 494, 
 
 500. 
 Holman v. Bank, 647. 
 Holmes v. Evans, 684, 685, 846. 
 
 V. Holmes, 414, 836. 
 
 V. Hoskins, 576, 577, 578, 621, 635. 
 
 /;. Johnston, 647, 751. 
 
 V. Knights, 275, 290, 292, 295. 
 
 V. Mackrell, 773. 
 
 V. Mitchell, 177, 178, 737. 
 
 V. Tremper, 27. 
 
 V. Trout, 412. 
 Holthausen, ex parte, 446. 
 Horaans v. Lombard, 203, 207, 219. 
 Home V. Batehelder, 352. 
 
 V. Booth, 653. 
 Homes v. Martin, 208. 
 Homfray v. Fothergill, 857. 
 Honeyman v. Marryat, 731, 735, 844. 
 Hood V. Bowman, 832. 
 
 V. Lord Barrington, 692. 
 Hooker v. Knabe, 621, 641. 
 Hooper, ex parte, 442, 449, 450, 823. 
 Hopkins v. Carr, 160, 195, 208. 
 
 V. Richardson, 247. 
 
 V. Roberts, 820. 
 Hopper V. Stephens, 624. - 
 Hoppock V. Wilson, 162. 
 Horn V. Bray, 291, 292, 293. 
 
 V. Ludington, 824. 
 Horsey v. Graham, 397, 751. 
 Horsfall ;;. Garnett, 734. 
 
 V. Hey, 351, 402. 
 
 V. Hodges, 743. 
 Horton v. McCarty, 663, 704, 713, 723, 
 
 735, 780. 
 Hosford V. Carter, 413. 
 
TABLE OF CASES. 
 
 XXIX 
 
 Hotchkiss V. Ladd, 493, 875. 
 Houdletto I). T.allman, 576, 576. 
 Houghtaling v. Ball, 576. 
 
 V. Houghtaling, 34, 400. 
 Houghton, ex parte, 806. 
 
 V. Houghton, 466, 469, 470, 480, 
 484. 
 Houlditch V. Milne, 208, 216, 255, 257, 
 
 259. 
 Houser ik Lament, 158, 854. 
 Houston V. Laffee, 8, 16, 20, 21, 22, 
 28, 35, 36, 38. 
 
 c. Matthews, 421. 
 
 V. Sneed, 421. 
 How t'. Barker, 638. 
 
 V. Kimball, 171. 
 Howard v. Borden, 576, 577. 
 
 V. Brown, 405. 
 
 V. Burgen, 466, 467, 469. 
 
 I. Coshaw, 198, 201. 
 
 < . Easton, 351, 402, 411. 
 
 V. Gresham, 439. 
 
 V. Priest, 423. 
 
 (7. Shaw, 48. 
 Howe V. Batchelder, 360, 368, 506. 
 
 ^. Deming, 686. 
 
 V. Hall, 835, 839, 842. 
 
 V. Hayward, 518, 519. 
 
 V. Howe, 806. 
 
 V. Palmer, 396, 504, 585, 618, 621, 
 633, 642. 
 
 V. Rogers, 836. 
 
 u. Searing, 35. 
 
 V. Wilder, 413. 
 Howes V. Ball, 623, 624. 
 
 V. Hall, 26. 
 
 1-. Martin, 296. 
 Howland v. Aitch, 302. 
 
 V. Blake, 439. 
 Hubbard v. Marshall, 649. 
 Huber v. Ely, 175, 267. 
 
 V. Sleiner, 305. 
 Hubert v. Moreau, 771. 
 
 V. Treherne, 774, 776. 
 
 V. Turner, 773, 774. 
 Hubon V. Parks, 198. 
 Huddlestone v. Briscoe, 730, 844, 856. 
 
 V. Johnson, 103. 
 Hudson V. Weir, 503, 566. 
 Huff V. McCauley, 6, 15, 20, 28, 36, 
 359, 362, 383. 
 
 V. Shepherd, 845. 
 Huffman v. Ackley, 158, 874. 
 
 V. Stark, 5. 
 Hughes V. Moore, 348, 413, 414. 
 
 Hughes V. Morris, 825. 
 
 V. Parker, 61. 
 
 I'. Robotham, 87. 
 
 V. Stubbs, 799, 800. 
 Hugus I). Walker, 846. 
 Hull V. Babcock, 26. 
 
 J . Brown, 160. 
 
 I'. Wadsworth, 51, 58. 
 
 i: Wood, 48, 49, 52, 104. 
 Humble v. Hamilton, 429. 
 
 V. Mitchell, 393, 394, 503. 
 Humphrey v. Dale, 783. 
 Humphries ;;. Home, 865. 
 
 I). Humphries, 47, 54. 
 Hunt V. Allgood, 62, 66. 
 
 V. Hecht, 563, 576, 590, 603, 615. 
 
 V. Hughes, 176. 
 
 V. Maynard, 438. 
 
 V. Wimbledon &e., 826. 
 Hunter v. Giddings, 663. 
 
 V. Murray, 554. 
 
 V. Randall, 308, 875. 
 
 u. Seton, 663. 
 
 V. Wetsell, 521, 522. 
 
 V. Wright, 627, 641. 
 Huntington ;;. Harvey, 174, 266, 296. 
 
 V. Wellington, 229. 
 Huntress v. Patten, 156, 178. 
 Hupport I'. Morrison, 25. 
 Hurford v. Carpenter, 443. 
 Hurley i;. Brown, 682, 683, 684, 717, 
 
 742, 750, 751, 846, 860. 
 Hurley v. Blackford, 685. 
 Hurper v. Laney, 848. 
 Hurry v. Mangles, 617. 
 Hussey v. Horner Payne, 716. 
 
 «. Thornton, 024. 
 Hutchins v. Lee, 798. 
 
 V. Martin, 85, 89, 116, 119, 122. 
 Hutchinson v. Bowker, 730. 
 
 V. Hutchinson, 467, 469, 470, 480, 
 483. 
 
 V. Tatham, 753. 
 Ifutton V. Padgett, 61. 
 
 V. Williams, 457, 460, 726. 
 Hyde v. Cooper, 824. 
 
 V. Johnson, 771. 
 
 V. Moakes, 128. 
 
 V. Wrench, 731. 
 
 Ide V. Stanton, 647, 649, 654, 655, 678, 
 709, 712. 
 
XXX 
 
 TABLE OF CASES. 
 
 lUsley V. Stubbs, 644. 
 Inge V. Birmmgham, Wolverhampton 
 & Stour Valley Railway Co., 
 702. 
 IngersoU v. Baker, 205. 
 Ingles V. Patterson, 827. 
 Ingram v. Dowdle, 457, 461. 
 Inman v. Stamp, 18, 45, 303, 348, 398. 
 Ireland v. Jackson, 523. 
 
 0. Rattle, 417. 
 Iron Cliff's Co. o. Buhl, 568. 
 Irvin V. Thompson, 44, 45. 
 Irvine v. Stone, 185. 
 Irwin V. Hubbard, 437. 
 Israel v. Douglas, 286. 
 Ithel V. Potter, 768, 771. 
 Ive's Case, 116. 
 Ives V. Gilbert, 482. 
 
 V. Hazard, 647, 656, 663, 678. 
 
 V. Sams, 85, 89, 116, 119, 122. 
 Ivory V. Murphy, 666, 764. 
 Izard V. Izard, 337. 
 
 V. Middleton, 466, 469. 
 
 J. 
 
 Jack V. McKee, 405. 
 
 V. Morrison, 163, 194. 
 Jacklin v. Cartwright, 66. 
 Jackson & Sharp Co. v. Philadelphia 
 
 &c. R. Co., 401. 
 Jackson, in re, 395. 
 
 u. Anderson, 92. 
 
 V. Babcock, 10, 401. 
 
 V. Brodt, 47, 53, 418. 
 
 V. Bryan, 54. 
 
 V. Bull, 457. 
 
 V. Cator, 866. 
 
 V. Covert, 206, 537. 
 
 V. Elsworth, 79. 
 
 V. Evans, 397. 
 
 «. Gardner, 89, 102. 
 
 V. Harder, 418. 
 
 u. Kingsley, 48. 
 
 V. Lowe, 654, 655, 701, 709, 710, 
 712, 741. 
 
 V. McLeod, 50. 
 
 V. Oglander, 694, 708, 743, 767, 
 844, 857. 
 
 V. Page, 92. 
 
 V. Parkhurst, 50. 
 
 u. Pierce, 434. 
 
 V. Rayner, 162. 
 
 V. Rogers, 48. 
 
 Jackson v. Sheldon, 412. 
 
 V. Titus, 670, 716. 
 
 V. Van Dusen, 771. 
 
 0. Vosburgh, 418. 
 
 V. Watts, 607, 621. 
 
 V. Wilsey, 51. 
 Jacob V. Kirk, 654, 688, 691, 693, 709, 
 
 771. 
 Jacobs V. Latour, 632. 
 
 V. R. R. Co., 832. 
 James v. Bydder, 448. 
 
 V. Muir, 679. 
 
 V. Pope, 105. 
 
 V. Rice, 448, 450. 
 
 V. Williams, 179, 182. 
 Jameson v. Stein, 329. 
 Jamieson v. Millemann, 9, 33, 400. 
 Jamison v. Dimock, 822. 
 Janes v. Palmer, 61. 
 Janvrin v. Maxwell, 621, 630, 631, 632. 
 Jarmain v. Algar, 274. 
 Jarvis v. Dutcher, 442. 
 
 V. Wilkins, 182. 
 Jay V. Rider, 116, 117. 
 Jeans v. Cooke, 807, 816. 
 Jeffcot V. N. B. Oil Co., 738. 
 Jeffers v. Jeffers, 412. 
 Jefferson Co. v. Hogle, 216, 222. 
 Jeffrey v. Walton, 771. 
 Jeffreys v. Small, 423. 
 Jelks V. Barrett, 762. 
 Jenkens v. Hogg, 458, 460, 726, 729, 
 
 781. 
 Jenkin Cent. 256, case 49, 82. 
 Jenkins v. Green, 60, 687. 
 
 V. Harrison, 684, 705, 742. 
 
 V. Hiles, 868. 
 
 V. Reynolds, 182, 496. 
 Jenkinson v. Pepys, 864, 869. 
 Jenks V. Edwards, 5. 
 
 u. White, 407, 423. 
 Jeuness v. Mt. Hope Iron Co., 653, 
 663, 713, 737, 738. 
 
 V. Wendell, 510, 511, 512. 
 Jennings ;:. Crider, 172, 240. 
 
 I'. Flanagan, 520. 
 
 ■,. Webster, 198. 
 Jepherson v. Hunt, 220, 221. 
 Jerdein v. BrigM, 817, 877. 
 Jervis v. Berridge, 737, 853. 
 
 V. Smith, 854. 
 Jeston V. Key, 322. 
 Jewel V. Ricker, 425. 
 Jewett V. Warren, 626, 631. 
 Jilson «. Gilbert, 469. 
 
TABLE OF CASES. 
 
 XXXI 
 
 John V. Jenkins, 108, 117, 121. 
 
 V. Sabbatis, 419. 
 Johnasson v. Bonhote, 855. 
 Johns V. Johns, 406. 
 Johnson v. Bowden, 828. 
 
 V. Buck, 664, 688, 704, 709, 721, 
 739, 741, 779, 781, 783. 
 
 u. Cuttle, 557, 571, 587, 596, 597, 
 613, 614, 615, 621, 641. 
 
 V. Dimock, 827. 
 
 V. Dodge, 778, 782. 
 
 V. Dodgson, 615, 641, 674, 740, 
 773, 775, 776, 784, 875. 
 
 V. Gilbert, 198, 265, 298, 299. 
 
 V. Glancy, 826, 835, 839. 
 
 V. Granger, 751. 
 
 V. Hanson, 435. 
 
 V. Hart, 439. 
 
 V. Hunt, 567. 
 
 V. Johnson, 843, 846. 
 
 .,. Kellogg, 357, 654, 662,684, 709. 
 
 V. Knapp, 160, 198, 209, 246, 290. 
 
 V. McGruder, 778, 839. 
 
 V. Morris, 162. 
 
 V. Mulry, 726. 
 
 V. Noonan, 156, 174. 
 
 V. Ronald, 647, 716. 
 
 V. Roylton, 752. 
 
 c. Skillman, 10, 400. 
 
 V. Trinity Church Society, 675. 
 
 V. Watson, 494. 
 
 V. Whitchcott, 146, 146. 
 
 V. "Wilson, 417. 
 Johnston v. Huddlestone, 84, 85, 94, 
 103, 106, 108, 126, 131. 
 
 ». Johnston, 826. 
 
 V. NichoUs, 175, 179. 
 Jolley V. Walker, 221. 
 Jones, ex parte, 462. 
 
 V. Ashburnham, 143. 
 
 V. Cooper, 202. 
 
 V. Flint, 352, 353, 354, 356, 360, 
 383, 387. 
 
 V. Hardestry, 198. 
 
 V. Hay, 427. 
 
 V. Jones, 48. 
 
 V. Letcher, 292. 
 
 V. Lock, 799, 800. • 
 
 V. McMichael, 399, 423. 
 
 V. Mechanics' Bank, 570, 578, 614. 
 
 „. Neale, 91. 
 
 „. Palmer, 173, 298. 
 
 V. Peterman, 826. 
 
 V. Reynolds, 62. 
 
 V. Robinson, 199. 
 
 Jones V. Shay, 47, 48. 
 
 V. Shorter, 290, 292, 295. 
 
 V. Smith, 420. 
 
 V. Victoria Graving Dock Co., 
 649, 760. 
 
 u. Walker, 174, 265, 266, 296. 
 
 V. Williams, 456, 702. 
 Jordan r. Deaton, 844. 
 
 V. James, 637. 
 
 V. Jordan, 92. 
 
 r. Miller, 469, 470. 
 
 V. Korton, 588, 609, 730. 
 
 V. Sawkins, 862. 
 Jorden v. Money, 316, 331, 332, 333. 
 Joslyn V. CoUinson, 171. 
 Joyce V. Adams, 520. 
 
 V. Swann, 680. 
 Joynes v. Statham, 852, 868, 859, 863. 
 Julison V. Jandon, 429. 
 Jungerman v. Bovee, 108. 
 Justice V. Lang, 661, 663, 666, 764. 
 Justin V. Tallman, 233. 
 
 Kabley v, Worcester Gas Light Co., 
 
 437. 
 Kain v. Old, 679. 
 Kaitling v. Parkin, 739. 
 Kauffman v. Walker, 457, 458. 
 Kay V. Crook, 328. 
 
 .,. Curd, 656, 678, 846, 875. 
 
 V. Pennsylvania R. R. Co., 24. 
 Kealey v. Tennant, 597. 
 Kean v. McKinsey, 173. 
 Kearsing v. Killian, 412. 
 Keate v. Temple, 166, 168, 216, 217. 
 Keats V. Hewer, 815. 
 Keech v. Hall, 80. 
 Keeler v. Tatnall, 422, 429. 
 Keister v. Miller, 83. 
 Keiwert v. Meyers, 613, 621 
 Kelley v. Allen, 409. 
 
 V. Stanberry, 414. 
 
 V. Terrell, 473, 485, 486, 497. 
 Kellogg V. Clark, 471. 
 
 V. Wetherhead, 543. 
 Kelly V. Waite, 61. 
 
 V. Webster, 126, 348, 350, 353, 
 397, 425. 
 Kelsey v. Hibbs, 261. 
 Kemble v. Dresser, 428. 
 Kemeys v. Proctor, 780. 
 Kempson v. Boyle, 760, 792. 
 
xxxu 
 
 TABLE OF CASES. 
 
 Kennaway v. Tj-eleavan, 176, 191. 
 Kennedy v. Lee, 654, 703, 715, 730, 
 
 736, 846. 
 Kensington, ex parte, 442, 443, 448, 451, 
 454. 
 
 V. Phillips, 847. 
 Kent V. Huskinson, 583. 
 
 V. Kent, 468, 470, 481, 485, 487, 498. 
 Kenworthy v. Schofield, 646, 653, 720, 
 
 739, 780, 781. 
 Kenyon v. Nichols, 6. 
 Kerr v. Connell, 355, 371. 
 Kersliaw v. Ogdeu, 563. 
 
 V. Whittaker, 173. 
 KesBel V. Alhestis, 395. 
 Kettle V. St. John, 118. 
 Keys V. Williams, 450. 
 Keyson v. School District, 351, 402. 
 Keyton v. Crawford, 409. 
 Kibble v. Gough, 591, 592. 
 Klbby V. Chetwood, 876. 
 Kidder v. Barr, 824. 
 
 V. Hunt, 428, 429, 434, 481, 491. 
 Killian v. Ashley, 173. 
 Kilmore r. Hewlett, 352, 356, 359, 369, 
 
 383, 386, 544. 
 Kilpin V. Kilpin, 800, 811. 
 Kimball v. Comstock, 308. 
 
 V. Newell, 156. 
 
 V. Yates, 9, 15, 22, 33, 35. 
 Kine v. Balfe, 826, 829, 835, 878. 
 King V. Brown, 405, 429, 430, 491, 492. 
 
 V. Cole, 180. 
 
 V. Crocheran, 92. 
 
 V. Denison, 805. 
 
 V. Despard, 154, 223, 260. 
 
 V. Edmunston, 184. 
 
 V. Gunnison, 456, 461. 
 
 V. Hanna, 469, 484. 
 
 V. Janvrin, 638. 
 
 V. Jarman, 627, 637, 638, 639. 
 
 V. Newton, 26. 
 
 V. Rickman, 684, 846. 
 
 V. Summit, 301, 304. 
 
 V. Thom, 148. 
 
 V. Upton, ^43. 
 
 V. Welcome, 429, 435, 490. 
 
 V. Wilson, 173, 273. 
 
 V. Wood, 682, 686. 
 Kingdon v. Bridges, 810. 
 King's Leasehold Estates, in re, 63, 70. 
 Kingsley i'. Balcom, 160. 
 
 V. Holbrook, 352, 360, 368, 369, 
 372, 387, 403, 506. 
 Kinloch v. Brown, 155, 217, 219, 262. 
 
 Kinloch v. Savage, 678. 
 ICinsey v. Winnock, 105. 
 Kinzie v. Penrose, 874. 
 Kirby v. Johnson, 537, 621, 641. 
 Kirkham v. Marter, 183, 273. 
 ICirksey v. Kirksey, 854. 
 Kirtland v. Ponsett, 48. 
 Kirwan v. Birchell, 331. 
 Kleeman v. Collins, 473, 474, 486. 
 Klinitz V. Surry, 572, 573, 574. 
 Kneeland v. Fuller, 429. 
 Knibs V. Jones, 758. 
 linight K. Barber, 393. 
 V. Bennett, 52. 
 V. Crockford, 772, 775. 
 V. Dunlop, 602. 
 V. Mann, 558, 561, 565, 569, 570, 
 
 595, 607, 621, 631. 
 V. N. E. Worsted Co., 377. 
 Knowles v. Michel, 425, 436, 496. 
 Knowlman v. Bluett, 429, 467, 469. 
 Knox V. Harlason, 383. 
 V. King, 656, 723, 739. 
 V. Nutt, 155, 262. 
 Koplitz V. Gustavus, 66. 
 Korf V. Lull, 843. 
 Kramer v. Arthurs, 422. 
 Krank v. Nichols, 97, 98. 
 Kratz V. Stocke, 159. 
 Kronheim v. Johnson, 654, 772. 
 Krudler v. Ellison, 613. 
 Krutz V. Stewart, 154, 260, 263. 
 Kurtz V. Adams, 155, 219, 262. 
 
 V. Cummings, 656, 739. 
 Kutzmeyer v. Ennis, 198. 
 
 L. 
 
 m 
 
 Lackington v. Atlicrton, 627, 628, 639. 
 Lacon v. Allen, 442, 454. 
 
 V. Mertms, 823, 826, 856. 
 Lacy V. Arnett, 35. 
 
 V. McNeile, 207, 285. 
 Ladd V. ICing, 758. 
 
 V. Smith, 100, 102. 
 
 V. Tobey, 247. 
 Lady Thynne v. Earl of Glengall, 316, 
 
 767, 843. 
 Laidler v. Burlinson, 588. 
 Laidlow V. Hatch, 233. 
 Laing v. Lee, 240. 
 
 Laird v. Birkenhead Railway Co., 849. 
 Lake v. Phillips, 862. 
 Lamar v. McNamee, 82, 83, 96. 
 
TABLE OF CASES. 
 
 XXXlll 
 
 Lamb v. Crafts, 186, 547. 
 Lambert v. McDonnell, 78. 
 
 c. Norris, 03. 
 Lampkins v. Hoos, 512. 
 Lamplugh r. Lamplugh, 814, 815. 
 Lampman v. Schilks, G. 
 Lampson v. Heartt, 260. 
 V. Hobart, 155. 
 i-. Swift, 156. 
 Lamson v. Patch, 639. 
 
 u. Ward, 413. 
 Lancaster Canal Co., ex parte, 445. 
 
 in re, 393. 
 Lancaster v. De Trafford, 60. 
 Landas v. HolUngshead, 100. 
 Lane, ex parte, 215, 286. 
 
 V. Burghart, 207, 214, 275. 
 V. Dighton, 808. 
 V. Miller, 19, 28, 36. 
 V. Shackford, 415, 433, 491, 506, 
 824. 
 Lang V. Henry, 61, 473, 486, 647, 662. 
 Langdon v. Hughes, 215. 
 Langflelde v. Hodges, 798. 
 Langford i-. Preeman, 876. 
 
 V. Tyler, 515, 519. 
 Langstaff v. Nicholson, 719. 
 Langston, ex parte, 447, 451. 
 Langton v. Casrleton, 489. 
 Lanterman v. Williams, 419. 
 Lanz V. McLaughlin, 649, 666, 824. 
 Lapham ;;. Whipple, 312, 482, 484, 
 
 485, 500. 
 Larimer v. Kelley, 470, 483. 
 Larned v. Hudson, 47, 48. 
 Larson i;.Wyman,155,156,216,218,254. 
 Lassence v. Tiemey, 314, 322, 323, 324. 
 Latham v. Atwood, 381, 392. 
 Laung V. French, 155. 
 Laurie i'. Schofield, 180. 
 Lavender v. Blackstone, 321, 337. 
 Layer v. Fielder, 328, 329. 
 Lavery v. Turley, 305, 425. 
 Laverty v. Mason, 872. 
 Lawle V. Lapham, 877. 
 Lawnsley v. Sunwall, 231. 
 Lawrence v. Brown, 110. 
 o. Chase, 414, 874, 876. 
 V. Cook, 311, 312, 498. 
 V. Ervington, 369. 
 V. Faux, 104, 126, 133. 
 V. Fox, 199, 232, 233, 235, 
 
 251, 278, 280. 
 V. Gallagher, 788. 
 V. Lawrence, 92. 
 
 Lawrence d. Smith, 3.59, 309. 
 r. Stratton, 413. 
 ,■. Taylor, 778. 
 
 I. Woods, 500. 
 Lawrenceson v. Butler, 766. 
 Lawson v. Laude, 8G4. 
 
 v. Springstcin, 210. 
 Laythoarp v. Bryant, 647, 663, 666, 
 
 668, 709, 730, 704, 765, 766. 
 Lea .;. Barber, 184, 186. 
 Leago !'. Deane, 426. 
 Lear v. Chotcau, 411, 874, 876. 
 Leather Cloth Co. v. Hieronimus, 652, 
 
 710, 749, 760, 761. 
 Leathes, ex parte, 453. 
 
 in re, 453. 
 Leavitt v. Pratt, 438. 
 Ledford v. FaiTell, 414. 
 Lee V. Fontaine, 240. 
 
 V. Gaskell, 363, 379. 
 
 V. Griffin, 529, 530, 531, 534, 537, 
 540, 541, 542, 5.32. 
 
 V. Hemmingway, 843. 
 
 0. Hernandez, 49. 
 
 V. Hills, 648, 649, 689, 714, 737. 
 
 V. McLeod, 16, 35. 
 
 V. Muggeridge, 146. 
 
 V. Newman, 233. 
 
 II. Risdon, 402, 404. 
 
 i). Smith, 48, 52, 56, 67. 
 Leech v. Leech, 89. 
 Leed v. Leed, 523, 526. 
 Leeds v. Burrows, 843. 
 Lefevre v. Lefevre, 22. 
 Legal V. Miller, 864. 
 Legg V. StrudwicK, 56. 
 Leinan v. Smart, 402. 
 Leisherness v. Berry, 637. 
 Leland v. Creyon, 194, 216, 218. 
 Lemau v. Whitley, 810. 
 Le Mayne v. Stanley, 772. 
 Lemmon v. Box, 176, 267. 
 Lenfer v. Henke, 422. 
 Leonard v. Davis, 626, 638. 
 
 V. Mason, 231. 
 
 V. Vredenburgh, 156, 171, 172, 
 176, 177, 232, 250, 265. 
 Lent V. Paddleford, 764. 
 Lemed v. Wannemacher, 58, 60, 648, 
 649, 660, 654, 678, 702, 705, 
 706, 709, 724, 734, 739, 742. 
 Leroux v. Brown, 150, 305, 457, 486, 
 
 491, 652, 669. 
 Lesley v. Randolph, 63. 
 
 V. Kosson, 410. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Leslie v. Tompson, 867. 
 Lester v. Bowman; 247, 290. 
 
 u. Foxcraft, 819, 829, 845, 
 
 v. Kinne, 845. 
 
 V. McDowell, 566. 
 Leven v. Smith, 621. 
 Levison v. Stix, 487. 
 Levy t>. Green, 601. 
 Lewellen v. Overton, 421. 
 Lewin v. Stewart, 877. 
 Lewis V. Lane, 807. 
 
 V. Reichy, 844, 845. 
 
 V. Wells, 720. 
 
 V. Wilson, 474. 
 Lexington v. Clark, 184, 186, 229. 
 Lexley v. Heath, .329. 
 Libeau v. Libeau, 92. 
 Lieber v. Levy, 17.S, 266. 
 Liggins V. Inge, 11, 26, 37. 
 Lightfoot r. Herring, 870. 
 Lillywhite r. Devereux, 576, 585, 626. 
 Lily V. Green, 56. 
 Linan v. Smart, 407. 
 Lincoln v. Crandell, 723. 
 
 (,-. Erie Preserving Co., 689. 
 
 V. Wright, 801, 827, 836, 852, 855. 
 Lindlcy v. Tibbals, 58. 
 Linden, in re, 452. 
 Lindsay v. Lynch, 65, 684, 830, 846, 858. 
 
 V. Springer, 421. 
 Lindsley v. Coates, 415, 506. 
 Lindus v. Bradwell, 753. 
 Lines ji. Smith, 171. 
 Lingan v. Henderson, 874. 
 Linley v. Taylor, 393. 
 Linn Boyd Tobacco Warehouse Co. 
 
 V. Terrill, 781. 
 Linecott ti. Mclntire, 314, 468, 476, 
 
 479, 480, 484. 
 Linton v. Butz, 027. 
 Lippincott v. Ashfield, 233, 241, 252. 
 Lisk V. Sherman, 405, 420, 489. 
 Lister v. Hodson, 799. 
 Litcher v. Crosby, 824. 
 Little V. Wilson, 480, 485, 486. 
 Littledale, ex parte, 444, 445. 
 Littlejohn, ex parte, 186. 
 Liverpool Borough Bank v. Eccles, 
 
 667, 731, 734, 765. 
 Liversidge v. Broadbent, 286. 
 Livingston v. Potts, 103, 108, 110. 
 
 I). Tremper, 171. 
 Llewellyn v. Earl of Jersey, 710. 
 Lloyd, ex parte, 444, 454. 
 
 V. Attwood, 450, 451. 
 
 Lloyd V. Conover, 419. 
 V. Gregory, 88, 117. 
 
 ... Langford, 84, 122, 124. 
 
 V. Lee, 146. 
 
 V. Lloyd, 806, 868. 
 
 V. Passingham, 132. 
 
 u. Pughe, 810. 
 
 „. Read, 807, 811, 815, 816. 
 
 V. Spillet, 799, 805, 810. 
 
 V. Wright, 561, 614, 642. 
 Lobb V. Stanley, 739, 752, 773, 775. 
 Lobdell V. Lobdell, 846. 
 Lockerson v. Stilwell, 843. 
 Lockett V. Nocklin, 738. 
 Lockhart v. Gier, 33. 
 Lockwood V. Barnes, 427, 431, 434, 
 466, 484, 485, 491, 498. 
 
 V. Lockwood, 51. 
 LofEus V. Maw, 329, 331, 334. 
 Logan V. Anderson, 108. 
 
 V. Barr, 83. 
 
 V. Le Mesuvier, 520. 
 London & Birmingham Railway Co. 
 
 V. Winter, 786, 867. 
 London Loan and Discount Co. v. 
 
 Drake, 78, 79. 
 Long V. Buchanan, 20. 
 
 V. Duncan, 845, 848. 
 
 V. Hartwell, 782. 
 
 ('. Henry, 153. 
 
 t.. Millar, 697, 704, 705, 725, 739. 
 
 V. Rodman, 140. 
 Long's Appeal, 418. 
 Longfellow v. Williams, 669. 
 Longley v. Longley, 806. 
 Loomer v. Dawson, 60, 796. 
 Loomis V. Newhall, 247, 289. 
 
 V. Spencer, 796. 
 Loonie v. Hogan, 254. 
 Lord V. Davison, 214. 
 
 V. Hill, 8. 
 
 V. Lord, 457. 
 Lord Bolton v. Tomlin, 4, 68. 
 
 Desart v. Goddard, 838. 
 
 Falmouth v. Thomas, 397. 
 
 Glengall v. Barnard, 781. 
 
 Gordon v. Marquis of Hertford, 
 867. 
 
 Irnham v. Child, 862, 869. 
 
 Middleton v. Wilson, 718. 
 
 Ormond v. Anderson, 766, 846. 
 
 Portmore v. Morris, 862. 
 
 Stuart V. L. & N. W. R. Co., 846. 
 
 Townshend v. Bishop of Norwich 
 767. 
 
TABLE OF CASES. 
 
 XXXV 
 
 Losee v. WiUiams, 298. 
 
 Lounsbury v. Snyder, 58, 110. 
 
 Love V. Camp, 872. 
 
 Love's Case, 152, 269. 
 
 Low V. Carter, 812. 
 
 Lowber v. Connit, 649, 663, 764. 
 
 Lower K. Weaver, 826. 
 
 V. "Winters, 351, 359, 369, 402, 411, 
 600. 
 Lowry v. Buffington, 828. 
 
 o. Lord Dufferin, 831. 
 
 V. Mehaffy, 663, 764. 
 Lowther v. Troy, 117. 
 Luark v. Malone, 154, 260, 263. 
 Lucas V. Chamberlain, 290, 292, 295. 
 
 V. Dorrien, 451, 628, 639. 
 
 V. James, 733, 735, 769. 
 
 V. Lucas, 799. 
 
 V. Payne, 240, 241, 247. 
 
 V. Williams, 147. 
 Luce V. Carley, 6. 
 Luckett V. Williams, 878. 
 Luck's Appeal, 443. 
 Lucy V. Bundy, 429, 624. 
 
 V. Mouflet, 581, 588, 604. 
 Luders v. Anstey, 317. 
 Ludlow V. Cooper, 422, 423. 
 Luer V. Zeile, 204. 
 Lyde v. Barnard, 307. 
 Lyman v. Lyman, 407. 
 
 u. Robinson, 702, 703. 
 Lynch v. Lynch, 83, 92, 124, 126, 129, 
 
 130. 
 Lynes v. Hayden, 844, 845, 846. 
 Lyon V. Culbertson, 752. 
 
 V. King, 466, 467, 484. 
 
 V. Eeed, 83, 90, 93, 95, 96, 97, 98, 
 104, 111, 116, 119, 120, 128, 
 129, 131, 133. 
 Lysaght v. Walker, 176. 
 
 M. 
 
 Maberley v. Sheppard, 567, 588, 619, 
 
 621, 625. 
 McAllister v. Montgomery, 423. 
 McAlvey v. Noble, 173. 
 McAskie V. McCay, 329, 331. 
 McAuley v. Carter, 843. 
 McBlain v. Cross, 771, 788. 
 McBride v. Whitehead, 624. 
 McCabe v. Fitzpatrick, 407. 
 McCaffie v. Eadcliffe, 156, 194, 215. 
 McCampbell v. McCampbell, 435. 
 
 McCarger i;. Rood, 65, 828. 
 McCarthy v. Knapp, 559. 
 
 V. Kyle, 050. 
 
 V. Oliver, 354, 869. 
 McCartney v. Hubbell, 247. 
 McClellan v. Sanford, 494. 
 McClintock's Appeal, 359, 362, 363, 
 
 368. 
 McClintosh v. Laing, 845. 
 McClung V. Kelley, 640. 
 McComb V. Wright, 726, 781. 
 McConnell v. Brillhart, 703. 
 McCormick v. Drummett, 406. 
 
 V. Grogan, 821. 
 
 V. Hadden, 638. 
 McCorney v. Stanley, 173. 
 McCoy V. Williams, 493, 878. 
 McCrary v. Madden, 154, 231, 240. 
 McCrea v. Purmont, 663, 764. 
 McCreary v. Van Hook, 198. 
 McCue V. Johnston, 846. 
 
 V. Smith, 424, 492. 
 McDaniels v. Lapham, 439. 
 Macdonald v. Longbottom, 681, 751. 
 McDonnell v. Dodge, 155. 
 
 V. McKay, 369. 
 
 V. Pope, 127, 128, 131. 
 McDowell V. Chambers, 769. 
 
 V. Hewett, 567. 
 
 V. Simpson, 51, 66. 
 McElroy v. Buck, 647, 659, 663, 678, 
 703. 
 
 V. Ludlum, 478. 
 McEwan v. Ortman, 437. 
 McFadden v. Jenkyns, 799. 
 McFarland v. Farmer, 624. 
 McFarson's Appeal, 647, 663, 678. 
 McGee v. Gibson, 48, 49. 
 McGibbeny v. Burmaster, 829. 
 McGlynn v. Brack, 102. 
 
 V. Maynz, 843. 
 McGowen v. AVest, 189, 766, 854. 
 McGregor v. Brown, 359, 360, 369. 
 McGuire v. Stevens, 845. 
 Melver ;•. Richardson, 190. 
 Mack V. Bragg, 491. 
 
 V. Briggs, 479. 
 McKay v. Rutherford, 500. 
 McKee v. Phillips, 824. 
 McKeenan v. Thissel, 246. 
 MacKellar v. Sigler, 98. 
 McKenzie v. Farrell, 82, 118. 
 
 V. Jackson, 206, 240, 241. 
 
 V. Lexington, 79, 83. 
 McKibbin v. Brown, 844. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 McKinney v. Guilter, 171, 173. 
 
 V. McCloskey, 465. 
 
 V. Reader, 83. 
 
 V. Whiting, 307, 308. 
 McKnight v. Dunlop, 559, 560. 
 McNight V. Katcliff, 23. 
 MacKubbin v. Clarkson, 414. 
 McLaren v. Hutchinson, 172, 240, 246. 
 McLarney v. Pettigrew, 8. 
 Maclean v. Dunn, 779, 782, 786, 795. 
 McLean v. NicoU, 653, 660, 695. 
 McLees v. Hale, 484, 485. 
 McLenden v. Frost, 203. 
 McLeod V. Jones, 29. 
 MoMahon v. McMahon, 420. 
 
 V. N. Y. & Erie R. E. Co., 843. 
 McMillan v. Bentley, 669. 
 
 V. Bull's Head Bank, 288. 
 McMillen v. Terrell, 769. 
 McMuUen v. Helberg, 701, 737. 
 
 V. Riley, 186. 
 McMurray v. Spicer, 681, 682, 684, 846. 
 McNamara v. Seaton, 421. 
 McNeal v. Emerson, 29, 360. 
 McNeil V. Jones, 846. 
 McNew V. Toby, 436. 
 McPherson v. Cox, 497. 
 
 V. Meek, 288. 
 
 u. Seguine, 419. 
 Macrory v. Scott, 268. 
 McWhorter v. McMahon, 778, 782. 
 Macy V. Childress, 292. 
 Maddison v. Alderson, 405. 
 Maddox v. McQueen, 844. 
 Magaw V. Lambert, 95. 
 Magennis v. MacCiiUough, 89, 120. 
 Maggs V. Ames, 156, 275. 
 Magruder v. Gage, 641. 
 Maguire v. Dodd, 800. 
 Mahana v. Blunt, 835. 
 Mahon v. Baker, 835, 836. 
 Malain v. Ammon, 427. 
 Malins v. Brown, 826. 
 Mallett V. Bateman, 190, 205, 287. 
 Mallory v. Gillett, 233, 244, 250, 254, 
 .259, 260, 261, 280. 
 
 V. Griffiths, 278. 
 
 V. Stodder, 92, 413. 
 Mallows V. May, 117, 119, 121, 124. 
 Malone v. Keener, 161, 209, 210, 299, 
 
 301. 
 Manchester v. Doddridge, 48. 
 Mandeville v. Welch, 442. 
 Mann v. Blanchard, 308. 
 
 V. Lovejoy, 52. 
 
 Mann v. Williams, 621. 
 Mannier v, Myers, 6. 
 Manning v. Weston, 515. 
 Manser v. Back, 861, 869. 
 Mapes V. Stanley, 173. 
 Mapp V. Elcock, 805. 
 Marble v. Marble, 414. 
 March v. Attorney General, 393. 
 Marcy v. Crawford, 289, 294. 
 
 V. Darling, 22, 26. 
 
 V. Marcy, 419, 463, 485, 495. 
 Mariott v. Turner, 805. 
 Markham r. Stanford, 46. 
 Marley v. Noblett, 470, 483, 497. 
 Marquat v. Marquat, 437. 
 Marquese v. Caldwell, 650, 764. 
 Marquis of Camden v. Batterbury, 47, 
 62. 
 
 of Townshend v. Stangroom, 859, 
 860, 863, 864, 869. 
 Marsh v. Bellew, 749, 762. 
 
 V. Gould, 294. 
 
 V. Hyde, 559, 569, 602, 607, 615. 
 
 V. Rouse, 570, 621, 630. 
 Marshall v. Burtonshaw, 143. 
 
 V. CoUett, 871. 
 
 V. Crutwell, 813. 
 
 V. Ferguson, 352, 384, 506. 
 
 V. Fisk, 413. 
 
 V. Green, 353, 354, 355, 357, 361, 
 363, 364, 367, 368, 369, 370, 
 371, 383, 384, 386, 387, 575, 
 584, 587, 630, 632. 
 
 «. Lynn, 736, 743, 748, 754, 755, 
 760. 
 
 .;. Perry, 752. 
 Marston v. Baldwin, 624. 
 
 V. Gale, 8, 15, 34, 35. 
 Martin v. Black, 173. 
 
 u. Holley, 844. 
 
 V. Hurlbut, 566. 
 
 v. Kemp, 56. 
 
 V. McCord, 839. 
 
 V. Mitchell, 663, 668, 735, 764, 766. 
 
 V. Mowlin, 439. 
 
 V. Pycroft, 862, 867. 
 
 V. Reid, 634. 
 
 V. Smith, 67. 
 
 I,. Watts, 56. 
 
 V. Wharton, 422. 
 Marvin v. Marvin, 487. 
 
 V. Wallis, 616, 620,, 630, 631, 634. 
 Mason v. Bridge, 843. 
 
 V. Decker, 663, 713, 764. 
 
 V. Hall, 175, 267. 
 
TABLE OF CASES. 
 
 XXXVll 
 
 Mason v. Hill, 6. 
 ii. Treadway, 82. 
 V. Whitbeck Co., 589. 
 
 0. "Wilson, 234, 240. 
 Massell ti. Cooke, 894. 
 Massey v. Holland, 410. 
 
 V. Johnson, 414. 
 Masterman, ex parte, 444. 
 Masters v. Marriott, 157. 
 Mathers v. Carter, 199, 240. 
 Matson v. Wharam, 202, 203. 
 Matteson v. Schofield, 845. 
 Matthews t;. Lobenor, 100. 
 
 V. Milton, 155, 203. 
 
 V. Sawell, 96, 97, 102, 128. 
 Matthieson Refining Co. v. McMahon, 
 
 523, 640. 
 Mattice v. Allen, 523, 526. 
 Mattock V. Fry, 352, 384. 
 Mauck V. Melton, 406. 
 Maugliam v. Ridley, 447. 
 Maul V. Rider, 420. 
 Maule V. Bucknell, 261, 310. 
 Maunsell v. White, 328, 331. 
 Mavor v. Pyne, 468, 478, 491, 497, 644. 
 Maxwell t. Briggs, 624. 
 
 V. Brown, 557, 558, 571, 593, 614, 
 621, 641, 642, 643. 
 
 „. Haynes, 160, 198, 209, 277. 
 
 V. Montacute, 851. 
 May V. May, 801. 
 
 V. Nat. Bank of Malone, 246, 248. 
 
 D. Ward, 548, 714, 737, 744. 
 Maydwell v. Carroll, 415, 506. 
 Mayer v. Adrian, 654, 709. 
 Mayfield v. Wadsley, 186, 354, 377, 
 382, 383, 391, 392, 397, 424, 
 436. 
 Meach v. Stone, 875. 
 Mead v. Case, 480, 539, 542. 
 
 V. Keys, 195. 
 
 V. Merchants' Bank, 224. 
 
 V. Nuges, 214. 
 
 V. Parker, 659, 682, 684, 742, 750, 
 751. 
 Meador v. Meador, 443. 
 Meadows v. Meadows, 726, 781. 
 Means ;;. Carr, 723. 
 
 V. Williamson, 630, 631. 
 Mears v. Waples, 752. 
 Mease v. Wagner, 156, 161, 289, 304. 
 Mechanics' &c. Bank v. Farmers' &c. 
 
 Bank, 621. 
 Meehelen v. Wallace, 184, 186, 349, 
 353, 397, 398. 
 
 Medbury v. Watson, 306, 307. 
 Medina v. Poison, 48. 
 Medley, in re, 444, 445. 
 Medlin ti. Steele, 419. 
 Meech v. Ensign, 23^ 239. 
 
 V. Smith, 153, 175, 207. 
 Meincke v. Falk, 547, 549, 550, 551. 
 Mellor V. Watkins, 35, 42, 78. 
 Mercein v. Andrus, 259. 
 Merchant v. Chapman, 641. 
 Meredith v. Meigh, 584, 591, 615, 629, 
 641. 
 
 V. Naish, 433. 
 
 V. Short, 152, 208, 270. 
 Meres v. Ansell, 649. 
 Meriden Brittania Co. v. Zingsen, 234, 
 Merrill v. Englesby, 156, 220, 240. 
 
 0. Goodwin, 25. 
 Merrit v. Green, 235. 
 
 V. Clason, 725, 769. 
 Merton v. Dean, 714. 
 Masser v. Woodman, 512, 562. 
 Mestaer v. Gillespie, 862. 
 Metcalf V. Putnam, 409. 
 Meyer v. Evereth, 649. 
 
 V. Hartman, 209, 224. 
 Meynell i-. Surtees, 735, 736, 834, 835. 
 Micklethwait v. Nightingale, 806. 
 Middlebrook v. Bromley, 855. 
 Middlesex Co. ti. Osgood, 877. 
 Middleton v. Brewer, 305." 
 Mignan v. Parry, 3.3G. 
 Milcheson v. Hewson, 137. 
 Milcote V. Kile, 245. 
 Mildmay v. Hungerford, 871. 
 Miles V. Miles, 416. 
 Milks V. Rich, 298, 299, 300. 
 Millard v. Cooke, 550. 
 
 1. Harvey, 832, 835. 
 
 Miller v. Auburn &c. R. E. Co., 21, 
 35. 
 ... Baker, 404. 
 V. Brown, 35. 
 V. Campbell, 844, 846. 
 u. Cook, 173. 
 i,. Cotton, 844, 875, 878. 
 V. Fitzgibbons, 543, 550. 
 V. Hower, 492, 826. 
 V. Long, 156, 174. 
 V. McGlann, 421. 
 V. Niehaus, 155, 204. 
 V. Roberts, 407, 410, 494. 
 V. State, 23, 506. 
 V. Stevens, 681. 
 V. Tobie, 428, 432, 839. 
 
XXXVUl 
 
 TABLE OP CASES. 
 
 Miller v. Upton, 876. 
 Millin !,■. Fawdry, 28. 
 Mills V. Auriol, 104. 
 
 V. Brown, 290, 292, 295. 
 
 V. Hunt, 510, 511. 
 
 V. Kuykendall, 140. 
 Milnes v. Gery, 717, 843. 
 Mims V. Lockett, 839. 
 Minard v. Mead, 779. 
 Minet, ex parte, 175, 176. 
 Minns v. Morse, 414, 854. 
 Minturn v. Bayliss, 843, 846. 
 Miranville v. Silverthorne, 411. 
 Mitchell V. Bush, 351, 403. 
 
 V. Griffin, 160, 209, 254, 267. 
 
 V. Lapage, 795. 
 
 V. McLean, 639. 
 
 V. McNab, 432. 
 Mitchinson v. Hewson, 305. 
 Mixer v. Howarth, 534, 538, 547, 550, 
 
 551, 554. 
 Mizzell V. Burnett, 649, 765. 
 Moale V. Buchanan, 739. 
 Mobile & Girard E. Co. v. Jones, 298, 
 
 299. 
 Mobile &c. Ins. Co. v. McMillan, 186. 
 Mockett V. Ames, 180. 
 Moderwell v. MuUison, 423. 
 Moffat V. Green, 566. 
 Mollett V. Brayne, 94, 96, 98, 102, 106, 
 12T. 
 
 V. Robinson, 753. 
 
 u. "Wackerbarth, 678. 
 Monck V. Geekie, 56. 
 Money v. Darling, 26. 
 
 V. Jorden, 333. 
 Monro v. Taylor, 681, 687, 743, 750, 
 
 848. 
 Montacute v. Maxwell, 316, 318, 321, 
 
 322, 334, 337. 
 Montague v. Garrett, 494. 
 
 V. Hayes, 702. 
 Montal V. Lyons, 65. 
 Montefiori v. Montefiori, 332. 
 Montgomery v. Edwards, 874. 
 Montlock V. Buller, 778. 
 Moody V. Nichols, 420. 
 
 v. Smith, 296, 429. 
 Moore, in re, 453. 
 
 V. Bixby, 570, 577. 
 
 «. Campbell, 305, 743, 748, 749, 
 795. 
 
 V. Edwards, 857, 878. 
 
 V. Eox, 312, 314, 466, 468, 479, 
 485, 500. 
 
 Moore v. Higbee, 832. 
 
 V. Hart, 317. 
 
 V. Kerr, 418, 419. 
 
 V. Love, 574. 
 
 V. Moore, 800. 
 
 V. Mountcastle, 703. 
 
 V. Scriven, 832. 
 
 V. Small, 362, 427, 827, 846. 
 
 V. Stovall, 235. 
 Moorecrof t v. Dowding, -803. 
 Moorehouse v. Colvin, 331. 
 
 V. Crangle, 193, 194. 
 Mordecai v. Gadsden, 210. 
 Moreland v. Le Masters, 839. 
 
 V. Myall, 506. 
 Morgan v. Bergen, 796. 
 
 V. Elam, 92, 412, 4lS. 
 
 V. Griffith, 351, 423. 
 
 V. Holford, 680, 707. 
 
 V. Milman, 716, 831, 843. 
 
 V. Overman Silver Miu. Co., 407. 
 
 V. Pike, 766. 
 
 V. Smith, 100. 
 
 V. Sykes, 717. 
 Morin v. Murtz, 198, 666, 764, 839. 
 Morley v. Boothby, 175, 231. 
 Morphett v. Jones, 64, 65, 826, 827, 
 
 833, 835, 837, 841, 846. 
 Morrill v. Colehour, 422. 
 
 V. Mackman, 31. 
 Morris v. Glyn, 393. 
 
 V. Harris, 827. 
 
 0. Niles, 51. 
 Morrison v. Baker, 204, 290. 
 
 V. Chadwick, 118, 123. 
 
 V. Hogue, 234. 
 
 V. Pery, 836. 
 
 V. Surman, 772. 
 
 V. Tumour, 771, 772. 
 Morse v. Brackett, 752. 
 
 V. Chisholm, 559. 
 
 V. Copeland, 13, 20, 401. 
 
 V. Mass. Nat. Bank, 262. 
 
 u. Merest, 852. 
 
 V. National Bank, 231. 
 Morten v. Marshall, 192. 
 Mortimer v. Davies, 807. 
 
 V. Orchard, 829, 839, 845, 848. 
 Mortlock V. Buller, 778. 
 Morton v. Dean, 654, 705, 709, 720, 
 721, 739. 
 
 V. Tewart, 803. 
 
 V. Tibbetts, 558, 565, 584, 587, 
 588, 590, 591, 592, 593, 597, 
 603, 606, 621, 643. 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Moseley v. Taylor, 156, 195, 214. 
 Moses V. Norton, 172, 194, 216. 
 Moshier v. Kitchell, 169, 217. 
 Moss, ex parte, 443. 
 
 t;. Atkinson, 669. 
 
 V. Culrer, 416, 827. 
 Mott V. Hurd, 408. 
 Moulton V. Faught, 28, 36, 38. 
 Mountfort, ex parte, 442, 443. 
 Mountjoy's Case, 17. 
 Mount Olivet Cemetery v., Shubert, 
 
 161, 209, 211. 
 Mountstephen v. Lakeman, 156, 183, 
 
 213, 220. 
 Mowbrays. Cunningham, 202. 
 Moxey v. Bigwood, 870, 871. 
 Moye V. Tappan, 22. 
 Moystyn v. Fabrigas, 305. 
 Mozley v. Tinkler, 191, 668. 
 Muckey v. Howenstine, 554. 
 MuUaly v. Holden, 876. 
 Mullet V. Halfpenny, 332. 
 Mumford v. Gething, 681, 751. 
 
 V. Whitney, 21, 22, 30, 359, 369, 
 400. 
 Murama v. Mumma, 814. 
 Mundy v. Joliffe, 835, 836, 837, 839, 
 840, 841, 842, 848, 850. 
 
 V. Ross, 162. 
 Munsello v. Loree, 845. 
 Murdock v. Anderson, 684, 685. 
 Murless v. Franklin, 810, 815, 816. 
 Murphy v. Boese, 785, 786. 
 
 V. Merry, 162. 
 
 V. O'Sullivan, 467. 
 
 1-. Renkert, 234. 
 Murray v. Bridges, 124. 
 
 V. Cherrington, 54. 
 
 V. Gilbert, 371. 
 
 V. Jayne, 826. 
 
 V. Shaw, 97, 103, 104. 
 Murrell v. Milward, 85, 103, 118. 
 Muse V. Carr, 781. 
 Mushat V. Brevard, 424. 
 Musick V. Musick, 153. 
 Mussel V. Cook, 503. 
 Musselman v. Storer, 758. 
 Mussey v. Fessenden, 727. 
 Mutual Benefit Ins. Co. v. Brown, 
 
 45. 
 Myer v. Griffin, 216, 218. 
 Myers v. Forbes, 844, 845. 
 
 V. Morse, 151, 153, 874, 875. 
 
 V. Perigal, 393. 
 
 ;;. Watson, 862. 
 
 N. 
 
 Nab V. Nab, 799, 803. 
 Nason v. Grant, 413. 
 Natehbolt v. Porter, 106. 
 Natchez v. Vandervelde, 407, 418. 
 Nat. Bank of Australasia v. Cherry, 
 
 442, 448. 
 Neal V. Bellamy, 222. 
 
 V. Viney, 184. 
 Neale v. Neale, 323, 828, 850. 
 Neary v. Bostwick, 216. 
 Negley v. Jeffers, 758. 
 Nelson v. Boynton, 155, 156, 173, 244, 
 264, 266. 
 
 V. Dubois, 220. 
 
 u. First Nat. Bank of Chicago, 231. 
 
 V. Forgey, 414. 
 
 V. Hardy, 155, 211, 219, 246, 290. 
 
 t. Nelson, 20, 351, 363. 
 
 V. Serle, 143. 
 Nesbitt V. Barry, 520. 
 Nesham v. Selby, 653, 718. 
 Nettleship, ex parte, 447, 451. 
 Nettleton v. Sickes, 13, 28, 351, 358, 
 
 361, 363, 382, 401. 
 Neville v. Wilkinson, 332. 
 New, in re, 444, 448. 
 New Brunswick Lumber Co. v. Kirk, 
 
 371. 
 N. Y. Central Ins. Co. u. Nat. Prot. 
 
 Ins. Co., 612. 
 Newbald v. Sadler, 26. 
 Newberry v. Wall, 656, 689, 788, 790, 
 
 796. 
 Newbury v. Armstrong, 176. 
 Newby v. Rogers, 677, 764. 
 Newcomb v. Rayner, 360, 377. 
 Newell V. Ingraham, 194, 195, 214. 
 
 V. Newell, 415, 506. 
 
 ... Radford, 180, 690, 694, 750, 
 773. 
 Newport v. Spivey, 191. 
 Newton v. Eronson, 782. 
 
 V. Preston, 808. 
 
 V. Swazey, 839, 845, 854, 874. 
 Niagara Falls Ins. Co. i\ Greene, 469. 
 Nichol V. Redley, 457, 727, 729. 
 Nicholls V. Plume, 575, 584, 606, 625. 
 Nichols V. Allen, 01. 
 
 V. Cooper, 409. 
 
 V. Johnson, 655, 656, 684, 688, 689, 
 724. 
 
 V. Lyth, 421. 
 
 u. Weaver, 311, 312. 
 
xl 
 
 TABLE OP CASES. 
 
 Nichols u. "Williams, 843. 
 
 Nicholson v. Bower, 561, 572, 614, 615. 
 
 V. Mulligan, 814. 
 Nickells v. Atherstone, 82, 93, 96, 103, 
 
 118, 120, 122, 126, 131. 
 Nixon V. Vanhise, 210. 
 Noakes v. Morej', 519. 
 Noble V. "Ward, 305, 743, 747, 754, 758. 
 Noel V. Hart, 230. 
 Nones v. Homer, 473, 485, 486. 
 Norman v. Phillips, 576, 603, 606, 614, 
 
 615, 641. 
 Norris v. Blair, 647, 678, 781. 
 
 V. Cooke, 787. 
 
 V. Graham, 156, 163, 194. 
 
 v. Jackson, 829, 839, 849. 
 
 V. Spencer, 207. 
 
 V. "Wilkinson, 447, 450. 
 North V. Forest, 395, 503. 
 
 V. Robinson, 198, 246. 
 Northam v. Bowden, 13. 
 Northen v. Carnegie, 805. 
 Northfleet v. Southall, 848. 
 Northrop v. Boone, 828. 
 Norton v. EUam, 147. 
 
 V, Gale, 843. 
 
 B. Huxley, 306. 
 
 V. Preston, 434. 
 
 V. Seymour, 769. 
 
 V. Simonds, 758. 
 
 B.Webb, 411. 
 Noyes v. Humphries, 186, 196, 211, 214, 
 
 217, 218, 266. 
 Nunn II. Fabian, 65, 837, 839, 849. 
 Nurse v. Lord Seymour, 867. 
 Nutting V. Dickinson, 407, 425, 652. 
 
 O. 
 
 Oakes, ex parte, 454. 
 
 V. Moore, 843. 
 Oakman v. Rogers, 648, 714. 
 Oakington v. Richey, 360, 640. 
 Oble V. Dittlesfield, 145. 
 O'Connor v. Spaight, 414. 
 Odell V. Montrose, 414. 
 
 V. Morin, 843. 
 
 V. Mulry, 285. 
 O'Donnell v. Lehman, 654, 663, 709, 
 71.3, 725, 738, 781. 
 
 V. Smith, 231. 
 OfEord V. Davies, 176, 191. 
 Ogbourne, in re, 463. 
 Ogden, in re, 444, 
 
 Ogden V. Rowe, 101. 
 
 Ogilvie V. Foljambe, 60, 653, 681, 682, 
 
 684, 703, 725, 730, 772, 776. 
 Ogle V. Earl Vane, 749, 758, 759, 761. 
 O'Hara v. O'Neill, 803. 
 O'Herlihy v. Hedges, 825. 
 Ohio V. Baum, 844. 
 Old Colony R. R. Co. v. Evans, 649, 
 
 661, 663, 765. 
 Oldershaw v. King, 175, 179. 
 Oldham w. Litchford, 852. 
 Oliphant v. Patterson, 208. 
 Oliver, in re, 452. 
 
 Olmstead v. Greenly, 152, 219, 228, 
 234, 254. 
 
 V. Niles, 348, 360, 368, 372. 
 Olyphant v. Baker, 620. 
 Omerod v. Hardman, 736, 868. 
 Onderdonk v. Lord, 411. 
 O'Neil V. Cram, 647. 
 
 V. Martin, 822. 
 
 V. N. Y. Mining Co., 560. 
 Ontario Bank v. Root, 876. 
 Orcutt V. Nelson, 641. 
 O'Reilly v. Thompson, 826. 
 Organ v. Stewart, 520, 526. 
 Ormond v. Anderson, 663. 
 Orne v. Cook, 717. 
 O'Rourke v. Perceval, 766. 
 Orr V. Hadley, 421. 
 Orrell v. Coppock, 195, 206, 209. 
 Orrett, ex parte, 453. 
 Orth V. Jennings, 412. 
 Osborne v. Endicott, 874. 
 
 u. Phelps, 688, 689. 
 Otis V. Hazeltine, 717. 
 Ott V. Garland, 435. 
 Ottenhouse v. Burleson, 839. 
 Outwater v. Dodge, 568, 609, 643. 
 Owen V. Field, 8, 9, 15, 19, 30, 36. 
 
 o. Legh, 373, 392. 
 
 V. Thomas, 669, 682, 684, 765. 
 Owens V. Lewis, 19, 362, 356, 359, 360, 
 
 361, 363. 
 Owings V. Baldwin, 827, 846. 
 Oxford V. Provan, 860. 
 
 Pace V. Marsh, 179. 
 
 Packard v. Dunsmore, 584, 639. 
 
 t. Richardson, 61. 
 Packet Co. v. Sickles, 467, 482. 
 Page V. Ellsworth, 104. 
 
TABLE OF CASES. 
 
 xli 
 
 Page V. Leapingwell, 805, 806. 
 
 V. Monks, 186, 425. 
 Pain u. Coombs, 696, 827, 828, 837, 
 849, 855. 
 
 V. Smith, 450. 
 Paine v. Fulton, 621, 526. 
 Palbrook v. Lawes, 398, 428. 
 Palmer v. Anderson, 421. 
 
 V. Blain, 293. 
 
 V. Edwards, 74. 
 
 V. Haggard, 204. 
 
 V. Marquetti R. R. Co., 60, 491. 
 Palmerton v. Huxford, 250. 
 Paris V. Strong, 463, 497. 
 Parke v. Leewright, 659, 824. 
 Parker v. Barker, 438. 
 
 V. Benton, 239, 282. 
 
 V. Bodley, 647, 714. 
 
 V. Heaton, 195, 214, 824. 
 
 V. Kane, 91, 412. 
 
 V. Eedfield, 26. 
 
 V. Schenck, 542. 
 
 V. Siple, 469. 
 
 V. Smith, 766, 771, 825, 842, 843, 
 856. 
 
 V. Staniland, 353, 355, 360, 375, 
 376, 379, 383, 386. 
 
 V. Steward, 519. 
 
 V. Stones, 799. 
 
 V. Tainter, 429, 431, 656, 714. 
 
 K. Taswell, 63, 687, 844, 847, 866. 
 
 V. Walker, 54. 
 
 V. Wallis, 575, 577, 582, 584, 585, 
 606. 
 
 V. "Wells, 824. 
 
 V. Wise, 286. 
 Parkhurst v. Van Cortlandt, 58, 647, 
 
 659, 839, 845, 848. 
 Parkins v. Moravia, 286. 
 Parks V. Francis, 465, 500. 
 
 u. Hazlerig, 44. 
 Parmenter v. Webber, 74, 75. 
 Parris v. Allen, 117. 
 Parrish v. Koons, 663. 
 Parsons v. Loucks, 542, 545, 550. 
 
 V. Smith, 351, 358, 360, 363. 
 V. Walter, 203, 206. 
 Parteriche v. Powlet, 736, 862. 
 Parton v. Crafts, 649, 726, 790, 793, 796. 
 Pasley v. Freeman, 306. 
 Passaic Manuf. Co. u, HofEman, 530, 
 
 544, 545. 
 Patchin v. Swift, 61. 
 Patrick v. Ashcroft, 874. 
 V. Colerick, 23, 27, 43. 
 
 Patrick v. Horton, 844. 
 Patridge v. Wilsey, 550. 
 Patten v. Gurney, 306. 
 Patterson v. Cunningham, 189, 348. 
 
 V. Murphy, 799. 
 
 V. Stoddard, 48. 
 
 V. Ware, 493, 854, 874. 
 
 c Yeaton, 413. 
 Patterson's Appeal, 359, 362, 372. 
 Patton V. McClure, 434, 624. 
 Paul V. Gunn, 424, 428. 
 Payne v. Baldwin, 216, 219, 254. 
 • V. Cave, 728, 782. 
 
 V. Johnson, 305. 
 
 V. Mortimer, 331. 
 
 V. Wilson, 175, 243. 
 Peabody v. Harvey, 174, 194, 209, 266, 
 296. 
 
 V. Speyers, 60, 395, 654, 673, 709. 
 Peacher's Case, 808. 
 Peacock v. Harris, 425. 
 Pearce v. Watts, 846, 847. 
 Pearse, ex parte, 454. 
 
 in re, 444, 445. 
 
 and Prothero, ex parte, 450. 
 Pearson v. Dawson, 027. 
 
 V. Henry, 137, 138, 139, 305. 
 Peate v. Dicken, 186. 
 Peck V. Thompson, 156, 220, 297. 
 Peckham v. Barber, 828. 
 
 w. Faria, 203, 206. 
 
 V. Taylor, 799. 
 Peek V. N. Staf. R. Co., 649, 709, 734, 
 
 739, 741. 
 Peltier v. Collins, 656, 685, 796. 
 Pember v. Mathers, 863. 
 Pembroke v. Thorpe, 823. 
 Tenfold v. Bouch, 806. 
 Penhallow v. Dwight, 377. 
 Pennell v. Pentz, 216, 219. 
 Penniman v. Hartshorn, 661, 666, 764, 
 
 772. 
 Pennington v. Tanniere, 48, 56. 
 Pennock v. Dialogue, 312. 
 Penruddock v. Newman, 82. 
 Penton v. Robert, 404. 
 Pentreguinea Coal Co., in re, 494, 495. 
 People V. Beebe, 395. 
 
 V. Haynes, 558, 643. 
 
 V. May, 308. 
 
 V. Rector, 308. 
 
 V. Rickert, 48, 51, 58, 110. 
 
 V. Utlca Ins. Co., 308. 
 People's Bank v. Gridley, 637. 
 Percival v. Blake, 605. 
 
xlii 
 
 TABLE 01" CASES. 
 
 Perkins v. Clay, 467, 494, 495, 498. 
 
 V. Goodman, 161. 
 
 V. Hitchcock, 247. 
 
 V. Littlefleld, 198, 201. 
 
 V. Perkins, 83. 
 
 o. Pitts, 417. 
 
 t>. Spring, 206, 290, 295. 
 Perrine v. Leachman, 349, 876. 
 Perry, ex parte, 452. 
 
 V. Fitzhowe, 7, 8. 
 
 V. Swasey, 232. 
 Perryn v. Allen, 117. 
 Personette v. Pryme, 422. 
 Persse v. Persse, 850. 
 Fetch V. Tutin, 353, 388. 
 Peter v. Compton, 314, 468, 470, 473, 
 482, 495, 497. 
 
 V. Kendall, 101, 107, 134. 
 Peters v. Barnes, 82, 83. 
 
 V. Newkirk, 843. 
 
 V. Westborough, 314, 465, 466, 
 468, 476, 481, 483. 
 Pettingill v. Merrill, 554. 
 Pettit V. Braden, 169, 204, 205, 217. 
 Petty-!;. Evans, 27. 
 PfeifCer v. Adler, 185, 278, 279. 
 Pharmaceutical Society v. London &c. 
 
 Assoc, 308. 
 Phelps V. Cutter, 602. 
 
 0. Hendrickson, 507. 
 
 o. Seely, 749, 762. 
 Phene' v. Popplewell, 98, 106. 
 Philbrook v. Belknap, 433. 
 Philhmore v. Barry, 655, 771, 773, 779. 
 Phillips V. Bateman, 176. 
 
 V. BistoUi, 572, 578, 581, 587, 621. 
 
 u. Edwards, 823, 834. 
 
 V. Gray, 161, 209, 211. 
 
 o. Hummell, 631. 
 
 V. Leavitt, 438. 
 
 V. Ocmulgee Mills, 523, 559, 578, 
 640, 704. 
 
 V. Phillips, 6. 
 
 V. Thompson, 402, 846. 
 Philpot V. Briant, 138, 173. 
 Phipps v. Child, 856, 870. 
 
 V. McFarlane, 480, 550. 
 
 V. Sculthorpe, 96, 102, 128. 
 Picard v. Sears, 97, 333. 
 Pickering v. Appleby, 394. 
 Pier V. Carr, 100. 
 
 Pierce v. Corf, 654, 709, 726, 739, 741, 
 787. 
 
 V. Goddard, 440. 
 
 u. Woodard, 186. 
 
 Pierrepont v. Barnard, 353, 359, 360,401 . 
 Pierson v. Cincin. &c. Canal Co., 16. 
 Piggott V. Stratton, 77, 78, 333. 
 Pike V. Balch, 781. 
 
 V. Brown, 183, 198, 235, 277, 350, 
 437. 
 
 c. Eyre, 78. 
 
 V. Pay, 681, 750. 
 
 V. Irvin, 231. 
 Pillans V. Van Mierop, 173, 175, 231. 
 Pilling V. Armitage, 845. 
 Pinchon v. Shilcott, 425. 
 Pinckney v. Hagadorn, 722. 
 Pindall v. Trevor, 826. 
 Pinkham v. Mattox, 559, 575, 621, 624. 
 Pinnell's Case, 395, 515. 
 Pinney v. Pinney, 494. 
 Piper V. Buckner, 418. 
 Pipkin V. James, 684, 686. 
 Piser V. Stearns, 624. 
 Pistor V. Cater, 50, 67. 
 Pitcairn v. Ogbourne, 321, 864. 
 Pitcher v. Hennessey, 657, 714. 
 
 V. Wilson, 463. 
 Pitkin V. Long Island R. Co., 475, 489. 
 
 w.Noyes, 373, 382, 388, 385, 530, 541. 
 Pitman v. Poor, 28, .30, 38. 
 
 V. Woodbury, 766. 
 Pitt V. Bridgewater, 145, 146. 
 Pitts V. Beckett, 737, 746, 788. 
 Pleasant v. Benson, 77. 
 Pleasants v. Pendleton, 637. 
 Plevins v. Downing, 745, 749, 758, 759, 
 
 761. 
 Plimpton V. Curtiss, 484, 497. 
 Plummer v. Breckman, 432. 
 
 V. Lyman, 260, 276. 
 Poland V. O'Connor, 827. 
 Pole V. Pole, 814, 816. 
 Polhemrs v. Heilman, 752. 
 Polhemus v. Hodson, 419. 
 Pollard, ex parte, 446. 
 
 V. Barnes, 6. 
 Pollock V. Stacy, 74, 75. 
 Poole V. Odling, 812. 
 Pooley, ex pai-te, 445. 
 Poor V. Oakman, 30, 359, 360, 361. 
 Poorman v. Kilgore, 832. 
 Pope V. Andrews, 191. 
 Pople V. Garland, 54. 
 Porry v. Allen, 121. 
 Porter v. Gordon, 51. 
 
 V. Hill, 417, 419. 
 
 u. Langhorn, 155, 176, 211. 
 
 V. Perkins, 419. 
 
TABLE OF CASES. 
 
 xliii 
 
 Potkin's Case, 56. 
 Pott, ex parte, 454. 
 Potter V. Brown, 292. 
 
 V. Duffield, 088, 690, 693, 725, 
 
 V. Jacobs, 645, 822, 827. 
 
 V. Potter, 850. 
 Potts 17. Whitehead, 843. 
 Poulter V. Killingbeck, 354, 436. 
 Poultney v. Holmes, 74, 348, 397. 
 
 V. Ross, 217, 218. 
 Powell, ex parte, 456. 
 
 V. Dillon, 730. 
 
 V. Divelt, 677. 
 
 V. Graham, 148. 
 
 V. Jessop, 393, 503. 
 
 V. Lovegrove, 828. 
 
 17. Rich, 360, 369. 
 
 V. Smith, 872. 
 
 V. Thomas, 830. 
 Powers V. Fowler, 179, 182, 708, 736. 
 Powys V. Mansfield, 811. 
 Poyntz !-. Fortune, 63. 
 Prankard v. Prankard, 806. 
 Prater v. Miller, 844. 
 Prather v. Vineyard, 231, 240. 
 Pratt V. Chase, 574. 
 
 V. Humphrey ,138,173,174,201,297. 
 
 V. Ogden, 8. 
 Pray v. Clark, 845. 
 
 V. Mitchell, 395. 
 Preble v. Baldwin, 198, 407, 425. 
 Preece k. Corrie, 75. 
 Prentice v. Wilkinson, 100, 151, 156, 
 
 211, 233, 304. 
 Prentiss v. Warne, 100. 
 Presbyterian Soc. of Greene Farm v. 
 
 Staples, 160, 209. 
 Prescott V. Locke, 529, 530, 541, 557, 
 
 571. 
 Preston v. Young, 278. 
 Price V. Assheton, 846. 
 
 V. Durin, 721, 723. 
 
 17. Dyer, 747, 859, 868. 
 
 V. Griffiths, 61, 687, 709, 739, 847. 
 
 </. Jones, 624. 
 
 17. Lea, 510, 600, 601. 
 
 V. Ley, 862. 
 
 ,;. Leyburn, 350, 425. 
 
 V. Richardson, 181. 
 
 V. Salusbury, 833. 
 
 V. Trusdale, 233. 
 
 17. Weaver, 876. 
 Prime v. Koehler, 262. 
 Primer v. Donald, 402. 
 Prince v. Case, 15, 22, 25, 30, 40. 
 
 Prince v. Koehler, 235. 
 
 Prindle v. Anderson, 51. 
 
 Pringle v. Sturgeon, 419. 
 
 Printup V. Mitchell, 846. 
 
 Pritchard v. Dodd, 2(3. 
 
 Probasco v. Johnson, 443. 
 
 Proctor V. Jones, 597, 598, 633. 
 
 Prole V. Soady, 331. 
 
 Propert r. Parker, 773. 
 
 Proprietors of Upper Locks v. Abbott, 
 
 194, 206. 
 Proprietors &c. v. Prescott, 421. 
 Prosser v. Allen, 216. 
 Providence Christ. Union v. Elliott, 
 
 437. 
 Pryee v. Bury, 444, 446. 
 Puckett V. Bates, 194. 
 
 V. Read, 638. 
 Pugh 17. Chesseldine, 781. 
 
 17. Good, 492, 826. 
 Pugsley V. Aiken, 51. 
 Pulsifer v. Waterman, 822. 
 Purcell !7. Miner, 824. 
 Purinton v. N. 111. R. R. Co., 845, 846. 
 Purner v. Piercy, 351, 354, 360, 362, 
 
 363, 383, 384, 386, 387, 388. 
 Putman v. Haggard, 61. 
 Putnam v. Farnham, 243, 244, 299. 
 
 V. Lamphier, 624. 
 
 V. Tilleston, 641. 
 
 V. Tuttle, 358. 
 Putney v. Day, 352, .360, 368, 372. 
 Puttman v. Haltey, 845. 
 Pye, ex parte, 803. 
 
 in re, 453. 
 Pyke V. Williams, 826. 
 Pym 17. Blackburn, 852, 858. 
 
 V. Campbell, 746. 
 
 Q. 
 
 Queen v. Merriam, 620. 
 Quin V. Hanford, 204, 209, 231, 309. 
 Quintard v. Bacon, 584, 607, 614, 641. 
 17. De Wolf, 214, 223. 
 
 R. 
 
 Rabberman v. Wisekamp, 209, 302. 
 Raberg v. Peyton, 231. 
 Rabsuhl v. Lack, 493, 874. 
 Raffensburger i\ CuUison, 95, 758. 
 Raffles i7. Wichelhaus, 749. 
 
xliv 
 
 TABLE OP CASES. 
 
 Ragland v. "Wynn, 153, 297. 
 R. R. Co. V. McLaughlin, 2L 
 Railway Co. v. Winter, 867. 
 Rainbolt v. East, 314. 
 Rains w. Story, 217. 
 Raikes v. Todd, 182. 
 Rake v. Pope, 494. 
 Ramsbottom v. Gosden, 860, 867. 
 Ramsden v. Dyson, 8.33, 834, 840. 
 Rand v. Mather, 151, 186, 186, 187, 221, 
 
 223. 
 Randall v. Howard, 876. 
 
 V. Morgan, 328, 334, 337. 
 
 0. Rich, 95, 97, 100. 
 
 V. Turner, 498, 499. 
 Rankin v. Say, 65. 
 
 V. Simpson, 824, 846. • 
 Rann v. Hughes, 138, 173, 858, 874. 
 Rappalye v. Adee, 576, 597, 630. 
 
 V. Mackie, 566, 568. 
 Raritan &e. Co. u. Veghte, 16. 
 Ratcliffe i'. Barnard, 455, 456. 
 Rathbun v. Ratlibun, 621. 
 Raubitschek v. Blank, 417. 
 Rawdon v. Dodge, 414. 
 Rawlings v. Turner, 45. 
 
 u. Walker, 115. 
 Rayner v. Grote, 602. 
 Raynor v. Timerson, 421. 
 
 V. Wilson, 92, 412. 
 Read v. Ladd, 155, 194, 203, 262. 
 
 V. Lamb, 491, 652, 875. 
 
 V. Nash, 152, 220, 272, 273, 274, 
 289. 
 
 V. Ridotit, 96. 
 Reade v. Livingston, 320, 337. 
 Reader v. Ifingham, 198, 202, 287, 288, 
 291. 
 
 V. Sayne, 58. 
 Redding v. Wilkes, 316, 322, 823. 
 Reddington v. Reddington, 814, 815. 
 Redhead v. Cator, 700. 
 Redpath v. Roberts, 96, 107. 
 Reech v. Kennegal, 137, 141, 146, 852. 
 Reed v. Evans, 61. 
 
 V. Earr, 421. 
 
 V. Holcombe, 175, 198, 235, 264, 
 292. 
 
 V. McGrew, 411, 
 
 V. Reed, 826. 
 
 V. Upton, 624. 
 Rees V. Williams, 132. 
 Reese v. Reese, 844, 845, 846. 
 Reeve v. Bird, 96, 98, 102, 127. 
 Reeves v. Harris, 624. 
 
 Reg. V. Lord, 485. 
 
 ;,. Morrish, 14. 
 Reid V. Kenworthy, 648. 
 Reinbolt v. East, 186. 
 Reinheimer v. Carter, 495. 
 Remick v. Sandford, 557, 570, 575, 580, 
 593, 596, 609, 663, 737, 738, 744. 
 Remington v. Palmer, 425. 
 Rennick v. Kearn, 15, 400. 
 Reuss V. Picksley, 60, 652, 664, 666, 
 
 734, 765. 
 Reuteh v. Long, 537, 550. 
 Rex V. Banbury, 102, 126. 
 
 V. Chawton, 56. 
 
 V. CoUett, 47. 
 
 V. Eilloughby, 49. 
 
 V. Geddington, 9. 
 
 V. Hagworthingham, 9. 
 
 V. Herndon-on-the-Hill, 9, 22, 28. 
 
 I'. Jobling, 47. 
 
 0. Longnor, 45. 
 
 V. Portington, 802. 
 
 V. Standon, 9, 30. 
 
 c. Stow Bardolph, 128. 
 
 V. Warblington, 9. 
 Raynaut v. Porter, 49. 
 Reynolds v. Dunkirk &e. R. R. Co.,662. 
 
 V. Hewitt, 416. 
 
 V. Johnstone, 826. 
 
 V. Prosser, 145. 
 
 V. Waring, 846. 
 Rhea v. Sheward, 27. 
 Rhine v. Robinson, 420. 
 Rhoades v. Castner, 647, 704, 744, 764. 
 Rhodes v. Prick, 420, 826. 
 
 u. Leeds, 156, 211, 215, 219. 
 
 V. McKean, 165. 
 
 V. Otis, 8. 
 
 V. Rhodes, 469, 825, 848. 
 
 V. Starr, 189, 433, 765. 
 
 V. Thwaites, 598. 
 Rice V. Barry, 160, 195, 208. 
 
 c. Carter, 199. 
 
 ■-. Manley, 159. 
 
 V. Peet, 189. 
 
 u. Rawlings, 778. 
 
 V. Roberts, 408, 411. 
 Rich V. Bolton, 47, 48, 52, 53. 
 
 V. Jackson, 858, 866. 
 
 V. Zeilsdorf, 358. 
 Richard v. DeWolf, 156. 
 Richards v. Allen, 427, 432. 
 
 V. Borrett, 443. 
 
 V. Porter, 701, 702, 710, 711, 712, 
 732, 739, 741. 
 
TABLE OF CASES. 
 
 xlv 
 
 Richards v. Richards, 413, 414, 415, 
 876. 
 
 V. Sims, 438, 439. 
 Richardson, ex parte, 444. 
 
 in re, 444. 
 
 V. Anthony, 23, 27. 
 
 V. Cooper, 758. 
 
 I'. Dunn, 605. 
 
 V. Eyton, 846. 
 
 V. Gifford, 48, 50, 66, 68. 
 
 V. Jones, 459. 
 
 V. Langridge, 47, 49, 52, 53. 
 
 V. Pierce, 466, 467, 469, 470, 484. 
 
 V. Richardson, 27, 162. 
 
 V. Rohbins, 154, 262. 
 
 V. Savage, 56. 
 
 V. Smith, 843. 
 
 V. Squires, 559. 
 
 V. Williams, 248, 276. 
 Richman i'. Baldwin, 419. 
 Richmond i: Poote, 827, 832, 833. 
 Ricliter v. Irwin, 408. 
 Rickard v. Moore, 592. 
 Rickards v. Cunningham, 15, 878. 
 Ricker v. Kelly, 15, 22, 26, 28, 35, 36, 
 
 400. 
 Riddle v. Backus, 466, 469, 483. 
 
 V. Brown, 411. 
 
 </. Emerson, 798. 
 
 V. Varnum, 566. 
 Rideout v. Bristow, 147. 
 Rider v. Kelley, 571. 
 
 V. Kidder, 806, 807, 810. 
 Ridge, in re, 452. 
 Ridgeley v. Stillwell, 51. 
 Ridgway v. Bowman, 657, 714. 
 
 V. Horton, 697. 
 
 V. Ingram, 654, 704, 709, 720, 721, 
 739, 861. 
 
 V. "Wharton, 649, 653, 680, 704, 
 705, 709, 719, 730, 733, 742, 
 857. 
 Ridley v. Ridley, 468, 469. 
 Rieder v. Machin, 639. 
 Riggs V. Bell, 48, 50, 56. 
 
 V. Magruder, .395, 503. 
 Right V. Beard, 48. 
 
 V. Cuthcll, 95, 129. 
 Riley v'. Famsworth, 720, 724, 738, 
 843. 
 
 V. Riley, 314. 
 
 V. Williams, 406, 656, 714. 
 Ripon V. Norton, 143. 
 Rishton v. Whatmore, 654, 709, 739, 
 741. 
 
 Roach V. Damson, 27. 
 Roberts i\ Croft, 455, 456. 
 
 t'. Roberts, 799. 
 
 V. Robertson, 832. 
 ■ V. Rockbottom Co., 463, 467, 468, 
 483, 484, 498. 
 
 c. Rose, 22, 
 
 V. Tucker, 465, 485, 494, 648, 714. 
 
 7.. Tunnell, 464. 
 
 V. Vaughan, 542, 543. 
 Robinson v. Ainge, 393. 
 
 V. Garth, 726, 729. 
 
 f. Gilman, 198, 229, 245. 
 
 r. Lane, 156, 214. 
 
 V. Page, 868. 
 
 c. Tipton, 876. 
 
 V. Uhl, 15. 
 Robson V. Collins, 867. 
 
 f. Harwell, 184. 
 
 II. Jones, 26. 
 Roche V. Chaplin, 156, 289, 304. 
 Rochester v. Whitehouse, 843. 
 Rockford &c. R. R. Co. v. Shunick, 
 
 44. 
 Rockwell V. Hobby, 442,443. 
 Rodgers v. Jones, 558, 570, 608, 609, 
 010, 012, 621. 
 
 V. Phillips, 570, 577, 615, 641. 
 Rodwell V. Phillips, 352, 353, 357, 360, 
 
 376, 383, 385, 387, 388. 
 Roe V. Abp. of York, 89, 120, 123, 124. 
 
 V. Conway, 106. 
 
 t,. Haugh, 141, 286. 
 
 V. Lewis, 47, 52, 53. 
 Roffey V. Henderson, 31. 
 Rogers u. Brightman, 466, 479, 480, 
 497. 
 
 V. Collier, 154. 
 
 ... Gould, 609. 
 
 V. Hadley, 746, 750. 
 
 o. Harvey, 396. 
 
 V. Hull Dock Co., 65. 
 
 V. Rogers, 195, 211, 412, 805. 
 
 V. Saunders, 663, 765. 
 
 (>. Waters, 209. 
 Roget i: Merritt, 661, 663. 
 RoUason v. Leon, 62, 63. 
 RoUison V. Hope, 161, 209, 211. 
 Rondeau v. Wyatt, 527, 529, 532, 533, 
 
 542. 
 Root V. Lord, 624. 
 Roots V. Lord Dormer, 512. 
 Roper V. Radcliffe, 805. 
 Ropes V. Lane, 640. 
 Rose V. Cunynghame, 669, 682. 
 
xlvi 
 
 TABLE OF CASES. 
 
 Bose V. Johnson, 162. 
 V. O'Linu, 184. 
 V. "Watson, 826, 862. 
 Kosenpaugh v. Vredenburgh, 428, 
 
 429. 
 Rosenthal v. Preeburger, 835. 
 Eosa V. Baker, 686, 846. 
 
 V. Welch, 506, 557, 602. 
 Rossiter v. Miller, 653, 692, 714, 725, 
 
 748, 781. 
 Eothery v. Curry, 273. 
 Eounnel v, Wingate, 601. 
 Eoutledge v. Grant, 731, 735. 
 Rowan v. Lytle, 83, 110. 
 Rowe V. Osborne, 790, 794. 
 
 V. Leeds, 857, 875. 
 
 V. Whittier, 151, 209, 277, 297. 
 Rowland v. Bull, 230. 
 
 V. Rourke, 298 
 Eowton V. Rowton, 839, 846. 
 Rucker, in re, 451. 
 
 V. Abell, 427. 
 
 V Cammeyer, 778, 782, 788. 
 Ruckle V. Barbour, 457, 461. 
 Ruffey V. Henderson, 30, 42. 
 Eugg V. Minett, 612. 
 Ruggles V. Gatton, 157, 216, 218. 
 
 v. Lawson, 413. 
 
 V. Lesure, 21, 26. 
 Ruhllng V. Hackett, 172, 240. 
 Rummens v. Robbins, 731, 855. 
 Eumsey v. LoreU, 306. 
 Runde v. Runde, 160, 196, 198, 245. 
 Rusker v. Abell, 435. 
 Russel V. Haddock, 145. 
 
 V. Russel, 441, 442. 
 Russell V. Babcock, 160, 266, 276. 
 
 V. Carrington, 568. 
 
 V. Clarke, 306. 
 
 .. Hubbard, 16, 28, 35, 36. 
 
 V. Minor, 621. 
 
 V. Moseley, 175. 
 
 V. NicoU, 567. 
 
 V. Richards, 360. 
 
 V. Rowland, 413. 
 
 „. Slade, 466, 468, 472, 479, 485, 
 486, 488, 490. 
 Russell's Policy Trusts, in re, 445. 
 Rust II. Bennett, 308. 
 Rutan V. Hinchman, 429, 506. 
 Rutenberg v. Main, 778, 782. 
 Ryall V. Ryall, 803, 808. 
 Ryan, in re, 843. 
 
 V. Hall, 663, 738, 744. 
 
 V. Salt, 762. 
 
 Ryan v. Tomlinson, 424. 
 
 V. Wilson, 822. 
 Ryass v. Wheeler, 418. 
 Eyley v. Hicks, 45, 46. 
 
 S. 
 
 Sackett v. Spencer, 827. 
 Sadler v. Hawkes, 173. 
 Safford, ex paHe, 631. 
 V. Ames, 362. 
 b. Annis, 383, 386. 
 V. McDonough, 557, 570, 609, 612, 
 621, 630, 631. 
 Sage V. McGuire, 846. 
 
 V. Wilcox, 61, 173, 183, 436. 
 Sainsbury v. Matthews, 354, 356, 356, 
 
 375, 377, 383, 386. 
 St. John V. Griffith, 722. 
 St. Vincent Orph. Asy. v. Troy, 10. 
 Sale V. Darrah, 559, 560, 779. 
 
 V. Lambert, 688, 690, 692, 725. 
 Sales V. Hickman, 844. 
 Salmon Falls Mfg Co. v. Goddard, 
 680, 689, 706, 737, 739, 772, 
 774, 779. 
 Salter v. WooUams, 11, 629. 
 Sampson v. Hobart, 224. 
 
 0. Swift, 220. 
 Sams V. Tripp, 661, 663. 
 Samuda v. Lawford, 847. 
 Sanborn v. Chamberlin, 650, 703, 717, 
 876. 
 V. Flagler, 61, 666, 734, 771, 776. 
 „. Merrill, 160, 220, 295. 
 V. Nockin, 860. 
 Sanders v. Gillespie, 292. 
 Sanderson v. Graves, 186,425, 747, 754. 
 Sands v. Soden, 329. 
 
 V. Thompson, 414, 826. 
 Sansum v. Butter, 321. 
 Sargent v. Metcalf, 624. 
 Sari V. Bourdillon, 646, 688, 690, 693, 
 
 695, 719, 739, 773. 
 Satterthwaite v. Ensley, 337. 
 Saunders v. Cramer, 316, 328. 
 V. Kastenbine, 476, 497. 
 ... Topp, 560, 575, 598, 607. 
 0. Wakefield, 173, 176, 496, 653. 
 Saunderson v. Cockermouth Railway 
 Co., 846. 
 V. Jackson, 655, 656, 671, 700, 703, 
 716, 740, 743, 770, 773, 774, 
 775, 776. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Savage v. Canning, 897, 425. 
 
 V. Carroll, 835, 830, 845, 848. 
 
 V. Foster, 839. 
 Savile v. ICinnaird, 731. 
 Sawyer v. Nichols, 576. 
 
 V. Ware, 506. 
 Say V. Stoddard, 55. 
 Sayre v. Hughes, 811, 812. 
 Scales V. Maude, 799. 
 Scanlan v. Geddes, 659, 681, 682, 684, 
 
 742, 750, 751. 
 Scarlett v. Stein, 654, 709. 
 Scarritt w. St. John's M. E. Church, 751. 
 Scawin v. Scawin, 815. 
 Schafer v. Farmers' Bank, 654, 709. 
 Schaffer v. Fithian, 412. 
 Scheibler, in re, 446. 
 Sehiefflin v. Carpenter, 82, 97, 110, 124, 
 
 492. 
 Schneider v. Norris, 770, 771, 773, 775, 
 776. 
 
 V. Westerman, 554. 
 Schoenfield v. Brown, 284. 
 Scholes V. Hampson, 212. 
 School District No. 3 v. McLoon, 839. 
 Schriver v. Eckenrode, 408. 
 Schultz V. Bradley, 758. 
 Schutt V. Large, 92, 412. 
 Schuyler v. Leggett, 48, 51, 56, 58, 110. 
 
 V. Smith, 58. 
 Scoggini;.Blackwell,466,485,486,489. 
 
 V. Slater, 349, 351, 402, 403. 
 Scoggins V. Heard, 466. 
 Seorell v. Boxall, 353, 374, 385, 388. 
 Scott V. Anderson, 633. 
 
 V. Bush, 432. 
 
 V. Eastern Co. Eailway Co., 528, 
 598, 600, 602. 
 
 V. McFarlaud, 414. 
 
 V. Stevens, 145. 
 
 V. Thomas, 154, 260, 267. 
 
 V. White, 155, 260. 
 Scotten V. Brown, 348. 
 Scroope v. Scroope, 814. 
 Scudder v. Wade, 217, 218. 
 Sculthorp V. Burgess, 809. 
 Seago V. Deane, 399. 
 Seagood v. Meale, 317, 670, 687, 691, 
 
 715, 825, 826. 
 Seaman v. Asehermann, 64. 
 
 V. Hasbrouck, 160, 172, 209. 
 
 V. Price, 207, 220, 350, 425. 
 
 V. Whitney, 240. 
 Searight v. Payne, 209, 263. 
 Searle v. Keeves, 629. 
 
 Sears v. Brink, 156. 
 
 r. Smith, 5, 45. 
 Seecrist i'. Twitty, 729. 
 Seegoe v. Perley, 371. 
 Seidensparger v. Spear, 15. 
 Selby V. Selby, 768, 771. 
 Selden v. Del. & Hud. Can. Co., 15, 19, 
 
 22, 35. 
 Self V. Cordell, 494, 498. 
 Sellack v. Harris, 852. 
 Sellick V. Adams, 421. 
 Semmes v. Worthington, 824, 845. 
 Semple v. Pink, 14G, 179. 
 Senior v. Butt, 305. 
 Serle v. Waterworth, 143, 147. 
 Seton V. Slade, 663, 728, 764, 765. 
 Sewall V. Fitch, 542. 
 
 V. Quincy, 765. 
 Seward v. Mitchell, 408, 409. 
 Seymour v. Bennett, 428, 429. 
 
 V. Davis, 510, 543, 553. 
 Shadwell v. Shadwell, 316. 
 Shales v. Shales, 815. 
 Shanks y. Klien, 423. 
 Shannon v. Bradstroet, 687, 751. 
 Shardland v. Cotterill, 704, 725. 
 Sharman v. Brandt, 779, 783. 
 Sharp V. Emmet, 230. 
 
 i,. Rhiel, 473, 488. 
 Shaver v. Adams, 195, 214. 
 Shaw V. Finney, 647, 788. 
 
 V. Foster, 447. 
 
 V. Jakeman, 321, 337. 
 
 V. Nudd, 782. 
 
 c. Shaw, 431, 433. 
 
 V. Woodcock, 304, 424. 
 Sheffield Canal Co. v. Sheffield & Eoth- 
 
 erham E. Co., 735. 
 Union Banking Co, ex parte, 453. 
 Shelbume v. Inchiquin, 866. 
 Shejhame v. Ashbaugh, 826. 
 Shelley, in re, 445. 
 Shelton v. Livius, 657, 658. 
 Shepard v. Rinks, 418. 
 Shepheard v. Walker, 836, 837. 
 Shepherd v. Bevin, 839, 846. 
 
 V. Hodsman, 46. 
 
 V. Pressey, 562, 570, 576, 593, 597, 
 614, 642. 
 
 V. Shepherd, 827, 846. 
 
 V. Titley, 449. 
 Sherburne v. Fuller, 348, 413, 428, 481. 
 
 V. Shaw, 655, 656, 688. 
 Sherman v. Champ. Trans. Co., 466, 
 469, 479. 
 
xlviii 
 
 TABLE OF CASES. 
 
 Sherry v. Picken, 302, 386. 
 Shied y. Stamps, 656, 678, 724. 
 Shields v. Middleton, 209, 231. 
 Shilliber v. Jarvis, 826, 828. 
 Shindler v. Houston, 570, 571, 577, 
 
 621, 632. 
 Shipley v. Patton, 471, 473. 
 Shippey v. Derrison, 650, 655, 768. 
 Shireman v. Jackson, 624. 
 Shirley v. Ayres, 412. 
 
 V. Shirley, 666, 764. 
 Shitz V. DiefEenbach, 443. 
 Shoemaker v. King, 195, 211, 214. 
 Shooftstall V. Adams, 656. 
 Shook V. Vanmater, 229, 292. 
 Short V. Spackman, 792, 796. 
 
 V. Staats, 311. 
 
 V. Woodward, 350, 401. 
 Shortrede v. Cheek, 178, 179, 181, 681, 
 
 751. 
 Shotwell V. Sedam, 422. 
 Shreve v. Grimes, 427, 428. 
 Shropshire v. Brown, 846. 
 Shultze V. Coon, 649. 
 Slmrtleff v. Willard, 637. 
 Shute V. Dorr, 427, 429, 474. 
 Sian V. Pigott, 259. 
 Sidmouth v. Sidmouth, 807, 815. 
 Sidney v. Stevenson, 443. 
 Sidwell V. Evans, 243. 
 Sievewright v. Archibald, 648, 649, 
 
 750, 789, 790, 792, 793, 794. 
 Sigerson v. Barker, 638. 
 Silsbee v. Ingalls, 140. 
 Silsby V. Allen, 51, 53. 
 
 V. Trotter, 17, 30. 
 Simmonds v. Cottin, 458, 461. 
 
 ^. Humble, 575, 584, 626. 
 Simmons v. Hill, 839. 
 
 v. Simmons, 323, 349, 399. 
 
 V. Spruill, 684. 
 
 V. Swift, 377, 563. 
 Simms v. Killian, 413, 415. 
 Simon v. Motivos or Metivier, 727, 
 
 728, 788, 789. 
 Simouds v. Fisher, 574. 
 Simons v. Steele, 156, 705. 
 Simpkin u. Ashhurst, 50. 
 Simpkins v. Rogers, 15. 
 Simpson v. Breckenridge, 685. 
 
 V. Crumdick, 575, 593, 596. 
 
 V. Hall, 304. 
 
 V. Nance, 241, 292. 
 
 V. Penton, 212, 216, 218. 
 Sims V. Hutchins, 414, 432, 433. 
 
 Sims V. McEwen, 429. 
 Simson v. Brown, 236. 
 Sinclair v. Bradly, 223. 
 
 V. Richardson, 155, 207, 216. 
 Singstack v. Harding, 726. 
 Sites V. Keller, 824. 
 Skelton v. Brewster, 234. 
 
 V. Cole, 691, 692, 694, 705, 708, 
 742, 768. 
 Sketehley, in re, 445. 
 Skett V. Whitmore, 798. 
 Skidmore v. Bradford, 331, 814. 
 Skinner v. Conant, 155, 164, 204. 
 
 V. McDowall, 713, 844, 857. 
 Slack V. Sharp, 134. 
 Slater v. Smith, 659, 682, 684. 
 
 685, 750, 765. 
 Slingerland v. Morse, 154, 208, 259, 269. 
 Sloan Saw Mill &c. Co. v. Guttshall, 
 
 602, 631. 
 Slocum V. Branch, 104. 
 
 V. Seymour, 352, 358, 369. 
 Slone V. Whiting, 114. 
 Small V. Owings, 875. 
 
 V. Quincy, 658, 663, 738, 744. 
 
 V. Schaeffer, 175, 261, 267. 
 Smalley v. Greene, 466, 467, 470. 
 Smart v. Harding, 398, 411, 412, 425. 
 
 V. Jones, 397, 400. 
 
 V. Sandars, 14. 
 Smith, ex parte, 444, 448, 453, 454. 
 
 V. American Institute, 7. ' 
 
 u. Arnold, 457, 400, 655, 678, 680, 
 723, 729, 739, 781, 783. 
 
 V. Baker, 806. 
 
 o. Bennett, 6. 
 
 V. Benson, 360. 
 
 V. Bradley, 482. 
 
 V. Bryan, 363, 368, 383, 386, 403. 
 
 V. Burnham, 413, 415. 
 
 V. Conlon, 485, 487. 
 
 V. Coustant, 447. 
 
 V. Cramer, 290. 
 
 V. Crandall, 65. 
 
 V. Dallas, 656. 
 
 V. Devlin, 83. 
 
 V. Easton, 267. 
 
 V. Eah, 162, 877. 
 
 V. Finch, 173, 175. 
 
 V. Goulding, 349, 400. 
 
 V. Gowdy, 734, 745. 
 
 V. Green, 337. 
 
 V. Houston, 48. 
 
 V. Hudson, 572, 603, 606,607,615, 
 616, 641. 
 
TABLE OF CASES. 
 
 xlix 
 
 Smith V. Hyde, 178, 216. 
 
 V. Jenks, 440. 
 
 V. Jones, 648, 656, 699, V04, 726. 
 
 V. Kenny, 185. 
 
 V. Lambs, 412. 
 
 V. Lovell, 106, 134, 135. 
 
 V. Male, 60. 
 
 V. Mapleback, 73, 74, 76, 81, 82, 
 122, 124. 
 
 V. Mason, 609. 
 
 1 . Matthews, 802, 803. 
 
 V. Milliken, 573. 
 
 V. Miner, 104. 
 
 a. Montgomery, 205. 
 
 V. Neale, 469, 495, 667, 733, 734. 
 
 V. Nevins, 97, 104. 
 
 I. N. Y. Cent. K. K. Co., 359,369, 
 539, 544. 
 
 ( . Pendergast, 97. 
 
 V. Price, 404. 
 
 r. Rogers, 174, 297. 
 
 V. Roots, 578. 
 
 r. Rudhall, 212. 
 
 v. Sayward, 198, 235, 260, 292. 
 
 ... Scott, 22. 
 
 c. Smith, 399, 428, 764, 824, 832. 
 
 V. Stephens, 162. 
 
 c. Surman, 354, 355, 356, 364, 365, 
 366, 374, 377, 383, 534, 540, 
 588, 603, 619, 621, 653, 710, 
 712, 732, 741. 
 
 V. Tarleton, 423. 
 
 V. Tombs, 398. 
 
 (-•. Turner, 836. 
 
 V. Ward, 752, 815. 
 
 V. Watson, 669. 
 
 V. Westall, 468, 469, 496. 
 
 V. Wheeler, 97, 98. 
 Smith's Leading Case, 50. 
 Smithwick v. Shepherd, 138. 
 Snead v. Green, 855. 
 Sneed v. Bradley, 158, 854. 
 Snelgrow v. Bailey, 441. 
 Snelling v. Hall, 752. 
 
 V. Lord Huntingfield, 472, 474, 488. 
 
 V. Thomas, 859, 868. 
 Snow V. Warner, 609, 614, 615, 641. 
 Snowden v. Wilson, 8, 15, 19. 
 Snyder v. Middleton, 100. 
 Soaraes v. Spencer, 779. 
 Soar V. Foster, 807, 810, 811. 
 Soggins V. Heard, 479, 485. 
 Soles V. Hickman, 647, 678, 714. 
 Somerby v. Buntin, 395, 467, 483, 503. 
 Somersets. Coal Co. n. Harcourt, 835. 
 
 Soprani < . Skurro, 668. 
 Souch V. Strawbridjjc, 425, 429, 466, 
 467, 408, 473, 477, 483, 492, 
 495, 668. 
 Soule V. Albce, 196, 198, 295. 
 South V. Toomey, 1G2. 
 Southern Life Ins. Co. v. Cole, 396, 
 
 844. 
 Southwell V. Brcezeley, 498. 
 Southworth v. Sebring, 638. 
 Spadam v. Reed, 196. 
 Spangler v. Danforth, 685. 
 Spann v. Baltzell, 175, 267. 
 Spark V. Heslop, 297. 
 Sparling v. Parker, 393. 
 Spaulding v. Andrews, 231. 
 Spear v. Orendorf, 836, 837. 
 Spencer v. Cone, 548, 551. 
 
 u. Hale, 558, 609, 615, 624, 643. 
 
 V. Halstead, 463, 497. 
 
 I . McGowen, 27. 
 Spencer's Appeal, 362. 
 Spicer v. Cooper, 739, 752. 
 
 u. Spicer, 336, 337. 
 Spooner v. Dunn, 154, 260, 290. 
 Sporle V. Whayman, 446. 
 Sprague v. Blake, 521, 550, 560. 
 Springfield v. Miller, 420. 
 Springstein v Schemerhorn, 76. 
 Spurgeon v. Collier, 335, 336. 
 Spurrier v. Fitzgerald, 854, 877. 
 Squire v. Whipple, 474, 485, 486. 
 Staats V. Howlett, 198, 293. 
 Stackpole r. Arnold, 779. 
 Stadt V. Lill, 181. 
 Stafford v. Lick, 656, 724. 
 Stamers v. Preston, 47. 
 Stamfil V. Hickes, 56. 
 Stamper v. Griffin, 48. 
 Stanbaugh v. Yeates, 377. 
 Stanbury v. Matthews, 355, 356, 386. 
 Standley v. Miles, 210. 
 Standi V. Hine, 154, 240, 247 
 Stanley v. Baldwin, 362. 
 
 V. Dowdeswell, 733. 
 
 r. Hendricks, 234, 240, 252, 254. 
 
 u. Koehler, 101. 
 Stansfield v. Johnson, 726, 727, 778. 
 Stanton v. Miller, 843, 844. 
 Stanway v. Rock, 48. 
 Stariha v. Greenwood, 240. 
 Stark V. Cannady, 415, 417. 
 
 o. Raney, 294. 
 
 V. Wilson, 407. 
 Starr v. Earle, 2.36. 
 
1 
 
 TABLE OP CASES. 
 
 State V. Shinn, 164. 
 
 Bank v. Mattler, 252. 
 Stead V. Dawber, 743, 748, 754, 757. 
 
 V. Liddard, 176, 653, 702. 
 Stearns v. Hall, 758. 
 
 V. Hubbard, 878. 
 
 V. Janes, 6. 
 Stebbins v. Smith, 138, 139. 
 Stedman v. Mcintosh, 54. 
 Steel )). Fife, 671. 
 
 V. Payne, 64. 
 
 V. Steel, 412, 413. 
 
 V. Towns, 155, 194. 
 Steele v. Haddock, 749. 
 
 V. Hoe, 180, 181. 
 Stephens v. Pell, 270. 
 
 u. Santee, 543, 568. 
 
 p. Squire, 195, 208, 228, 272. 
 
 V. Stephens, 13, 19, 20, 34. 
 
 V. Venables, 334. 
 Sterling v. Baldwin, 352, 359, 368, 369. 
 
 V. Bostwick, 358. 
 
 u. Warden, 42. 
 Stern v. Drinker, 174, 260, 272. 
 Steyens, ex parte, 445. 
 
 in re, 446. 
 
 V. Cooper, 749. 
 
 V. Houghtaling, 568. 
 
 V. Stewart, 615. 
 Stewart, ex parte, 445. 
 
 V, Aston, 90. 
 
 V. Campbell, 154, 244, 259, 266. 
 
 V. Doughty, 360, 506. 
 
 V. Eddowes, 739, 753, 764, 766. 
 
 V. Garvin, 729. 
 
 o. Hinkle, 259. 
 
 V. L. & N. W. R. Co., 684, 687. 
 
 V. McGuin, 173. 
 
 V. Munford. 97. 
 
 V. Stewart, 826. 
 Stileman v. Ashdown, 814. 
 Stiles V. Curtis, 420. 
 Stilwell V. Otis, 223. 
 Stirling v. Warden, 23, 24. 
 Stobie V. Dills, 104. 
 Stockbridge Iron Works v. Hudson 
 
 Iron Co., 15, 17. 
 .Stocker v. Partridge, 654, 709. 
 Stocking V. Sage, 151, 160, 292. 
 Stockley v. Stockley, 839. 
 Stockport Water Works Co. v. Potter, 
 
 18. 
 Stoddard v. Graham, 161, 211. 
 
 V. Hart, 437. 
 
 V. Tuck, 882, 846. 
 
 Stoddert v. Vestry of Port Tobacco, 61. 
 Stokeley v. Butler, 370. 
 Stokes V. Appomattox Co., 6. 
 
 V. Moore, 61, 749, 768, 773, 774, 
 823. 
 Stone V. Browning, 562, 570, 676, 580, 
 595, 597, 621, 641. 
 
 V. Crocker, 431. 
 
 V. Dennison, 424, 491, 492, 662. 
 
 V. Hooker, 293. 
 
 V. Peacock, 566. 
 
 V. Stone, 815. 
 
 V. Symmes, 156, 195, 211, 214, 264. 
 
 u. Walker; 155. 
 
 V. Whiting, 96, 97, 102, 103, 126. 
 Stoops V. Smith, 657, 681, 714, 750. 
 Storr V. Scott, 218. 
 Story V. Menzies, 161, 210. 
 Stowell i\ Robinson, 745. 
 Strabecker v. Cohen, 231. 
 Stranks v. St. John, 62. 
 Stratford v. Bosworth, 714, 730, 844. 
 Stratton v. Petitt, 62. 
 Streht V. D'Evens, 464. 
 Strong V. Crosby, 48, 51, 56, 63, 66. 
 
 V. Dodds, 641, 642. 
 
 „. Doyle, 377. 
 Stuart V. Baker, 418. 
 
 V. Smith, 399. 
 Stubbs V. Lund, 644. 
 
 V. Sargon, 806. 
 Suggett V. Casson, 485, 494. 
 SuUivant v. Commissioners &c., 28, 35. 
 Summers v. Cook, 369. 
 Surcome ;;. Penniger, 323, 334, 839. 
 Sutcliffe V. Atlantic Mills, 487. 
 Suter V. Pullin, 550. 
 Sutherland v. Briggs, 836, 839, 840. 
 Sutton V. Moore, 457. 
 
 V. Rowley, 405. 
 
 V. Sears, 411. 
 Suydam v. Clark, 790, 796. 
 Swain v. Seamans, 758. 
 Swaisland v. Dearsley, 870. 
 Swan V. Nesmith, 302. 
 Swann v. Phillips, 307. 
 Swanzey v. Moore, 491. 
 Swatman v. Ambler, 766. 
 Sweeney v. Miller, 420. 
 Sweet V. Lee, 465, 659, 739, 750, 771. 
 
 V. Shumway, 681, 750. 
 Sweeting v. Asplin, 207, 231. 
 Sweetman v. Parker, 209. 
 Swepson v. Johnson, 872. 
 Swift V. GifEord, 752. 
 
TABLE OF CASES. 
 
 Swift V. Heath, 113. 
 
 u. Pierce, 155, 163, 216, 218, 219, 
 262. 
 
 V. Swift, 471, 499. 
 Swift's Iron &c. Co. «. Dewey, 752. 
 
 V. U. S. 752. 
 Switzer v. Skiles, 854. 
 Sword V. Keith, 469. 
 Syburn v. Slade, 132. 
 Syers v. Jonas, 737. 
 Sykes v. Dixon, 496, 669. 
 Sykes's Trusts, in re, 800. 
 Syler i-. Eckhart, 839. 
 Symes v. Huntley, 714. 
 Symmons v. Want, 191. 
 Symonds v. Ball, 728. 
 Symondson v. Tweed, 846. 
 
 Taggard v. Roosevelt, 51, 63, 486. 
 Taintor v. Brockway, 414. 
 Talbot V. Bowen, 778, 874. 
 
 V. Whipple, 103, 104. 
 Taliaferro v. Ratton, 412. 
 
 V. Roff, 173. 
 Talley v. Greene, 469. 
 Tallman v. Franklin, 58, 654, 684, 704, 
 
 705, 720, 722, 724, 739, 846. 
 Talmadge v. Rens. & Sar. R. R. Co., 
 
 469, 489. 
 Talman v. Rochester City Bank, 224, 
 267. 
 
 V. Sparhawk, 421. 
 Talver v. West, 572, 673, 574. 
 Tanner v. Moore, 181. 
 
 V. Scovell, 595. 
 
 V. Smart, 696. 
 
 V. Valentine, 14, 19, 39. 
 Tansley v. Turner, 630. 
 Taplin v. Florence, 9, 14. 
 Tapp V. Lee, 306. 
 Tappin v. Lomas, 415. 
 Tarbell v. Stevens, 160, 310. 
 Tarling v. O'Riandorn, 601. 
 Tarlton v. Vietes, 854, 874, 875. 
 Tarr v. Northey, 160, 198. 
 Tarte v. Darby, 93, 101. 
 Tate V. Greenlee, 456, 461. 
 Tatham u. Piatt, 846. 
 Tatlock V. Harris, 276, 286. 
 Tatterson v. Suffolk Manuf. Co., 492. 
 Tatum V. Brooker, 827, 828. 
 Taunton v. Pepler, 44. 
 
 Tawney v. Crowthcr, 650, 654, 671, 707, 
 
 709, 716, 844. 
 Taylor v. Beech, 323, 334, 716, 822, 
 875, 878. 
 
 V. Caldwell, 14, 15, 17. 
 
 V. Chapman, 102, 126. 
 
 c. Dening, 771. 
 
 V. Dobbins, 772. 
 
 V. Drake, 153, 156, 194, 219, 262. 
 
 V. Hilary, 207, 208, 212, 285. 
 
 V. Linley, 393. 
 
 V. Merrill, 778. 
 
 V. Mueller, 576, 577, 687, 593,604. 
 
 V. Portington, 735, 844, 847. 
 
 V. Pratt, 61. 
 
 V. Preston, 160, 209, 301. 
 
 V. Richardson, 637, 638. 
 
 V. Riggs, 658, 714. 
 
 V. Taylor, 288, 815. 
 
 V. Wakefield, 608. 
 
 V. Waters, 6, 28. 
 Teal V. Auty, 354, 385, 387, 403, 436, 
 
 496. 
 Tempest v. Fitzgerald, 618, 620, 621, 
 634. 
 
 V. Kilner, 393, 394, 803. 
 Temple v. Johnson, 824. 
 Templeton v. Bascom, 153, 173, 174, 
 
 297. 
 Tennay v. Prince, 171. 
 Tepper v. Nicholls, 396. 
 Terry v. Wheeler, 567. 
 Thacher v. Rockwell, 205, 233, 290. 
 Thayer v. Gallup, 233. 
 
 u. Luce, 649, 654, 663, 688, 705, 
 709, 742, 764. 
 
 V. McEwen, 189. 
 
 V. Reeder, 874. 
 
 u. Rock, 186. 
 Therasson v. McSpeedon, 161, 211. 
 Therne v. Fuller, 143. 
 Thiebaud v. Vevay, 58. 
 Thomas, ex parte, 792. 
 
 V. Blackman, 654, 703, 730, 823. 
 
 V. Brown, 688, 690. 
 
 V. Cook, 96, 97, 98, 102, 104, 113, 
 114, 115, 120, 126, 128, 129, 
 130, 131, 197, 198, 199, 287, 
 288, 291, 292. 
 
 V. Croft, 173. 
 
 V. Delphy, 153, 266. 
 
 V. Dering, 680. 
 
 V. Dickinson, 426, 489, 492. 
 
 u. Dodge, 247. 
 
 V. Fredricks, 7. 
 
lii 
 
 TABLE OP OASES. 
 
 Thomas v. Hammond, 497, 876. 
 
 o. Nelson, 100. 
 
 V. Packer, 57, 62, 67. 
 
 V. Serrell, 11. 
 
 !;. Trustees, 457. 
 
 V. "Williams, 175, 184, 186, 270, 
 487. 
 .Thompson v. Alger, 521, 559. 
 
 V. Blanchard, 156, 220. 
 
 u. Bond, 273. 
 
 V. Davenport, 753. 
 
 V. Elliott, 414. 
 
 V. Gardiner, 789, 790. , 
 
 V. Gordon, 466, 468, 469, 470, 477. 
 
 V. Gould, 428. 
 
 V. Jameson, 878. 
 
 V. Kelly, 721. 
 
 u. Ladd, 878. 
 
 V. Leach, 76, 84. 
 
 V. Maberly, 489. 
 
 v. Maceroni, 599. 
 
 V. Mason, 435. 
 
 V. Percival, 286. 
 
 V. Pettitt, 440. 
 
 V. Todd, 824. 
 
 V. Wilson, 94, 96, 102. 
 Thorn v. Woolcombe, 76. 
 Thombury v. Berill, 731, 736, 767. 
 Thorndike v. Barrett, 420. 
 Thornton v. Charles, 789, 790, 792, 
 793. 
 
 V. Henry, 839, 874. 
 
 ,;. Kelley, 688, 690. 
 
 V. Kempster, 711, 766, 790, 792, 
 794. 
 
 V. Meux, 789, 790, 792, 793, 794. 
 
 V. Vaughan, 874. 
 Thorp, in re, 792. 
 
 V. Keokuk Coal Co., 235. 
 Thorpe v. Owen, 799. 
 Thouvenin v. Lea, 351, 402, 466. 
 Threadgill v. McLendon, 234, 240, 
 
 252, 254. 
 Thre'r v. Barton, 86. 
 Thruxton v. Attorney General, 798. 
 Thurber v. Dwyer, 56. 
 Thurston v. James, 240. 
 Thwaits v. Curl, 175, 216. 
 Thj-nn v. Thynn, 862. 
 Tibbett v. Morton, 575. 
 Tibbetts v. Flanders, 198. 
 
 u. Tibbetts, 422. 
 Tibbs V. Barker, 839. 
 Tice V. Freeman, 861. 
 Tidey v. MoUett, 62, 63. 
 
 Tiernan v. Gibney, 843. 
 
 u. Granger, 500. 
 Tiemey v. Wood, 803. 
 Tileston v. Nettieton, 176, 194, 216. 
 Till, in re, 454. 
 Tilston V. Clarke, 146. 
 Tilt V. Stratton, 51. 
 Tilton V. Tilton, 826, 845, 854. 
 Tindall v. Touchberry, 259, 290. 
 Tinney v. Tinney, 862. 
 Tippets V. Walker, 393. 
 Tisdale v Harris, 395, 503, 733. 
 
 V. Morgan, 209. 
 Todd I). Tobey, 175, 267. 
 Tomes v. Chamberlain, 48. 
 Tomkius v. Smith, 153, 211. 
 Tomkinson v. Staight, 615. 
 Tomlinson v. Gill, 143, 152, 154, 175, 
 275, 289. 
 
 V. Miller, 782. 
 Tooker v. Smith, 47, 66, 70. 
 Toole V. Medlicott, 829, 839, 846. 
 Toplady v. Sealey, 28. 
 Toplie V. Grane, 289. 
 Toppin !;. Lomas, 396, 413, 414. 
 Torriano v. Young, 77, 78. 
 Towers o. Osborne, 527, 529, 532, 533, 
 
 534, 542. 
 Townley v. Sumrall, 156. 
 Townsend v. Albens, 100. 
 
 V. Corning, 722. 
 
 V. Dawson, 419. 
 
 u. Drakeford, 726, 789, 793. 
 
 V. Hargreaves, 560, 569, 607, 615, 
 621, 626, 651, 669. 
 
 17. Hawkins, 845. 
 
 V. Long, 232, 301. 
 
 V. Westacott, 812. 
 Toulmin v. Hedley, 604. 
 Tourret v. Cripps, 776. 
 Tracy v. Tracy, 828. 
 Train v. Gold, 294. 
 Trammell v. Trammell, 30, 414. 
 Traphagen v. Burt, 423. 
 Trapnall v. Brown, 875. 
 Travis v. Allen, 174. 
 Tregonwell v. Sydenham, 805, 806. 
 Trent v. Hunt, 128. 
 Tress .,. Savage, 45, 46, 48, 52, 56, 57, 
 
 66, 69, 70. 
 Trevor v. Wood, 648. 
 Trewinian v. Howell, 141, 146. • 
 Trice v. Pratt, 457, 460. 
 Tripp V. Armitage, 504. 
 Trobridge v. Wetherbee, 423. 
 
TABLE OF CASES. 
 
 liii 
 
 Trotman v. Flesher, 831. 
 Troxell v. Lehigh &c. Coal Co., 35. 
 Trueman v. Loder, 753, 789, 792. 
 TruU V. Granger, 45. 
 
 V. Skinner, 413. 
 Truox V. Slater, 395. 
 Trustees v. Brook. F. Ins. Co., 469, 
 480, 485. 
 
 V. Flint, 204, 209, 309. 
 Tucker v. Adams, 48. 
 
 V. Burrow, 811, 815. 
 Tufts V. Plym. Gold Min. Co., 652, 669, 
 
 675. 
 TuU V. David, 721. 
 Tunbridge v. 'Wetherbee, 186. 
 Turner v. Baker, 421. 
 
 V. Hardy, 100, 129. 
 
 V. Hubbell, 174, 266, 283, 296. 
 
 V. Mariatt, 436. 
 
 V. Phillips, 220. 
 
 V. Stanton, 9, 39. 
 Turton v. Burky, 216. 
 Tuttle V. Sweet, 463, 472, 486, 497, 661. 
 Tuxworth V. Moore, 620, 627. 
 Tweddle v. Atkinson, 199. 
 Twiss V. George, 845. 
 Tyers v. Rosedale Iron Co., 758, 760, 
 
 761. 
 Tyler v. Strange, 641. 
 
 V. Strong, 568. 
 
 V. Webb, 444. 
 
 U. 
 
 TJhler v. Farm. Nat. Bank, 210, 222. 
 Ulen V. Kittredge, 778. 
 XJllman v. Meyer, 311, 648. 
 Underbill , . Allen, 824. 
 
 V. Gibson, 165, 229. 
 
 V. Williams, 839. 
 Underwood v. Campbell, 61. 
 
 V. Lovelace, 182, 283. 
 Ungley v. Ungley, 324, 826. 
 Union Bank of Manchester, ex parte, 
 
 445. 
 United States Bank v. Southard, 210. 
 United States Reflector Co. v. Rush- 
 ton, 566. 
 Unity Joint Stock Mutual Banking 
 
 Association v. King, 444. 
 Updike V. Ten Broeck, 467, 469, 470, 
 
 483. 
 Upton V. Archer, 45. 
 
 u. Townsend, 46. 
 
 Upton V. Vail, 306. 
 
 Urquhart r. Brayton, 160, 199, 2^2, 
 235. 
 
 Valpy V. Gibson, 655, 680. 
 
 "Van V. Corfe, 868. 
 
 Van Alstine v. Wimple, 189. 
 
 Van Bruck r. Peyser, 306. 
 
 Vance v. Vance, 812, 814. 
 
 Vandenbergh v. Spooner,647, 689, 694. 
 
 Vanderbeck v. Hendry, 24. 
 
 Van Deusen v. Young, 42. 
 
 Van Dyne v. Vreeland, 493. 
 
 Van Kenren v. McLaughlin, 414. 
 
 Vanmeter"!;. McFaddin, 443. 
 
 Van Ness v. Packard, 22. 
 
 Van Rensselaer's Heirs c. Penniman, 
 108, 109. 
 
 Van Slyck v. Pulver, 174, 260, 272. 
 
 Van Syckel v. Dalrymple, 749. 
 
 Van Valkenburgh v. Croffut, 425. 
 
 Van Woert v. Albany &c. R. E. Co., 
 470, 483, 497, 559. 
 
 Varden Seth Sam u. Luckpathy Roy- 
 gee Lallah, 446. 
 
 Varley v. Shirley, 063. 
 
 Vasburgh v. Teator, 421. 
 
 Vaughan v. Cravens, 435. 
 
 V. Hancock, 184, 186, 349, 353, 
 397, 399. 
 
 Vaupell V. Woodward, 854, 874. 
 
 Vawter v. Griffin, 395, 603. 
 
 Veghte V. Earitan Power Co., 20, 21. 
 
 Verlander v. Codd, 713, 730. 
 
 Vice V. Anson, 396. 
 
 Vickers v. Vickers, 718, 843. 
 
 Viele V. Goss, 306. 
 
 V. Osgood, 348, 422, 772. 
 
 Vincent v. Germond, 521, 559, 620, 
 631, 638. 
 
 Vining v. Gilbreth, 639. 
 
 Virden v. Ellsworth, 171. 
 
 Vogel V. Melms, 198, 233, 235, 292. 
 
 Vorebeck v. Roe, 358, 359, 369. 
 
 Vouillon V. States, 866, 867, 713. 
 
 Vroman v. Turner, 236. 
 
 W. 
 
 Waddington v. Bristow, 353, 355, 360, 
 
 373, 383, 388. 
 Wade V. Nebern, 773. 
 
liv 
 
 TABLE OP CASES. 
 
 Wadmore v. Dear, 396. 
 Waggoner v. Gray, 195, 211, 266. 
 Wagner v. Hallock, 204. 
 Wagnor v. Clay, 208. 
 Wain V. Warlters, 61, 176, 496. 
 Wainwright v. Straw, 161, 163. 
 Wait V. Baker, 641. 
 
 V. Wait, 234, 240, 254. 
 Wake V. Harrop, 715, 753. 
 Wakefield v. Greenwood, 172, 231. 
 
 V. Eoss, 420. 
 Walden v. Mu'rdock, 597. 
 Waldo V. Simonson, 174, 267. 
 Waldron v. Jacob, 751. 
 Wales V. Mellen, 411, 412. 
 Walford v. Gray, 328. 
 Walker v. Bartlett, 393. 
 
 «. Constable, 727, 780, 781. 
 
 V. Giles, 54. 
 
 V. Godg, 128. 
 
 V. Herring, 422, 720, 726, 727. 
 
 ... Hill, 160, 216, 218, 270." 
 
 u. Johnson, 497, 498. 
 
 V. Metr. Ins. Co., 469. 
 
 o. Milne, 393. 
 
 V. Norton, 156, 160, 220, 295. 
 
 V. Nussey, 523, 560. 
 
 V. Penniman, 233. 
 
 u. Kichards, 103, 155, 157, 163, 
 194, 217, 218, 219, 876. • 
 
 V. Richardson, 90, 91, 97, 102, 113, 
 115, 127, 132, 133, 262. 
 
 V. Rostron, 231. 
 
 V. Sherman, 173. 
 
 V. Taylor, 144, 208, 270. 
 
 V. Walker, 773, 832, 852, 863. 
 Wallace v. Brown, 65, 846. 
 
 u. McCuUough, 44. 
 
 V. Worthen, 161. 
 Waller v. Hendon, 727. 
 Wallis V. Harrison, 6, 22, 28, 30, 81. 
 
 V. Littel, 858. 
 Walls V. Atcheson, 96, 100, 101, 102, 
 
 127, 134. 
 Walrath v. Ingles, 526. 
 
 ■0. Richie, 506, 526. 
 Walsh V. Barton, 688, 723. 
 
 V. Kattenburgh, 876. 
 Walter v. Post, 8. 
 Walters v. Morgan, 414, 878. 
 Walther v. Merrell, 262. 
 Walton V. Dodson, 670, 691. 
 Wankeford v. Fotherley, 317, 336, 716. 
 Warbitton v. Savage, 640. 
 Ward V. Ely, 171. 
 
 Ward V. Kirkman, 666. 
 
 «. Lumley, 91. 
 Warden v. Jones, 314, 322, 323, 325, 
 
 326, 328, .335, 337. 
 Wardle v. Oakley, 451. 
 Ware v. Adams, 156, 171, 178. 
 
 V. Cumberledge, 393. 
 
 V. Stephenson, 155, 219, 262, 266. 
 Warfield v. Dorsey, 457, 458, 461. 
 Waring v. Ayres, 684, 846. 
 Warlow V. Harrison, 782. 
 Warman ti. Seaman, 809. 
 Warner, ex parte, 444. 
 
 V. Fountain, 421. 
 
 V. WUlington, 60, 61, 667, 692, 
 695, 708, 733, 734. 
 Warren v. Barker, 306. 
 
 V. Batchelder, 232. 
 
 V. Dickson, 493, 874. 
 
 V. Fearnside, 48. 
 
 V. Leland, 352, 359, 360, 368, 372, 
 403. 
 
 V. Milliken, 627. 
 
 V. Smith, 214. 
 
 V. Wheeler, 663, 738, 744. 
 Wartman v. Breed, 576. 
 Warwick v. Bruce, 354, 355, 356, 360, 
 378, 383, 386. 
 
 V. Groshalz, 151, 216, 223. 
 
 V. Slade, 796. 
 Washburn v. Burrows, 354, 356, 384. 
 
 </. Fletcher, 751, 762. 
 
 V. Washburn, 782. 
 Washington i'. Ogden, 412. 
 Washington Ice Co. v. Webster, 654, 
 
 663, 709, 713, 734, 738. 
 Waterman v. Meigs, 537, 547, 688, 703. 
 Waters v. Tompkins, 625. 
 Watkins v. Gilkerson, 405. 
 
 V. Peck, 6. 
 
 V. Perkins, 166, 207. 
 
 V. Rush, 384, 387, 428. 
 
 y. Rymill, 657. 
 
 I). Sands, 234. 
 
 V. Vince, 219, 779. 
 Watrous v. Chalker, 424, 494. 
 Watson V. Brightwell, 405, 410. 
 
 V. Hayes, 805. 
 
 V. Jacobs, 156, 195, 214. 
 
 V. Keely, 419. 
 
 V. McLaren, 173. 
 
 V. Mahan, 826, 836. 
 
 V. Marston, 871. 
 
 V. Parker, 259. 
 
 V. Randall, 156, 214. 
 
TABLE OF CASES. 
 
 Iv 
 
 Watson V. Spratley, 393, 394, 503. 
 
 .,. Turner, 228. 
 
 V. Violett, 457, 460. 
 
 V. Wand, 67. 
 
 (.-. Watson, 405. 
 Watt V. Evans, 824. 
 
 V. Maydewell, 117. 
 Watts, in re, 444. 
 
 I. Ainsworth, 60, 734. 
 
 V. Friend, 354, 385, 512, 513. 
 Waugh V. Mitchell, 423. 
 Waul V. Kirkman, 678, 764. 
 Weaver v. Jones, 48. 
 Webb V. Paternoster, 5, 26, 27. , 
 
 V. Russell, 86. 
 Webber v. Lee, 7. 
 Webb's Policy, in re, 445. 
 Webster v. Anderson, 630, 631, 632. 
 
 i,. Cecil, 865, 
 
 V. Ela, 688, 690. 
 
 V. Gray, 825. 
 
 V. ZeiUey, 386, 404, 521, 543, 553, 
 650. 
 Weddall v. Capes, 73, 82, 84, 85, 102, 
 
 103, 108, 121. 
 Wedderburne v. Carr, 728. 
 Weed V. Clark, 210. 
 
 V. Terry, 420. 
 Weekly v. Weekly, 393. 
 Weeks v. Burton, 306. 
 
 V. Wright, 714. 
 Wegg V. Drake, 567. 
 Weir V. Hill, 434, 495. 
 Welborn v. Seecrist, 873. 
 Welch V. Kenney, 160, 195, 209. 
 
 V. Marvin, 163. 
 Weldon v. Porter, 61. 
 Welford v. Beazley, 669, 715, 768, 771. 
 Wells V. Bannister, 26, 428. 
 
 V. Brown, 254. 
 
 V. Cowles, 393. 
 
 V. Day, 511, 512. 
 
 V. Horton, 314, 468, 469, 484. 
 
 V. Hunt, 512. 
 
 V. Ifingston-upon-HuU, 349, 400. 
 
 V. Prince, 307, 308. 
 
 V. Eenway, 306. 
 
 V. Stratton, 423, 826. 
 
 0. Thompson, 284. 
 Welsh !•. Bayard, 828, 832. 
 
 V. Welsh, 428. 
 
 V. Usher, 442. 
 Wentz V. Durhaven, 439. 
 West V. Bolton, 624. 
 
 V. Flanagan, 835. 
 
 West V. O'Hara, 233. 
 
 V. Wilcox, 306. 
 West Jersey &c. R. H. Co. v. Trenton 
 
 &c. R. R. Co., 654. 
 West Va. Oil Co. v. Vinal, 821. 
 Western v. Russell, 713, 705, 772, 773. 
 Western Union Tel. Co. v. Chicago &c. 
 
 R. R. Co., 066, 703, 764. 
 Westervelt v. Matheson, 086. 
 Westfall V. Parsons, 201, 234, 493. 
 Westhead v. Sproson, 173, 181. 
 Weston V. Bird, 870. 
 Wetherbee v. Potter, 423, 425. 
 Wetherell, ex parte, 442, 454. 
 
 V. Langston, 766. 
 Wethers v. Larrabee, 48. 
 Wetmore v. White, 839. 
 Weyer v. Beach, 252. 
 Weyland v. Crichfield, 155, 211, 219. 
 Whaley v. Bagenal, 670, 708, 714, 823. 
 
 u. Dawson, 417. 
 Wharton v. Stautenbaugh, 822, 826. 
 
 V. Walker, 286. 
 Wheelden v. Lowell, 27. 
 Wheeler v. Collier, 144, 691. 
 
 V. D'Esterre, 829, 839, 847. 
 
 V. Frankenthal, 703. 
 
 V. Reynolds, 10. 
 Whelan v. Sullivan, 659, 081, 751, 845. 
 Whipple V. Foot, 360, 377. 
 
 V. Thayer, 620. 
 Whitbeck v. Whitbeek, 407, 425. 
 Whitbread, ex parte, 442, 448, 451. 
 
 „. Brockhurst, 823, 832, 878. 
 
 V. Jordan, 444, 454. 
 Whitchurch v. Bevis, 823, 852, 856, 
 
 857, 877, 878. 
 Whiteomb v. Kephart, 160. 
 White V. Bailey, 412. 
 
 V. Bradshaw, 684. 
 
 V. Coombs, 414. 
 
 V. Crew, 781. 
 
 v. Elwell, -26. 
 
 V. Foster, 358, 361. 
 
 V. Frost, 351, 363, 383, 384, 506. 
 
 V. Fuller, 752. 
 
 u. Hanchett, 484, 614. 
 
 e. Herman, 684, 080, 846. 
 
 V. Knapp, 508. 
 
 V. Maynard, 5, 18, 398. 
 
 o. Motley, 683, 084. 
 
 V. Proctor, 726, 780, 781. 
 
 ... Smith, 498. 
 
 V. Solomonsky, 156, 195, 211, 214. 
 
 V. Watkins, 656, 826. 
 
Ivi 
 
 TABLE OP CASES. 
 
 White V. White, 422. 
 
 o. Wieland, 428, 431, 478. 
 
 V. Wiltshire, 27. 
 
 V. Woodward, 176. 
 White's Ex'rs v. White, 288. 
 Whitehead v. ClifEord, 96, 98, 100, 106, 
 
 134. 
 Whitfield V. Potter, 260. 
 Whiting V. Butler, 411, 413. 
 
 V. Gould, 649, 877. 
 Whitley v. Gough, 117, 121. 
 Whitman v. Bryant, 156, 163, 194, 263. 
 Whitmarsh v. Walker, 30, 851, 355, 
 358, 359, 363, 377, 383, 384, 
 404. 
 Whitney v. Butler, 415. 
 
 !>. Holmes, 421. 
 
 V. Meyers, 96, 97, 108, 124. 
 
 V. Swett, 51. 
 Whittaker v. Cawthorne, 9. 
 Whittemore v. Gibbs, 395, 411, 503. 
 Whitwell V. Wyer, 621, 660. 
 Whitworth v. Gaugain, 448. 
 Whoon V. Drizzle, 47. 
 Wickham v. Wickham, 303. 
 Wiegander v. Copeland, 423. 
 Wierner v. Whipple, 649, 769, 796. 
 Wiggins V. Keizer, 466, 469. 
 Wigglesworth v. Dallison, 752. 
 Wightman v. Caldwell, 638. 
 Wigley V. Ashton, 148. 
 Wilber v. Paine, 824. 
 Wilcox Silver Plate Co. v. Green, 609, 
 
 615. 
 Wild V. Came, 630, 631. 
 
 V. Nichols, 198. 
 Wilde V. Cantillon, 50. 
 
 V. Fox, 835, 837. 
 Wildes V. Dudlow, 160, 287, 288, 291. 
 Wiley V. Bradley, 361, 404. 
 
 V. Christ, 91. 
 
 V. Eoberts, 664, 709. 
 Wilford V. Beazeley, 670. 
 Wilhelm v. Hardman, 469, 480, 483. 
 Wilke V. Willce, 412. 
 Wilkes V. Ferris, 639. 
 Wilkins v. Irvine, 14. 
 Wilkinson v. Evans, 652, 654, 695, 702, 
 709, 710. 
 
 V. Wilkinson, 65, 839. 
 Wilks V. Davis, 718, 843. 
 WiUets V. Van Alst, 457. 
 Williams, ex -parte, 167, 163. 
 
 V. Ackerman, 66. 
 
 V. Bacon, 649, 653, 688, 723, 789. 
 
 Williams «. Bemis, 428, 435, 478. 
 
 V. Brynes, 670, 690, 691. 
 
 V. Burgess, 607, 615. 
 
 V. Christie, 723. 
 
 V. Coade, 806. 
 
 V. Corbett, 155, 219, 233. 
 
 V. Devian, 48. 
 
 V. Evans, 576, 626, 835, 889, 840, 
 842. 
 
 u. Hill, 437. 
 
 V. Jones, 15, 488. 
 
 V. Jordan, 664, 688, 690, 709. 
 
 V. Kershaw, 806. 
 .V. Lake, 60, 61, 688, 691, 737. 
 
 V. Landman, 836, 837. 
 
 17. Leper, 138, 153, 154, 208, 289, 
 257, 269, 270, 283, 803, 874. 
 
 V. Little, 161, 209, 210. 
 
 V. Morris, 6, 23, 653, 654, 655, 678, 
 706, 709. 
 
 V. Robinson, 648, 656, 662, 663, 
 713, 714, 737, 738, 743, 746, 
 758, 764, 765. 
 
 V. Rogers, 233. 
 
 V. Sawyer, 76, 81, 87, 118. 
 
 V. Spring, 171. 
 
 V. Tucker, 650. 
 
 u. Wheeler, 305, 467. 
 
 V. Williams, 327, 786, 766, 815, 
 850. 
 
 V. Wood, 306. 
 Williamson v. Wootton, 719. 
 Willis, in re, 230. 
 
 V. Newham, 626. 
 
 V. Willis, 808. 
 Willoughby, in re, 315. 
 Wills V. Brown, 196. 
 
 V. Stradling, 826, 829, 832, 835, 
 838, 889. 
 Wilmer v. Farres, 832. 
 Wilmington &c. E. R. Co. v. Battle, 28, 
 
 36, 87. 
 Wilson V. Bevans, 198, 224, 246. 
 
 V. Chalfant, 16, 19, 20, 35. 
 
 V. Clark, 427. 
 
 V. Coupland, 285, 286. 
 
 V. Dent, 803. 
 
 V. Hart, 760. 
 
 V. Hill, 412. 
 
 V. Hudson, 421. 
 
 V. Marshall, 426. 
 
 V. Martin, 464, 474, 486, 497. 
 
 V. Pig, 124. 
 
 V. Sewell, 117, 123. 
 
 V. Vilas, 20. 
 
TABLE OP CASES. 
 
 Ivii 
 
 Wilson c. West Hartlep. R. Co., 839, 
 
 849. 
 Wilston V. Pilkney, 83. 
 Wilton V. Harwood, 822, 839. 
 Winberry v. Koonce, 411. 
 Winch 0. Winchester, 861. 
 Winckworth v. Mills, 229, 291, 296. 
 Winfield v. Potter, 229, 240. 
 Wing V. Hall, 19. 
 
 V. Harris, 117. 
 Wingate v. Dale, 846. 
 Winn V. Albert, 337, 878. 
 
 V. Bull, 648, 714. 
 Winter v. Brocklewell, 5, 11, 26, 31. 
 
 V. Lord Anson, 444. 
 Winton v. Pinken6y, 124. 
 Wise V. Charlton, 452. 
 Wiseman v. Lucksinger, 10, 400, 401. 
 Wiswell V. Lofft, 827, 845. 
 Withers v. Larrabee, 51, 100. 
 
 o. Withers, 798, 806. 
 Witt V. Mayor &c. of N. Y., 57, 66. 
 Woadly v. Coventry, 639. 
 Wolfe V. Frost, 21, 35, 400, 408. 
 
 V. Sharp, 456, 461, 729. 
 Wolfenden v. Wilson, 530. 
 Wolff V. Koppel, 152, 161, 207, 208, 
 
 209, 211, 302, 303. 
 WoUaston v. Hakewill, 75. 
 Wood V. Benson, 184, 186, 487. 
 
 V. Bridgely, 60. 
 
 V. Corcoran, 214. 
 
 V. Cox, 805. 
 
 V. Davis, 647, 663. 
 
 V. Edes, 31, 34. 
 
 v. Farmere, 362, 827. 
 
 V. Fleet, 418. 
 
 V. Jones, 824. 
 
 V. Lake, 4, 5, 26, 27, 28. 
 
 V. Leadbitter, 5, 6, 11, 21, 400, 401. 
 
 V. Manly, 5, 12, 30, 42 
 
 V. Mann, 459. 
 
 ^. Midgeley, 654, 709, 719, 731, 
 844, 853, 855. 
 
 V. Partridge, 103. 
 
 V. Patch, 204. 
 
 V. Priestner, 178. 
 
 V. Savage, 337. 
 
 o. Scarth, 682, 707, 725, 860, 855. 
 
 V. Shultis, 352, 428, 429. 
 
 V. Thomby, 832. 
 
 a. Walbridge, 82. 
 
 V. Wheelock, 299. 
 Woodard v. Lindley, 76. 
 Woodbridge Union v.Whien Union, 62. 
 
 Woodbury v. Parshloy, 20, 36. 
 Woodcock V. North, 105, 127, 133. 
 Woodford v. Patterson, 480, 506. 
 WoodhuU V. Longstreet, 419. 
 Woodley v. Coventry, 628. 
 Woods V. M'Gee, 640. 
 
 I). Wallace, 437. 
 Woodward v. Aston, 116, 122. 
 V. Pickett, 174. 
 
 V. Seeley, 22, 35, 36, 41, 400. 
 
 V. Wilcox, 154. 
 Wooley V. Gregory, 103. 
 WooUam v. Hearn, 736, 862. 
 Wooster v. Sage, 507, 508. 
 Wootley V. Gregory, 90. 
 Worden v. Sharp, 425. 
 Work V. Cowhick, 654, 705, 709, 742. 
 Workman v. Guthrie, 835. 
 Worrall v. Munn, 764, 778, 782. 
 Worters, in re, 454. 
 Worthen v. Dow, 526. 
 Worthy v. Jones, 466, 467, 484. 
 Wray v. Steele, 807. 
 Wright, ex parte, 443, 444, 460. 
 
 V. Cobb, 647. 
 
 V. Dannah, 779, 780, 783. 
 
 V. DeGraff, 422. 
 
 t. Freeman, 35. 
 
 V. O'Brien, 543. 
 
 V. Percival, 588. 
 
 v. Stavert, 349, 398, 399. 
 
 V. Stewart, 5. 
 
 V. Weeks, 649, 656, 659. 
 
 o. Wright, 844, 845. 
 
 V. Verney, 294. 
 Wyatt V. Stagg, 82. 
 Wykoff V. WykofE, 830. 
 Wylde V. Radford, 456. 
 Wylie V. Kelley, 571, 576. 
 Wyman v. Goodrich, 299, 302. 
 
 u. Gray, 162, 209. 
 
 V. Smith, 240, 246. 
 Wyndham v. Way, 404. 
 Wynn v. Garland, 875. 
 
 V. Wood, 240. 
 Wynne v. Hughes, 175. 
 
 Yale V. Edgerton, 156, 214,282.. 
 
 V, Seeley, 630. 
 Yarborough v. Avant, 419. 
 Yates V. Martin, 414. 
 Yeakle v. Jacob, 30, 359, 362. 
 
Iviii 
 
 TABLE OP CASES. 
 
 Yerby v. Grigeby, 772, 778. 
 Young V. Austin, 874. 
 
 V. Blaisdell, 621. 
 
 V. Duke, 5, 45. 
 
 V. French, 196, 254, 260, 282. 
 
 V. Frost, 420. 
 
 V. Peachy, 809. 
 Youngs V. Shough, 162. 
 Yourt V. Hopkins, 782, 876. 
 
 Z. 
 
 Zabel V. Schroder, 494. * 
 Zabriskie v. Smith, 306. 
 Zaehrisson v. Poppe, 626, 632, 769, 779. 
 Zeikafosse v. Hullick, 351, 403. 
 Zeringue v. Williams, 409. 
 Zouch V. Parsons, 88, 123. 
 Zwinger v. Samuda, 585. 
 
STATUTE OF FRAUDS. 
 
STATUTE OP FRAUDS. 
 
 29 Car. H. c. 3. 
 
 Section 1. All leases, estates, interests of freehold, or terms of years, 
 or any unoertain interest, of, in, to, or out of any messuages, manors, 
 lands, tenements, or hereditaments, made or created by livery and seizin 
 only, or by parol, and not put into writing and signed by the parties so 
 making or creating the same, or their agents thereunto lawfully author- 
 ized by writing, shall have the force and effect of leases or estates at will 
 only, and shall not, either in law or equity, be deemed or taken to have 
 any other or greater force or effect ; any consideration for making the 
 same to the contrary notwithstanding. 
 
 Sec. 2. All leases not exceeding the term of three years from the 
 making thereof, whereupon the rent reserved to the landlord during such 
 term shall amount unto two-third parts, at least, of the full improved 
 value of the thing demised. 
 
STATUTE OF FMIJDS. 
 
 CHAPTER I. 
 
 PAKOL LEASES. — LICENSES. 
 
 BSCTIOir. 
 
 1. What is an Uncertain Interest in Lands. 
 
 2. Effect of Statute as to Lessor's Eemedies. 
 
 3. Easements only Created by Deed. — Licenses. 
 
 4. Sporting Licenses. 
 
 5. Freehold Interest. 
 
 6. Parol License, when Revocable. 
 
 7. License coupled with Interest in Land, What is. 
 
 8. Distinction between License and a Lease. 
 
 9. How far a License Protects. 
 
 10. Instances of Irrevocable Licenses. 
 
 11. License Eevoked by Conveyance, etc. 
 
 12. Reasonable Notice of Revocation Required. 
 
 13. Injunction to Restrain Interference with License. 
 
 14. Parol Agreement for Sale may Operate as License, When. 
 
 15. Signature not Necessary in Case of a Deed. 
 
 16. Appointment of Agent. 
 
 17. Term Commences from Time of Agreement. 
 
 18. Statute does not Apply to Tolls or Equitable Estates. 
 
 19. Entry under Void Lease, Effect of. 
 
 20. How a Tenancy at Will is Created. 
 
 21. Rule in Doldge v. Bowers. 
 
 22. How Tenancy from Year to Year may be Created. 
 
 23. Implied Tenancy from Year to Year. 
 
 24. Rebuttal of Presumption. 
 
 25. Void Lease may Enure as Agreement to Lease. 
 
 26. Specific Performance. 
 
 27. Terms of Occupancy Regulated by Parol Lease. 
 
 28. Rule in Tooker v. Smith. 
 
 29. Covenants in Farming Lease. 
 
 30. Covenant to Paint. 
 
 31. Proviso of Re-entry. 
 
 32. Rent Paid in Advance. 
 
 33. Parol Lease may be Special in its Term. 
 
 34. Collateral Agreements. 
 
 35. Determination of Term under Void Lease. 
 
 36. Tenancy Determined at End of, without Notice. 
 
4 STATUTE OP PEATJDS. [CHAP. I. 
 
 Section 1. what is an TTnoertain Interest in Lands. — The 
 words " all leases, estates, interests of freehold, or terms of 
 years, or any uncertain interest, etc.," extend only to interests 
 which are uncertain as to duration.^ Collecting the meaning 
 of the first by aid of the language and terms of the second 
 section, and the exceptions therein contained, it seems that 
 the leases so meant to be yacated by the first section, must 
 be understood as leases of the like kind with those in the 
 second section, but which convey a larger interest to the 
 party than for the sum therein named, and such also as are 
 made under a rent reserved thereupon.^ 
 
 In Georgia,^ Maryland,* and South Carolina,^ the statute, 
 so far as it is applicable to the sale or demise of lands, is 
 identical with that of 29 Car. II. Cap. 3, as stated supra. 
 But in • all the other States and Territories of this country, 
 while the principle upon which this statute rests is adopted, 
 yet substantive differences exist, both as to its language 
 and in its application, and the amount of rent to be paid 
 does not have any effect in determining the validity of the 
 lease. In Alabama, Arkansas, California, Colorado, Connec- 
 ticut, Dakota, Delaware, Illinois, Iowa, Kansas, Kentucky, 
 Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, 
 New Jersey, New York, Oregon, Rhode Island, Tennessee, 
 Texas, Utah, Virginia, West Virginia, Wisconsin, and Wy- 
 oming, parol leases for a longer term than one year are 
 invalid, while in Florida two years, and in Indiana and 
 New Jersey three years is the term limited, while in Maine, 
 Massachusetts, Missouri, New Hampshire, Pennsylvania, and 
 Vermont parol leases have no effect to create other than 
 
 1 "Wood V. Lake, Say, 3. The first whether with or without rent, or any 
 
 section seems to be co-extensive with interest uncertain in point of duration, 
 
 the fourth, and consequently every must, it would seem, equally fall with- 
 
 interest which is within the fourth in the provision of the first section, 
 
 section is equally within the first, un- and cannot be sustained unless it 
 
 less it comes within the saving of the comes within the saving in the second, 
 
 second. Sugd. V. & P. 14th ed. 122. Sugd. V. & P. 14th ed. 122 ; Crosby 
 
 ' Crosby v. Wadsworth, 6 East, v. Wadsworth, ante ; Lord Bolton u. 
 
 602, per Lokd Ellenbokough. If an Tomlin, 5 Ad. & El. 856. See also 
 
 estate of whatever value should be Cooch v. Goodman, 2 Q. B,, for the 
 
 conveyed to a purchaser by livery extent of the second section, in con- 
 
 of seizin without writing, the act would nection with the first, 
 avoid the estate, although the pur- ' See Appendix, " Georgia.'' 
 chaser has paid his money. An actual * See Appendix, " Maryland." 
 
 lease for any given number of years, ^ See Appendix, " South Carolina." 
 
SEC. 3.] PAEOL LEASES. 5 
 
 estates at will, and practically this is tlie case in North 
 Carolina and Ohio. 
 
 Sec. 2. Effect of Statute as to Lessor's Remedies. — The 
 effect of the statute, so far as it applies to parol leases 
 not exceeding the period named therein, is that the leases 
 are valid, and that whatever remedy can be had upon them 
 in their character of leases may be resorted to ; but in Eng- 
 land, under the fourth section, it has been held that no 
 right is conferred to sue the lessee for damages for not 
 taking possession. Thus, in Edge v. Stafford,^ it was held 
 that a parol agreement to take furnished lodgings for " two 
 or three years " amounted to a lease, and gave the lessor a 
 right to whatever remedy he could have in the character of a 
 lease ; but that inasmuch as the contract was for " an interest 
 in lands " within the fourth section, the tenant was not liable 
 in an action for not taking possession. But the current of 
 authority in this country, so far as this question has been 
 under review, is opposed to this rule, and it is held that the 
 right to rent under a parol lease for the statutory period, is 
 good from its inception, and will support an action for rent 
 from that period, whether the lessee goes into possession or 
 not? But this must be understood as the rule in those 
 instances only where the lease takes effect from the time 
 when it was made, or in those States where it is held, as is 
 the case in New York,^ Colorado,* and Indiana,^ that a parol 
 lease to commence infuturo vests a present interest in the term. 
 
 Sec. 3. Basements can only be Created by Deed. — An ease- 
 ment, like aU other incorporeal hereditament affecting land, 
 can only be created or transferred by deed. AU such here- 
 ditaments he in grant and not in livery, and pass by mere 
 delivery of the deed.® Thus, in Hewlins v. Shippam,'' the 
 
 1 1 C. & J. 391. 6 Wood V. Leadbitter, 13 M. & W. 
 
 2 Huffman u. Stark, 31 Ind. 474 ; 842 ; 14 L. J. Ex. 161 ; per Alderson, 
 Yfliing V. Dake, 6 N. Y. 463 ; White v. B., overruling on this point, Wood t;. 
 Maynard, 111 Mass. 250. So also see Lake, Say, 3 ; Webb v. Paternoster, 
 Coe V. Clay, 5 Bing. 440; Jenks v. Palm. 71; 2 Roll. 152; Poph. 151; 
 Edwards, 11 Exchq. 775, and Wright Winter v. Brocklewell, 8 East, 308 ; 
 V. Stewart, 5 Ad. & El. 856. Tayler v. Waters, 2 Marsh, 551 ; 7 
 
 ' Young V. Dake, ante. Taunt. 384 ; Wood v. Manly, 3 Per. & 
 
 4 Sears v. Smith, 3 Col. 287. D. 5; 11 Ad. & El. 34. 
 
 6 Huffman v. Stark, ante. ' 5 B. & C. 221. In Collins Co. v. 
 
6 STATUTE OP FEAXTDS. [CHAP. I. 
 
 action was for stopping up a drain leading from the plain- 
 tiff's premises, through the defendant's yard; the plaintiff 
 ■was non-suited, on the ground that the right to have the 
 drain pass through the defendant's yard was an interest in 
 the defendant's land, and under the statute, there being 
 nothing in writing to create the right, but its foundation 
 resting in parol, was a right at will only ; and the Court of 
 King's Bench held that the non-suit was right.^ In Crocker 
 V. Cowper^ the facts were similar to those in Hewlins v. 
 Shippam, except that upon the construction of the license it 
 appeared to have been made for a term of years ; but that 
 distinction was not taken, -and the court said that, "with 
 regard to the question of license, the case of Hewlins v. Ship- 
 pam is decisive to show that an easement like this cannot be 
 conferred except by deed."^ In Wood v. Leadbitter* the 
 whole of the authdrities on the subject were most fully dis- 
 cussed. There the action was trespass for assault and false 
 imprisonment. The facts were as follows: — Lord Eglin- 
 toun was steward of the Doncaster races : tickets of admis- 
 sion to the grand stand were issued with his sanction, and 
 sold for a guinea each, entitling the holders to come into the 
 stand and the enclosure round it during the races ; the plain- 
 tiff bought one of the tickets, and was in the enclosure during 
 the races ; the defendant, by the order of Lord Eglintoun, 
 
 Marcy, 25 Conn. 239, a license to erect liams, 10 Penn. St. 126 ; or by an im- 
 
 upon the land of another a permanent plied grant as a right necessarily inci- 
 
 addition to a building, of a substantial dent to the thing granted. Braksley 
 
 character, was held to amount to a v. Sharp, 9 N. J. Eq. 9 ; 10 id. 206 ; 
 
 grant of an interest in lands, within Lampman v. Schilks, 21 N. Y. 505 ; 
 
 the statute of frauds ; and in Hall v. Kenyon v. Nichols, 1 E. I. 412 ; Phil- 
 
 Boyd, 14 Ga. 1, it was held that a parol lips v. Phillips, 48 Penn. St. 178 ; and 
 
 license to build a bridge on another's in no case can such rights be created 
 
 land does not confer a right to re- by, or exist in, parol. Huff v. McCau- 
 
 build. Easements are created only ley, 53 Penn. St. 206. 
 by deed. Euhr <i. Dean, 26 Mo. 116; i See the judgment of Batlet, J., 
 
 or presumed grant by long user, and see Bryan v. Whistler, 8 B. & C. 
 
 Stearns v. Janes, 12 Allen (Mass.) 288; 2 Man. & Ry. 318; Bradley v. 
 
 582; Pollard u. Barnes, 2 Cush. (Mass.) Gill, 1 Lut. 69; Barlow v. Rhodes, 1 
 
 191 ; Carlisle v. Cooper, 19 N. Y. Eq. Cr. & M. 439 ; Mason v. HUl, 5 B. & 
 
 372 ; Luce v. Carley, 24 Wend. (N. Y.) Aid. 1 ; 2 Ner. & M. 747. 
 451; Watkins v. Peck, 13 N. H. 360; 21 c. M. & R. 418. 
 
 Mannier v. Myers, 4 B. Mon. (Ky.) s Xni see Bridges v. Blanchard, 1 
 
 514; Stokes •;;. Appomattox Co. 3 Ad. & El. 536; Wallisw. Harrison, 4 M. 
 
 Leigh (Va.) 318; Smith v. Bennett, &W. 538; Williams w. Morris, 8 M. & 
 
 1 Jones (N. C.) L. 372 ; Biddle v. Ash, W. 488. 
 
 2 Ashm. (Penn.) 211 ; Esling v. Wil- 1 13 M. & W. 838 ; 14 L. J. Ex. 161. 
 
SEC. 4.J 
 
 PAROL LEASES. 
 
 desired the plaintiff to leave the enclosure, and on his refusing 
 to do so, ejected him, but did not return the guinea. It was 
 held that this was an easement which could only have been 
 created h^ deed. A somewhat similar doctrine was adopted 
 in a Massachusetts case,^ in which it was held that the sale of 
 a ticket of admission to a concert only amounts to a revocable 
 license to the purchaser to enter the building in which it is 
 given, and to attend the performance ; and if revoked before 
 the performance has commenced, and before he has taken the 
 seat to which the ticket entitles him, and he remains therein 
 after notice of the revocation, and refuses to depart upon 
 request, he becomes a trespasser and may be removed by the 
 use of so much force as is necessary for that purpose, and that 
 his only remedy therefor is by action upon his contract.^ 
 
 Sec. 4. Sporting Licenses. — A license to shoot or fish for 
 a term amounts to a demise of an incorporeal hereditament 
 and can only be created by deed.^ But a license to do an act 
 
 1 BurtonK.Scherffjl Allen (Mass.) 
 133. 
 
 ^ In Smith v. American Institute, 
 7 Daly (N. Y. C. P.) 526, it was held 
 that an exhibitor at a fair, who has 
 paid a license-fee for space in the 
 exhibition building, is liable to be 
 ejected, together with her goods, if 
 she persists in advertising the goods 
 exhibited by an indecent circular; 
 where it is expressly provided, as a, 
 condition of admission, that the man- 
 agers reserVe the right to refuse ad- 
 mission to any exhibitor whom they 
 may consider an improper person, and 
 also exclude any articles they may 
 deem objectionable. Indeed, where a 
 license is given upon a condition, there 
 can be no question but that the licensee 
 must conform to the condition, in 
 order to make the license operative as 
 a protection against liability for acts 
 done in pursuance of it. Dempsey v. 
 Kipp, 62 Barb. (N. Y.) 311 ; and there 
 can be no question but that certain 
 conditions may be implied which have 
 the same force as express conditions 
 would have. 
 
 3 Bird u. Higginson, 6 Ad. & El. 
 824; Thomas v. Fredricks, 10 Q. B. 775; 
 
 Bayley v. M. of Conyngham, 15 Ir. 
 C. L. R. 406; Perry v. Mtzhowc, 8 
 Q. B. 757 ; Hiil „. Lord, 48 Me. 83. 
 In Webber v. Lee, 45 L. P. n. s. 591, 
 an action was brought to recover 
 damages for the breach of an agree- 
 ment to share a shooting, and to pay 
 ilOO and one fourth of the expenses. 
 The defence denied the agreement, 
 and alleged that there was no memo- 
 randum in writing witliin the meaning 
 of the statute of frauds. At the trial 
 it appeared that the plaintiff was the 
 lessee of 500 acres of shooting, and 
 he advertised for a gentleman to 
 share the shooting and the shooting- 
 lodge with him. The advertisement, 
 after describing the shooting, went on 
 to say that the "lessee requires a 
 genial sporting companion to join 
 him on equal terms, paying £200 for 
 his half -share of shooting, and receiv- 
 ing half of total of game killed." 
 The plaintiff afterward wrote to the 
 defendant » letter in the following 
 terms : " I now write to say that if 
 you think a half-share would be more 
 than you could manage, I should be 
 very pleased to give you half of the 
 share I retain for ;. yself, i". ■"'"^ 
 
8 STATUTE OF PEATJDS. [CHAP. I. 
 
 on the land of another, if not an easement, or involving an 
 interest in real estate, may be given by parol,^ and under this 
 rule, it has been held that a license to insert beams in the 
 wall of a house, is not an interest in lands which must be in 
 writing,^ and the same has also been held as to a parol license 
 to float spars and timber on a stream ; ^ and in aU instances it 
 may be said that a parol license to enter upon the premises 
 of another for any purpose, which has been executed, affords a 
 complete defence to the licensee against an action for doing 
 such act, although, under the statute of frauds, it was void, 
 and if executed after it had been revoked, would have made 
 the licensee a trespasser.* 
 
 Sec. 5. Freehold Interest running with Inheritance. — A 
 
 grant of a freehold interest running with the inheritance 
 cannot bind a stranger to the grantor unless the grant was 
 by deed.^ Thus, the owner of land sold the standing wood 
 thereon, with a license to the purchaser to enter upon the 
 land and remove it within a certain time. But, before the 
 license was acted upon, he conveyed the premises to a third 
 person who knew of the license, and it was held that the 
 license was revoked by the conveyance, and could not be 
 enforced against the purchaser of the land, notwithstand- 
 ing his knowledge of the facts,® the rule being that a parol 
 
 from the 1st September to the 1st to use the land, for it conveys an 
 February, shooting with equal liberty interest in the land coupled with a 
 with myself, and a quarter of the participation in the profits, and so is 
 total game killed. . . . The shooting within the statute of frauds, and 
 days could "he arranged to suit our ought to be in writing ; and that judg- 
 convenience." It was afterwards ment must be for the defendant, 
 agreed between the plaintiff and de- i Snowden v. Wilas, 19 Ind. 10. 
 fendant, by word of mouth, that the ^ McLarney v. Pettigrew, 3 E. D. S. 
 defendant should take half of the (N. Y. C. P.) 111. 
 plaintiff's share and one fourth of ^ Rhodes v. Otis, 33 Ala. 578. 
 the game killed. Subsequently, the * Pratt v. Ogden, 34 N. Y. 20 ; Mar- 
 defendant refused to carry out this ston v. Gale, 24 N. H. 176 ; Walter v. 
 agreement. The jury found a verdict Post, 6 Duer. (N. Y.) 363; Arrington 
 for the plaintiff for £40. But the v. Larrabee, 10 Cush. (Mass.) 512; 
 verdict was set aside, the court hold- Houston v. Laffee, 46 N. H. 505; Carl- 
 ing that an agreement which entitles ton v. Reddington, 21 id. 291 ; Owen 
 one party to it on the payment of w. Field, 12 Allen (Mass.) 457. 
 money to go upon the land of the » Perry v. Fishowe, 8 Q. B. 757 ; 
 other party and exercise sporting Lord v. Hill, 48 Me. 83. 
 rights and take away a proportion of ^ Drake v. Wells, 11 Allen (Mass.) 
 the game killed to his own use, is 141. 
 more than a mere revocable license 
 
SEC. 6.] PAROL LEASES. ■ 9 
 
 license to do an act upon another's land is revoked either 
 by the death of the licensor or the conveyance of the i^rem- 
 ises by him,^ and neither the knowledge by the executor of 
 the licensor or his grantee, of the fact that such license had 
 been given, will save it from the operation of this rule.^ 
 
 Sec. 6. Parol License, when Revocable. — A mere parol 
 license, not coupled with an interest in the land, is revocable 
 at any time, although it has been executed, and the licensee 
 has, in acting upon it, been put to expense. Thus, where the 
 lord of the manor granted a license to build a cottage on the 
 waste, and the license had been executed, and the cottage 
 inhabited by the licensee. Lord Ellenbokottgh said : " A 
 license is not a grant, but may be recalled immediately, and so 
 might this license the day after it was granted." ^ So where 
 the plaintiff, on the faith of a parol agreement, for valuable 
 consideration made a channel for water on the defendant's 
 land, but no conveyance of the land was made to the plain- 
 tiff; it was held that the defendant was entitled to revoke the 
 license.* In a Massachusetts case ^ it was held that an oral 
 license, given by the owner of land, to lay an aqueduct across 
 his land, is revocable, and that, after its revocation, the owner 
 of the land was justified in cutting it off, and that a court of 
 equity would not restrain him from so doing. In Rhode 
 Island^ a parol license to the owners and occupants of one 
 farm, in perpetuity, to pass and repass with their servants, 
 horses, carts, carriages, etc., in a way prescribed, over an 
 adjoining farm, given by the owner of the latter farm, was 
 held to be, at law, revocable at his pleasure, notwithstand- 
 
 1 Eggleston v. N. Y. &c. K. R. Co., Duer. (N. Y.) 255; Kimball v. Yates, 
 
 35Barb. (N.Y.)162; Carter w. Harlan, 14 111. 464; Clute v. Carr, 20 Wis. 
 
 6 Md. 20; Whittaker v. Canthome, 3 531 ; Turner v. Stanton, 42 Mich. 506; 
 
 Dev. (N. C.) L. 389. Druse v. Wheeler, 22 Mich. 439. 
 
 " Drake v. Wells, ante. * Pentiman v. Smith, 4 East, 107. 
 
 8 Eex V. The Inhabitants of Hem- And see Cocker v. Cowper, 1 C. M. & 
 
 don-on-the-Hill, 4 M. & Sel. 565. See E. 418 ; Hewlins v. Shippam, 5 B. & 
 
 also Kex t). Inhabitants of Geddington, C. 221; 7 D. & R 783; Bryan v. 
 
 2 B. & C. 129 ; Rex v. Inhabitants of Whistler, 8 B. & C. 288 ; 2 M. & R. 
 
 Hagworthingham, 1 B. & C. 634 ; Rex 318 ; Adams v. Andrews, 15 Q. B. 
 
 V. Warblington, 1 T. R. 241 ; Rex v. 284 ; Taplin v. Florence, 10 C. B. 744. 
 Inhabitants of Standon, 2 M. & Sel. ^ Owens v. Field, 12 Allen (Mass.) 
 
 461 ; Duinneen v. Rich, 22 Wis. 550 ; 457. 
 
 Hetfield v. Central R. R. Co., 29 N. J. « Foster v. Browning, 4 R. I. 47. 
 
 L. 571; Jamieson i/. Milleman, 3 
 
10 STATUTE OF FRAUDS. [CHAP. 1. 
 
 ing the licensee had, upon the faith of it, made expenditures 
 of money and labor in building the prescribed way. Nor is 
 a license rendered irrevocable by the circumstance that it is 
 in -writing and under seaP or predicated upon a considera- 
 tion.2 Thus, in the case last cited, the parties owned adjoin- 
 ing lots in the city of Syracuse. The defendant had a private 
 drain connecting with the public sewer in another street. In 
 consideration of seven dollars he gave the plaintiff a writing 
 stating that the money was for the right to drain through 
 his premises, and in pursuance of it the plaintiff built a plank 
 drain connecting with the defendant's, and of the same size. 
 After more than twenty years the plaintiff substituted a tile 
 drain of greater capacity, which caused an overflow into the 
 defendant's cellar. The defendant then cut the connection 
 and refused the plaintiff access to the premises to repair the 
 drain. The court held that an action would not lie against 
 the defendant therefor, as the license granted by him Aras 
 revocable at any time, notwithstanding it had been enjoyed 
 for more than the prescriptive period, and was in writing 
 predicated upon a consideration and executed.^ Of course, 
 an occupancy under a license can never ripen into a title 
 however long continued, because, as in the case of an ordinary 
 tenancy, the occupancy is in subservience to and recognition 
 of the title of the licensor,* and such an occupancy has none 
 of the elements requisite to create a prescriptive right. 
 
 Sec. 7. License coupled with Interest in Land Irrevocable. — 
 A parol license, coupled with an interest in the land, is, 
 
 1 Jacksont).Babcock,4John. (N. Y.) was not precluded from revoking such 
 418; Wiseman w. Lucksinger, 84 N. Y. license, and that the ease did not 
 31 ; 38 Am. Eep. 479. show such an agreement, as would 
 
 2 Wiseman v. Lucksinger, ante ; warrant a court of equity in decree- 
 Hewlins v. Shippam, 5 B. & C. 221. ing a specific performance in Wlieeler 
 In Johnson v. Skillman, 29 Minn., 95; v. Reynolds, 66 N. Y. 227 ; Hazelton 
 43 Am. Rep. 192, it was held that, v. Putnam, 3 Pin. (Wis.) 107; Wise- 
 where a person had orally promised • man v. Lucksinger, ante ; Bankart v. 
 others that, if they would erect a good Tennant, L. R. 10 Eq. 141. 
 
 custom mill at a certain point on their " Bahcock v. Utter, 1 Abb. (N. Y.) 
 
 own land, he would give them the App. Dee. 27; St. Vincent Orphan 
 
 privilege of flowing his land so long Asylum v. Troy, 76 N. Y. 108 ; 32 
 
 as they would maintain the mill ; in Am. Rep. 286. 
 
 pursuance of which, and induced partly * Wiseman v. Lucksinger, ante; 
 
 by such promise, such persons at large St Vincent's Orphan Asylum v. Troy, 
 
 expense erected said mill, the licensor ante. 
 
SKC. 7.] PAROL LEASES. 11 
 
 however, irrevocable, when it has been executed and the 
 right extinguished. Thus, in Liggins v. Inge,' the plaintiflFs' 
 father, who was entitled to a flow of water to his mill 
 over the defendants' land, by a parol license, allowed the de- 
 fendants to cut down and lower a bank, and erect a weir 
 upon their own land, the effect of which was to divert the 
 water required for the working of the plaintiffs' mill into 
 another channel ; it was held that the plaintiffs could not 
 maintain an action against the defendants for continuing the 
 weir.2 But, where it is sought to couple with a hcense a 
 parol grant of an interest in land, the attempted grant being 
 void, the transaction remains a mere license. Thus, in 
 Wood V. Leadbitter,^ Aldeeson, B., said : " It may be 
 convenient to consider the nature of a license, and what 
 are its legal incidents. And, for this purpose, we can- 
 not do better than refer to Lokd C. J. Vatjghan's elabo- 
 rate judgment in the case of Thomas v. Surrell, as it appears 
 in his reports. The question there was, as to the right of 
 the Crown to dispense with certain statutes regulating the 
 sale of wine, and to license the Vintners' Company to do cer- 
 tain acts, notwithstanding those statutes. In the course of 
 his judgment the Chief Justice says:* 'A dispensation or 
 license properly passeth no interest, nor alters or transfers 
 property ,in anything, but only makes an action lawful, which, 
 without it, had been unlawful. As a license to go beyond 
 the seas, to hunt in a man's park, to come into his house, are 
 only actions, which, without license, had been unlawful. 
 But a license to hunt in a man's park, and carry away the 
 deer killed to his own use ; to cut down a tree in a man's 
 ground, and to carry it away the next day after to his own 
 use, are licenses as to the acts of hunting and cutting down 
 the tree, but as to the carrying away of the deer killed and 
 tree cut down, they are grants. So, to license a man to eat 
 my meat, or to fire the wood in my chimney to warm him 
 by, as to the actions of eating, firing my wood, or warming 
 him, they are licenses; but it is consequent, necessarily to 
 
 1 7 Bing. 682 ; 5 M. & P. 712. & Gr. 657 ; Davies v. Marshall, 10 C. 
 
 2 And see "Winter v. Brocklewell, 8 B. (N. S.) 697. 
 
 East, 308 ; Blood v. Keller, 11 Ir. C. » 13 M. & W. 844 ; 14 L. J. Ex. 161 ; 
 
 L. K. 124 ; Salter v. WooUams, 2 Man. the facts of which are stated ante. 
 
 * Vaugh. 351. 
 
12 STATUTE OF FKATTDS. [CHAP. I. 
 
 those actions, that my property may be destroyed in the meat 
 eaten, and in the wood burnt. So, as in some cases, by con- 
 sequent and not directly, and as its effect, a dispensation or 
 license may destroy and alter property.' Now attending to 
 this passage, in conjunction with the title ' License ' in 
 Brook's Abridgment, from which, and particularly from 
 paragraph 15, it appears that a license is in its nature revoc- 
 able, we have before us the whole principle of the law on 
 this subject. A mere license is revocable : but that which is 
 called a license is often something more than a license; it 
 often comprises or is connected with a grant, and then the 
 party who has given it cannot in general revoke it, so as to 
 defeat his grant to which it was incident. It may further be 
 observed, that a license under seal (provided it be a mere 
 license) is as revocable as a license by parol ; and, on the 
 other hand, a license by parol, coupled with a grant, is as 
 irrevocable as a license by deed, provided only that the grant 
 is of a nature capable of being made by parol.^ But where 
 there is a license by parol, coupled with a parol grant, or 
 pretended grant, of something which is incapable of being 
 granted otherwise than by deed, there the license is a mere 
 license ; it is not an incident to a valid grant, and it is there- 
 fore revocable. Thus, a license by A to hunt in his park, 
 whether given by deed or by parol, is revocable ; it merely 
 renders the act of hunting lawful, which, without the license, 
 would have been unlawful. If the license be, as put by 
 Chief Justice Vaughan, a license not only to hunt, but 
 also to take away the deer, ,when killed, to his own use, this 
 is in truth a grant of the deer, with a license annexed to 
 come on the land ; and supposing the grant of the deer to be 
 good, then the license would be irrevocable by the party who 
 had given it : he would be estopped from defeating his own 
 grant, or act in the nature of a grant. But suppose the case 
 of a parol license to come on my lands, and there to make a 
 water-course, to flow on the land of the licensee. In such a 
 case there is no valid grant of the water-course, and the 
 license remains a mere license, and therefore capable of being 
 revoked. On the other hand, if such a license were granted 
 
 1 See also "Wood v. Manley, 11 Ad. & El. 34; Peltham v. Cartwright 5 
 Bing. (N. C.) 569. 
 
SEC. 7.J PAKOL LEASES. 13 
 
 by deed, then the question would be on the construction of 
 the deed, whether it amounted to a grant of the water-course; 
 and if it did, then the license would be irrevocable." A 
 license is always revocable where the act licensed to be done 
 is to be done upon the land of the licensor, and if granted by 
 deed, would amount to an easement ^ for the reason that a 
 freehold interest in lands can only be created or conveyed by 
 deed, and an easement, as we have already seen, can only be 
 created by deed or prescription.^ 
 
 A license to dig for tin, and to dispose of the tin so ob- 
 tained, was held to be irrevocable, on account of its carrying 
 an interest in the ore.* An executed license cannot be re- 
 voked as to the part executed, nor, where the license has 
 been in part executed, so as to convert the interest of the 
 licensee from an interest in lands into an interest in per- 
 sonal-property, can the license be revoked so as to prevent 
 the licensee from obtaining possession of such personal prop- 
 erty. Thus, a license to enter upon the lands of the licensor 
 and cut and carry away standing timber thereon, may be re- 
 voked at any time before any of the timber is cut.* But if 
 an entry is made under the license, and any portion of the 
 timber cut, before the license is revoked, it cannot be revoked 
 as to the timber cut, so as to prevent the licensee from enter- 
 ing, within a reasonable time, to take it away. Thus, where 
 parties entered into an oral contract that the defendant 
 should cut certain trees upon the plaintiff's land, peel them, 
 and take the bark to his own use, and pay therefor a certain 
 price per cord, and in pursuance of the contract the defend- 
 ant entered upon the land, cut the trees and peeled them, it 
 was held that the plaintiff could not revoke the license nor 
 prevent the defendant from taking away the bark, and that 
 his entry upon the land for the purpose of taking and carry- 
 ing away the bark, after he had been forbidden to do so, 
 was not a trespass, but a lawful and justifiable act.^ An 
 authority coupled with an interest is irrevocable. That is 
 
 1 Morse w.Copeland, 2 Gray (Mass.) ' Doe u. Wood, 2 B. & Aid. 738; 
 302. and see Northam v. Bowden, 11 Exchq. 
 
 2 Morse v. Copeland, ante ; Cook v. 70 ; 24 L. J. Ex. 237. 
 Stearns, 11 Mass. 533 ; Cobb v. Eisher, * Drake v. Wells, ante. 
 
 121 Mass. 169 ; Stevens v. Stevens, 11 ^ Nettleton o. Sikes, 8 Met. (Mass.) 
 Met. (Mass.) 251. 134. 
 
14 
 
 STATUTE OF FRAUDS. 
 
 [chap. I. 
 
 to say, where an agreement is entered into on a sufficient 
 consideratibn, whereby an authority is given for the purpose 
 of securing some benefit to the donee of the authority, such 
 an authority is irrevocable.-' 
 
 Sec. 8. Distinction bet-ween a Iiicense and a Lease. — No 
 contract, whether by parol or in writing, can operate as a 
 lease, even though words of demise are used therein, if it is 
 evident that such was not the intention.^ A lease for any 
 term, whether long or short, is a contract for the exclusive 
 possession of land,^ while a contract which merely gives to an- 
 other the right to use premises for a specific purpose, the owner 
 of the premises, or the party giving the right, still retaining the 
 
 1 Smart v. Sandars, 6 C. B. 917 ; 
 Taplin v. Florence, 10 C. B. 744; 
 Gaussen v. Morton, 10 B. '&. C. 731. 
 
 2 Taylor v. Caldwell, 3 B. & S. 826. 
 In Cook V. Stearns, 11 Mass. 533, 
 Pakker, C.J., pointed out the dis- 
 tinction between a license and a lease 
 as follows: "A license is technically 
 an authority to do some one act, or 
 series of acts, on the land of another 
 without passing any estate in the land, 
 such as a license to hunt in another's 
 land, or to cut down a certain number 
 of trees. These are held to be re- 
 vocable while executing, unless a 
 definite time is fixed, but irrevocable 
 when executed. Such licenses to do 
 a particular act, but passing no estate, 
 may be pleaded without deed. But 
 licenses which, in their nature, amount 
 to granting an estate for ever so short 
 u time, are not good without deed, 
 and are considered as leases, and 
 must be pleaded as such." The dis- 
 tinction is obvious. Licenses to do 
 a particular act do not, in any de- 
 gree, trench upon the policy of the 
 law which requires that bargains re- 
 specting the title or interest in real 
 estates shall be by deed or in -writing. 
 They amount to nothing more than an 
 excuse for the act which would otherwise 
 be a trespass. But a permanent right 
 to hold another's land for a particular 
 purpose, and to enter upon it at all 
 times without his consent, is an im- 
 portant interest which ought not to 
 
 pass without writing, and is the very 
 object provided for by our statute." 
 Among the class of acts which can- 
 not be licensed by parol, is the right 
 to flood the land of another, either by 
 drippings from the roof of a building 
 or otherwise : Tanner v. Valentine, 
 75 111. 624; or to dig ditches upon 
 another's land for the purposes of 
 drainage or otherwise : Hitchens v. 
 Shaller, 32 Mich. 496 ; but in Hodg- 
 son u. Jeffries, 52 Ind. 834, such a 
 license, when executed, was held to 
 be irrevocable. But see Estes o. 
 China, 56 Me. 407, where a parol 
 permit to connect with a public 
 drain was held to be revocable. A 
 parol license to use running water 
 is not valid unless in writing : Allen 
 V. Fiske, 42 Vt. 462 ; nor is a verbal 
 permission to erect buildings upon 
 another's land: Druse v. Wheeler, 
 22 Mich. 439; or to construct a 
 road over another's premises : Demp- 
 sey V. Kipp, 62 Barb. (N. Y.) 311. 
 In Ohio it has been held that a writ- 
 ten license, without seal and unac- 
 knowledged, tg enter upon and im- 
 bed water pipes in the land of another, 
 with privilege to enter and repair 
 them, creates no interest in nor en- 
 cumbrance upon the land such as 
 will disable the owner thereof from 
 making a good and sufficient deed 
 conveying a good title thereto. Wil- 
 kins V. Irvine, 33 Ohio St. 138. 
 8 Eeg V. Morrish, 32 L. J. 245. 
 
SEC. 8.] 
 
 PABOL LEASES. 
 
 15 
 
 possession and control of the premises, corners no right in the 
 land, and is not a lease, but only a license,^ and for the reason 
 that no interest in the land is conferred, is not within the stat- 
 ute of frauds, and may be given by parol. But, where the 
 privilege granted is of such a character as to carry with it an 
 interest in the land, it is a lease, and within the statute, and 
 must be in writing executed as provided by the statute, or it 
 has no validity,^ except as to acts already done under it, and 
 may be revoked at any time by the owner of the land.^ The 
 
 1 Taylor v. Caldwell, ante; Funk 
 V. Haldeman, 53 Penn. St. 229 ; Stock- 
 bridge Iron Works v. Hudson Iron Co., 
 107 Mass. 290 ; Coleman v. Foster, 1 
 H. & "W. 37 ; Williams .,. Jones, 3 H. 
 & C. 256 ; Hill v. Tupper, 2 id. 121 ; 
 Cornish v. Stubbs, 39 L. J. C. P. 
 206, and is a personal privilege, and 
 cannot be assigned or transferred to 
 another. Foot v. N. H. &c. R. R. Co., 
 23 Conn. 214 ; Dark v. Johnston, 55 
 Penn. St. 154 ; Cahill u. Bigelow, 18 
 Kck. (Mass.) 869; Robison v. Uhl, 
 6 Neb. 328 ; Rickards v. Cunningliam, 
 Neb. S. C. 1880 ; Carter v. Harlan, 6 
 Md. 29 ; Cook v. Stearns, 11 Mass. 113 ; 
 Amsinck v. Am. Ins. Co., 129 id. 185; 
 Prince v. Case, 10 Conn. 375 ; Seiden- 
 sparger v. Spear, 17 Me. 123 ; Chica- 
 go Dock Co. V. Kinzie, 49 111. 289 ; 
 Simpkins v. Rogers, 15 111. 397, and 
 is only binding as to third persons 
 when it has been so far executed as 
 to create an equity of which they had 
 notice at the time of the conveyance 
 to them. Wilson v. Chalfant, 15 Ohio, 
 247; Ricker v. Kelly, 1 Me. 117; Re- 
 nick V. Kearn, 14 S. & R. (Penn.) 
 267. 
 
 2 Selden v. Del. &e. Canal Co., 29 
 N. T. 634; Brown v. Woodworth, 5 
 Barb. (N. Y.) 550. 
 
 8 Huff u. McCauley, 53 Penn. St. 
 206; Marston v. Gale, 24 N. H. 176; 
 Kimball v. Yates, 14 111. 464 ; Dodge 
 V. McClintock, 47 N. H. 383; Owen v. 
 Field, 12 Allen (Mass.) 457; Houston 
 V. Laffee, 46 N. H. 505; Carlton v. 
 Eedington, 21 id. 291. But the rule 
 relative to revocation is not uniform, 
 and in some of the States it is held, 
 that a license granted upon a con- 
 
 sideration is not revocable. Wilson 
 V. Chalfant, 15 Ohio, 248; Snowden 
 V. Vilas. While in others it is held, 
 that the circumstance that a con- 
 sideration is agreed upon does not 
 render such a, contract irrevocable 
 when it gives an interest in lands. 
 Huff V. McCauley, ante. Where 
 valuable improvements have been 
 made upon land under a license, as 
 where a railroad has been built, 
 buildings erected, etc., it is held, in 
 Pennsylvania, not to be within the 
 statute of frauds, and irrevocable. 
 Cumberland &c. R. R. Co. v. McLa- 
 nahan, 59 Penn. St. 33; Davis v. 
 Sander,, 10 Phila. (Penn.) 113. In 
 New Jersey, after a license has been 
 executed by the outlay of large sums 
 of money or the erection of substan- 
 tial improvements, — although such 
 license is inoperative at law, — a court 
 of equity will enjoin its revocation, 
 even though the license is not express. 
 The rule in that State may be stated 
 as follows: When the enjoyment of 
 improvements of a permanent nature, 
 erected by a person upon his own 
 land, depends upon a right affecting 
 the land of another proprietor whose 
 consent is necessary to the exercise 
 of such right, if the giving of such 
 consent is expressly proved, or neces- 
 sarily implied from the circumstances, 
 and the improvements were made in 
 good faith, upon the strength thereof, 
 equity will not permit advantage to 
 be taken of the form of the consent, — 
 although the same was not in accord- 
 ance with the strict mode of the com- 
 mon law, or was within the statute of 
 frauds, — but will, upon proper bill 
 
16 
 
 STATUTE OF FEAUDS. 
 
 [chap. I. 
 
 distinction between a mere license and a lease is more forcibly- 
 illustrated by the circumstance, that a license given by a land- 
 owner does not prevent him from giving a similar right to 
 
 filed, enjoin the licensor from accom- 
 plishing his fraud and protect the 
 right of the licensee. Raritan &c. 
 Co. u. Veghte, 21 N. J. Eq. 463. 
 And the doctrine of estoppel in such 
 cases is also applied in Ohio and where 
 a land owner permitted a canal com- 
 pany to construct and use, as a high- 
 way, a canal through his lands, — al- 
 though the use had been for but a 
 few years, — it was held, that he 
 was thereby estopped from enforcing 
 his claim to the possession of the land. 
 Pierson v. Cincinnati &e. Canal Co., 
 2 Dis. (Ohio) 100. And the same rule 
 is adopted in Georgia, and equity will 
 treat the license as an agreement to 
 convey the right, and will decree its 
 specific performance where the licen- 
 see has made large expenditures in 
 pursuance of it. Cook v. Prigden, 
 45 Ga. 331. In Illinois, where the 
 owner of a, lot of ground contem- 
 plated the erection of a frame build- 
 ing thereon, the owner of a brick 
 house on the line of an adjacent lot 
 proposed to him that if he would 
 build of brick he might use the brick 
 wall of the house for the purpose of 
 attaching thereto the proposed new 
 building, and the proposition was ac- 
 cepted, and the new house was built 
 of brick, and attached to the wall of 
 the other building, as suggested. It 
 was held : 1. That the license to use 
 and attach to the wall, after the ex- 
 penditure of money in the erection of 
 the new building, as induced by the 
 permission, was irrevocable. 2. That 
 the subsequent grantee of the party to 
 whom the license was given succeeded 
 to his equitable rights in respect there- 
 to. 3. That the party granting the li- 
 cense being estopped from its revoca- 
 tion, the estoppel embraced privies as 
 well as parties, and precluded all who 
 claim under the person originally 
 barred. 4. That the execution of the 
 parol permission supplied the place 
 of a writing, and took the case out 
 of the statute of frauds, Russell 
 
 V. Hubbard, 59 111. 335. In Nevada, 
 it is held that a parol license to 
 erect a dam upon the licensor's land, 
 for the purpose of running a mill, is 
 held to become irrevocable when the 
 licensee has expended money, by erect- 
 ing the mill, etc., upon the faith of the 
 license, and his continued enjoyment 
 will be protected in equity. Lee v. Mc- 
 Leod, 12 Nev. 280. In Missouri, in 
 Boone v. Stover, 66 Mo. 430, it was 
 held that an instrument in writing, 
 under seal, granting permission to 
 mine on a certain lot, so long as the 
 grantees do regular mining work on 
 the lot, is a license and a grant of an 
 incorporeal hereditament, which is not 
 revocable except for breaches thereof 
 by the grantee, and contains, in effect, 
 a covenant on the part of the grantor 
 that the grantee, in respect to his min- 
 ing privileges, shall be free from the 
 interruptions or claims of others, and 
 such an instrument is not a lease, for 
 the reason that it does not pass such 
 an estate in possession on the land as 
 would entitle the grantee to maintain 
 ejectment. In'an Indiana case, in a 
 suit to recover real estate, the answer 
 alleged that defendant, a railroad com- 
 pany, had expended large sums in 
 building a track upon the land, under 
 a parol license from plaintiff, with an 
 agreement that the damages to the 
 land would thereafter be settled, and 
 that plaintiff had knowledge of what 
 defendant had done, it was held, on 
 demurrer, that the answer was suffi- 
 cient, and that it was not necessary 
 to allege to what officer or agent of 
 the company such license was given. 
 Buchanan v. Logansport, C^a^vfo^ds- 
 ville &o. Ry. Co., 71 Ind. 265. In 
 these States as well as in others, where 
 this principle is applied, a, court of 
 equity will enforce a parol license 
 in all cases where it has been ex- 
 ecuted i BO that, if it had been a con- 
 tract for the sale of lands, it would 
 be enforced on the ground of part 
 performance, 
 
SEC. 8.J PAHOL LEASES. 17 
 
 others, if it does not interfere with the exercise of the right con- 
 ferred upon previous licensees. Thus, in a New Jersey case,^ 
 it was held that a contract simply giving the right to take ore 
 from a mine, no interest or estate being granted, merely con- 
 ferred a license under which the licensee acquired no right to 
 the ore until *he separates it from the freehold, and that, unless 
 so specially expressed, it did not confer an exclusive privi- 
 lege ; and the general rule may be said to be that a license 
 to dig and take ore is never exclusive of the licensor unless 
 expressed in such words as clearly show that such was the 
 intention of the parties, and the same right may be given to 
 other parties.^ In the case last cited, such a license was held 
 to be like a grant of common sans nombre, which never 
 excludes the grantor from enjoying the common with his 
 grantee. LoED Ellenboeottgh, in a more modern case,^ 
 gave his assent to this doctrine, and declared that " a liberty 
 reserved of digging coals could not give the person reserving 
 it the exclusive right to them. No case can be named," said 
 he, " where one who has only a liberty for digging for coals 
 in another's soil, has an exclusive right to the coals so as to 
 enable him to maintain trover against the owner of the estate, 
 for coals received by him." A similar doctrine was held in 
 the United States Supreme Court.* In that case, the license 
 gave the licensee the right to dig and carry away all the iron 
 ore to be found in certain designated lands. The court held 
 that this did not amount to a grant of the ore, but merely 
 authorized the hcensee to take away so much as he might 
 dig. The word " all " was held to show merely the extent of 
 his license as to quantity, that is, that he was entitled to dig 
 all the iron ore there was in the land, and that he acquired 
 no title to any of the ore, until he had separated it from the 
 freehold. This principle is illustrated in cases where a license 
 to occupy buildings is given. Thus, in an English case,^ 
 where a hall was to be let for four nights at £100 a day, for 
 
 1 Silsby V. Trotter, 29 N. J. Eq. (TJ. S.) 81. See also to the same effect 
 228. See also Carr o. Benson, L. K. Eunk v. Haldeman, 53 Penn. St. 229; 
 3 Ch. App. 524. Stockbridge Iron Co. v. Hudson Iron 
 
 2 Mountjoy's Case, And. 307. Co., 107 Mass. 290; Carr v. Benson, 
 8 Chetham v. "WilUamson, 4 East, L. R. 3 Ch. App. 524. 
 
 469. ' ' Taylor c. Caldwell, 3 B. & S. 
 
 4 Grubb V. Bayard, 2 "Wall, Jr. 826. 
 
18 STATUTE OF FEAUDS. [CHAP. I. 
 
 the purpose of giving four concerts, and day and niglit/^fe8, 
 it was held that this amounted to a mere license only, and 
 was not a demise, because it was evident that the owner was 
 not to part with the possession of the premises during the 
 four days. In another case,i A paid B twelve shillings a 
 week for permission to put his loom machines in a room in 
 B's factory, and for ingress and egress for himself and work- 
 men, for the purpose of inspecting and working the machines, 
 and for the steam-power to run them, which was furnished 
 by B ; and it was held that this did not amount to a lease 
 to A of any part of the room, and that the relation of land- 
 lord and tenant was not thereby created, but only that of 
 licensor and licensee. Nor does the relation of landlord and 
 tenant arise under a contract for board and lodging, even 
 though a particular room is assigned to the lodger, as in such 
 a case the general possession, care, and control of the build- 
 ing remains in the person who lets the lodger into posses- 
 sion.2 But where the contract is such as to divest the land- 
 lord of all possession or right to the possession or control of 
 certain specified rooms, it amounts to a lease and is within 
 the statute.^ It has been held that a grant by a riparian 
 proprietor to a person, of a right to take water from a natural 
 stream, on which his land abuts, is a mere license in gross, 
 and that the licensee has no such interest as will enable him 
 to maintain an action against a wrong-doer.* But, while this 
 is true of a license which does not confer an interest in the 
 
 ^ Handcock v. Austin, 14 C. B. n. maintain an action against a stranger 
 
 s. 429. who disturbed liis right by putting 
 
 2 White V. Maynard, 111 Mass. and using pleasure boats upon the 
 
 250 ; and in this case an oral contract canal, and letting them for hire. See 
 
 by the keeper of a boarding-house to also Bird v. Gt. Eastern R. K. Co., 19 
 
 provide a man and his wife with board C. B. N. s. 268, where a similar doctrine 
 
 for six months, and with three speci- was held in reference to a license to 
 
 fied rooms, was held not to be a lease, hunt and shoot game on certain lands, 
 
 or within the statute of frauds. But see Freeman v. Underwood, 66 
 
 8 Inman v. Stamp, ante; Edge v. Me. 229, where it was held that an 
 
 Strafford, ante. instrument from the owner of land to 
 
 * Stockport Water "Works Co. v. a licensee, granting him all the timber. 
 
 Potter, 3 H. & C. 300. In Hill v. grass, and berries that may be found 
 
 Tupper, 2 id. 121, it was held that the or grown upon the land for a term of 
 
 grant by deed by a canal company to years, and giving him possession for 
 
 a person of the exclusive right to the purpose of managing and enjoy- 
 
 put pleasure boats on their canal, ing the property granted, is valid be- 
 
 did not confer upon the grantor such tween the parties, and entitles the 
 
 an interest as would enable him to licensee to sue in his own name for 
 
SEC. a] 
 
 PAROL LEASES. 
 
 19 
 
 lands, yet, when the license is coupled with an interest, so that 
 it is assignable, the rule is otherwise,^ and such an interest 
 cannot be conferred by parol? and where it is attempted, it is 
 void, and revocable at any time at the will of the licensor,^ 
 and under this head are included a license to cut and carry 
 away standing wood or timber ; * to erect partition fences ; ^ 
 to pass over another's land with teams, etc., in perpetuity ; ^ 
 to flow another's land by means of a dam or otherwise ; ^ or 
 to erect a building on the licensor's land ; ^ but acts done in 
 pursuance of such license are justified thereby, but not acts 
 done after, revocation, whether the revocation is by the act 
 of the parties, or operation of law.^ But in some of the 
 States it is held that a parol license may become operative 
 by way of estoppel, so as to become irrevocable where it has 
 been executed, and its execution involved a large expendi- 
 ture of money, which was made with the knowledge or tacit 
 assent of the licensor ; i" while in others it is held that a parol 
 
 any of the productions of the land 
 unlawfully taken therefrom during his 
 term by strangers. 
 
 1 GofEi;. Obertuffer, 3 Phila. (Penn.) 
 71. 
 
 2 Foot V. N. H. &c. U. R. Co., 23 
 Conn. 214; Collins Co. v. Marcy, 25 
 id. 238. 
 
 8 Tanner v. Valentine, 75 111. 624; 
 Brown v. Wadsworth, 5 Barb. (N. Y.) 
 550; Selden v. Del. & Hud. Canal Co., 
 29 N. Y. 634 ; Stevens v. Stevens, 11 
 Met. (Mass.) 201. 
 
 * Giles V. Simonds, 15 Gray (Mass.) 
 441 ; Drake v. Wells, 11 Allen (Mass.) 
 141 ; Dodge v. McClintock, 47 N. H. 383. 
 
 6 Haux V. Seat, 26 Mo. 178. 
 
 ^ Foster v. Browning, 4 R. I. 47. 
 
 ' Hall I,. Chaffee, 13 Vt. 150; 
 Clute V. Carr, 20 "Wis. 531; Foot v. 
 R. R. Co., ante. 
 
 * Arrington v. Larrabee, 10 Cush. 
 (Mass.) 512 ; Collins Co. w. Marcy, ante. 
 
 8 Foot u. N. H. R. R. Co., ante; 
 Cayuga R. R..Co. o. Niles, 13 Hun 
 (N. Y.) 170. If, after a license is re- 
 voked, the licensee goes on and makes 
 erections upon the land, such erections 
 become a part of the land and be- 
 long to the owner thereof. Druse 
 V. Wheeler, 26 Mich. 189. A license, 
 
 in effect, is an excuse for an act which 
 would otherwise be a trespass. Owon 
 V. Lewis, 46 Ind. 489. And acts done 
 in pursuance thereof are considered 
 the same as though done by the 
 licensor, and enure to the benefit of 
 the party holding a title under which 
 the licensor took possession. Wing 
 V. Hall, 47 Vt. 182. But in Indiana it 
 is held that the license must be spe- 
 cially pleaded, and cannot be given in 
 evidence under the general issue. 
 Chase v. Long, 44 Ind. 427. 
 
 10 Lane v. Miller, 27 Ind. 584; 
 Fuhr V. Dean, 26 Mo. 116; Snowden 
 V. Wilson, 19 Ind. 10 ; Tanner v. Val- 
 entine, 75 111. 624. In Wilson v. Chal- 
 fant, 15 Ohio, 248, it was held that 
 one who enters under a parol license, 
 given for a consideration, and erects a 
 fixture, may maintain trespass against 
 the owner of the land if he interferes 
 with it ; but this doctrine is not gener- 
 ally recognized ; and in Owen v. Field, 
 12 Allen (Mass.) 457, it was held that 
 a license to lay an aqueduct across 
 the licensor's lands might be revoked 
 any time even after the aqueduct was 
 laid, and that no liability attaches 
 against the licensor for cutting it off, 
 after its revocation. 
 
20 STATUTE OF PEATTDS. [CHAP. I. 
 
 license, whicli is executed, cannot be revoked without' first 
 reimbursing the licensee for all expenditures made in pursu- 
 ance of such license ; ^ and in others, if it is founded upon a 
 consideration ; " and in others, if it is coupled with an inter- 
 est in personal property.^ But the rule established by the 
 better class of cases, may be said to be, that a parol license to 
 do an act upon the land of another which amounts to an ease- 
 ment therein, is void under the statute of frauds, and while 
 affording a justification for acts done in pursuance thereof 
 before it is revoked, may, at law, be revoked at the will of 
 the licensor, without reimbursing the licensee for any expen- 
 ditures made in executing it;* and that the licensee, after 
 the license is revoked, is liable to the licensor for all dama- 
 ges Avhich result from a continuance of the thing licensed.^ 
 
 Sec. 9. Ho-w far a License Protects. What may be done 
 
 under. — In those cases where assent has been given to one 
 by another to do a certain act upon his land, the natural and 
 probable consequences of which are to produce a certain 
 result, and the person to whom assent is given goes on and 
 expends money on the strength of the assent and makes 
 erections of a permanent character; while the assent does 
 not give anj- interest in the land, and at law is revocable at 
 any time, even though given for a consideration,^ yet, a court 
 of equity, in a proper case, will enforce it as an agreement 
 to give the right, and particularly where its revocation would 
 operate as a fraud upon the licensee, or would be productive 
 of great hardship, will restrain its revocation.'^ But even at 
 law, a license is a full defence for all acts done under it, 
 
 1 Woodbury v. Parshley, 7 N. H. diversion of water upon his lands 
 237. erected by the defendants under a 
 
 2 Wilson V. Vilas, 19 Ind. 10 ; Wil- license from the plaintiff's grantor, as 
 son V. Chalfant, ante. the license was revoked by the con- 
 
 " Long V. Buchanan, 27 Md. 502; veyance and ceased to be operative 
 
 Claflin V. Carpenter, 4 Met. (Mass.) from that time. See also Cobb v. 
 
 580 ; Nelson v. Nelson, Gray (Mass.) Fisher, 121 Mass. 169, where the same 
 
 385. rule was adopted under a similar state 
 
 * Cook V. Stearns, 11 Mass. 533; of facts. 
 
 Morse v. Copeland, 2 Gray (Mass.) s Huff v. McCauley, 53 Penn. St. 
 
 302 ; Stevens u. Stevens, 11 Met. 206 ; Houston v. Lailee, 46 N. H. 505 ; 
 
 (Mass.) 251. Hetfield v. R. E. Co., 29 N. J. L. 571. 
 
 6 Poot V. N. H. &c. R. R. Co., ante ' Veghte v. The Raritan &c. Co., 
 
 In this case the defendant was held 19 N. J. Eq. 142 ; Brown v. Bowen, 30 
 
 liable for injuries resulting from the N. Y. 543 ; Wood on Nuisances, 347. 
 
SEC. 9.] 
 
 PAEOL LEASES. 
 
 21 
 
 within the scope of the license before its revocation, but not 
 after.i But the license must not be exceeded, and in order 
 
 1 Wolfe V. Frost, 4 Sandf. (N. Y.) 
 Ch. 72; R. R. Co. v. McLaughlin, 59 
 Penn. St. 23 ; Cook v. Prigdon, 45 Ga. 
 331 ; Houston v. Laffee, 46 N. H. 508 ; 
 Bridges V. Purcell, 1 Dev. & B. <N. C.) 
 462; Mumford v. Whitney, 15 Wend. 
 (N. Y.) 379. As to the effect of a 
 license from one to do an act upon 
 the land of another, at law the case 
 of Hetfleld v. The Central R. R. Co., 
 29 N. J. L. 571, is in point. In that 
 case, the charter of the defendant 
 authorized them to enter upon and 
 take the lands req^uired for their road, 
 but directed that they should not enter 
 without the consent of the owner. 
 The defendant entered upon the plain- 
 tifE's lands by his consent, but did not 
 take any conveyance from him, in the 
 manner required by law, in order to 
 give them right or title. The court 
 held that this consent did not dis- 
 pense with the necessity of a deed or 
 conveyance of the land or right, in 
 the form required by law. That it 
 was not a consent that was intended 
 to confer a title, and was revocable. 
 In Wood V. Leadbitter, 13 M. & W. 
 837, the question as to the effect of a 
 license arose in an action of assault 
 and battery. The evidence disclosed 
 that the plaintiff purchased a ticket 
 for the sum of one guinea, which en- 
 titled him to admission to the grand 
 stand. That the Earl of Ellington 
 was one of the stewards of the races, 
 and that the tickets were issued by 
 the stewards, but were not signed by 
 Lord Ellington. That under this 
 ticket the plaintiff entered the ground 
 on one of the race days, when the 
 defendant, who was a policeman, under 
 the directions of Lord Ellington, who 
 first ordered him to leave, upon his 
 refusing to do so committed the as- 
 sault complained of, using no more 
 force than was necessary for that pur- 
 pose. Upon the trial the judge di- 
 rected the jury that, assuming the 
 ticket to have been sold to the plain- 
 tiff under the sanction of Lord Elling- 
 ton, it still was lawful for Lord Elling- 
 
 ton, without returning the guinea, to 
 order the plaintiff to quit the enclo- 
 sure, and that after a reasonable time 
 had elapsed, if he failed to leave, then 
 the plaintiff was not on the ground 
 by the leave and license of Lord Ell- 
 ington, and the defendant would be 
 justified in removing him under his 
 orders, and this ruling was sustained 
 in Exchequer. In Miller v. The Au- 
 burn &c. R. R. Co., 6 Hill (N. Y.) 
 61, which was a case somewhat simi- 
 lar to that of Hetfield v. The Central 
 E. R. Co., before referred to, the de- 
 fendants erected their railroad ifith 
 an embankment upon Garden Street 
 in Auburn, interrupting the plaintiff's 
 access to his premises, in 1839, and 
 maintained it until 1842, when this 
 suit was brought. The defendants 
 offered to prove that the embankment 
 was raised under a parol license from 
 the plaintiff, but the proof was ex- 
 cluded by the court, and the case was 
 heard in the supreme court upon the 
 question of the admissibility of that 
 evidence. Cowen, J., among other 
 things, said : " If what the defendants 
 in this case proposed to show was 
 true, viz., that the plaintiff verbally 
 authorized the making of the railway, 
 while the authority remained, their 
 acts were not wrongful. License is 
 defined to be a power or authority. 
 So long as the license was not coun- 
 termanded, the defendants were act- 
 ing in the plaintiff's own right." In 
 this case the court uphold a license 
 as a defence until it is revoked, and 
 hold that it must be revoked before 
 an action can be brought ; but in 
 Veghte V. The Raritan Power Co., 
 ante, the court held that the bringing 
 of the action is a revocation of itself, 
 and all that is necessary. But the 
 former would seem to be the better 
 rule, and the one generally adopted. 
 The following authorities will be 
 found applicable upon the question 
 of the effect of a license : Ex parte 
 Coburn, 1 Cow. (N. Y.) 570; Cook v. 
 Stearns, 11 Mass. 533; Ruggles v. 
 
22 
 
 STATUTE OF FKAUDS. 
 
 [chap. I. 
 
 to operate as a defence at law for an act done in pursuance 
 of it, it must be shown that it covers the very act, for the 
 recovery of damages for the doing of which action is brought, 
 and if the license does not embrace the act to the full extent, 
 liability will attach for all such excess. Thus, if an action 
 is brought for an injury resulting from the flooding of land 
 by a dam erected by the defendant, it is not enough to show 
 that the plaintiff assented to or licensed the erection of the 
 dam, unless it appears that he could then have known or rea- 
 sonably foreseen that his land would be injured by the dam in 
 the manner complained of.^ If the dam itself is so erected as 
 
 Lesure, 24 Pick. (Mass.) 190; Prince 
 Ki ^ase, 10 Conn. 375 ; Kex v. Hern- 
 don-on-the-hill, 4 M. & S. 565 ; Penti- 
 man v. Smith, 4 East, 107 ; Hewlins v. 
 Shipman, 5 B. & C. 222; Bryan o. 
 "Whistler, 8 id. 288 ; Cocker v. Cowper, 
 1 C. M. & E. 418 ; Wallis v. Harrison, 
 4 M. & W. 538. It has been held in 
 some of the cases that the effect of a 
 license executed, as, for instance, to 
 enter upon land to erect- a house or 
 dam, and followed by user, is to give 
 the licensee a right to personal prop- 
 erty upon the land of the grantor, 
 and although revocable at will, yet 
 the licensee can enter for its removal, 
 although not to maintain or use the 
 property there. That the license is 
 irrevocable as to the right to remove 
 the property. Barnes v. Barnes, 6 
 Vt. 388; Prince v. Case, ante; Van 
 Ness V. Packard, 2 Pet. (U. S.) 143; 
 Cary.w. Ins. Co., 10 Pick. (Mass.) 540; 
 Marcy v. Darling, 8 id. 283. There 
 are a class of cafces, however, particu- 
 larly in Pennsylvania, where it is held 
 that where acts have been done, in 
 pursuance of a license and relying 
 upon it, the license operates as an 
 equi'..able estoppel, and the licensor 
 will be estopped from revoking it, to 
 the injury of the licensee, so long as 
 the license is not exceeded. But that 
 for all excess of use an action may be 
 maintained. Bridge Co. v. Bragg, 11 
 N. H. 102 ; Lefevre v. Lefevre, 4 S. & 
 E. (Penn.) 241; Ricker v. Kelly, 1 
 Me. 117 ; Hepburn v. McDowell, 
 17 S. & E. (Penn.) 383; Cook u. 
 
 Prigdon, 45 Ga. 331; 12 Am. E. 582; 
 Houston V. Laffee, 46 N. H. 608. In 
 Selden v. Del. & Hud. Canal Co., 29 
 N. Y. 634, where defendants entered 
 upon the lands of plaintiff by parol 
 license from him, and enlarged the 
 same, it was held that the license 
 operated as a defence to all that had 
 been done under it, but would not jus- 
 tify a maintenance of the same after 
 the license is revoked. The same was 
 also held in Mumford v. Whitney, 15 
 Wend. (N. Y.) 380; Foot v. N. H. &c. 
 Co., 23 Conn. 214; Eggleston v. N. Y. 
 & H. R. R. R. Co., 35 Barb. ( N. Y. Sup. 
 Ct.) 162. In Woodard v. Seeley, 11 
 111. 157, it was held that a, license by 
 deed or parol is always revocable, 
 unless coupled vrith an interest and 
 executed, and that then it is irrevoc- 
 able. In Kimball v. Yates, 14 111. 
 464, it was held that a parol license 
 to cross a man's farm is revocable at 
 any time, a.t the will of the licensor. 
 See also Roberts v. Rose, L. R. 1 
 Exchq. 82. 
 
 1 Bell V. EUiott, 5 Blackf. (Ind.) 
 113. In any event, if a license is 
 given under a misapprehension of the 
 effects of its exercise, it may at once 
 be revoked. Brown v. Bowen, 30 N. 
 Y. 619; Smith v. Scott, 1 Kerr (N. B.) 
 1; Allen v. Fiske, 42 Vt. 462; Eaton 
 V. Winne, 20 Mich. 156 ; Hamilton v. 
 Wudolf, 36 Md. 301; Dempsey v. 
 Kipp, 62 Barb. (N. Y.) 311 ; Eustis v. 
 Chiner, 56 Me. 407 ; Preeman v. Had- 
 ley, 33 N. J. L. 523 ; Giles v. Simonds, 
 16 Gray (Mass.) 401 ; Moye v. Tappan, 
 
SEC. 9.J PAROL LEASES. 23 
 
 to produce damage to the lands of supra-riparian owners, it 
 is a nuisance, and parties injured thereby are not estopped 
 from a recovery for injuries therefor upon the ground of 
 acquiescence in its construction, MwZess it could reasonably 
 have bee7i ascertained or foreseen at the time of its erection that 
 it would produce the ill-results complained of. In this respect 
 it stands precisely upon the same ground as any other nui- 
 sance, and the rule in reference to acquiescence therein, and 
 estoppel by reason of acquiescence, is that, where a person 
 acquiesces in the erection or maintenance of anything that is 
 a nuisance per se, or that he might reasonably have foreseen 
 would become a nuisance, a court of equity will not interfere 
 by injunction to relieve him from the effects thereof, but his 
 remedy at law remains unless he has bound himself by grant 
 or license sufficient in law to bar an action, or unless the 
 party maintaining the nuisance has acquired a prescriptive 
 right to maintain it. The law presumes that when a man 
 assents to the doing of an act, he only assents to its being so 
 done as not to injure him?- But, while a license must not be 
 exceeded, yet it carries with it all the incidents necessary to 
 its exercise.^ Thus, a license to take stone from the licen- 
 
 23 Cal. 306 ; Drake v. "Wells, 11 Allen Morris, 8 M. & "W. 488 ; Patrick v. 
 
 (Mass.) 141; Miller v. State, 39 Ind. Colerick, Sid. 435; Anthony «. Haney, 
 
 267 ; Druse v. Wheeler, 22 Micji. 439 ; 8 Bing. 180. And it is apprehended 
 
 Dodge 0. McClintock, 47 N. H. 383. that this rule prevails, wherever the 
 
 1 Bankhardt v. Hougliton, 27 Beav. property of one is upon the premises 
 425, is a very full and acceptable of another without the fault of the 
 authority upon this point, and, except owner of the property, and under such 
 that the case is a, very long one, circumstances that the owner of the 
 it would be given here. See also premises has no claim or lien thereon, 
 McKnight v. Eatcliff, 44 Penn. St. legal or equitable, the owner may, if 
 159, where it was held that, though he can do so peaceably, doing as little 
 the plaintiffs, who were in the mining damage as possible, enter and take it 
 business, permitted the defendants in away. Stirling u. "Warden, 51 N. H. 
 the same business to operate through 217. In the case of Richardson v. 
 their gangway, yet that this permission Anthony, 12 Vt. 273, the defendant's 
 would not justify the defendants in cattle were found by him upon the 
 filling up the plaintiff's shaft with plaintiff's land. How they came there 
 ■vraXer. was not shown, but it was admitted 
 
 2 A license to enter upon premises they had been in the plaintiff's pos- 
 may sometimes be implied, as, when session a year, and the plaintiff for- 
 the owner or occupant of the premises bade the defendant to enter his land 
 has taken and keeps the property of to take them away. The defendant, 
 another there, there is an implied against the protest of the plaintiff, 
 license to the owner of the property entered upon the land and drove 
 to enter and take it. "Williams u. them away, the plaintiff offering no 
 
24 
 
 STATUTE OP FEAITDS. 
 
 [chap. I. 
 
 sor's land, carries with it the right to enter with teams to 
 draw them away, the right to be exercised carefully.^ And 
 
 1 Clark V. Vt. Central E. R. Co., 
 28 Vt. 103. A licensee of land ia 
 liable to the licensor for all damages 
 arising from such a use of the prem- 
 ises — e.g., the yarding of sheep 
 affected with " the scab " — as makes 
 the soil communicate an infectious 
 disease to the property of the licensor, 
 the latter being ignorant of the dan- 
 ger thereof. Eaton v. Winne, 20 
 Mich. 156. It is well settled that the 
 mere permission to pass over lands 
 which are dangerous, either naturally 
 or by reason of the use which is made 
 of them, imposes no duty or obliga- 
 tion upon the owner of such lands, 
 except to refrain from acts which are 
 wilfully injurious or knowingly in the 
 nature of a trap, and except, also, 
 where there are hidden dangers, the 
 
 concealment of which would be in 
 the natiire of a fraud. He who en- 
 joys the permission or passive license 
 is only relieved from the responsi- 
 bility of being a trespasser, and must 
 assume all the ordinary risk attached 
 to the nature of the place, or the 
 business carried on there. Vander- 
 beck V. Hendry, 34 N. J. L. 467. A 
 railroad left a large lot, traversed by 
 sidings, open for the convenient access 
 of the public in loading and unload- 
 ing lumber. It also suffered the pub- 
 lic to use its track to pass and repass 
 from one side of the city to another. 
 It was held that the license created the 
 duty on the part of the company to 
 use their track so as not to endanger 
 personal safety. Kay v. Pennsylvania 
 R. R. Co., 65 Penn. St. 269. 
 
 physical resistance. The court held 
 that the defendant was justified in his 
 entry for that purpose, and that an 
 action of trespass would not lie against 
 him therefor. Williams, J., in de- 
 livering the opinion of the court, said : 
 " The time during which the cattle re- 
 mained in the plaintiff's possession is 
 of no importance. The manner in 
 which they came there would be. 
 The right of the owner of personal 
 property to enter on the premises of 
 another to reclaim property, may de- 
 pend upon the manner in which pos- 
 session was obtained. It appears to 
 be well established that if one man 
 takes the goods of another, and puts 
 them on liis own land, the owner may 
 enter and take them. ... In the 
 absence of any evidence as to how the 
 heifers in question came into the en- 
 closure of the plaintiff, when it may 
 be as well presumed that they came 
 there with his consent, and without 
 any neglect on the part of the defend- 
 ant, as the contrary, and when the 
 evidence , discloses that he detained 
 them under a wrongful claim, we con- 
 sider that the defendant was justified 
 in entering the enclosure to take his 
 
 own property." Bennett, J., dissented 
 from the opinion of the court, but 
 his dissent was predicated upon the 
 ground that the cattle had remained 
 so long in the plaintiff's possession as 
 to invest him with a quasi property 
 therein, of which he could not be 
 divested in such a summary manner. 
 But the opinion of the court has many 
 authorities -in its support, and is 
 predicated upon principles of natural 
 justice. In Allen v. Peland, 10 B. 
 Mon. (Ivy.) 306, it was held that where 
 ope has property upon the premises 
 of another, he may, if he can do so 
 peaceably, enter and take it. In 
 Stirling v. Warden, 51 N. H. 217, 12 
 Am. Rep. 80, the plaintiff had for- 
 merly been postmaster, and used a, 
 part of his house for a post-office. 
 Another person having been appointed 
 postmaster, the defendant by such 
 new appointee was appointed deputy 
 postmaster, and was directed by him 
 to go to the plaintiff's house and 
 bring away the property there belong- 
 ing to the government. The plaintiff 
 resisted the taking of the property, 
 and the defendant reasonably repelled 
 his assault and took away the proper- 
 
SEC. 9.] 
 
 PAROL LEASES. 
 
 25 
 
 a license to take wood from certain premises carries with it 
 the right to enter to cut and draw it away ; ^ and a license to 
 cultivate land carries with it as an incident, the right to enter 
 and remove the crops.^ A license to "inhabit or enjoy " cer- 
 
 1 Clark V. Vt. &c. R. R. Co., 28 Vt. » Com v. Rigney, 4 Allen (Mass.) 
 103; DriscoU v. Marshall, 15 Gray 416; Cornish w. Stubbs, 39 L. J. C. P. 
 (Mass.) 62. 206. 
 
 ty. The court held that an action of 
 trespass would not lie therefor. But 
 see Hupport i. Morrison, 27 Miss. 
 365, where it was held that unless 
 property belonging to one is in the 
 wrongful possession of another, he 
 will not be justified in going upon liis 
 premises to take it away, unless he 
 can do so peaceably, and will not be 
 justified even in repelling an assault 
 made upon him by the owner of the 
 estate, unless it is excessive. In 
 Gardner u. Rowland, 2 Ired. (N. C.) 
 247, a similar doctrine was held, ex- 
 cept that in that case the defendant 
 was held liable because he let down 
 the fence to drive his hogs out of the 
 plaintiff's premises, instead of driving 
 them through the gap in the fence 
 through which they entered, or, to use 
 the language of the court, "because 
 he let down the fence, instead of 
 driving them through a gap or g?ite, 
 when there is one." In Adams v. 
 Mclvinney, Addis. 258, it was held 
 that if J S, who ought to keep up a 
 fence between a close of his and a 
 close of J N, suffer the same to be 
 out of repair, and the beast of J N go 
 through the fence into the close of 
 J S, trespass does not lie, and J S may 
 pursue his cattle and drive them back 
 on to his own close, because tlie dam- 
 age happens from the fault of J N. 
 In Merrill v. Goodwin, 1 Root (Conn.) 
 209, the defendant entered upon the 
 plaintiff's premises and cut a tree in 
 which he had found a swarm of bees. 
 It did not appear that the bees es- 
 caped from his hive, and the court 
 held him a trespasser ; but the court 
 plainly intimated that, if the bees had 
 escaped from the defendant's hive, be 
 would have been justified in doing all 
 that was necessary to reclaim his bees. 
 
 But, while bees so escaping from a 
 hive may be reclaimed by the owner, 
 if they can be identified, yet the 
 owner of the bees cannot enter upon 
 the premises of another and cut the 
 tree in which they are, without sub- 
 jecting himself to an action of tres- 
 pass, and liability to the extent of the 
 actual damages to the soil and tree. 
 But if a third person cuts the tree, 
 the owner of the bees may maintain 
 trespass therefor. Goffi v. Kilts, 15 
 Wend. (N. Y.) 550. If they can be 
 reclaimed without doing actual injury, 
 as if they are on the fence or on a 
 bush, quere f In Barnes v. Barnes, 6 
 "Vt. 388, the defendant erected a house 
 upon premises owned by the plaintiff 
 under a license. This license was 
 subsequently revoked, and the de- 
 fendant, within a reasonable time 
 after the revocation of the license, 
 entered upon the premises and took 
 down the house and removed the 
 materials. The court held that the 
 defendant was not liable in trespass 
 therefor. But in such cases, where 
 an erection is made under a license, 
 the licensee must remove the house 
 within a reasonable time after the 
 license is revoked. In Prince v. Case, 
 10 Conn. 375, it appeared that the 
 owner of land gave to a person a 
 license to erect a dwelling-house upon 
 his land, for his own use. The 
 licensee subsequently conveyed the 
 house to the plaintiff in error. After 
 the death of the licensee, the grantor 
 of the licensor brought ejectment 
 against the grantee of the licensee, and 
 recovered therein. After the lapse 
 of more than a year after his recovery 
 and possession in the action of eject- 
 ment, the grantor of the licensor took 
 down the house, but did not remove 
 
STATUTE OF FRAUDS. 
 
 [chap. I. 
 
 tain premises when the right is exclusive, amounts to a lease, 
 and should be pleaded as such.^ But this is not so where 
 the license does not amount to an exclusive right, as a right 
 
 1 Hall V. Seabright, 1 Mod. 14; 
 Anon., 3 Salk. 223. If a license is 
 specially pleaded as a defence to an 
 action of trespass, parol evidence of 
 such license is admissible to bar the 
 plaintiff's right, but where the general 
 issue is pleaded, evidence of such li- 
 cense is only admissible in mitigation 
 
 the materials. In an action of tres- 
 pass for taking down tlie house, it 
 was held that no recovery could be 
 had, as the owner of the house had 
 had a reasonable time in which to 
 remove it, and having failed to do so, 
 the defendant was justified in talcing 
 it down. Parker v. Kedfield, 10 
 Conn. 497; Baldwin v. Breed, 16 id. 
 63; Branch v. Doane, 17 id. 409; 
 Curtis u. Hoyt, 19 id. 106. Such 
 a license is personal, and ceases 
 when the house is conveyed. Hull v. 
 Babcock, 4 Johns. (N. Y.) 418; The 
 Bong V. Newton, Bridg. 115; Howes 
 V. Hall, 7 B. & C 481. A house 
 erected under a license is personal 
 property, and remains the property of 
 him who places it upon the land. 
 Eickerw. Kelley, 1 Me. 117; TVells 
 V. Bannister, 4 Mass. 514 ; Curry v. 
 Com. Ins, Co., 10 Pick. (Mass.) 
 540; Marcy v.- Darling, 8 id. 283; 
 Ashman v. Williams, 8 Pick. (Mass.) 
 402. In "Webb u. Paternoster, Palm. 
 71, a license to place a stack of 
 hay upon another's land was held not 
 to be countermandable until after a 
 reasonable time had elapsed. See 
 White V. Elwell, 48 Me. 360. In Win- 
 ter V. Brockwell, 8 East, 308, a license 
 to erect a skylight was held not re- 
 vocable after the skylight was erected, 
 without placing the licensee in statu 
 quo. See Wood v. Lake, Saycr, 3 ; 
 Liggins V. Inge, 7 Bing. 682. But if 
 a person wrongfully places his prop- 
 erty upon the premises of another, he 
 has no right to enter to remove it. 
 Thus, in Newbald n. Sadler, 9 Barb. 
 (N. Y.) 57, the defendant's servant 
 
 of damages. Hamilton v. Windolf, 
 36 Md. 301. But it must be specially 
 pleaded in trespass quaere clausum and 
 cannot be given in evidence under the 
 general issue. Ruggles v. Lesure, 24 
 Pick. (Mass.) 187; Crabs v. Eetick, 7 
 Blackf. (Ind.) 373 ; Pritehard B.Dodd, 
 5 B. & Aid. 089. 
 
 drove his team upon the plaintiff's 
 premises, and upon his return found 
 the fence put up, and the plaintiff for- 
 bade him from taking it down. The 
 servant went and informed the defen- 
 dant, and he entered the plaintiff's 
 premises, and against the protests and 
 actual resistance of the plaintiff, re- 
 moved his team, assaulting the plain- 
 tiff in order to accomplish his pur- 
 pose! In an action of assault and 
 battery therefor, the defendant justi- 
 fied upon the ground that he entered 
 the plaintiff's premises to remove liis 
 property, etc., and that he used no 
 more force than was necessary to 
 accomplish his purpose. The court 
 held that he was not justified in mak- 
 ing the assault, or even in the removal 
 of his property under the circum- 
 stances disclosed by the pleadings and 
 evidence. But in Eobson v. Jones, 2 
 Bailey (S. C.) 4, it was held that 
 where one has peaceabli/ entered the 
 premises of another, an action of tres- 
 pass will not lie against him for forc- 
 ing his way out by breaking a gate 
 which has been closed and locked by 
 the owner of the land, with a view to 
 detaining the property of the person 
 entering. But this must be under- 
 stood as applying only to an entry 
 made upon lands of another under 
 a license, express or implied. If the 
 original entry was unlawful, the break- 
 ing out would be unlawful, and liabil- 
 ity would attach for all damages that 
 , resulted from the trespass. The mere 
 fact that an entry is peaceable, does 
 not render it lawful, if it was made 
 without authority, express or implied, 
 
SEC. 9.] 
 
 PAROL LEASES. 
 
 27 
 
 to sow,i to stack hay ,2 or to hunt upon lands.^ A license, in 
 order to be efficacious, must be granted by a person having 
 authority to do so, as it can never extend beyond the inter- 
 est which the licensor has.* 
 
 1 Hare v. Celey, Cro. Eliz. 143. 
 
 2 Webb V. Taternoster, Palm. 771 ; 
 Wood V. Lake, Say. 3. 
 
 ' Anon., 3 Salk. 223. 
 
 * Petty V. Evans, 2 Brownl. 40; 
 Richardson v. Richardson, 9 Gray 
 (Mass.) 213; Gilbert on Tenure, 
 333. 
 
 or without a justifiable cause. See 
 also Bro. Tresp. pi. 186, and Wliite v. 
 Wiltshire, Cro. Jac. 555. The mere 
 fact that a person's property is upon 
 the premises of another, does not ren- 
 der an entry to take it away lawful. 
 If the property is there by his own 
 wrong, or if the title thereto is in dis- 
 pute, or if he cannot take it away 
 peaceably, he must resort to his rem- 
 edy at law to recover it. Roach v. 
 Damson, 2 Humph. (Tenn.) 425 ; Chase 
 V. Jefferson, 1 Houst. (Del.) 257. In 
 Blake v. Jerome, 14 Johns. (N. Y.) 
 406, the defendant entered the plain- 
 tiff's close against the will of the 
 plaintiff, and took therefrom a mare 
 and colt, wliich he claimed as his 
 property, and to which the plaintiff 
 also claimed title. The court held 
 that under the circumstances of the 
 case, the defendant was a trespasser. 
 In Hermance u. Vernay, 6 Johns. (N. 
 Y. ) 4, the defendant sold certain prem- 
 ises, reserving by parol a certain bark- 
 mill standing upon the premises. He 
 entered the premises after the sale, 
 and removed the bark-mill. Without 
 deciding the question as to whether 
 the bark-mill was in point of fact a 
 fixture, the court held that, under the 
 circumstances, he was a trespasser, 
 and liable for a wrongful entry. In 
 Holmes v. Tremper, 20 Johns. (N, Y.) 
 29, the defendant had been a tenant 
 of certain premises of the plaintiff, 
 on which he had erected a cider-mill 
 and press. After the tenancy had 
 expired, and after Ms removal from 
 the premises, he entered and took 
 away the cider-mill and press. The 
 court held him a trespasser, upon the 
 ground that the property should have 
 
 been removed during his tenancy, and 
 having been left there by his own 
 wrong, he was not justified in entering 
 to take it away. In Chambers v. 
 Bedell, 2 W. & S. (Penn.) 225, the 
 court expressly held that where the 
 goods of another had been wrongfully 
 taken from him, and placed upon the 
 premises of the taker, the owner of 
 the goods might enter upon the prem- 
 ises of the taker and remove it, with- 
 out being liable even to nominal dam- 
 ages therefor. This case follows the 
 doctrine of Chapman a. Thumble- 
 thorpe, Cro. Eliz. 329, in which it was 
 held that if J S drives the beast 
 of J N into the close of J S, or if 
 it has been driven thereinto by a 
 stranger, with the consent of J S (and 
 this consent may be implied — see 
 Richardson v. Anthony, 12 Vt. 273), 
 J N may lawfully go thereinto to take 
 it away, because J S was himself the 
 first wrong-doer. Patrick v. Coleriek, 
 3 M. & W. 484 ; Rhea v. Sheward, 2 
 id. 424 ; Spencer v. McGowen, 13 
 Wend. (N. Y.) 256. So, if the goods 
 of one have been stolen and put upon 
 the premises of another, the owner 
 may lawfully enter to take them 
 away. Higgins v. Andrews, 2 Rolle's 
 Rep. 55. So, if a person has fraudu- 
 lently obtained the property of an- 
 other, the owner may enter upon the 
 premises of the person who has it in 
 his possession, if he can do so peace- 
 ably, to take it away. As if A, by 
 means of fraud, obtains a horse from 
 B, B upon discovery of the fraud 
 may go upon A's land to take the 
 horse away, if he can do so without 
 a breach of the peace. Wheelden v. 
 Lowell, 50 Me. 503; Spencer v. Mc- 
 
28 
 
 STATUTE OF FEATTDS. 
 
 [chap. I. 
 
 SsCi 10. Instances in which License is Irrevocable. — There 
 are few instances in which a parol license to do acts upon, the 
 land of another is not revocable. In some of the States, as 
 we have seen,^ it is held that a parol license which is executed, 
 
 I Ante, § 9 and notes. See also Bus- 
 sell V. Hubbard, 59 111. 335; Ricker 
 V. Kelley, 1 Me. 117; Androscoggin 
 Bridge Co. v. Bragg, 11 N. H. ; SuUiran 
 V. Commrs. &c., 3 Ohio, 89 ; Huff v. 
 McCauley, 53 Penn. St. 206; Cum- 
 berland Valley R. R. Co. v. McLanar 
 ban, 59 id. 23 ; Lane v. Miller, 27 Ind. 
 534; Cook v. Prigdon, 45 Ga. 331; 
 Williamstown .&c. R. R. Co. v. Battle, 
 66 N. C. , 540. In New Hampshire 
 and Maine the doctrine of the cases 
 cited has been virtually repudiated by 
 
 Gowen, 13 "Wend. (N. Y.) 257. So, if 
 a, man who is assaulted by another, 
 and in danger of liis life, enters the 
 premises of another, trespass will not 
 lie, "because the doing of this — it 
 being necessary for the preservation 
 of his life— is lawful." 37 H. 6, 37 
 pi. 26. So, if "A enters the premises 
 of B to succor the beast of B, which 
 is I in danger, an action does not lie, 
 because, as the loss to B if his beast 
 had died would be irremediable, the 
 doing of this is lawful. But if A go 
 into the close of B to prevent the 
 beast of B from being stolen, or to 
 prevent his corn from being consumed 
 by hogs, an action would lie, for the 
 loss, if either of these things had 
 happened, would not have been irre- 
 mediable." Bro. Tresp. pi. 215. So, 
 too, if a tree belonging to A is blown 
 down, and falls upon the land of B, 
 A may lawfully go upon the land of 
 B to remove it, for , the tree did not 
 fall there by any fault of A : Bro. 
 Tresp. pi. 215; but if A cuts a tree 
 upon his land, and it falls upon the 
 land of B, this is a trespass of itself, 
 and he may not lawfully enter to re- 
 move it, for the tree is there by his 
 fault, and might have been avoided, 
 lb. In Millin v. Fawdry, Latch. 120, 
 it was held that if the fruit of a tree 
 standing upon the land of a person 
 falls upon the land of another, the 
 
 later decisions of the court in those 
 States. Dodge v. McClintock, 47 N. H. 
 383 ; Pitman v. Poor, 38 Me. 237 ; Moul- 
 ton V. Faught, 41 id. 298 ; Houston v. 
 LafEee, 46 N. H. 505 ; and in England 
 the doctrine of Wood v. Lake, Sayer, 
 3; Taylor v. Waters, 7 Taunt. 374, 
 holding a quite similar doctrine, has 
 been repudiated. Wallis v. Harrison, 
 4 M. & W. 538; Bryan v. Whistler, 
 8 B. & C. 288; Bird v. Higginson, 6 
 Ad. & El. 824; Rex v. Hemdon, 4 M. 
 & S. 565. 
 
 owner of the tree may lawfully enter 
 to get the fruit, because the falling of 
 the fruit there was not by the fault of 
 the owner of the tree. So in Toplady 
 V. Sealey, 2 Roll. Abr. 568, it was held 
 that where one is looking for cattle 
 which he has lost, he may lawfully go 
 upon a, footpath over the lands of 
 another, but if he goes outside the 
 path, trespass lies. See Bac. Abr. 
 Trespass F. In Millin t,. Fawdry, 
 Latch. 120, it was held not to be tres- 
 pass for one to drive cattle belonging 
 to another from his own lands upon 
 the land of the owner of the cattle. 
 So, too, in the same case it was held 
 that trespass would not lie, even if 
 the cattle were chased out " with a 
 little dog," and the dog, notwithstand- 
 ing the master's endeavor, afterwards 
 chases the beasts into the owner's en- 
 closure, for the chasing of them out 
 of the close was lawful, and it is not 
 in his power to prevent them from 
 being chased into the cattle-owner's 
 enclosure. But otherwise, if a stranger 
 chases the cattle out ; for, by doing 
 this, although the owner of the land 
 on which the cattle are trespassing is 
 apparently benefited, yet by his act 
 the owner is deprived of his right to 
 distrain the beast. Bro. Tresp. pi. 
 , 421 ; Kelw. 46 B. ; Bac. Abr. Trespass 
 F. In Nettleton v. Sikes, 8 Met. 
 (Mass.) 84, the defendant cut down 
 
SEC, 10.] PAROL LEASES. 29 
 
 and has involved the expenditure of large sums of money, is not 
 revocable, upon the ground that the party giving it is estopped 
 from revoking it. But this doctrine seems to us to be in 
 defiance of the statute, and to operate as a complete abroga- 
 tion of its salutary provision in respect to the transfer of 
 interests in land, and is an instance of judicial legislation 
 which is wholly unwarranted. If a person, in view of the 
 statute in this regard, of which he is presumed to have knowl- 
 edge, sees fit to go on and make extensive and permanent 
 improvements upon the lands of another, without first invest- 
 ing liimself with a legal right to enjoy them, it is difficult to 
 see upon what ground a court of equity should interfere to 
 protect him against the consequences of his folly, or why the 
 owner of the land who has merely c6nsented to such erec- 
 tions or improvements should have his estate thus burdened 
 with a permanent easement, and be equitably estopped 
 from revoking this authority, and ridding his premises of a 
 burden which the statute provides shall only be imposed in a 
 certain mode. In the words of a distinguished judge,^ rela- 
 tive to the force of a parol license to erect a building upon 
 lands, " if a parol license, even when carried into effect, wiU 
 give the builder a right to continue the house so long as it 
 
 1 Swift, J., in Benedict v. Benedict, 5 Day (Conn.) 458. 
 
 and peeled trees upon the plaintiffs implied license to enter and take it 
 land, under a valid agreement that lie away; and in the caso of JIcLcod u. 
 should hare the hark for his services. Jones, ante, where tlie defendant was 
 He entered upon the plaintiff's prem- the mortgagee of chattels in the pos- 
 ises and removed the bark. The session of the plaintiff, it was held 
 plaintiff brought an action of tres- that no such license could be implied 
 pass against him therefor, but the when the goods were locked up in the 
 court held that the action would not mortgagor's house, and an entry could 
 lie, as the bark at one?, upon being not be had without breaking in. The 
 taken from the trees, became the prop- rule in reference to the sale of the 
 erty of the defendant, and that he property lying or being upon the prem- 
 might lawfully enter to take it away ; ises of another at the time of sale 
 and the doctrine of this case has been would seem to be that when there is 
 reafiBrmed by the courts of that State an absolute sale of property which 
 in several later cases. McNeal v. the purchaser is to remove, which at 
 Emerson, 15 Gray (Mass.) 384; Drake the time of sale is upon the premises 
 w."W"ells,ll Allen (Mass.) 141; McLeod of the vendor, there is an implied 
 V. Jones, 105 Mass. 403. But the doc- license to enter to remove the prop- 
 trine of these cases rests upon the erty. In any event, if the entry is 
 ground that, where there is an abso- made peaceably, and in doing so no 
 lute sale of property which is lying special damage is sustained, no action 
 upon the vendor's land, there is an will lie therefor. 
 
30 STATUTE 0¥ FRAUDS. [CHAP. I. 
 
 shall last, and to maintain ejectment for it, then real estate 
 may be transferred by parol, -which is directly contrary to 
 the statute." It is now well settled in England,^ and by the 
 better class of cases in this country,^ that a parol license 
 which confers any interest in land is invalid, and is revocar 
 ble at any time whether executed or not, at the will of the 
 licensor, and that, after such revocation, whether by notice 
 from the licensor, or a conveyance of the estate by him, or 
 his death, the only right remaining in the licensee is that of 
 entering upon the land within a reasonable time thereafter, 
 to remove his erections.* But a license to do an act upon 
 another's land, which confers no estate or interest in the 
 land, but which is coupled with an interest in chattels 
 thereon, as, when the owner sells chattels which are situated 
 upon the land, an irrevocable license to enter and take the 
 same is implied, if not expressly given.* Thus, where A sold 
 to B certain corn to be put in a crib on A's land, B to take 
 it away at his pleasure, it was held that the license was 
 coupled with an interest and was irrevocable.^ So where a 
 person has erected a house,^ cut timber,^ or dug ore,* upon 
 another's land, while the license may be revoked so as to 
 prevent further use of, or severance from, the land, yet it 
 cannot be so revoked as to prevent an entry within a reason- 
 able time for the removal of the house, or th^ ore, or the 
 timber, which has already been severed ; and the same rule 
 prevails where property has been deposited upon another's 
 land by his permission.® But it wiU be seen that the license 
 
 1 Fentiman v. Smith, 4 East, 107; 178; Poster v. Browning, 4 K. I. 47; 
 Wallis V. Harrison, ante ; Rex v. Stan- Hall v. Chaffee, 13 Vt. 150. 
 
 don, 2 M. & S. 461 ; Ruffey v. Hen- » Prince v. Case, 10 Conn. ; Collins 
 
 derson, 21 L. J. Q. B. 49. Co. «. Marcy, ante ; Arrington v. Lar- 
 
 2 Cook V. Stearns, 11 Mass. 533; ahee, 10 Cush. (Mass.) 512. 
 Duineen v. Rich, 22 Wis. 550 ; Mum- * Cook v. Stearns, ante. 
 
 ford V Whitney, 15 Wend. (N. Y.) » Addison w. Dark, 1 Gill (Md.) 221. 
 
 380; Collins Co. v. Marcy, 25 Conn. « Prince v. Case, ante; Arrington 
 
 239; Trammell v. Trammell, 11 Rich. u. Larabee, ante. 
 
 (S. C.) 471 ; Gauther a. Atkinson, 35 ^ (jUeg „. Simonds, 15 Gray (Mass.) 
 
 Wis. 48 ; Pitman v. Poor, 38 Me. 237 ; 441. 
 
 Carter v. Harlan, Md. 20 ; Owen v. 8 Silsby v. Trotter, ante. 
 
 Field, ante ; Bridges v. Purcell, ID. ^ Poor v. Oakman, 104 Mass. 309 ; 
 
 &. B. (K C.) L. 492; Deslage v. Erskineti.Plummor, 7 Me.457; AVhit- 
 
 Pearce, 38 Mo. 588; Clute v. Clute, marsh v. Walker, 1 Met. (Mass.) 313; 
 
 20 Wis. 531 ; Yeakle «. Jacobs, 33 Wood v. Manley, 11 Ad. & El. 34. 
 
 Penn. St. 376 ; Haux v. Seat, 26 Mo. 
 
SEC. 11.] PAKOL LEASES. 31 
 
 ■which exists in this class of cases is one which is implied by- 
 law, as an incident to the act licensed, and exists, even 
 though its exercise is prohibited or forbidden by the owner 
 of the land, and whether or not he has ever, by words, 
 authorized it. So too, a parol license given by the owner of 
 a dominant estate to the owner of a servient estate, to do an 
 act which interferes with or destroys his easement therein, 
 the license, after it is executed, is irrevocable, upon the 
 ground that, while an easement cannot be created except by 
 deed or prescription, yet it may be surrendered in whole or 
 in part without deed, and consequently such a license is 
 not within the statute,^ and the granting of the license is 
 treated as an abandonment of the easement to the extent of 
 the act licensed. But, of course, the circumstances attendant 
 upon the granting of the license may be considered in deter- 
 mining whether or not an abandonment of the easement was 
 intended.^ So too, a license to do an act upon another's land 
 for which a stated compensation is paid, as where parol per- 
 mission is given to another to flow his lands by means of a 
 dam, for a regular rent, which is done for several years, while 
 the license might have been revocable during the first year, 
 yet by permitting the act to go on for a longer period, and 
 receiving rent therefor, the license grows into a parol lease 
 for an indefinite time, and thereby creates a tenancy from 
 year to year which can only be terminated by the requisite 
 notice.^ 
 
 Sec. 11. License Revoked by Conveyance. — If the grantor 
 of a parol license conveys the land to a third party, the 
 license is determined at once, without notice, to the licensee 
 of the transfer,* and from that time the licensee becomes 
 liable to the grantor for all damages resulting from the exer- 
 cise of acts done in pursuance of such license. Thus, in a 
 Massachusetts case,^ it was held that a writing, not under 
 seal, purporting to convey the right to flow lands, and to 
 
 1 Curtis V. Noonan, 10 Allen (Mass.) » Morrill v. Mackman, 24 Mich. 279. 
 406; Dyer w.Sanford, 9 Met. (Mass.) * Wallis v. Harrison, 4 M. & AV. 
 406 ; "Winter v. Brockwell, 8 East, 538 ; Roffey v. Henderson, 17 Q. B. 
 308 ; Davies v. Marshall, 10 C. B. 574 ; Coleman ;■. Foster, 1 II. & N. 37 ; 
 N. S. 97. Gaussen v. Morton, 10 B. & C. 731. 
 
 2 Wood V. Edes, 2 Allen (Mass. ) 578. '> Cobb v. Pisher, 121 Mass. 169. 
 
32 STATUTE OF PEATIDS. [CHAP. I. 
 
 release all claims for damages therefor, does not bind the land 
 nor estop a subsequent grantee thereof from recoyering 
 damages from the flowing of the land subsequent to the 
 conveyance. In a Connecticut case,^ in an action for divert- 
 ing the water of a canal upon the plaintiff's lands, it appeared 
 that the diversion was of the waters of what formerly con- 
 stituted part of the Farmington canal, and the injury- proved, 
 was effected by a brick culvert, erected in February, 1848, 
 running under the raiboad of the New Haven and Northamp- 
 ton company, and the turnpike of the Cheshire turnpike com- 
 pany, no part of which was constructed on the plaintiff's 
 land. The defendants offered evidence to prove, and claimed 
 that they had proved, that the culvert was a permanent and 
 expensive structure, about seventy feet in length, and of 
 about six feet span, erected and built by the New Haven and 
 Northampton company, in the construction of their railroad, 
 under their charter ; that it was erected and built by them, 
 opposite to the plaintiff's premises, where it now remains, at 
 the express solicitation and request of Uriah Foot, the then 
 owner of the premises, who desired to have the same there 
 placed, for the irrigation of his adjacent land; that he co- 
 operated and assisted in the erection of the culvert, and 
 agreed with the company, for himself and his heirs, forever,- 
 to take care of the waters so diverted, and to guarantee the 
 company against damage therefrom ; and that the company 
 would have diverted the water at a point above the plain- 
 tiff's land where, as they claimed, they had acquired a right 
 to discharge waters, but for such request and agreement. 
 
 The defendants insisted, that, if the facts were as claimed 
 by them, they were not, any of them, liable to the plaintiff 
 in damages for the necessary, natural, and foreseen effects, 
 resulting from- the erection of the culvert, and requested the 
 court to charge the jury, in conformity to such claim. 
 
 The plaintiff claimed that, as the requests and agreements 
 of Uriah Foot, claimed by the defendants, rested solely on 
 parol evidence, they constituted a mere parol license which 
 was revoked by his death,^ and also by express notice to that 
 
 1 Toot u. N. H. &c. R. R. Co., 23 Ian, 6 Md. 20 ; Chandler v. Spear, 22 
 Conn. 214. Vt. 388. If a definite term is fixed 
 
 2 Eggleston v. N. Y. &c. R. R. Co., upon, the license expires at the end 
 35 Barb. (N. Y.) 162; Carter o. Har- of the term without notice, Glyim 
 
SEC. ll.J PAEOL LEASES. 83 
 
 effect, by the plaintiff, personally, to each of the defendants, 
 since liis father's decease ; and that he was entitled to recover, 
 from each of the defendants, whatever damages had accrued 
 to him, by means of the diversion, since the revocation. The 
 plaintiff requested the court to charge the jury in accord- 
 ance with his claims. The court did not charge the jury as 
 requested by the plaintiff, but did, fro forma, charge them 
 in conformity to the claims of the defendants. This ruling 
 was held to be erroneous, and the plaintiff under the facts 
 stated was held to be entitled to recover upon the ground 
 that the license was void under the statute of frauds, 
 because it was not in writing, and was revocable by the 
 plaintiff's grantor at any time, and was in fact revoked by 
 the conveyance to the plaintiff, or by his notice to that effect 
 after he acquired the title, and that the license could only be 
 set up to excuse damages arising while it was unrevoked.^ 
 In paSsing upon this question. Stores, J., said : — 
 
 "The plaintiff, having an absolute and unrestricted con- 
 veyance of his land from the former owner, has presump- 
 tively a full and unqualified dominion over it, subject to no 
 servitude or easement in favor of any other person. The 
 act, therefore, committed by the defendants, in turning the 
 water of the canal upon it, was an invasion of the plaintiff's 
 rights, unless it was justified by the facts put in evidence by 
 the defendants, upon whom the burden of establishing such 
 justification rests. The facts found by the jury, and on 
 which the defendants rely, are these. The company built 
 the culvert on land adjoining the land of the plaintiff, at the 
 verbal request of Uriah Foot, who then owned the adjoining 
 land, and by whom it was subsequently sold and conveyed 
 to the plaintiff. The said Uriah desired that the said culvert 
 should be so located, for the irrigation of his own land, and 
 actually cooperated and assisted in building it; verbally 
 agreeing with the defendants for himself and his heirs for- 
 ever, to dispose of the water which should be diverted upon 
 his land, and to guarantee the defendants against any damage 
 
 u. George, 20 N. H. 114 ; and the com- ^ Jamieson v. Milliman, 3 Bucr 
 
 mencement of an action for damages (N. Y.) 255; Kimball v. Yates, 14 
 operates as a revocation, Lockhart v. 111. 464; Hall «. Chaffee, 10 Vt. 150; 
 Gier, 54 "Wis. 133. Dodge v. McClintock, 47 N. H. 383 ; 
 
 Gilmore v. AVilson, 53 Penn. St. 194. 
 
34 STATUTE OF PEAUDS. [CHAP. I. 
 
 therefrom. The company would have diverted the water at 
 a point above the land of said Uriah, and where they had a 
 right to discharge it, but for the said request and agreements 
 of the plaintiff's grantor. On the other hand, it was found, 
 for the plaintiff, that, after he became the owner of the land, 
 and also after the death of Uriah Foot, he revoked the license 
 conferred by his grantor, giving an express notice to that 
 effect to all the defendants. 
 
 " These facts furnished ample proof of a license from Uriah 
 Foot, to the defendants, to construct the culvert and to 
 overflow his land ; and as this license was never revoked by 
 him during his ownership, it constituted a justification for 
 the diversion of the water for that period. We are as clearly 
 of opinion, however, that the effect of the license, or agree- 
 ment referred to, inasmuch as it was by parol, was not to 
 convey to the defendants an}'' estate or interest in the land 
 which it was contemplated to overflow. The righl? per- 
 petually to divert water upon that land, as claimed by the 
 defendants, would be an incorporeal hereditament, and there- 
 fore an estate or interest in it ; and such a right, the license, 
 proved by the defendants, would be ineffectual to convey.-' 
 To hold the contrary would be a direct abrogation of the 
 statute of frauds, which requires all contracts for 'the sale 
 of lands, tenements, or hereditaments, or of any interest in 
 or concerning them,' to be in writing. The privilege, there- 
 fore, conferred on the defendants by the parol request and 
 agreement of Uriah Foot, is rendered to a mere license, 
 although, in its terms, it was a more extended grant. The 
 authorities on this point are uniform. 
 
 " It is equally well settled, that a mere license, which is only 
 an authority or power to do particular acts, uncoupled with 
 an interest in the subject of those acts (serving simply to 
 justify such acts, while leaving the estate, and aU the inci- 
 dents of ownership, in the proprietor of the land), is, in its 
 nature, revocable. If it were not revocable, it would transfer 
 to the licensee an interest in the land ; it would have the 
 
 1 Brown v. Woodworth, 5 Barb. Ian, 6 Md. 20; "Wood m. Edes, 2 Allen 
 
 (N. Y.) 550; Houghtating v. Hough- (Mass.) 578; Curtis v. Noonau, 10 id. 
 
 tating, 5 id. 379; Stevens v. Stevens, 406; Dyer u.Sandford, 9 Met. (Mass.) 
 
 11 Met. (Mass.) 251; Carter v. Har- 395; Marston w. Gale, 24 N. H. 176. 
 
SEC. 11.] 
 
 PAROL LEASES. 
 
 35 
 
 effect o£ a grant.^ We consider it also to be now an estab- 
 lished principle of the common law, although some ancient 
 cases may seem to conflict with it, that Avhen the right to do 
 acts upon the land of another is of such a nature as to 
 require to be created by a grant, in order to be primarily 
 indefeasible, a mere license to do such acts does not become 
 irrevocable, because it has been executed by the licensee ; 
 although such execution may have been attended with 
 expenditure of money or labor, and although, also, the 
 termination of said license may cause the loss of such ex- 
 penditure.2 
 
 1 Duineen v. Eich, 22 Wis. 550; 
 Kimball v. Yates, 14 111. 464 ; Howe 
 V. Searing, 6 Bos. (ST.Y.) 684; Clute 
 V. Carr, 20 Wis. 531 ; Marston v. Gale, 
 24 N. H. 176 ; Houx v. Seat, 26 Mo. 
 178; Owen v. Field, 12 Allen (Mass.) 
 457 ; Selden v. Del. &c. Canal Co., 29 
 N. Y. 634; Dodge v. McClintoek, 47 
 N. H. 383; Troxell v. Lehigh &c. 
 Coal Co., 42 Penu. St. 513; Hall v. 
 Chaffee, 13 Vt. 150; Foster v. Brown- 
 ing, 4 R. I. 47 ; Houston v. Laffee, 46 
 N. H. 505 ; Carter v. Harlan, 6 Ind. 20. 
 ' The rule as stated is adopted in 
 most of the States. Woodward v. 
 Seelej, 11 lU. 157 ; Wolfe v. Frost, 2 
 Sandf. (N. Y.) 72 ; Desloge v. Pearce, 
 38 Mo. 588; Cook u. Steams, 11 Mass. 
 533 ; Houston v. LafEee, 46 N. H. 505 ; 
 Foster v. Browning, 4 R. I. 47. But 
 in Maine, Clement v. Durgin, 5 Me. 9 ; 
 Nevada, Lee v. McLeod, 12 Nev. 280; 
 Pennsylvania, Lacy v. Arnett, 33 Penn. 
 St. 169 ; Indiana, Buchanan v. Logans- 
 port &c. R. E. Co., 71 Ind. 265 ; lUi- 
 nois, Russell v. Hubbard, 59 HI. 335 ; 
 and Ohio, Wilson v. Chalfant, 15 Ohio, 
 248 ; MiUer v. Brown, 33 Ohio St. 547, 
 executed licenses, involving the out- 
 lay of considerable money, have been 
 held irrevocable upon the ground that 
 the party granting the license is es- 
 topped from revoking it. But this 
 doctrine is hardly sustainable, and is 
 clearly opposed to the intent, if not to 
 the language of the statute of frauds ; 
 and it can hardly be said that a person 
 who has been so imprudent as to build 
 expensive works upon another's land, 
 
 or which will impose a burden thereon, 
 without first taking the precaution to 
 procure such person's consent in writ- 
 ing, is entitled to any exception in 
 his favor either at law or in equity : 
 Woodward v. Seeley, 11 111. 157. In 
 Benedict v. Benedict, 5 Day (Conn.) 
 468, SwiPT, J., in speaking of the re- 
 vocability of a license to make per- 
 manent erections upon another's land, 
 said : " If a parol license, even when 
 carried into effect, will give the builder 
 a right to continue the house so long 
 as it shall last, and to maintain eject- 
 ment for it, then real estate may be 
 transferred by parol, which is directly 
 contrary to the statute." Fryer v. 
 Wame, 29 Wis. 511 ; Clute v. Carr, 20 
 id. 531; Miller v. Auburn &c. R. R. 
 Co., 6 Hill (N. Y.) 61 ; Wright v. Free- 
 man, 5 H. & J. (Md.) 467; Hays v. 
 Richardson, 1 G. & J. (Md.) 366; Mel- 
 lor c. Watkins, L. R. 9 Q. B. 400. 
 In some of the cases, however, in 
 total disregard of the statute and its 
 obvious purpose, the courts have held 
 that wljere a license is given to make 
 permanent improvements or erections 
 upon another's land, the license be- 
 comes irrevocable upon the ground of 
 estoppel : Ricker v. Kelly, 1 Me. 117 ; 
 Russell V. Hubbard, 59 111. 335 ; Sulli- 
 vant V. Commissioners, &c., 3 Ohio, 
 89 ; Androscoggin Bridge Co. v. Bragg, 
 11 N. H. 109 ; Clement v. Durgin, 5 
 Me. 9. In other cases it is held that 
 a license under such circumstances 
 cannot be revoked without paying or 
 offering to pay the expenses incurred 
 
36 - STATUTE OP FKATJDS. [CHAP. I. 
 
 " Nor do we think that the revocability of the license depends 
 at all upon the circumstance that the acts authorized by the 
 plaintiff's grantor were to be done, if considered only in 
 respect to their immediate or direct effect, upon land not 
 owned by him, so long as the necessary and inevitable con- 
 sequence of those acts would be an exercise, on the part of 
 the defendants, of a right in the land of the grantor himself, 
 and to restrict the dominion of the latter over it: a right 
 which, if made indefeasible by a grant, would burden the 
 land with a perpetual easement. In fact, the privilege con- 
 ferred on the defendants was, in form, a license to build the 
 culvert on the defendants' own land, but in substance a right 
 to overflow the land of the licensor himself. To construct a 
 culvert on land adjoining his own, and really already under 
 the defendants' control, by virtue of their charter, was an 
 act, which, independently of its tendency to cause an over- 
 flow upon the land of the grantor, the defendants had an 
 unquestionable right to do without his sanction, and \^hich, 
 in this view of the matter, was not done by virtue of his 
 authority. What required his license was, that the company, 
 might, by means of the culvert, turn water upon his land ; 
 and this diversion was the subject of the license rather than 
 the mere construction of the culvert. The permission to 
 build the culvert, which would necessarily cause the diversion 
 of the water, Avas really a permission so to divert the water, 
 and to affect the rights of the licensor in his own land. "We 
 cannot see why such a license should not be revocable in the 
 same manner, as if the acts authorized to be done were done 
 on the premises of the licensor, consequently producing the 
 same effect there. '^ 
 
 by the licensee in its execution : Cle- Wilmington &c. R. E. Co. v. Battle, 66- 
 
 ment v. Durgin, ante ; Addison v. N. C. 540 ; as in Illinois, Woodward v. 
 
 Hack, 2 Gill. (Md.) 221; Lane v. Mil- Seeley, 11 111. 157; Russell ... Hub- 
 
 ler, 27 Ind. 534. In Pennsylvania, bard, 59 id. 335; New Hampshire, 
 
 both at law and in equity, the courts Woodbury v. Parshley, 7 K II. 297 ; 
 
 have taken an extreme ground in sup- Houston v. Laffee, 46 id. 505 ; and 
 
 port of the rights of a licensee under Maine, Eioker u. Kelly, 1 Me. 117 ; 
 
 a parol license, and take a ground not Moulton v. Paught, 41 Me. 298. In 
 
 recognized elsewhei* : Huff v. Mc- the last two States the later cases 
 
 Cauley, 53 Penn. St. 206; Cumber- sustain the doctrine stated in the 
 
 land &c. E. E. Co. v. McLanahan, 59 text, while in Illinois the last named 
 
 id. 23. And in several of the States case takes the extreme ground, 
 the decisions will be found to be vas- ^ Dodge o. MoClintock, 47 N. H. 
 
 cillating ; Cook v. Prigdon, 45 Ga. 831 ; 383 ; Hall v. Chaffee, 13 Vt. 150. 
 
SEC. 11.] PAEOL LEASES. 37 
 
 "Reference has been made by the defendants to a few 
 very peculiar cases, the most prominent of which is an 
 English case,^ as sustaining some such distinction as has 
 just been alluded to. The doctrine of the decisions is, 
 that if one who has a privilege on the land of, aiiother 
 permits that other to do acts, which are inconsistent with 
 the enjoyment of the privilege, or tend to its destruction, 
 such indulgence or license, if acted upon, or executed by the 
 owner of the land, operates as an extinguishment or abandon- 
 ment of the privilege. If these cases were correctly decided 
 (about which we express no opinion), they have no applica- 
 tion to the case now before us. It will be seen, on examina- 
 tion, that the courts, so far from passing upon the question, 
 whether an easement or interest in land can be acquired 
 by parol license or agreement, executed or not executed, 
 distinguish those cases from such as involve that issue. 
 Besides, in the present case, Uriah Foot neither had, nor 
 claimed, any privilege in the land on which the culvert was 
 built, nor did he, by the terms of his license, deprive himself, 
 or pretend to deprive himself, of any such privilege. On the 
 contrary, the claim of the. defendants is, that an easement 
 was conferred upon them, in the adjoining land of Uriah 
 Foot, consisting in a perpetual right to divert water upon it. 
 
 "We have not deemed it necessary to accompany our state- 
 ment of priaciples with a particular citation of the authori- 
 ties by which they are supported.^ We are aware that 
 several decisions have been made in the courts of some of 
 the United States in which greater effect is given to the cir- 
 cumstance that a parol license to perform acts upon land has 
 been executed by the licensee, especially where such execu- 
 tion has involved the expenditure of money or labor, than 
 the principles we have adopted would warrant. It is true 
 
 ^ Liggins V. Inge, 5 Bing. 682. would have decreed a specific perfor- 
 2 Bridges u. Purcell, 1 D. & B. (N. mance of tlie contract, as to both par- 
 C.) 493. Sec "Wilmington &c. R U. Co. ties ; and, moreover, the license was in 
 V, Battle, 66 N. C. 540, in which it was writing. T\nien a license has been 
 held that while a license under seal is executed under circumstances which 
 as revocable as a license by parol, warrant it as being treated as an 
 yet, that neither, when coupled with an agreement on the part of the licensor 
 interest, or founded on a consideration, to give the right, a court of equity will 
 are revocable. But in this case, the compel him to do so. Cook v. Prig- 
 facts were such that a court of equity don, ante. 
 
38 STATUTE or PKAUDS. [CHAP. I. 
 
 tliat some of those decisions go to the extent of holding that 
 the license, after such execution, is irreyocable, and that 
 thereby the licensee acquires an indefeasible and perpetual 
 right to maintain, without disturbance, the condition in which 
 he is placed by such execution. Those decisions were made 
 in States where, as in Maine, Massachusetts, and New Hamp- 
 shire,^ there are no courts of equity, with ordinary chancery 
 jurisdiction, and where, therefore, it may have been deemed 
 necessary, in order to administer substantial justice, that the 
 strict principles of the common law should be modified by 
 the distinctive principles of eqmty jurisprudence ; or where, 
 as in Pennsylvania, courts ' possess the power of administering 
 the principles of equity through the medium of legal forms.' 
 With us, however, the administration of the two systems is 
 kept distinct : so that, in considering the questions before us, 
 we have been governed less by decisions in the States, to 
 which allusion has just been made, than by cases adjudicated 
 in other States of the Union, and in England, where courts 
 administer purely the principles of common law, modified 
 only, in certain instances having no relation to the subject 
 now under discussion, by the incorporation of equitable prin- 
 ciples, into the legal system. In the North Carolina case 
 before referred to,^ it was held that one whose land is over- 
 flowed by a mill-pond has a right to recover for the damages 
 suffered thereby, notwithstanding that liis ancestor, by parol, 
 expressly permitted the grantor of the defendant to erect the 
 dam, and consequently to overflow the land ; that such per- 
 mission, if set up as a grant of a perpetual right to over- 
 flow the land (which would be an incorporeal heredita- 
 ment) was void for want of a deed ; and that, if regarded as 
 a mere license or authority, it was revocable and ceased with 
 the life of the licensor. The eminent judge who delivered 
 the opinion of the court reviewed with his usual ability and 
 clearness the prominent authorities which might be sup- 
 posed to favor the defendant, and discussed the general 
 
 1 The early doctrine in New Hamp- Dodge t. McClintock, 47 id. 383 ; 
 
 shire, holding that an executed license and the same also is the case in 
 
 is not revocable, seems to be over- Maine : Pitman v. Poor, 38 Me. 237 ; 
 
 ruled by later cases. Blaisdell w. Ports- Moulton u. Taught, 41 id. 298. 
 mouth &c. K. E. Co., 61 N. H. 483 ; ^ Bridges u. Purcell, 1 D. & B. (N. 
 
 Houston V. LafEee, 46 N. H. 505; C.) 493. 
 
SEC. 11. j PAROL LEASES. 39 
 
 principles applicable to the case ; showing most satisfactorily, 
 as we think, that none of them sustained the doctrine that 
 such a license, although acted upon by the licensee, passed 
 any interest or estate in the laud of the plaintiff, or was 
 irrevocable. Unless there is distinction in principle between 
 a license to turn back water upon another's land, by means 
 of a dam below it, and a permission to overflow it by means 
 of the diversion of a stream from above (which would hardly 
 be claimed), the case just cited is strictly analogous to the 
 present. 
 
 " It results from the principles which we have thus adopted, 
 that it was the right of the plaintiff's grantor, at any time 
 during Hs ownership of the land, now belonging to the plain- 
 tiff, and even after the erection of the culvert, to revoke the 
 license under which the defendants were permitted to divert 
 the water. It follows, as a matter of necessity, that the 
 plaintiff, after his purchase, had an equal right to annul the 
 license.-' 
 
 " Much stress has been laid on the fact that Uriah Foot, in 
 connection with request that the culvert should be built, 
 and his agreement concerning it, actually cooperated and 
 assisted in its construction. Now, whether that agreement 
 would be enforced in a court of equity, on the ground of its 
 execution, we are not here called upon to determine ; but at 
 law, it cannot, existing only in parol, have any greater force, 
 or stand on liigher ground than a mere license, notwithstand- 
 ing its execution.^ If these acts of Uriah Foot were to be 
 regarded as done independently of the defendants, and the 
 erection of the culvert as his act, and not that of the defen- 
 dants, the latter might indeed successfully urge that although 
 the plaintiff might not be bound to allow the culvert to 
 remain, the defendants would be exonerated from any obli- 
 gation to remove it, and could not be treated as a trespasser 
 on account of its continuance. But the facts proved will not 
 allow us to regard the building of the culvert as the act of 
 
 1 Dempsey v. Kipp, 62 Barb. (S. written license to perpetually flow 
 
 Y.) 611. another's land is not a revocable li- 
 
 ^ Druse v. Wheeler, 22 Mich. 439 ; cense, hut an absolute sale on time, 
 
 Tanner u. Valentine, 75 HI. 624; for credit. Fitch v. Constantine &c. 
 
 Hitehins v. Shaller, 32 Mich. 496 ; Co., 44 id. 74. 
 Turner i: Stanton, 42 id. 506. But a 
 
40 STATUTE OF FEAUDS. [CHAP. I. 
 
 Uriah Foot. On the contrary, the finding shows that 'it 
 was erected and built by the defendants in the construction 
 of a railroad, under the charter ' of the principal defendants, 
 to whom, of course, Uriah Foot's services were rendered; 
 and that although the culvert was made at his request, his 
 assistance was furnished in behalf of such principal defend- 
 ants and not in his own. Indeed, if it was built ' under the 
 charter,' it must have been built by those defendants, who 
 were authorized to construct it for the accommodation of a 
 railroad ; otherwise we must adopt the idea that Uriah Foot 
 constructed it, without law or right; a supposition unwar- 
 ranted by the proof and inconsistent with the defendants' 
 claim. 
 
 " But, whatever might be the rights of parties if the land in 
 question still remained the property of Uriah Foot, the issue 
 now presented is between the defendants and a hona fde 
 purchaser of the land for a valuable consideration, without 
 any notice, actual or constructive, of any previous agreements 
 between the former owner and the railroad company. That 
 such a purchaser is not affected by such an agreement, was set- 
 tled by this court in an early case.^ To hold that such an 
 agreement runs with the land and creates an easement upon 
 it even in the hands of a hona fide purchaser, amounting to a 
 permanent encumbrance, would be not only to invade the 
 statute of frauds, but a violation of the most salutary policy 
 of our recording system, and also in such cases as that now 
 under review, of obvious principles of justice. On this point 
 we give our renewed sanction to the views of this court, as 
 expressed by Chief Justice "Williams, with his accus- 
 tomed force and clearness, in the case just quoted ; views 
 which are strongly confirmed by the case of Bridges v. Pux- 
 cell et al, ante. In the latter, the ancestor of the plaintiff had 
 given a license to the vendor of the defendant. The opinion 
 of Judge Gaston, after showing that the pretended grant, for 
 want of a deed, passed no interest in the land, and imposed 
 no charge upon it, and could not prevent the plaintiff from 
 succeeding to an unlimited and unshackled fee-simple therein, 
 thus proceeds in respect to the privilege claimed : ' Regarded 
 as a license, how does it enure to the benefit of the defend- 
 
 1 Erince v. Case, 10 Conn. 375. 
 
SEC. 12.] PAHOL LEASES, 41 
 
 ants ? If it passed as an appurtenance to the land, if partook 
 of its nature ; it was more than an authority, it was a here- 
 ditament. To hold that a permission, thus given, shall oper- 
 ate for ever for the benefit of the grantee and his assigns 
 against the grantor and his heirs, would be in effect to permit 
 a fee-simple to pass under the name of an irrevocable license.^ 
 Purchasers would never know what encumbrances were upon 
 their lands, and instead of the solemn and deliberate instru- 
 ments, which the law requires as the indispensable means of 
 transferring freeholds, valuable landed interests would be 
 made to depend wholly on the integrity, capacity, and recol- 
 lection of witnesses.' 
 
 " The defendants claim, lastly, that as the act of diverting 
 the water upon the plaintiff's land was witHn the scope of the 
 company's chartered powers, communicating the exercise of 
 the right of eminent domain, nothing remained but to com- 
 pensate the owner for the damages caused to him thereby, 
 and that this had been done by an adjustment between the 
 defendants and the owner. If the land had been lawfully 
 condemned for the purposes of the company, no objection 
 could be made to the validity of such an adjustment. But 
 the powers of the defendants were acquired under a special 
 grant, to be exercised only on special terms ; and it was 
 necessary for the company, in order that there should be such 
 a condemnation, to pursue the steps prescribed by their char- 
 ter for that purpose. Those steps were not taken, and the 
 land was not therefore subject to the powers claimed by the 
 defendants. This ground of jurisdiction therefore fails." 
 
 Sec. 12. Reasonable Notice of Revocation must be Given. — 
 A licensee under a revocable license is entitled to reasonable 
 notice of revocation and a reasonable time afterwards to 
 remove his goods. The rule of law is, that a simple license, 
 in order to be binding on the licensor, must be under seal ; 
 but if it is not, the licensee is not a trespasser until the 
 licensor revokes the license. Under a parol license the 
 licensee has a right to a reasonable time to go off the land 
 after it has been withdrawn, before he can be forcibly thrust 
 off it ; and he could bring an action if he were thrust off 
 
 1 Woodward v. Seeley, ante; Benedict v. Benedict, ante. 
 
42 STATTJTB OF FKAUDS. [CHAP. I. 
 
 before such a reasonable time had elapsed.^ But, where a 
 reasonable time has been given to the licensee to remove the 
 erections made under the license, the licensor may resume 
 the possession, and the licensee cannot enter to remove the 
 property without rendering himself liable in trespass.^ But, 
 where there is a license coupled with an interest, the licensee 
 may enter within a reasonable time after its revocation and 
 remove the property, and if resisted by the licensor, may use 
 all the force necessary to secure the removal without render- 
 ing himself liable to an action of trespass, either for the entry, 
 or for an assault.^ 
 
 Sec. 13. injunction to Restrain Interference ■with License. — 
 Where, by a memorandum endorsed on a lease, it was pro- 
 vided that the lessee should have the exclusive right of 
 sporting and killing game over the demised and adjacent 
 properties, and it was proved that the enjoyment of this 
 privilege was an essential part of the consideration for taking 
 the lease, the landlord was restrained by injunction from 
 interfering with the tenant in the exercise of the right, until 
 a lease under seal should be executed according to the agree- 
 ment. It was doubted in this case whether the court would 
 have interfered in case the agreement had been already 
 entered into by an instrument under seal.* 
 
 ■Sec. 14. Parol Agreement for Sale may Operate as License 
 to Sxcuse Trespass. — Although a deed is necessary to create 
 an easement, yet a contract for the sale of an interest in 
 lands without a note in writing may operate as a license, so 
 as to excuse the entry of a purchaser on the land, but it 
 cannot be made available in any way as a contract.^ So a 
 parol demise of land, reserving to the landlord "all the 
 hedges, trees, thorn bushes, fences, with lop and top," oper- 
 
 1 Cornish v. Stubbs, L. R. 5 C. P. B. 49 ; Wood v. Manley, 11 Ad. & El. 
 334 ; Mellor v. Watkins, L. E. 9 Q. B. 34. In Van Deusen v. Young, 29 N. 
 400. Y. 9, a tenant for life agreed to sell, 
 
 2 Druse v. Wheeler, 22 Mich. 439. and gave possession of the premises 
 8 Sterling v. Warden, 51 N. H. 217. to his vendee. It was held that though 
 * Frogley v. Lovelace, Johns, the contract could not operate as a 
 
 (Eng.) 333. contract of sale, it did operate as a 
 
 6 Carrington v. Roots, 2 M. & W. license to enter and occupy until such 
 248 ; Eufley v. Henderson, 21 L. J. Q. license was revolted. 
 
SBC. 15.] PAEOL LEASES. 43 
 
 ates as a license to enter the land for tlie purpose of cutting 
 and carrying aAvay the trees ; but not as a grant or easement.^ 
 A reservation of growing crops, standing trees, etc., in a deed 
 of lands, is a reservation of the property named, and the title 
 thereto does not pass to the grantee ; and although nothiug is 
 said as to a right to enter to cut and remove the same, yet 
 such a license is implied, and the grantor may, even by parol, 
 sell such crops or timber to another and confer upon him the 
 same right to enter and cut and take away the same, which 
 he possesses. But, if no time is fixed within which the right 
 is to be exercised, it is held that it must be exercised within 
 a reasonable time, in view of the circumstances, and whether 
 it was exercised within a reasonable time is a question for 
 the jury. If entry is made after the lapse of a reasonable 
 time, the person making the entry is liable as a trespasser, 
 but a recovery against him can only be had for the damages 
 resulting from the entry, and the value of the crops or 
 timber constitute no part of the damages.^ The actual pos- 
 session of Crown lands under a parol license from the Crown 
 entitles the party in possession to maintain trespass against 
 a wrong-doer.^ If a party take the goods of another, and 
 place them upon his own land, the owner may enter that 
 land for the purpose of retaking them, without making him- 
 self liable in trespass.* A plea of leave and license to erect 
 and maintain a wall upon a given spot is not supported by 
 proof of license to erect only.^ It is sufficient for the plain- 
 tiff in an action against a wrong-doer to allege possession, 
 but such an allegation cannot be sustained without showing 
 that the easement in respect of which the action is brought 
 is held under a legal title.^ 
 
 Sec. 15. Signature not Necessary in Case of a Deed. — It has 
 been doubted whether a lease under seal for more than three 
 years should not also be signed, but the better opinion seems 
 to be that the statute does not apply to such instruments. 
 Blackstone lays it down,^ that the statute has restored the 
 
 1 Hewitt V. Isham, 7 Exoh. 77. ^ Alexander v. Bonnin, 6 Scott, 611 ; 
 
 2 Heflin v. Bingham, 56 Ala. 566. 4 Bing. (N. C.) 799. 
 
 8 Harper v. Charlesworth, 6 D. & " Eentiman v. Smith, 4 East, 109. 
 E. 572, 4 B. & C. 574. ' " Comm." vol. u. 306. 
 
 4 Patrick v. Colerick, 3 M. & W. 483. 
 
44 STATT7TE OP FRAUDS. [CHAP. I. 
 
 old Saxon form of signing, and superadded it to sealing and 
 delivery in case of a deed. Me. Pbbston, on the other hand,i 
 treats this passage as a mistake from not attending to the 
 words of the statute, and holds it clear that no signature is 
 necessary in the case of a deed.^ In Cherry v. Heming,^ 
 RoLFB, B., said : " I am strongly inclined to think that the 
 statute does not extend to deeds, because its requirements 
 ■would be satisfied by the parties putting their mark to the 
 writing. The object of the statute was to prevent matters 
 of importance from resting on the frail testimony of memory 
 alone. Before the Norman time, signature rendered the 
 instrument authentic. Sealing was introduced because the 
 people in general could not write. Then there arose a dis- 
 tiaction between what was sealed and what was not sealed, 
 and that went on until society became more advanced, when 
 the statute ultimately said that certain instruments must be 
 authenticated by signature. That means that such instru- 
 ments are not to rest on parol testimony only, and it was 
 not intended to touch those which were already authenticated 
 by a ceremony of a higher nature than a signature or a mark," 
 and Aldeeson, B., and Parke, B., expressed opinions to 
 the same effect. 
 
 Sec. 16. Appointment of Agent. — An agent to contract for 
 the sale of land under the second section need not be au- 
 thorized by writing.* In South Carolina,^ under the statute, 
 it is held that the authority of the agent must be proved in 
 writing, and that if the instrument is signed by an agent, 
 even though the principal is present and assents thereto, that 
 it is inoperative, and a similar doctrine is held in Illinois.^ 
 But in England and in most of the States of tliis country, 
 except where the statute specially provides that the author- 
 
 1 Shep. Touch, fol. 57, n. 24. Roekford &c. E. E. Co. v. Shunick, 
 
 2 Per Denman, J., in Cooch v. Good- 65 111. 223, contra. 
 
 man, 2 G. & D. 159; 2 Q.B. 580; Ave- s 4 Ex. 631. See also Taunton v. 
 
 line V. Whisson, 4 M. & Gr. 801 ; Ir- Pepler, 6 Madd. 166. 
 
 gin V. Thompson, 4 Bibh (Ky.) 295; * Clinan v. Cooke, 1 Sch. & Lef. 31. 
 
 Gardner v. Gardner, 5 Cush. (Mass.) ^ "Wallace v. McCullough, 1 Rich 
 
 483; Parks v. Hazlerig, 7 Blackf. (S. C.) Eq. 426. 
 
 (Ind.) 536. But see Wallace v. Mc- » Roekford &c. R. E. Co. u. Shun- 
 
 CuUough, 1 Rich. (S. C.) Eq. 426; ick, 65 111. 233. But the statute in 
 
 Illinois expressly so provides. 
 
SEC. 17.] PAEOL LEASES. 45 
 
 ity shall be in writing,^ a lease or other instrument under 
 seal signed by an agent in the presence of the principal is 
 held to be the act of the principal,^ and a similar doctrine 
 has been held in Kentuoky,^ and it would seem that this is 
 generally the rule, particularly where, as should always be 
 done, the agent signed the name of the principal instead of 
 his own,* the ground upon which tliis note rests being that 
 the execution thereof is the act of the principal and not of 
 the attorney.^ But where a deed is executed by an agent in 
 the name of the principal when he is not present, it is held 
 to be invalid, where the agent acts only under oral author- 
 ity.6 
 
 Sec. 17. Term Commences from Time of Agreement. — Such 
 lease for three years, of land, as wUl be good under the sec- 
 ond section, must be for three years, to be computed from 
 the time of the agreement,'^ and a lease, to commence at a 
 future day, mil therefore not be within the statute.^ But 
 if by the terms of the lease the term is to commence from a 
 future day, it is within the statute, and void.^ But in New 
 York,!" Colorado,^! and Indiana,^^ such leases are held to vest 
 a present interest, and therefore not to be within the statute. 
 Where a parol lease is for a longer term than that permitted 
 by the statute, the fact that the rent is paid in advance for 
 the whole term does not take the lease out of the statute. ^^ 
 In Inman v. Stamp,^* Dajmpiee, J., said the practice had been 
 
 1 As in Alabama, Arkansas, Cali- ' Eawlins v. Turner, 1 Ld. Raym. 
 fomia, Dakota, Kansas, Michigan, 736. 
 
 Missouri, Montana, Nebraska, Ne- ' Eawlins o. Turner, 1 Ld. Raym. 
 
 vada, New Jersey, New York, Ohio, 736 ; Ryley v. Hicks, 1 Str. 651 ; Tress 
 
 Oregon, Pennsylvania, Utah, Wiscon- v. Savage, 4 E. & B. 36; 18 Jur. 680; 
 
 sin. New Hampshire, and Illinois. 23 L. J. Q. B. 339; Baker v. Reynolds, 
 
 2 Gardner v. Gardner, 5 CusK. 2 Sel. N. P. 13th ed. 759. 
 
 (Mass.) 483; Rex v. Longnor, 4 B. & ^ Inman v. Stamp, 1 Starkie, 12; 
 
 Aid. 647 ; Ball v. Dunsterville, 4 T. R. Delano v. Montague, 4 Gush. (Mass.) 
 
 313. • 42; Croswellw. Crane, 7Barb. (N.Y.) 
 
 3 Irvin V. Thompson, 4 Bibb (Ky.) 191. 
 
 295. 1° Besar v. Plues, 64 N. Y. 518; 
 
 < Elwell V. Shaw, 16 Mass. 42; Young v. Duke, 5 id. 463; Trull v. 
 
 Combe's Case, 9 Coke, 75 a. Granger, 8 id. 115. 
 
 5 Mutual Benefit Ins. Co. v. Brown, " Sears v. Smith, 3 Col. 287. 
 30 N. J. Eq. 193 ; Frost v. Deering, 12 Huffman v. Stark, 31 Ind. 474. 
 21 Me. 156, 18 Brockway v. Tliomas, 36 Ark. 578. 
 
 Bums a. Lynde, 6 Allen (Mass.). " B. R. Trin. 55 Geo. III. 
 305 ; Upton v. Archer, 41 Cal. 85. 
 
46 STATUTE OP FEAUDS. [CHAP. I. 
 
 with tlie foregoing case of Ryley v. Hicks, although he rather 
 inclined to think that the second section of the statute, taken 
 with section four, was confined to leases executed by posses- 
 sion on which two-thirds of the improved rent had been 
 paid.^ 
 
 In England, by the Act 7 & 8 Vict. c. 76, which was only in 
 force from the 31st December, 1844, to the 29th September, 
 1845, it was enacted that no lease in writing of any freehold, 
 aopyhold, or leasehold land should be valid unless the same 
 should be made by deed, but that any agreement in writing 
 to let any such lands should be valid and take effect as an 
 agreement to execute a lease.^ By the Eeal Property Amend- 
 ment Act, 1845^ (which is retrospective in its operation),* 
 the above act was repealed, and it was enacted * that a lease 
 required by law to be in writing, of any tenements or here- 
 ditaments which might by law have been created without 
 writing, made after the 1st of October, 1845, shall also be 
 void at law unless made by deed. The efPect of a void 
 demise under this statute is the same as that of a void 
 demise under the statute of frauds, notwithstanding that 
 the words of the statute are that it "shall be void at 
 law." « 
 
 Sec. 18. statute not to Apply to Tolls nor to Equitable Es- 
 tates. — This statute does not apply to agreements for the 
 lease of tolls of turnpike roads made under the statute,^ as 
 these are valid if signed by the trustees, their clerk, or 
 treasurer, notwithstanding they are not under seal.^ Nor 
 
 1 Sel. N. p. 13th ed. p. 759, n. 7. If " See cases decided under this Act : 
 
 a parol lease is made to hold from Burton v. Reevell, 16 M. & "W. 307; 
 
 year to year during the pleasure of 16 L. J. Ex. 85; Doe o. MofEatt, 15 
 
 the parties, this is adjudged to be a Q. B. 257 ; 19 L. J. Q. B. 438 ; Bird 
 
 lease for only one year certain, and v. Defonvielle, 2 C. & K. 415 ; Arden 
 
 every subsequent year is a new spring- v. Sullivan, 14 Q. B. 832. 
 
 ing interest arising upon the first con- ^ 8 & 9 Vict. c. 106. 
 
 tract, and parcel of it ; so that if the ' Upton v. Townsend, 17 C. B. 50. 
 
 tenant should occupy ten years, still ' § 3. 
 
 it is prospectively a lease for a year « Xress v. Savage, 4 E. & B. 36 ; 18 
 
 certain, and therefore good within Jur. 680 ; 23 L. J. Q. B. 339. 
 
 the execution of the statute ; though, ' 3 Geo. IV. c. 126, §§ 55, 57. 
 
 as to the time past, it is considered ^ Shepherd v. Hodsman, 18 Q. B. 
 
 as one entire and vahd lease for so 316 ; Markham v. Stanford, 14 C. B. 
 
 many years as the tenant has enjoyed (N. S.) 380. 
 it. Taylor on Evidence, 884; Rob- 
 erts on Frauds, 241-244. 
 
SEC. 20.] PABOL LEASES. 47 
 
 does tlie statute affect merely equitable estates ; it only refers 
 to legal estates, and it is therefore necessary, in order to pass 
 the legal estate on a transfer of mortgaged premises, that the 
 document should be under seal, but where the equitable 
 estate is to be dealt with, such an instrument of transfer 
 need not be under seal.^ 
 
 Sec. 19. Entry under Void Lease. — If a party enters into 
 possession under a lease, Toid by reason of the statute, or 
 un^er an agreement for a lease, he is, in the first instance, 
 only tenant at will i^ and even if he has expended money in 
 the improvement of the premises, that will not give Mm a 
 term to hold till he is indemnified ; ^ but if he subsequently 
 pays rent under the agreement, he becomes tenant from year 
 to year.* The payment of rent must be understood to mean 
 a payment with reference to a yearly holding, such as 
 payment by the quarter or some other aliquot part of a 
 year.^ 
 
 Sec. 20. How a Tenancy at Will may be Created. — All 
 
 leases for an uncertain period are prima facie leases at will,^ 
 and a reservation of rent is not essential to uphold this spe- 
 cies of tenancy.'' Consequently a person who occupies land 
 
 1 Stamers v. Preston, 9 Ir. C. L. E. v. Shay, 60 Cal. 508; Koe v. Lewis, 
 355. 2 "W. Bl. 1173; Lamed v. Hudson, 
 
 2 Goodtitle v. Herbert, 4 T. R. 680 ; 60 N. Y. 102 ; Richardson v. Lang- 
 Clayton V. Blakey, 8 T. R. 3 ; 2 Sm. ridge, 4 Taunt. 128. 
 
 L. C. 7th ed. 102 ; Chapman v. Towner, ' Rex v. Jobling, 2 R. C. & M. 28 ; 
 
 6 M. & "W. 100 ; Doidge v. Bowers, Rex v. Collett, R. & R. C. C. 498. An 
 
 2 M. & W. 365 ; Berrey v. Lindley, entry under permission of the owner 
 
 3 M. & Gr. 498 ; 4 s. c. (N. R.) 61 ; to take care of the premises : Jones v. 
 Doe V. Wood, 14 M. & W. 687. Shay, ante ; Herrell v. Sizeland, 81 111. 
 
 ^ Richardson v. Langridge, 4 Taunt. 457 ; is a tenant at will. In Humphries 
 
 128. V. Humphries, 3 Ired. (N. C.) L. 362, a 
 
 * Doe V. Browne, 8 East, 165; Doe person who was let into possession 
 
 V. Amey, 12 Ad. & El. 476 ; Berry v. without any agreement for rent, but 
 
 Lindley, 3 M. & Gr. 498 ; Tooker v. with the understanding that he should 
 
 Smith, 1 H. & N. 735 ; Doe v. Moffatt, leave whenever required, was held to 
 
 15 Q. B. 257. be strictly a tenant at will, and en- 
 
 ' Braythwayte v. Hitchcock, 10 M. titled to the statutory notice to quit. 
 
 & W. 497 ; Doe v. "Wood, 14 ib. 087 ; In Whoou o. Drizzle, 3 Dev. (N. C.) 
 
 see also The Marquis of Camden v. L. 417, the defendant went into pos- 
 
 Batterbury, 5 C. B. (N. S.) 808; 7 session under an agreement that he 
 
 C. B. (N. S.) 864; Doe v. Watts, 7 should cultivate the land during his 
 
 T. R. 85; Doe v. Cox, 17 L. J. Q. B. life, or as long as he pleased, but 
 
 3 ; and see Doe v. Davies, 7 Exch. 89. without the power to sell his right, 
 
 6 Rich V. Bolton, 46 Vt. 84 ; Jack- was held to create only a tenancy at 
 
 son V. Brodt, 2 Cai. (N. Y.) 169 ; Jones will. 
 
48 
 
 STATUTE OP FRAUDS. 
 
 [chap. I. 
 
 rent free, or by the naked pfermission of the owner ^ and, as 
 is held in some of the States, as a mere squatter, disclaiming 
 title in himself,^ or a person who holds under a void lease or 
 deed,3 or under a contract to purchase,* or under a lease of 
 premises till they are sold,^ or a person who remains in the 
 
 1 Hull V. "Wood, 14 M. & W. 682 ; 
 Larued o. Hudson, 60 N. Y. 502; 
 Williams v. Devian, 31 Mo. IS ; Jones 
 V. Shay, ante ; Doe o. Gardner, 12 C. 
 B. 319 ; and the fact that a person 
 pays rent does not change the char- 
 acter of his tenancy, unless he pays it 
 with reference to a yearly holding. Bars- 
 tow V. Cox, 11 Q. B. 122 ; Eich v. Bol- 
 ton, ante ; Braythwayte v. Hitchcock, 
 10 M. & W. 497 ; Hull v. Wood, ante. 
 A person who occupies as a servant, 
 under the agreement to pay monthly 
 rent, is a mere tenant at will, although 
 the contract is for a year. McGee v. 
 Gibson, 1 B. Mon. (Ivy.) 105. 
 
 2 Stamper v. Griffin, 20 Ga. 312; 
 Gay V. Mitchell, 34 id. 159 ; Smith v. 
 Houston, 16 Ala. Ill; Wearer!). Jones, 
 24 id. 420. 
 
 8 Ezelle V. Parker, 41 Miss. 20; 
 Cromelin v. Thiess, 31 Ala. 412 ; Gal- 
 loway V. Herbert, 4 T. E. 680 ; War- 
 ren V. Eeamside, 1 Wils. 1 76 ; Medina 
 V. Poison, Holt. 47. In Tennessee, 
 where a parol lease for two years is 
 Toid, a tenant entering under it is 
 held to be a tenant at will : Duke v. 
 Harper, 6 Yerg. (Tenn.) 280; and in 
 Maine, a parol lease at an annual rent 
 creates a tenancy at will. Wethers 
 V. Larabee, 48 Me. 570 ; Cole on Eject- 
 ment, 456 1 but he holds, subject to 
 the terms of the lease in all other 
 respects, except as to duration of - the 
 term. Eiggs v. Bell, 5 T. E. 471 ; Tress 
 V. Savage, 4 E. & B. 36 ; Eichardson 
 V. Gifford, 1 Ad. & El. 52 ; Penning- 
 ton V. Taniere, 12 Q. B. 998 ; Lee i'. 
 Smith, 9 Exch. 662 ; Arden v. Sullivan, 
 14 Q. B. 832 ; but upon payment of 
 rent, he becomes a tenant from year 
 to year, under the terms of the void 
 lease so far as they are applicable to, 
 and not inconsistent with, a yearly 
 tenancy. People v. Eickert, 8 Cow. 
 (N. Y.) 226; Strong v. Crosby, 21 
 
 Conn. 398; Schuyler v. Leggett, 2 
 Cow. (N. Y.) 600. But see Jackson 
 V. Eogers, 1 John. Cas. (K. Y.) 33, 
 where a tenant who went into posses- 
 sion under a void lease was held to 
 be a mere trespasser, and not entitled 
 under the statute to a notice to quit. 
 Goodtitle o. Herbert, 4 T. E. 680; 
 Denn v Eearnside, 1 Wils. 176. 
 
 * Patterson v. Stoddard, 47 Me. 
 355; Jones t. Jones, 2 Eich. (S. C.) 
 542; Manchester v. Doddridge, 3 Q. 
 B. 30 ; Stanway v. Eock, 4 M. & G. 
 30; Howard v. Shaw, 8 M. & W. 118; 
 Tucker v. Adams, 52 Ala. 254; Eight 
 V. Beard, 13 East, 210 ; Carpenter v. 
 United States, 6 Ct. of CI. (U. S.) 157 ; . 
 17 Wall. (N. S.) 489; Harris v. Frink, 
 2Lans. (N.Y.) 35; 49N.Y. 24; Kirtland 
 V. Ponsett, 2 Taunt. 145; Ball v. CuUi- 
 more, 5 Trwy. 753 ; Hew v. Jones, 13 
 M. & W. 12 ; Doe v. Jackson, 5 B. & C. 
 448; Tomes v. Chamberlain, 5 M. & 
 W. 14. 
 
 ^ Braythwayte v. Hitchcock, 10 M. 
 &W. 494; Emmons v. Scudder, 115 
 Mass. 367; Jackson v. Kingsley, 17 
 John. (N. Y.) 158; Dunn ^. Trustees, 
 &c., 39 111. 578 ; Anderson v. Prindle, 
 26 Wend. (N. Y.) 616; Hollingsworth 
 u. Stennett, 2 Esp. 717. In Anderson 
 V. Prindle, 23 Wend. (N. Y.) 616, it was 
 held that a person who enters under a 
 parol agreement for a lease, the rent 
 to be paid monthly, and refuses to ac- 
 cept the lease, becomes a tenant at will 
 or by sufferance, and is liable to be 
 ejected immediately; hut that, if the 
 landlord accepts rent from him, he 
 becomes entitled, under the statute, to 
 notice to quit. If the parol agree- 
 ment was for a term exceeding one 
 year, and therefore void under the 
 statute of frauds, it was held that the 
 tenancy created by the acceptance of 
 rent was from month to month, and 
 that the tenant would be entitled to a 
 
SEC. 20.] PAKOL I.EASES. 49 
 
 possession of premises after they are sold upon execution,i or 
 a person who occupies under an agreement that he may remain 
 as long as he is in the owner's employ,^ or until a certain con- 
 tingency happens, are tenants at will. Thus, in a Massachu- 
 setts case,* the tenant went into possession under an agreement 
 that he might occupy " as long as he kept a good school " ; and 
 the court held that this was a tenancy at will, with a condi- 
 tional limitation not requiring entry or notice to terminate 
 it, and that evidence that the tenant was deficient as a teacher 
 in literary and scientific attainments was competent evidence 
 of the happening of the contingency ; but that if the contin- 
 gency did not happen, his right of occupancy continued, and 
 the landlord had no right to expel him. Indeed, it may be 
 stated generally, as the rule, that in all cases where a person 
 enters into the possession of the premises of another by his 
 permission, no definite term of occupancy binding upon the 
 parties being agreed upon, he is a mere tenant at will, and 
 this, too, irrespective of the question whether he occupies 
 rent free or pays rent therefor.* A mere permission and 
 occupancy under it is sufficient to create this species of ten- 
 ancy,* and it may be created by express terms, or may arise 
 by construction or implication of law. Thus, a lease of 
 premises, whether in writing or by parol, " so long as the par- 
 ties please," or at the lessor's "will and pleasure," is a lease 
 at will ; ^ so a lease of premises reserving the new house, when- 
 
 month-'s notice to quit. See also S. C. when I please, and you shall pay 
 
 19 Wend. 391 ; Hammerton v. Stead, nothing for it," followed by occupancy 
 
 3 B. & C. 483 ; Reynaut v. Porter, 7 under it, was held to create a tenancy 
 
 Bing. 451. at will, and the relation of tenant so 
 
 ^ Lee V. Hernandez, 10 Tex. 137. strictly, that by residence under it for 
 
 2 McGee v. Gibson, 1 B. Mon. (Ky.) forty days, the tenant acquired a set- 
 
 105. tlement. In Groves v. Groves, 10 Q. 
 
 8 Ashley K.Warren, 11 Gray (Mass.) B. 486, the defendant occupied the 
 
 43. , premises in question by permission of 
 
 * In Herrell v. Sizeland, 81 111. 457, the owner or lessee, for about forty- 
 the defendant and his wife moved into four years, paying no rent therefor, 
 a house by the owner's permission. He was held to have occupied as a 
 and remained there, rent free, and tenant at will, and that he was pro- 
 took care of him until his death, eluded from setting up an adverse 
 They were held to be tenants at will, title in himself. 
 
 In Rex V. Fillougby, 1 T. R. 458, it ^ See cases cited in the last note ; 
 
 was held that a person occupying, also Hull v. Wood, 14 M. & W. 682. 
 under a permission, given in those " Richardson d. Langridge, 4 Taunt, 
 
 words, "I give you a lease to enjoy 128; Bartow v. Cox, 11 Q. B. 122. 
 as long as I please, and to take again 
 
50 
 
 STATUTE OF FRAUDS. 
 
 [chap. I. 
 
 ever the lessor chooses to occupy it, and at all other times to 
 be used by the lessee, constitutes the lessee a tenant at wOl 
 of such house.i A tenant who holds over pending a treaty 
 for a renewal of the lease is a tenant at will, and if the 
 renewal is not effected, may be ejected without demand or 
 notice ; ^ but in some cases, under such circumstances, the 
 person holding over has been held a tenant at sufferance.^ A 
 tenant holding over after the expiration of his term is a mere 
 tenant at will, or by sufferance ; but if the lessor accepts rent 
 from him, his tenancy is thereby at once converted into a 
 tenancy from year to year, upon the terms of the former 
 demise, so far as they are applicable to his new relation.* 
 
 1 Cudlip V. Randall, 3 Salk. 156. 
 
 2 Hollingsworth v. Stennett, 2 Esp. 
 
 717. 
 
 s Simpkin v. Ashurst, 1 C. M. & E. 
 261. 
 
 * Jackson v. McLeod, 12 John. 
 (N. Y,) 182; Wilde v. Cantillon, 1 
 John. Cas. (N. Y.) 123; Jackson v. 
 Parkhurst, 6 John. (N. Y.) 123; Clay- 
 ton V. Blakeley, 8 T. R. 3. This ques- 
 tion should not be lightly passed over, 
 as it is one that has inyolved consid- 
 erable conflict, and that even now is 
 not satisfactorily settled in all the 
 States. The difference, however, in 
 the decisions of the courts, is refera- 
 ble to the difference in the language 
 of the section of the statute of frauds 
 relative to parol demise. Under the 
 statute 29 Car. 2, c. 393, it is provided 
 that all leases by parol, for more than 
 three years, shall have the effect of 
 leases at will only; and in England, 
 under this statute, it is held that, not- 
 withstanding this statute, a person 
 holding under a parol lease for a, 
 longer term, as in one case under a 
 parol lease for seven years, Rlgg v. 
 Bell, 6 T. R. 471 ; 2 Smith's Leading 
 Cas. 72, and paying rent, although 
 not deriving an interest or estate 
 commensurate in duration with that 
 fixed in the lease, is nevertheless con- 
 sidered as holding upon all the terms of 
 the agreement so far as they are appli- 
 cable to a tenancy from year to year. 
 Richardson v. Gifford, 1 Ad. & El. 52 ; 
 Beale v, Sanders, 3 Bing. (N. C.) 850; 
 
 and in the cases last mentioned the 
 tenant was held bound by the cove- 
 nants to repair. In the case last cited 
 the defendants had for several years 
 occupied and paid rent, as assignees, 
 under a void lease. The lease con- 
 tained a warrant on the part of the 
 lessees to keep the buildings and 
 premises in repair. The court held 
 that the assignees were liable to re- 
 pair to the end of the term, but that 
 their liability to repair under this im- 
 plied assumpsit, ceased vrith the ter- 
 mination of the term fixed in the 
 lease. " Although the lease was void," 
 said Park, J., "yet, as the defendants 
 held the premises to the end of the 
 term, and continued to pay the rent, 
 they are liable to all the stipulations 
 contained in the lease, in the same 
 way as a tenant who holds upon the 
 expiration of a void lease." This doc- 
 trine was also held in Pistor v. Cator, 
 9 M. & W. 315, in which the tenant 
 entered into possession under an agree- 
 ment for a lease as soon as the lord's 
 license could be obtained, in which he 
 was to covenant to repair. No lease 
 was ever obtained, and no lease was 
 ever made, yet he was held liable to 
 repair so long as he occupied. In this 
 case, however, it should be stated that 
 the tenant occupied for the whole term 
 agreed upon, and Abingek, C. B., says : 
 " The defendant having occupied for 
 the whole of the term agreed upon, 
 and having had the full benefit which 
 he could have enjoyed under the lease. 
 
SEC. 20.] 
 
 PAROL LEASES. 
 
 51 
 
 In order to create a tenancy for an uncertain period into 
 a tenancy from year to year there must be a reservation 
 
 he cannot now say that the covenants 
 are not binding, because the lease was 
 not granted. In all these cases, the 
 tenant had the benefit of the full 
 term. If the landlord had evicted 
 him before the full term expired, as 
 he might have done, by giving proper 
 notice to quit, a different question 
 would have been presented, and possi- 
 bly with II different result. In the 
 case of such tenancies, the landlord 
 may put an end to them at any time 
 by notice to quit of the usual length. 
 Chapman v. Towner, 6 M. & W. 100, 
 but in any event it is put an end to 
 by the determination of the term, 
 without any notice to quit, and this is 
 one of the peculiarities of this species 
 of tenancy from year to year. Tilt v. 
 Stratton, 4 Bing. 446; Berney v. 
 Lindley, 3 M. & Gr. 511. The doc- 
 trine of these cases as to the occu- 
 pancy of a tenant, under a void lease 
 being subject to the terms of the 
 lease so far as they are applicable to 
 the relation, is generally accepted by 
 our courts. Lockwood v. Lockwood, 
 22 Conn. 425 ; Strong v. Crosly, 21 id. 
 398; Taggard v. Roosevelt, 2 E. D. S. 
 (N. Y. C. P.) 100; People v. Rickert, 
 8 Cow. (N. Y.) 227; Creech v. Crock- 
 ett, 5 Cush. (Mass.) 133; Hollis o. 
 Pool, 3 Met. (Mass.) 350; Schuyler v. 
 Leggett, 2 Cow. (N. Y.) 660; Edwards 
 V. Clemons, 24 "Wend. (N. Y.) 480; 
 Prindle v. Anderson, 23 id. 616. But 
 upon the point, that a tenant under a 
 lease void under the statute of frauds, 
 becomes a tenant from year to year 
 upon payment of rent, there is a great 
 diversity of doctrine, growing out of 
 the difference in the language of the 
 statute. In Massachusetts in several 
 cases under the statute it is held that 
 nothing more than a tenancy at will 
 exists under parol leases, either for a 
 certain or uncertain term, and that 
 this tenancy cannot be enlarged into a 
 tenancy from year to yeai^by entry 
 and payment of rent. Ellis v. Paige, 
 1 Pick. (Ma^s.) 45; Hollis v. Pool, 3 
 
 Met. (Mass.) 161 ; Kelly v. "Waite, 12 
 id. 300 ; Bingham v. Sprague, 10 Pick. 
 (Mass.) 102; and a similar doctrine, 
 under a similar statute, has been 
 held in Maine. Davis v. Thomp- 
 son, 13 Me. 214; Withers v. Lara^ 
 bee, 48 id. 570, and in New Hamp- 
 shire Whitney v. Swett, 12 id. 10, and 
 in the latter State it is held that a 
 tenancy shown by written receipts for 
 rent, to be from year to year, or month 
 to month, is but a lease at will. 
 Whitney v. Swett, ante, and a similar 
 doctrine is intimated in Cromelin v. 
 Theis, 31 Ala. 411. But in most of 
 the States the English doctrine pre- 
 vails. Hull f. Wadsworth, 28 Vt. 10; 
 Prindle v. Anderson, 19 Wend. (N. Y.) 
 391, aff'd 23 id. 616 ; Jaqkson i-.Wilsey, 
 9 John. (N. Y.) 267 ; Ridgeley v. Still- 
 well, 28 Miss. 400 ; McDowell v. Simp- 
 son, 3 Watts (Penn.) 135 ; Pugsley v. 
 Aiken, 11 N.Y. 494; Porter v. Gordon, 
 5Yerg. (Tenn.) 100; Drake u. Newton, 
 3 N. J. L. Ill, and unless the language 
 of the statute is such as to prevent 
 such a construction, it would seem to 
 be the better doctrine that, while in the 
 first instance such holdings are merely 
 as tenants at will, yet the estate is 
 susceptible of being enlarged into a 
 tenancy from year to year, and that 
 this is done, whenever a yearly rent is 
 reserved in the lease, when the tenant 
 pays, and the landlord accepts the 
 rent. Silsby v. AUen, 43 Vt. 172. In 
 Morris i.. Niles, 12 Abb. Pr. (N. Y.) 
 103, it was held that payment of a 
 quarter's rent is evidence of a yearly 
 tenancy at that rate. It seems that 
 actual payment of the rent is not nec- 
 essary, but in one case an admission 
 by the tenant of a half year's rent in 
 an account of the landlord was held 
 suflBcient. Cox v. Burt, 5 Bing. 185 ; 
 GosELEK, J., before whom the case 
 was tried at the assizes, saying, " The 
 admission was equivalent to the pay- 
 ment of so much rent, and that the 
 plaintiff thereby became tenant from 
 year to year." See for English cases 
 
52 STATUTE OF rEATJDS. [CHAP. I. 
 
 of annual rent, and unless there is such a reservation, the 
 tenancy is prima facie only a tenancy at will.^ Thus, 
 in an English case,^ the landlord let a shed to be used as 
 a stable, for the dung that was made therein, as compensa- 
 tion. No definite term was agreed upon, and the court held 
 that the tenancy was merely one at will, because there was 
 no reservation of rent referable to a year or any aliquot part 
 thereof. And it seems that an impUed obligation to pay 
 rent is not enough to convert a tenancy at will into a 
 tenancy from year to year. Thus in a Vermont case,^ the 
 defendant, by the parol permission of the plaintiff, went into 
 possession of certain premises as tenant, without any agree- 
 ment as to the terms of holding or the payment of rent, and 
 continued in possession about fourteen years. He erected a 
 barn on the premises and repaired the house. The plaintiff 
 tried to settle with him, but could get nothing from him 
 beyond the repairs, and it appeared that he refused to pay 
 rent. The plaintiff brought an action to recover the posses- 
 sion of the premises, giving no notice to quit. The defendant 
 resisted the action upon the ground that his tenancy had 
 ripened into a tenancy from year to year, and consequently 
 that he was entitled to six months' notice to quit. But the 
 court held that the tenancy was merely one at will, because 
 
 holding that a tenant under a, void 12 Q. B. 998. But, as stated elsewhere, 
 
 lease is a tenant from year to year, p. , note , this is only an inference 
 
 Tress c. Savage, 4 E. & B. 36 ; Doe v. of law that cannot be raised against 
 
 Calling, T. C. P. 933 ; Lee v. Smith, 9 the intention of the parties clearly ex- 
 
 Exchq. 662; Davenish v. Mofiatt, 15 pressed, and it seems that it cannot 
 
 Q. B. 257. Holding that a similar arise where the tenant fails to comply 
 
 result ensues from an entry under an with conditions precedent established 
 
 agreement for a lease, Bolton v. Tom- either by contract, usage, or law. Thus, 
 
 lin, 5 Ad. & El. 856 ; Doe v. Smith, 1 in an Iowa case, Dubuque v. Miller, 
 
 Man. & R. 137 ; Mann v. Lovejoy, Ky. 11 Iowa, 583, the tenant of a market- 
 
 & Moo. 355 ; Bennett v. Ireland, E. B. stall, under lease for one year, from 
 
 & E. 326 ; Knight v. Bennett, 3 Bing. the city, at the close of the lease, 
 
 361 ; Chapman v. Towner, 6 M. & W. held over without complying with cer- 
 
 100 ; Cox V. Burt, 5 Bing. 185 ; Brayth- tain terms as to the payment of rents 
 
 wayte v. Hitchcock, 10 M. & W. 494 ; made by the city for such second 
 
 Doe V. Amey, 12 Ad. & El. 476 ; al- year, and the court held that his ten- 
 
 though the agreement is void, Knight ancy was only at wUl. 
 V. Bennett, ante ; also that it arises i Roe v. Lewis, 2 "W. Bl. 1173 ; 
 
 from implication of law by payment Chamberlain v. Dunham, 45 Vt. 50. 
 of yearly rent. Braithwaite ». Hitch- ^ Richardson «. Langridge, 4 Taunt, 
 
 cock, ante; Hull v. Wood, 14 M. & 128. 
 
 W. 682 ; Tress v. Savage, ante ; Dav- ' Rich v. Bolton, 46 Vt. 84. 
 
 enish v. MofEatt, ante ; Doe v. Taniere, 
 
SEC. 20.] PABOL LEASES. 58 
 
 it lacked the essential element of annual rent, and that the 
 fact that the repairs upon the premises were to be allowed 
 upon the rent did not amount to a yearly payment of rent, 
 but were merely payments in gross for the whole occupancy. 
 
 In Vermont, under the statute, a parol lease, with a stipu- 
 lation to pay an annual rent, is an " estate at will " only, but 
 it has been held in several cases that the character of the 
 tenancy may be changed, and become one from year to year 
 by subsequent acts of the parties ; as, by entry into posses- 
 sion by the tenant, and a payment by him, and an acceptance 
 by the landlord of the rent stipulated to be paid, and con- 
 tinuing in possession beyond the first year,i and this change 
 is not wrmiffht by the length of time that the tenant holds and 
 pays rent, but hy the fact that he enters and holds under a 
 stipulation to pay annual rent, and pays accordingly.^ It has 
 been held that an entry upon, and a continuance in, posses- 
 sion of premises for several years under a parol agreement to 
 support the owner, creates a tenancy from year to year, 
 because the support furnished is treated as in the nature of 
 yearly rent.^ 
 
 It may be said that prima facie leases, indefinite as to the 
 term, merely create a tenancy at will ; and only a reservation 
 of annual rent converts them into leases from year to year.* 
 It is not essential that there should be stipulation for the 
 payment of rent in money, or of a certain amount, but there 
 should be a reservation of some benefit or advantage that 
 stands as yearly rent.^ A lease, indefinite as to terms, but 
 reserving an annual rent payable quarterly, is held in Penn- 
 sylvania to be a lease from year to year, and cannot be 
 terminated except by regular notice to quit, and, if such 
 notice is not given, and if the tenant commences a new year 
 without any notice to quit having been given, the landlord 
 cannot put him out until the end of the next year ; but for 
 the second year the tenant must pay according to the terms 
 of the lease,^ and the courts latterly are inclined to construe 
 
 1 Barlow v. 'Wamwright, 22 Vt. 88 ; Lewis, 2 W. Bl. 1173 ; Jackson v. 
 SUsby V. Allen, 43 Vt. 172; Hull v. Brodt, 2 Cai. (N. Y.) 169. 
 Wadsworth, 28 Vt. 410. ^ Biohardson «. Langridge, 4 Taunt. 
 
 2 Silsby V. Allen, 43 Vt. 172. 128. 
 
 ' Hanehett v. Whitney, 1 Vt. 311. ^ Lesley o. Bandolph, 4 Bawle 
 
 4 Bich V. Bolton, 46 Vt. 84; Eoe v. (Penn.) 123. 
 
54 
 
 STATUTE OF FEAUDS. 
 
 [chap. I. 
 
 all leases at will at an annual rent as leases from year to 
 year.i But when tlie lease in terms creates only a tenancy 
 at will, the fact that rent is reserved and paid in pursuance 
 of such reservation does not change the character of the 
 tenancy. The intention of the parties, if clearly expressed, 
 will control. Thus, where a tenant entered under an agree- 
 ment " to become tenant at the will and pleasure of " the 
 landlord, "and at and after the rate of twenty-five pounds 
 per annum, payable quarterly," the tenancy was held to be 
 at will, and not from year to year, Lord Dbnman, C. J., 
 said : " The courts are desirous to presume a tenancy from 
 year to year where parties do not express a different intention, 
 but here they have expressed it." ^ In another case,^ it was 
 
 1 Pople V. Garland, 4 You. & C. 
 394. In many of the States all parol 
 leases merely create a tenancy at will, 
 as in Massachusetts, Maine, Yermont, 
 etc. 
 
 2 Bartow v. Cox, 11 Q. B. 122. 
 The reseryation of yearly rent is not 
 inconsistent with a tenancy at will. 
 Co. Litt. 556 ; Walker o. Giles, 6 C. 
 B. 662. And where the terms of the 
 lease are such as to show a clear in- 
 tention to create a tenancy at will, 
 the reseryation and payment of yearly 
 rent, and an occupancy under it for a 
 period of time, however long, will not 
 change its character. Dixie v. Davis, 
 7 Exchq. 89. The English courts are 
 inclined to hold all tenancies for an 
 indeterminate period, except where 
 otherwise clearly provided, tenancies 
 from year to year, where there is a 
 reservation of annual rent, and even 
 in some cases they have so held where 
 there was no such reservation, but 
 rent had been so paid. Parker v. 
 Walker, 1 Wils. 25. And a similar 
 doctrine was held in .Jackson v. Bryan, 
 1 John. (N. Y.) 323, but this is only 
 the case where there is nothing to 
 indicate a contrary intention. When 
 it is clearly the intention of the par- 
 ties to create only an estate at will, 
 their intention will be upheld, not- 
 withstanding the reservation of an 
 annual rent : Anderson v. Midland 
 
 R. R. Co., 30 L. J. Q. B. 94 ; Stedman 
 V. Mcintosh, 4 Ired. (N. C.) L. 291; 
 Humphries v. Humphries, 3 id. 363. 
 In a Massachusetts case it was held 
 that a written lease of a. house at a 
 certain rent per annum, payable "in 
 monthly payments, otherwise pro 
 rata," for a term to begin "when 
 said house is suitable to be occupied " 
 by the lessee, and undefined in dura- 
 tion, except by a stipulation that if, 
 after two years from the time when 
 the lessee should move into the house, 
 the lessor should wish to live there, 
 he might do, so, and the lessee might 
 then retain, if he should desire, certain 
 rooms "for such a time as may be 
 agreeable to us both," creates only a 
 tenancy at will ; and parol evidence is 
 inadmissible to give it a different con- 
 struction. Murray v. Cherrington, 99 
 Mass. 229. 
 
 Where, by the terms of a written 
 lease, the tenancy is to continue so 
 long as the parties shall mutually 
 agree, and either party may determine 
 it on four days' notice — the rent to 
 be paid monthly or semi-monthly, as 
 may be most convenient — such rent- 
 ing creates a tenancy at will ; and the 
 lessee, in such case, acquires no 
 certain indefeasible interest in the 
 premises, which he can sell and trans- 
 fer to another. Such tenancy will be 
 determined, by implication of law. 
 
 8 Walker v. Giles, 6 C. B. 662. 
 
SEC. 22.] PAROL LEASES. 55 
 
 held that a clause in a mortgage that the mortgagors should 
 become tenants to the mortgagees of the demised premises 
 during their will, at a yearly rent, created only a tenancy at 
 will.i 
 
 Sec. 21. Rule in Doidge V. Bowers. — In Doidge V. Bowers,* 
 three persons entered under a void lease ; payments of rent 
 were made ; but, as it was riot shown that they were made 
 with the assent of one of the three, it was held that as against 
 her there was no evidence of a tenancy from year to year, she 
 not having resided a year on the premises. Parke, B., said : 
 " Under the original contract no demise could be created, but 
 a mere tenancy at will. Then, in order to constitute a new 
 tenancy, it must be shown that all three parties agreed to 
 vary it by a new contract for a tenancy from year to year." * 
 
 Sec. 22. How Tenancy from Year to Year may be Created. — 
 A tenancy from year to year may be created by express agree- 
 ment, even by parol. Thus, if premises are let, " from year 
 to year," at a certain annual rent, and from a certain time, 
 and the lessee enters into the possession, a tenancy from year 
 
 upon the death either of the lessor or an indenture of mortgage, among 
 
 lessee ; or by the desertion of the other things, contained a proyiso and 
 
 premises by the lessee; or by the covenant by the mortgagee, that no 
 
 sale and transfer of his possession to sale, or public notice, or advertise- 
 
 another. Therefore, where during ment for any sale, should be made or 
 
 such a tenancy the lessor died, having given, nor any means be taken for 
 
 by will devised the premises ; and the obtaining possession, until the expira- 
 
 lessee, a month afterwards, sublet a tion of twelve calendar months after 
 
 portion of the premises to the plain- notice in writing of such intention 
 
 tiff, without the consent of the de- should have been given to the 
 
 visee ; and shortly thereafter removed mortgagor, as tenant at will to the 
 
 wholly therefrom ; and the devisee mortgagee, on the payment of a cer- 
 
 thereupon entered and removed doors tain yearly rent, by two equal half- 
 
 and windows from a dwelling-house yearly payments. No livery of seizin 
 
 situated on the demised premises, and was made to the mortgagor. It was 
 
 in the occupancy of the plaintiff; held that the mortgagor was tenant 
 
 without unnecessary interference vrith at will only, Pollock, C. B., re- 
 
 the person or property of the plaintiff, marking, " there can be no doubt that 
 
 and without a breach of the peace, a tenancy at will may be coupled 
 
 such entry and acts of ownership were with a yearly rent." 
 not tortious, and do not constitute a " 2 M. & W. 365. 
 cause of action in favor of the plain- ° See also Denn v. Feamside, 1 
 
 tiff against the devisee. Say v. Stod- Wils. 176 ; Goodtitle v. Herbert, 4 T. 
 
 dard, 27 Ohio St. 478. R. 680. 
 1 In Dixie v. Davis, 7 Exchq. 89, 
 
66 STATUTE OP PRATTDS. [CHAP. I. 
 
 to year is created which the lessor may determine the first 
 year by giving six months' notice to quit,^ and therefore is 
 not within the statute of frauds. If a tenancy is created for 
 one year certain, and after that from year to year, it is a lease 
 for at least two years,^ and therefore is within the statute of 
 frauds in all those States where a verbal lease is good for 
 only one year. It is said that, if an annual rent is reserved 
 and the term indefinite, a tenancy from year to year is 
 created, although it is expressly agreed that the tenant shall 
 quit at ten, twenty, or thirty days' notice, the tenancy differ- 
 ing from an ordinary tenancy from year to year in no other 
 respect than in the notice required for its termination.^ An 
 entry under a lease for a term at the annual rent, void for 
 any cause, and a payment of rent under it, creates a tenancy 
 from year to year upon the terms of the lease except at its 
 duration. Thus, in a New York case,* a parol demise was 
 made for seven years which was void under the statute of 
 frauds, but the tenant having entered into possession and 
 paid rent under it, it was held that it inured as a tenancy 
 from year to year, and that the lease regulated the terms of 
 the tenancy.^ At the end of the term under a void lease, 
 the tenancy ceases by efflux of time, without any notice to 
 quit, although either party might have put an end thereto by 
 
 1 Clark V. Smaridge, 7 Q. B. 957. * Schuyler v. Leggett, 2 Cow. 
 Such a lease was formerly held to be (N. Y.) 660. 
 
 A lease for at least two years. Agand ^ Xress v. Savage, 4 E &. B. 36 ; 
 
 V, King, Cro. Eliz. 775; Legg v. Strud- Clayton v. Blakely, 8 T. R. 3; Thur- 
 
 wick,2SaIk.414;CrackweU!J. Owerell, ber v. Dwyer, 10 R. I. 355; Strongs. 
 
 Holt, 417 ; Stamfil v. Hickes, 2 Salk. Crosby, 21 Conn. 398 ; Martin v. 
 
 413. And, according to some of the Watts, 7 T. E. 88 ; Beale v. Sanders, 
 
 cases, a lease for three years. Pot- 3 Bing. (N. C.) 850; Eiggsv. Bell, 5 
 
 kin's Case, 6 Coke, 35 6 ; Carstrike v. T. E. 471 ; Lee v. Smith, 6 Exchq. 
 
 Mason, 2 Neb. 543. But the rule is 662; Doe v. CoUings, 7 C. B. 939; 
 
 now well settled, as stated in the text. Pennington v. Taniere, 12 Q. B. 998; 
 
 Lily V. Green, cited I Ld. Eaym. Richardson v. Savage, 4 E. & B. 36. 
 
 708 ; Jacklin v, Cartwright, 4 Eagt, In Pennsylvania a tenancy at will is 
 
 291; Eex v- Chawton, 1 Q. B. 247; treated as a tenancy from year to 
 
 Birch «. Wright, 1 T. E. 378 ; Chad- year, the same notice being required 
 
 bom V, Green, 9 Ad. & El. 38 ; Pox v. to terminate the tenancy, in either 
 
 Nathans, 32 Conn. 348. case, Clark t. Smith, 25 Penn. St. 
 
 2 Birch V. Wright, 1 T. R. 386; 137. And in Tennessee a tenant 
 Hanchett v, Whitney, 1 Vt, 311 ; Hall under a, void lease is treated as a 
 V. Myers, 43 Md. 581 ; Monck v. tenant at will, or from year to year, 
 Geekie, 5 Q. B. 841. according to the circumstances. I>uke 
 
 s Martin v. Kemp, 7 T. B, 85, v. Hooper, 6 Yerg. (Tenn.) 280. 
 
SEC. 22.] PAKOL LEASES. 67 
 
 the requisite notice at the end of any previous year.i In a 
 •New York case,^ a tenant who had leased premises for a year, 
 took them for a second year on the expiration of the first 
 year. It was claimed that the second lease was void because 
 the officer granting it had no authority to do so. The court 
 held that, if the second lease was void, the tenant should be 
 regarded as holding over under the terms and conditions 
 of the former lease, he became a tenant from year to year, 
 and must give six months' notice to determine his tenancy ; 
 and that if he should be regarded as having entered under 
 the void lease, possession under it, and payment and accep- 
 tance of rent would create a tenancy from quarter to quarter, 
 not to be determined without three months' notice. Also, 
 that a lessee for years whose term depends on a certainty, 
 who holds over after the termination of the lease merely to 
 remove his goods and chattels, none the less becomes a ten- 
 ant from year to year by such holding over, because a tenant 
 for years, whose term depends on a certainty, has no right to 
 remain a reasonable time after his term expires for the pur- 
 pose of removing his chattels ; and, in order to entitle a land- 
 lord to regard a tenant under a demise for a year or more, as 
 a tenant from year to year upon his holding over after the 
 expiration of his term, it is not necessary that the holding 
 over should be of such a character as to raise a presumption 
 that the tenant intends to continue his occupancy. The mat- 
 ter is one purely within the election of the landlord, atid the 
 tenant has no option in that regard. The rule may be said 
 to be well established, that although a parol lease for more 
 than the period excepted from the statute is invalid, yet, if a 
 person goes into possession under a parol lease for a longer 
 period, he becomes a tenant from year to year upon the 
 terms of such lease, and so continues as long as he remains 
 in possession without any new or other agreement, and an 
 occupancy by putting or leaving a portion of his property 
 upon the premises is sufficient to establish his liability, 
 although there is no personal occupancy. Thus,- in a New 
 York case,^ the defendant went into possession of a dwelling 
 
 ' Tress v. Savage, ante ; Davenish " Witt v. Mayor &c. of New York, 
 
 V. MofEatt, 15 Q. B. 257; Hayne v. 6 Robt. (N. T. Sup. Ct.) 441. 
 
 " Cummlngs, 16 C. B. & S. 421 ; Thomas ' Dorr v. Barney, 12 Hun (N. Y.) 
 
 V. Parker, 1 H. & N. 669. 259. 
 
58 STATUTE OF FRAUDS. [CHAP. I. 
 
 house and brick-yard, under a parol lease for one year with 
 the privilege of four years at his option, and continued in, 
 personal possession for two years. It was held that, although 
 the lease was void as to the four years, yet by the entry of 
 the defendant and his holding over after the first year, he 
 became a tenant from year to year subject to all the terms 
 and conditions of the verbal lease, except as to the term.^ In 
 that case the tenant went into possession in June, 1867, and 
 in April, 1869, substantially told the plaintiff that he intended 
 to leave at the end of that year, and at the end of the year 
 he abandoned the house, and removed most of the brick, but he 
 left a portion of them in a shed which he had erected upon 
 the premises to protect the brick from the effects of the 
 weather, and did not remove them until some time after- 
 wards. The lease was never surrendered, nor did the plain- 
 tiff ever give his assent to the brick and shed being left there. 
 The court held that the fact that the brick and shed were 
 left there by the defendant after the expiration of the second 
 year operated as such a continuance of the occupancy as to 
 enable the plaintiff to treat him as a tenant for another year. 
 In the first instance, in order to give validity to a lease for 
 a term longer than that excepted from the operation of the 
 statute, it must be made conformedly to the requirements of 
 the statute in the State where the premises lie. In most of 
 the States, the provisions of the statute 29 Car. 2, c. 3, § 4, are 
 practically adopted, and a writing signed by the lessor or 
 some person by him authorized is sufficient ; and under this 
 statute is held that the agreement and memorandum need not 
 be contemporaneous,^ and any writing executed by the lessor 
 which tends to establish a consummated agreement between 
 them may be given in evidence as a memorandum, even 
 though in order to apply it, evidence of conversations 
 between them as to the subject-matter of the contract 
 are necessary. Thus, in a Connecticut case,* the plaintiff, 
 
 1 Schuyler v. Leggett, 2 Cow. (N. Conway v. Starkweather, 1 Den. (N. 
 
 Y.) 660; Lonnsbury v. Snyder, 31 N. Y.) H3. 
 
 Y. 514 ; Bright v. McOuat, 30 Ind. " Lerned v. "Wannemacher, 9 Allen 
 
 521; Reader v. Sayne, 5 Hun (N. Y.) (Mass.) 416; Parkhurst v. Van Cort- 
 
 564; Schuyler v. Smith, 51 N. Y. landt, 14 John. (N. Y.) 15; Tallman 
 
 309; Thiehaud v. Vevay, 42 Ind. «. Franklin, 14 N. Y. 584. 
 
 212 ; Hall v. Myers, 43 Md. 446 ; 8 Lindley v. Tibbals, 40 Conn. 522. 
 People V. Riokert, 8 Cow. (N. Y.) 236; 
 
SEC. 22.] PAROL LEASES. 59 
 
 being desirous of raising a crop of strawberries on a portion 
 of the defendant's land, offered him one hundred dollars for 
 the rent thereof ; but the defendant declined this offer, but 
 offered to take a mowing-machine and horse-rake belonging 
 to the plaintiff, which he valued at one hundred and ten 
 dollars, for the use of the land. The parties separated with- 
 out coming to any agreement. A few days afterwards, the 
 plaintiff wrote to the defendant, asking him if he could have 
 the land " on the terms proposed." The defendant replied, 
 "Set your strawberries. Let me have mowing-machine and 
 horse-rake." This was in May, 1868, and the plaintiff imme- 
 diately went into possession of the land, set out his plants, 
 and cultivated them during that spring and summer. By 
 his letter, the plaintiff meant to offer one hundred dollars for 
 the use of the land, but the defendant supposed he meant to 
 offer the machine and rake. In July of the same year, the 
 defendant sent for the machine and rake, and the defendant, 
 supposing that he wished to buy them, delivered them to 
 him. In the fall of the same year the plaintiff called for the 
 pay for the mowing-machine and horse-rake, which the 
 defendant refused, claiming that they had been received in 
 compensation for the use of the land. In consequence of the 
 difference thus existing between the parties as to the rental 
 of the land, the defendant insisted that the plaintiff should 
 have nothing more to do with the land, but he did not pay 
 for the mowing-machine or rake, or offer to return the same. 
 In the spring of 1866 the plaintiff sent his men to hoe and 
 attend to the plants, and they were ordered off by the 
 defendant. When the berries were ripe, the plaintiff again 
 sent his men to gather them ; but, after picking a portion of 
 them, they were again ordered off by the defendant, who 
 went on and gathered the crop and disposed of it, claiming it 
 as his own. The plaintiff thereupon brought an action of 
 trespass (c[uare clauaum) against the defendant. The defend- 
 ant insisted that, by reason of the misunderstanding between 
 the parties, no contract existed between them, and that the 
 plaintiff was not entitled to the berries which grew upon the 
 land. The court, however, held otherwise, Fostek, J., say- 
 ing : " There was a contract made ; the minds of the parties 
 met so far as the use and occupation of the land was con- 
 
60 STATUTE OF I'EAXTDS. {CHAP. I. 
 
 cerned. The plaintiff worked the land during the season, 
 and it was not until the autumn that it was discovered that 
 a misunderstanding existed as to the rent. Nor was the 
 contract then annulled or revoked. The defendant still 
 kept the machine and rake, and made no offer to pay for 
 them. He had insisted that the plaintiff should not occupy 
 the land, except on condition of giving these articles in con- 
 sideration. The plaintiff did not afterwards demand them, 
 nor demand pay for them, but insisted on occupying and did 
 occupy the land the next spring. This we think was an 
 assent to the defendants' terms, a tacit agreement on both 
 sides, ' Set your strawberries,' is certainly a brief form for a 
 lease, but in the surroundings of the case, we think such a 
 memorandum signed by the party obviates any difficulty under 
 the statute of frauds." 
 
 It is not essential that the agreement or memorandum 
 should be contained in a single paper, but a series of papers, 
 as letters,! telegrams,^ and a letter or other document signed, 
 may be used in connection with one not signed,^ but not in 
 connection with one subsequently to be prepared;* and a 
 written proposal, signed by the lessor, and accepted orally by 
 the lessee, has been held sufficient ; ^ but a written proposal, 
 signed by the lessee and accepted orally by the lessor, would 
 not be sufficient.® The writing or writings, in whatever 
 form they exist, must be complete, and contain all the 
 elements essential to constitute a valid contract, without 
 the aid of extrinsic evidence.'^ Thus, it must describe 
 the premises with reasonable certainty,^ the duration of the 
 
 1 Lemed v. 'Wannemacher, 9 Allen Clarke v. Puller, 16 C. B. N. S. 24 ; 
 (Mass.) 416. Torster v. Rowlands, 7 H. & N. 103; 
 
 2 Palmer v. Marquette &c. E. E. Watts v. Ainsworth, 6 L. P. N. S. 
 Co., 32 Mich. 274. 252 ; Williams v. Lake, 2 E. & E. 349. 
 
 ' Loomer v. Dawson, Cheeves * Lancaster v. De Trafford, 31 L. J. 
 
 (S. C.) 68 ; Buxton v. Eust, L. E. 7 Ch. 554. But the question as to what 
 
 Exehq. 79. constitutes reasonable certainty in 
 
 * Wood V. Bridgely, 5 De G. M. & this respect is one which depends 
 
 Gr. 41. upon the circumstances of each case, 
 
 ' Banker v. Allen, 5 H. & N. 61 ; and if the memorandum contains 
 
 Warner v. Willington, 3 Drew, 523 ; sufficient to form a basis from which 
 
 Smith V. Male, 2 C. B. N. S. 67; the precise estate can be identified, 
 
 Eeuss V. Picksley, L. E. 1 Exchq. 342. parol evidence is admissible to apply 
 
 s Felthouse v. Bindley, 11 C. B. K. it. Ogilvie v. Poljambe, 3 Mer. 61 ; 
 
 S. 869. Bleakley v. Smith, 11 Sim. 150; Hay- 
 
 ' Peabody v. Sayers, 56 N. Y. 230; wood .,. Cape, 25 Beav. 146; Jenkins 
 
SEC. 22.J 
 
 PAROL LEASES. 
 
 61 
 
 term,^ the rent to be paid,^ the parties thereto,* and must be 
 signed by the lessor or some person by him lawfully authorized 
 for that purpose.* In all cases, the signature must he such as 
 amounts to an acknowledgement hy the party that the agreement 
 is his ; consequently, if it is not signed by him or his agent 
 authorized as provided by the statute, although it is wholly 
 in his handwriting, and his name appears in the body of the 
 instrument, it is not sufficient to satisfy the statute,^ and 
 the absence of his signature is treated as affording absolute 
 evidence that the contract is incomplete.* But as to what 
 constitutes a signing within the statute, see Chapter on 
 " Memoeandums." 
 
 V. Green, 27 Beav. 437; Deven v. 
 Thomas, 3 My. &. K. 353; Price v. 
 Griffiths, 1 De G. M. & G. 80; Dan- 
 iels V. Davison, 16 Ves. 249. 
 
 1 Hodges V. Howard, 5 R. I. 149; 
 Fitzmaurice v. Bayley, 8 E. & B. 664 ; 
 Blore V. Sutton, 3 Mer. 237 ; Clinan v. 
 Cooke, 1 Sch. & Lef. 22; Hersey f. 
 Glblett, 18 Beav. 174; Hughes v. 
 Parker, 8 M. & A. 224 ; Clarke v. Ful- 
 ler, 16 C. B. N. S. 24 ; Gordon v. Tre- 
 valyan, 1 PricBj 64. 
 
 2 Wain V. "Walters, 5 East, 10; 
 Nichols V. Allen, 23 Minn. 542 ; Un- 
 derwood u. Campbell, 14 N. H. 393 ; 
 "Weldon v. Porter, 4 Houst. (Del.) 
 236; Taylor v. Pratt, 3 Wis. 674; 
 Hutton V. Padgett, 26 Md. 228 ; Castle 
 V. Beardsley, 10 Hun (N. Y.) 343; 
 Buckley v. Beardslee, 5 N. J. L. 570 ; 
 Janes v. Palmer, 1 Doug. (Mich.) 
 379 ; Hargraves v. Cooke, 15 Ga. 321 ; 
 Putman v. Haggard, 78 HI. 607. But 
 in many of the States the doctrine of 
 Wain V. Walters is not accepted, and 
 a memorandum in other respects suffi- 
 cient is held to be operative, although 
 the consideration is not stated there- 
 in. GilUngham v. Boardman, 29 Me. 
 79 ; Sage v. Wilcox, 6 Conn. 81 ; Halsa 
 V. Halsa, 8 Mo. 303; Ashford v. Kob- 
 inson, 8 Ired. (N. C.) L. 114; Patehin 
 V. Swift, 21 Vt. 292 ; Keed v. Evans, 
 17 Ohio, 128 ; Packard v. Richardson, 
 17 Mass. 121. While in others the 
 matter is now regulated by statute, 
 and the question set at rest so far as 
 the courts are concerned. In Massa- 
 
 chusetts, Illinois, Indiana, Kentucky, 
 Maine, Michigan, Nebraska, New Jer- 
 sey, Virginia, and West Virginia, it is 
 provided that the consideration need 
 not be expressed in the memorandum 
 but may be proved by any competent 
 evidence. In Alabama, Minnesota, 
 Montana, Nevada, New York, Oregon, 
 and Wisconsin, the consideration 
 must be contained in the memoran- 
 dum, while in the other States no 
 provision in this respect is made, and 
 is therefore left subject to judicial 
 construction. 
 
 ' Lang V. Henry, 54 N. H. 57; 
 Champion v. Plummer, 5 E. & J. 87 ; 
 Williams v. Lake, 2 E. & E. 349; 
 Warner v. Willington, 3 Drew, 530. 
 
 * Bailey v. Ogden, 3 John. (N. Y.) 
 417; Sanborn v. Flagler, 9 Allen 
 (Mass.) 474; Stoddert v. Vestry of 
 Port Tobacco, 2 G. & J. (Md.) 227. 
 In some of the States, the statute ex- 
 pressly provides that the memoran- 
 dum must be signed by the party to 
 be charged. Or by some person by 
 him authorized in writing, as in Ala^ 
 bama, California, Kansas, Michigan, 
 Minnesota, Missouri, Montana, Ne- 
 braska, Nevada, New Hampshire, New 
 Jersey, New York, Ohio, Oregon, 
 Pennsylvania, Vermont, Utah, and 
 Wisconsin, while in the others au- 
 thority may be shown by the ordi- 
 nary modes. 
 
 5 Stokes V. Moore, 1 Cox, 219. 
 
 " Bawdes v. Amherst, Prec. Ch. 
 402. 
 
62 STATUTE OP FKAITDS. [CHAP. I, 
 
 Sec. 23, implied Tenancy from Year to Year. — A tenancy 
 from year to year may be implied from the circumstances 
 under which the parties hold. Thus, where the defendants 
 became the occupiers of land, and paid the year's rent in 
 advance for many years, it was held, that, as ordinarily speak- 
 ing an occupation of premises for more than a year, and 
 payment and acceptance of rent created a tenancy from 
 year to year, the inference to be drawn from the above facts 
 was, that the defendants were tenants from year to year.^ 
 And the presumption is the same against a corporation aggre- 
 gate as against an ordinary person.^ So where a tenant holds 
 over after the expiration of a term, on payment of rent he 
 will become a tenant from year to year.^ 
 
 Sec. 24. Rebuttal of Presumption. — It is open, either to 
 the party receiving or paying rent, to show the circumstances 
 under which the payment was made ; as, for instance, that 
 the rent was received in ignorance of the death of a party 
 upon whose life the premises were held ; in order to rebut 
 the presumption of a tenancy from year to year.* A lease 
 for a term, required by the statute of frauds to be in writ- 
 ing, may be collected from correspondence which has passed 
 between the lessor and lessee, and the lessor will be entitled 
 to distrain for rent.^ 
 
 1 Hunt V. AUgood, 10 C. B. (N. S.) next, upon the same terms and at the 
 
 253. It has sometimes been thought same rate of rent, R to have the sale 
 
 that if the intention of the parties of the mill, houses, land, etc." The 
 
 was that an agreement for a lease court held that the agreement operated 
 
 should take effect as a lease, it would as a present demise from the time it 
 
 he Toid under the statute : Stratton v. was entered into, up to Lady Day, 
 
 Petitt, 16 C. B. 420; but this doctrine and as an agreement for a lease from 
 
 has been repudiated : Stranks v. St. that time for a term of three years, 
 
 John, L. E. 2 C. P. 377 ; Tidey v. and consequently was not void under 
 
 Mollett,16C.B. (KS.)298. InRoUa- the statute. 
 
 son V. Leon, 7 H. & N. 77, an agree- 2 Doe v. Taniere, 12 Q. B. 998. 
 ment was entered into as follows : " L o Thomas v. Packer, 1 H. & N. 669; 
 
 agrees to let, and R agrees to take, Purnivall v. Grove, 8 C. B. (N. S.) 
 
 the wood, mill site, etc., with the 496. 
 
 houses and land adjoining, for the * Doe v. Crago, 6 C. B. 90 ; Wood- 
 period of three years from Lady Day bridge Union v. "Whien Union, 18 Q. 
 then next, at the rent of £120 per B. 269; The Marquis of Camden v. 
 annum. A lease for the same to be Batterbury, 5 C. B. (N. S.) 808, 820; 
 executed and signed as soon as possi- 7 C. B. (N. S.) 864. 
 ble, subject to the permission of the * Chapman v. Bluck, 4 Bing. N. 
 landlord of the mill, house, lands, etc., C. 187 ; Jones u. Reynolds, 1 Q. B. 
 from this day, up to Lady Day then 506. 
 
SEC. 26.] PABOL LEASES. 63 
 
 Sec. 25. Void Lease may Enure as an Agreement to Grant a 
 Lease. — An instrument containing words of present demise 
 which is void as a lease, may nevertheless enure as an agree- 
 ment to grant a lease for the term mentioned. Thus in 
 Burton v. Reevell,^ by a memorandum of agreement M agreed 
 to let and B to take rooms in a house from a certain date, at 
 a monthly rent of 36 s., to be paid every four weeks, and it 
 was held that this was only an agreement to execute a lease, 
 and was admissible in evidence. So in Bond v. E,osling,2 the 
 plaintiff by an agreement not under seal agreed to let and 
 the defendant to hire certain premises for seven years ; and 
 it was further agreed that a good and sufBcient lease em- 
 bodying the terms of the agreement should be prepared at 
 the joint expense of the parties ; it was held in an action for 
 not accepting a lease, that though the instrument was void 
 as a lease under the statute it was good as an agreement.^ 
 
 Sec. 26. Specific Performance. — An agreement containing 
 words of present demise, which is void under the statute, 
 may be decreed to be specifically performed.* Thus where 
 A agreed in writing to let to B certain premises at a rent of 
 £36 payable quarterly, and not to raise the rent or give B 
 notice to quit so long as he continued to pay the rent when 
 due ; and A (who had only a leasehold interest to expire in 
 1881) also agreed verbally with B to let him remain in the 
 premises for such term of years (not exceeding A's term 
 therein) as B might desire to continue tenant thereof : it was 
 held that B was not a mere tenant from year to year, but had 
 a right to retain possession as long as his landlord's interest 
 existed, and to enforce that right in equity.^ In a Connecti- 
 
 1 16 M. & W. .307. 421 ; Bond v. Kosling, 1 B. & S. 371 ; 
 
 2 1 B. & S. 371 ; 9 W. R. 746. Strong v. Crosby, 21 Conn. 398 ; 
 = And see Doe v. MofEatt, 15 Q. B. Taggard v. Roosevelt, 2 E. D. S. 
 
 257; Dniry v. Macnamara, 5 E. & B. (N. Y. C. P.) 100. 
 
 612; 1 Jut. (N. S.) 1163; Tidey v. * Parker !^. Taswell, 2 De G. & J. 
 
 MoUett, 16 C. B. (N. S.) 298 ; 12 "W. E. 559 ; Poyntz v. Fortune, 27 Beav. 393 ; 
 
 802 ; Hayne v. Cummings, id. ; Parker Cowen v. Phillips, 33 Bear. 18 ; Fen- 
 
 V. LasweU, 2 De. G. & J. 559 ; Cowen ner v. Hepburn, 2 Y. & C. C. C. 159 ; 
 
 V. Phillips, 33 Beav. 18 ; and even at Crook o. Corporation of Seaford, L. 
 
 law it may operate as a contract with R. 6 Ch. 551. 
 
 respect to any stipulation therein : ^ In re King's Leasehold Estates, 
 
 Eollason v. Leon, 7 H. & N. 73; L. R. 16 Eq. 521. 
 
 Hayne v. Cummings, 16 C. B. (N. S.) 
 
64 STATUTE OF FKAUDS. [CHAP. I. 
 
 cut oase,^ the defendant having a freehold estate in certain 
 lands, entered into a parol agreement with the plaintiff in 
 September, 1843, that he should erect upon his estate a sub- 
 stantial brick store, and have it completed by April 1st then 
 next, and that he would let the store to the plaintiff for the 
 term of three years from that period for the yearly rent of 
 five hundred dollars to be paid quarterly. In pursuance of 
 the agreement, the defendant erected the store, and the 
 plaintiff immediately took possession thereof, and occupied 
 it for one year, paying the stipulated rent quarterly. Before 
 the expiration of the year, the defendant gave the plaintiff 
 notice to quit possession, and brought summary proceedings 
 to get him out; thereupon the plaintiff brought a bill in 
 equity to compel the defendant to give him a lease of the 
 premises according to the agreement. The court held that 
 although the agreement was within the statute of frauds, yet 
 that there was such a past performance as warranted a court 
 of equity in decreeing a specific performance of it, and that 
 the circumstance, that the plaintiff caused to be drawn up 
 and presented to the defendant for execution, a lease with 
 unusual covenants, did not excuse him from executing a lease 
 to the plaintiff with usual covenants.^ The rule may be said 
 to be that a court of equity will decree a specific performance 
 of an oral contract for a lease, notwithstanding the statute of 
 frauds, in favor of either the landlord or the tenant, in cases 
 where there has been such a past performance thereof by both 
 parties, that to refuse it would work a fraud upon the party 
 seeleing its specific execution.^ In a Wisconsin case,* the de- 
 fendants orally agreed to take a lease of the plaintiffs' stores 
 for five years, whereby the plaintiffs were induced to break 
 off negotiations for leasing them to another party, and to in- 
 cur expense in altering and adapting the stores to the de- 
 fendants' use. The defendants entered into possession under 
 this agreement, and occupied them and paid the rent for two 
 years, and neglected to execute a written lease in accordance 
 with the agreement tendered to them for that purpose by the 
 plaintiffs on taking possession, and at the end of two years 
 
 1 Eaton V. "Whitaker, 18 Conn. 222. erson v. Chrlsman, 28 Mo. 134; Aday 
 
 '^ See also Morphett ■;. Jones, 1 v. Echols, 18 Ala. 353. 
 
 Swanst. 172. * Seaman v. Aschermann, 51 Wis. 
 
 1 Steel V. Payne, 42 Ga. 207 ; Dick- 678; 37 Am. Eep. 849. 
 
SBC. 27.] PAEOL LEASES. 65 
 
 refused to execute the lease, or to occupy the stores or pay- 
 rent. Upon a bill brought by the plaintiffs to compel an exe- 
 cution of the lease by the defendants, its specific execution 
 ■was decreed.^ But in order to warrant the exercise of this 
 power, the contract must be certain and complete, and clearly 
 established by the proof, or admitted by the pleadings ; ^ and 
 the proof must be full and complete, and such as leaves no 
 reasonable doubt that an agreement was in fact made,* and 
 that it has been partly performed.* For a full statement of 
 the law relating to this subject, see Chapter on " SPEcrFic 
 Perpormaijce." An agreement to let land at a yearly rent, 
 determinable by six months' notice to quit (no term being 
 me'ntioned), provided that in case A and B erected any build- 
 ings upon the land, they were to have the privilege of re- 
 moving them at any time diiring their occupation, or other- 
 wise they were to be allowed a beneficial interest in the same 
 to the amount of the sum expended in the erection of the 
 buildings, such beneficial interest to extend over a period of 
 twenty years ; that is to say, if A and B were required to 
 give up possession of the piece of ground before the expira- 
 tion of the term of twenty years, they were to be allowed 
 one-twentieth part of the amount expended for each remain- 
 ing year of the unexpired term of twenty years ; it was held 
 that this agreement conferred on A and B such a beneficial 
 interest in the land as constituted them owners within the 
 interpretation clause of the Lands Clauses Act, 8 & 9 Vict. 
 0. 18, and that therefore the company was not entitled to 
 enter upon the land tUl it had satisfied A and B's claim as pro- 
 vided by § 84.6 
 
 Sec. 27. Terms of Occupancy Regulated by Parol Lease. — 
 A lease, or an agreement for a lease, which is void as to the 
 
 1 Ferry v. Pf elffer, 18 "Wis. 510. 482 ; Btmton v. Smith, 40 N. H. 352 ; 
 See also, analogous in principle, Potter "Wallace v. Brown, 10 N. J. Eq. 308 ; 
 V. Jacobs, 111 Mass. 32; Glass v. Hul- Montal v. Lyons, 8 Ti. Ch. 112; Mor- 
 
 bert, 102 Mass. 24 ; 3 Am. Eep. 418 
 Kankin v. Say, 2 De G. P. E. J. 65 
 Nunn V. Pabian, L. E. 1 Ch. App. 35 
 
 phett V. Jones, 1 Swanst. 172. 
 
 3 Broughton v. GriflSn, 18 Gratt. 
 ("Va.) 184; Lindsay «. Lynch, 2 Sch. 
 
 McCarger v. Rood, 47 Cal. 141 ; Dowell & Lef . 1. 
 V. Dew, 1 y. & C. 356; Prance v. Daw- * Nunn v. Pabian, 35 L. J. Ch. 141. 
 son, 14 Ves. Jr. 386. 6 Rogers v. Hull Dock Co., 12 W. 
 
 2 "Wilkinson v. "Wilkinson, 1 Dessau R. 1101, afEd. 13 "W. R. 217 ; 11 L. T. 
 
 (S. 0.) 201 ; Smith v. Crandall, 20 Md. (N. S.) 42 ; ib. 463. 
 
66 STATUTE OP FKAUDS. [CHAP.'l. 
 
 duration of the lease, may still regulate the terms on which 
 the tenancy subsists in other respects, as to the rent, the time 
 o£ the year when the tenant is to quit, etc.,^ and this whether 
 the agreement is void as not amounting to a lease,^ or whether 
 the lease is void as not being duly executed under a power; ^ 
 but the terms must not be at variance Avith the species of 
 tenancy which the law under the circumstances creates.* In 
 a "Wisconsin case,*^ the defendant attempted orally to lease 
 premises for two years, at a specified sum for each year, 
 "payable at such times during the term as the plaintiff 
 should require." The defendant went into possession un- 
 der the lease, and remained twenty months, paying the first 
 year's rent, and also at the same rate until the next six 
 months, and it was held that, although under the statute of 
 frauds the lease was void, yet the defendant became a tenant 
 from year to year on the terms of the parol lease. 
 
 Sec. 28. Rule in Tooker v. Smith. — In Tooker v. Smith ^ 
 an agreement for a lease contained a stipulation that the 
 tenancy should continue until after two years' notice to quit 
 had been given ; and it was held that it could not be implied 
 that the stipulation as to the two years' notice to quit was 
 one of the terms under which the tenant held. 
 
 Sec. 29. Covenants in Farming Lease. — Where a party was 
 let into possession, and paid rent, under an agreement for a 
 future lease' for years, which was to contain a covenant 
 against taking successive crops of corn, and a condition of 
 re-entry for breach of covenants, it was held that he became 
 a yearly tenant, subject to the above terms of conditions, and 
 
 1 Doe V. Bell, 5 T. E. 471 ; 2 Sm. « Koplitz v. Gustavus, 48 "Wis. 48. 
 L. C. 98; Doe v. Breach, 6 Esp. 106; See also to the same effect Williams 
 Arden v. Sullivan, 4 Q. B. 832 ; Doe v. Ackerman, 8 Oregon, 405 ; Coan v. 
 V. Moffatt, 15 Q. B. 257 ; Tress v. Sav- Mole, 39 Mich. 454; Craske v. Chris- 
 age, 4 E. & B. 36 ; 18 Jur. 680 ; 23 L. tian Union PubUshing Co., 17 Him 
 J. Q. B. 339. (N. y.) 819; Drake .,. Newton, 23 N. 
 
 2 Eiehardson v. Gifford, 1 Ad. & El. J. L. Ill ; Cady v. Quarterman, 12 Ga. 
 52. 386 ; Strong v. Croshy, 21 Conn. 398 ; 
 
 " Beale v. Sanders, 3 Bing. (N. C.) McDowell v. Simpson, 3 Watts (Penn.) 
 
 850 ; 5 Scott, 58. 129 ; Witt v. Mayor, &o., 6 Robt. (N. 
 
 * Berrey v. Lindley, 3 M. & Gr. 514 ; Y. ) 441 . 
 4 Sc. (N. E.) 61, per Maule, J.; Hunt « 1 H. & N. 732. 
 V. AUgood, 10 C. B. (N. S.) 253; Ben- 
 nett V. Ireland, E. B. & E. 326. 
 
SEC. 32.] PAROL LEASES. 67 
 
 that ejectment might be brought upon successive crops of 
 corn being taken.i In Pistor v. Cater ^ the tenant entered 
 upon the land under an agreement for a lease as soon as the 
 lord's license could be obtained, but no license ever was ob- 
 tained. Lord Abikger said : " This is a contract which is 
 to bind both parties, even if no lease be granted. ... No 
 lease having been made, but the defendant having occupied 
 for the whole of the term agreed upon, and having had the 
 full benefit which he could have enjoyed under the lease, he 
 cannot now say that the covenants are not binding." 
 
 Sec. 30. Covenant to Faint. — By an agreement, not under 
 seal, the plaintiff agreed to let to the defendant, and the de- 
 fendant to take of the plaintiff, a house and premises for 
 seven years, upon the terms (amongst others) that the de- 
 fendant would in the last year of the term, paint, grain, and 
 varnish the interior, and also whitewash and color. The 
 defendant entered under the agreement, and occupied and 
 paid rent during the whole period of seven years. In an 
 action for not painting, etc., the interior, and whitewashing 
 and coloring in the seventh year, it was held that the de- 
 fendant must be taken to have occupied on the terms that, 
 if he should continue to occupy during the whole period of 
 seven years, he would do those things which were by the 
 agreement to be done in the seventh year, and that he was 
 therefore liable.^ 
 
 Sec. 31. Proviso of Re-entry. — A proviso in a lease for re- 
 entry on non-payment of rent is a condition which attaches 
 to the yearly tenancy created by the tenant, holding over 
 and paying rent after the expiration of the lease.* 
 
 Sec. 32. Rent Paid in Advance. — In Lee V. Smith,^ A be- 
 came tenant to the defendant of certain premises, under the 
 terms of a written agreement (not under seal), for a term 
 exceeding three years, the rent payable quarterly in advance. 
 A occupied the premises for some time, and paid several 
 
 1 Doeu.Amey, 12 Ad. &E1. 476; 4 * Thomas v. Packer, 1 H. & N. 
 P. & D. 177. 669; Watson v. Wand, 8 Exch. 335. 
 
 2 9 M. & W. 315. 6 9 Exch. 662. 
 
 3 Martin v. Smith, L. E. 9 Ex. 50. 
 
68 ' STATUTE OF FEAUDS. [CHAP. I. 
 
 quarters' rent, and the receipts given to him by the defend- 
 ant's agent stated that such payment was in advance, al- 
 though in fact A never paid the rent in advance. It was 
 held, nevertheless, that although the agreement was void 
 under the 8 & 9 Vict. c. 106, as not being under seal, still 
 that the receipt taken was ample evidence of the tenancy 
 being upon the terms of the rent being paid quarterly in 
 advance. So tenants under a void agreement or void lease 
 have been held liable to repair.^ 
 
 Sec*. 33. Parol Lease may be Special in its Terms. — A parol 
 demise, rendered valid by the second section of the statute 
 of frauds, may contain the same special stipulations as a 
 regular lease, and the stipulations may be proved by parol. 
 In Lord Bolton v. Tomlin,^ at a letting of lands, the terms 
 of letting were read from a printed paper, and a party pres- 
 ent agreed to take certain premises from Lady Day then next, 
 when the lease of the then tenant would expire. No writ- 
 ing was signed by the parties or their agents, but there was 
 at the foot of the printed paper a memorandum, also read 
 over to the future tenant, stating that the parties had agreed 
 to let and to take, subject to the printed terms, the name of 
 the farm and the rent, and that the letting was for one year 
 certain from Lady Day, and so from year to year till notice 
 to quit. Some of the terms were special, having relation to 
 husbandry. It was held that on the trial of an action by the 
 landlord against the tenant for a breach. of them, the above- 
 mentioned paper might be referred to, to refresh the memory 
 of a witness as to such stipulations. 
 
 Sec. 34. Collateral Agreements. — Where the lessee of a 
 house and his partner in trade agreed to pay the lessor annu- 
 ally, during the residue of the term, 10 per cent on the cost 
 of new buildings, if the lessor would erect them ; it was held, 
 first, that this agreement was not required by the statute to 
 be in writing ; secondly, that though the partner quitted the 
 premises, he was liable on this collateral agreement during 
 the residue of the term.^ So where the defendant was ten- 
 
 1 Richardson v. GifEord, 1 Ad. & El. 25 j^g^_ ^ jjl. 856 ; 1 N. & P. 247. 
 
 52; Beale v. Sanders, 3 Bing. (N. C.) » Hoby v. Roebuck, 7 Taunt. 157; 
 
 850 ; 5 Scott, 58. see also Crowley v. Vitty, 7 Exch. 319. 
 
SEC. 35.] PABOL LEASES. 69 
 
 ant to the plaintiff of a house and bakehouse under a lease 
 for twenty years, at the yearly rent of ^£50, and being desir- 
 ous of some improvements in the house, proposed to the 
 plaintiff to lay out £50 on such alterations, which the plain- 
 tiff consented to do ; and the defendant thereupon agreed to 
 pay him an increased rent of £5 a year during, the remain- 
 der of the term, to commence from the quarter preceding the 
 completion of the work, and a memorandum in writing was 
 prepared to that effect, which the defendant refused to sign. 
 The alterations were completed in November, 1827, at an 
 expense of £55, and the defendant after Christmas, 1827, 
 paid the increased rent for the first quarter, but afterwards 
 refused to pay any more than the original rent. On an ac- 
 tion of assumpsit^ brought to recover arrears of the increased 
 rent, it was held, that the landlord having done the work 
 might recover the arrears, and that the case did not fall 
 within the statute, the additional sum, though called rent, 
 being a mere matter of personal contract.^ 
 
 Sec. 35. Determination of Term under Void Lease. — Where 
 a tenancy from year to year by entry under an agreement for 
 a lease, or a void lease, has been created, it can only be de- 
 termined by six months' notice to quit, or by surrender in 
 writing.^ Thus where A entered upon premises as tenant 
 to B under an agreement, not binding under the statute, for 
 five years and a half from Michaelmas, 1823, and m 1826 a 
 negotiation was entered into for a term of seven years " from 
 the expiration of the present term," at an increased rent, the 
 landlord to make some alterations, which he did, but no 
 lease was ever executed ; and at Michaelmas, 1829, a whole 
 year's rent was paid at the increased rate, and payments were 
 afterwards made on the same footing; it was held that a 
 notice given on the 11th March, 1835, to quit at Michaelmas 
 was a valid notice.^ If, however, the agreement provides 
 that the tenant shall enter on a certain quarter-day and quit 
 on another, the tenant holds under the terms of the lease in 
 other respects, and the landlord can only put an end to the 
 
 1 DoneUan v. Bead, 3 B. & Aid. 100 ; Tress v. Savage, 4 E. & B. 36 ; 18 
 899. Jur. 680 ; 23 L. J. Q. B. 339. 
 
 2 Chapman .-. Towner, 6 M. & W. * Berrey v. Lindley, 3M. & Gr. 498. 
 
70 STATUTE OP FRAUDS. [CHAP. I. 
 
 tenancy on the particular quarter-day fixed by the agree- 
 ment.^ But where the agreement provided that the lessor 
 should not turn out the tenant so long as he paid the rent, 
 it was held that the agreement either purported to be a lease 
 for life, which would be void as not being creatable by parol ; 
 oj, if it operated as a tenancy from year to year, was neces- 
 sarily determinable by either party on giving the regular 
 notice to quit.^ And the tenancy may be determined by the 
 six months' notice to quit, even if the parol agreement is that 
 two years' notice shall be given.^ 
 
 Sec. 36. Tenancy determined at End of Term without No- 
 tice. — If a tenant remains in possession until the end of the 
 proposed term, he is not entitled to notice to quit, and may 
 himself quit without notice.* And the fact that the void 
 agreement provided that he might renew the tenancy upon 
 terms, will not give him such an interest in the land as to 
 entitle him to enforce renewal.* 
 
 In Berrey v. Lindley,® Coltman, J., said : " A party who 
 enters under an agreement void by the statute of frauds, 
 becomes by that statute tenant at will to the owner, and the 
 tenancy described in the statute as a tenancy at will has 
 since been construed to enure as a tenancy from year to year. 
 But such a tenant may quit without notice, and be ejected 
 without notice, at the expiration of the period contemplated 
 in the agreement." 
 
 ' Doe V. Bell, 5 T. E. 471 ; 2 Sm. » Tooker v. Smith, 1 H. & N. 732. 
 
 L. C. 98 ; De Medina v. Poison, Holt, * Chapman v. Towner, 6 M. & W. 
 
 N. P. 47. 100 ; Doe v. Stratton, 4 Bing. 446 ; 
 
 2 Doe V. Browne, 8 East, 165 ; but Tress v. Savage, 4 E. & B. 36. 
 
 see Browne v. Warner, 14 Yes. 156 ; 6 jjq^ „. MofEatt, 15 Q. B. 257. 
 
 in re King's Leasehold Estates, L. E. » 3 m. & Gr. 512; 4 Sc. (N. E.) 
 
 16 Eq. 521. 61. 
 
SURRENDER AND ASSIGNMENT. 
 
 Section 3. No leases, estates, or interests, either of freehold or terms 
 of years, or any uncertain interest of, in, to, or out of any messuages, 
 manors, lands, tenements, or hereditaments, shall, at any time, be as- 
 signed, granted, or surrendered, unless by deed or note in writing, 
 signed by the party so assigning, granting, or surrendering the same, 
 or their agents thereunto lawfully authorized by writing, or by act and 
 operation of law. 
 
CHAPTER n. 
 
 ASSIGNMENT AKD SUEKENDEE. 
 
 SECTION, 
 
 37. When Deed is not Eequired. 
 
 38. Effect of the Statute. 
 
 39. Tenancy from Year to Year not Assignable by Parol. 
 
 40. Effect of Demise of Whole Term. 
 
 41. Surrender, What is. 
 
 42. Demise by Tenant from Year to Year. 
 
 43. Lessee reserving Interest, not Good as a Surrender^ 
 
 44. Kinds of Surrender. Operative Words of. 
 
 45. Estate Created without Deed may be Surrendered without Deed. 
 
 46. Effect of Surrender. 
 
 47. Surrender on Condition Particular Estate may Revest. 
 
 48. No Surrender to take Effect in Future. 
 
 49. Surrender for the Purpose of Eenewal. 
 
 50. Eequisites to Good Surrender. 
 
 51. To whom Surrender must be made. 
 
 52. Who may Surrender. 
 
 53. At what Time a Surrender may be made. 
 
 54. Cancelling Lease not Surrender. 
 
 56. Nor Evidence of Surrender, unless Other Evidence. 
 
 56. Definition of " Surrender by Act and Operation of Law." 
 
 57. Cases to which these Words Applied. Estoppel. 
 
 58. Disclaimer. 
 
 59. Agreement to Pay Additional Eent. 
 
 60. Agreement to Purchase. 
 
 61. Determination of Tenancy from Year to Year. 
 
 62. Ineffectual Notice to Quit. 
 
 63. Surrender by Consent, and Acceptance of Possession. 
 
 64. Presumption of Acceptance of Surrender ; when Rebutted. 
 
 65. Landlord Taking Tenant as Servant. 
 
 66. Surrender by Operation of Law. 
 
 67. Effect of New Lease of a Part of Premises. 
 
 68. Acceptance of a New Lease. 
 
 69. New Lease need not be in Writing. 
 
 70. Agreement for New Lease. 
 
 71. New Lease to Begin Presently. 
 
 72. What is a Sufficient New Lease. 
 
 73. Term Taken in Execution. 
 
 74. New Lease Voidable on Condition may be Surrender. 
 
 75. New Lease Granted to Tliird Party. 
 
 76. Commencement of New Tenancy Question of Fact. 
 
 77. Surrender may be Presumed, Wben. 
 
 78. Effect of Surrender on Rent Due and Accruing, 
 
 79. How a Surrender should be Pleaded. 
 
SBC. 38.] ASSIGNMENT AND STIEEENDEK. 73 
 
 Section 37. When Deed ia not Required. — When a deed is 
 not required by this section, any instrument in writing, duly 
 signed and expressing an immediate purpose of giving up 
 the estate on the part of the tenant, if accepted by the land- 
 lord, will be sufficient.^ In the several States of this coun- 
 try in which provision is made as to the manner in which an 
 assignment or surrender shall be made, considerable differ- 
 ence exists as to the mode in which it may be made. In any 
 of them, an assignment or surrender by deed, would be suffi- 
 cient,^ and in many of them any writing signed by the party 
 assigning or surrendering, or by his agent duly authorized in 
 the mode provided in the statute, is sufficient, although not 
 under seal,^ while in others no special provision is made as 
 to the assignment or surrender of leases ; * but these matters 
 are left subject to the general provisions of the statute relar 
 tive to the sale or leasing of lands. 
 
 Sec. 38. Effect of the Statute. — The effect of this section 
 of the statute of frauds is, not to dispense with any evi- 
 dence required by the common law, but to add to its provis- 
 ions somewhat of security, by requiring a new and more 
 permanent species of evidence. Wherever, therefore, at 
 common law a deed was necessary, the same solemnity is 
 still requisite under this act ; but with respect to lands and 
 
 1 Fanner v. Rogers, 2 Wils. 26; New Jersey, Penneylrania, and Mis- 
 Smith V. Mapleback, 1 T. E. 441; souri, "by deed or note in writing." 
 Weddall t. Capes, 1 M. & W. 60; In Ohio no lease can be "assigned 
 Harrison v. Blackburn, 17 0. B. N. S. or granted" except by deed or note 
 679. in writing. In Oregon no interest in 
 
 ^ In Georgia, Maryland, and South real estate can be " created, trans- 
 Carolina, the statute is identical with f erred, or declared " otherwise than 
 the EngUsh statute in this respect, by operation of law or by a convey- 
 In Florida, " by deeds signed, sealed, ance or other instrument in tvriting." 
 and delivered in the presence of at In Vermont " no estate or interest in 
 least two witnesses." land shall be assigned, granted, or sur- 
 
 ^ In Arkansas, by deed or notice in rendered unless by a writing signed, 
 
 viriting. In Maine and Massachusetts, etc." 
 
 " unless by a writing signed, etc.," or * This is the case in Alabama, 
 by operation of law. In Michigan, California, Dakota, Connecticut, Del- 
 Minnesota, Montana, Nebraska, Ne- aware, Illinois, Indiana, Iowa, Missis- 
 vada, New York, Utah, Pennsylvania, sippi. North Carolina, Oregon, Ehode 
 and Wisconsin, "unless by act or Island, Tennessee, Texas, Virginia, 
 operation of law, or by deed or con- West Virginia, and Wyoming. In 
 veyance in writing, etc." In New Kansas, a lease can only be assigned 
 Hampshire, "except by writing." In by deed or note in writing. 
 
74 STATUTE OP FRAUDS. [CHAP. II. 
 
 tenements in possession, which before the statute might have 
 been surrendered by words only, some note in writing duly 
 signed was by the statute rendered essential to a valid sur- 
 render.i In several of the States, an exception is made in 
 favor of leases for a period not exceeding the term for which 
 parol leases may be made, and they may be assigned or sur-. 
 rendered without deed or writing.^ 
 
 Sec. 39. Tenancy from Year to Year cannot be Assigned by 
 Parol. — A tenancy from year to year, created by parol, can- 
 not be assigned by parol,^ and it appears that an agreement 
 by a lessee for the transfer of his interest in a term (not 
 exceeding three years) which, not being in writing, is invalid 
 as an assignment by the statute, cannot operate as an. under- 
 lease ; as it is difficult to say, that, because an agreement is 
 by parol, and therefore cannot operate as an assignment, it 
 is to be construed to give a less interest than the parties 
 intended.* 
 
 SeO. 40. Effect of Demise of Whole Term may be Lease in 
 Certain Cases, or Assignment. — If, when the lessee demises 
 the whole of his term to another, the parties intend to con- 
 tract the relation of landlord and tenant, the transaction 
 may, in certain cases, be supported as a lease, so as to allow 
 the lessor to bring an action for use and occupation, for the 
 whole of such term, although the lessee has given notice to 
 quit before the expiration of the term, and has quitted 
 accordingly,^ and although the lessor is unable to distrain 
 for rent in arrear because of havLag no reversion.* In 
 Poultney v. Holmes,^ a lease of all the lessor's interest was 
 supported as a lease. This case was cited as valid, but dis- 
 tinguished in Palmer v. Edwards,^ which decided that an 
 
 1 Taylor on Evidence, 885; Eoberts decision in Poultney v. Holmes, 1 Str. 
 on Frauds, 248. 405, was of very doubtful authority, 
 
 2 As in Arkansas, California, Da- especially after the decision in Par- 
 kota, Florida, Kansas, Michigan, Min- menter v. Webber, 8 Taunt. 593. 
 nesota, Montana, Nebraska, Nevada, ^ Pollock v. Stacy, 9 Q. B. 1033. 
 New York, Oregon, Vermont, Utah, ^ Parmenter v. "Webber, 8 Taunt. 
 Wisconsin. 593 ; Smith v. Mapleback, 1 T. E. 441. 
 
 8 Botting V. Martin, 1 Camp. 319. ' 1 Str. 405. 
 * Barrett „. Rolph, 14 M. & W. » 1 Doug. 187 n. 
 348. In this case it was said that the 
 
SEC. 40.] ASSIGNMENT AND STJUKENDEE. 75 
 
 instrtiment expressed to be an assignment may operate as 
 sucli, although rent is thereby reserved to the assignor. In 
 Preece v. Corrie,^ the above doctrine was confirmed, and it 
 was held that the lessee held of the lessor though there was 
 no reversion. Pollock v. Stacy, however, can hardly be con- 
 sidered of great authority, after the recent decision of the 
 Court of Common Pleas in Beardman v. Wilson,^ where it 
 was held that an under-lease of the whole term amounts to 
 an assignment. In that case, Bovill, C. J., said: "As 
 far back as the year 1818 it was held, in Parmenter v, Web- 
 ber,* that where a lessee under-lets for the whole residue of 
 the term, it amounts to an assignment, and it was there 
 treated as established law. In a note to Shepherd's ' Touch- 
 stone,' * the law is stated in the same way, and it is in accord- 
 ance with the usual practice of conveyancers. In "WoUaston 
 V. Hakewill,^ the same question again arose, the under-lease 
 in that case being for a term exceeding that of the original 
 lease, and after taking time to consider, Tindal, C. J., deliv- 
 ering the judgment of the court, said : ' The only question 
 therefore is, whether, if a lessee for ninety-nine years demises 
 for a longer term, such demise operates in law as an assign- 
 ment, and we entertain no doubt, but that for a very long 
 period the law has been held that it has such operation and 
 may be so treated in pleading.' I think the matter must be 
 considered to be settled. No doubt the question was sought 
 to be in some degree raised in Pollock v. Stacy, but there 
 the action was brought for use and occupation, and it was 
 not necessary that there should have been any actual demise 
 or assignment. The only question was whether the person 
 in occupation was liable to pay rent. There was no deed in 
 that case which could act as an assignment, and the court 
 say : ' The parties intended to contract the relation of land- 
 lord and tenant. This they were at liberty to do by law, 
 and we therefore carry their lawful intention into effect.' 
 The case was decided on its special circumstances." ® 
 
 1 5 Bing. 24. ^ ZM..& Gr. 297. 
 
 •' L. R. 4 C. P. 57. 6 And see Cottee v. Richardson, 7 
 
 « 8 Taunt. 593. Exch. 151. 
 
 * P. 266, 8th ed. 
 
76 
 
 STATUTE OF PKAUDS. 
 
 [chap. n. 
 
 Sec. 41. Definition of Surrender. — A surrender is "a yield- 
 ing up of an estate for life or years, to liim that hath the 
 immediate reversion or remainder, wherein the particular 
 estate may merge or drown by mutual agreement between 
 them."i "But having regard to strangers who were not 
 
 1 Co. Litt. 337 b, Perk. § 584; 2 
 Vent. 206; 4 Bac. Abr. 299; Burton 
 V. Barclay, 5 M. & P. 785; 7 Bing. 
 745; Thorn v. Woolcombe, 8 B. & Ad. 
 586. A surrender differs from a re- 
 lease in that it is the falling of a lees 
 estate into a greater, while a release 
 operates by the greater estate falling 
 to the less. Williams v. Sawyer, 3 
 B. & B. 70; Smith v. Mapleback, 1 
 T. E. 441. In order to constitute a 
 valid surrender the surrenderor must 
 not only hare an estate in possession, 
 but he must also be legally compe- 
 tent and able to make a surrender 
 that will quiet all rights in the line 
 of his title, and it must be made to 
 the owner, in his own right of the 
 immediate reversion. 4 Bacon's Abr. 
 § 1, 213. In conformity with this 
 rule it will be seen, and so it has been 
 held, that an undertenant cannot sur- 
 render the lease and estate to the 
 original lessor, because the reversion is 
 in the original tenant, and the estate 
 must pass back to him, and from 
 him to the landlord. Springstein v. 
 Schemerhom, 12 John. (N. Y.) 357. 
 Prima facie, a person who is not a 
 party to the lease who is in posses- 
 sion, he is presumed to be in as an 
 assignee, but this presumption may 
 be overcome by showing that he is 
 in merely as an undertenant, and this 
 presumption may be overcome by 
 showing that the landlord procured • 
 the surrender from the lessee, in 
 which case such act operates as an 
 admission that the lessee was tenant 
 at the time of the surrender. Durand 
 V. "Wyman, 2 Sandf. (N. Y. Sup. Ct.) 
 597. If there is an intervening es- 
 tatej there is no surrender, but in 
 such cases it may opiate as a grant 
 of the term. Agar v. Brown, 2 B. & 
 B. 331. So, too, there must be a 
 privity of estate between the surren- 
 
 deror and the surrenderee, and the 
 latter must have a higher and greater 
 estate in the estate surrendered than 
 the surrenderor, which exists in his 
 own right, and not in the right of 
 another or as joint tenant. Shep. 
 Touch. 303; 2 Bl. Com. 336. But, 
 see Shep. Touch. 308, where a contrary 
 doctrine is advanced. Under this 
 rule, if a lease is made by a husband 
 and wife, of the wife's lands, a sur- 
 render should be made to her. Wood- 
 ard V. Lindley, 43 Ind. 433. But if 
 the husband has a lease or estate for 
 years, he alone, or he and his wife 
 together, may surrender it; but if he 
 has an estate for life in right of his 
 wife, who is tenant in dower or other- 
 wise, a surrender by the husband 
 alone is good only during his life, 
 and if the wife survives him, the es- 
 tate reverts to her. Shep. Touch. 303. 
 So, where a surrender is made to an 
 agent who is not shown to have power 
 to accept a surrender for his princi- 
 pal, yet if the landlord subsequently, 
 without returning the lease to the 
 lessee, accepts rent from a person to 
 whom the lessee had sublet the prem- 
 ises, it has been held to be a valid 
 surrender. Amory v. KanofEsky, 117 
 Mass. 351. A surrender to an infant 
 is good unless the presumption of his 
 assent thereto is overcome by proof 
 of dissent. Thompson v. Leach, 2 
 Vint. 198. And generally it may be 
 said that a surrender may be made 
 to any person who is legally entitled 
 to the immediate reversion, as to the 
 lessor himself, or a person authorized 
 by, or holding imder him ; but a sur- 
 render made to one who has not a 
 greater estate is not good. . 4 Bacon's 
 Abr. tit. Leases, § 2. It should be 
 remembered that a, person who is 
 from any cause disabled from grant- 
 ing the entire outstanding estate, is 
 
SEC. 42.] ASSIGNMENT AND STJBBBNDEE. 77 
 
 parties or privies thereunto ; lest by a voluntary surrender 
 they may receive prejudice touching any right or interest 
 they had before the surrender, the estate surrendered hath 
 in consideration of law a continuance,"^ and therefore, 
 although a surrender of a life estate to the owner of the fee 
 is as between the parties an extinguishment of the estate 
 surrendered, yet it may have a continuance to uphold a prior 
 interest derived under it,^ for there is no piivity of contract 
 between the original lessor and the sub-lessee.' Thus, where 
 the defendant held two plots of land, B and C, under a lease 
 which contained a covenant to build the houses not less than 
 thirty feet apart, the effect of which was to secure to the 
 houses on plot B a sea-view over plot C, and H, having 
 entered into a treaty with the defendant for the under-lease 
 of plot B, made inquiries of the defendant as to what could 
 be built on the land in front, to which the defendant replied 
 that he (the defendant) could not build on C closer than 
 thirty feet, as his lease did not allow it, and H after having 
 inspected the original lease took an under-lease of plot B, 
 contaiuing a covenant by the defendant that he, his execu- 
 tors, administrators, and assigns, would observe the lessee's 
 covenants in the original lease; and the defendant after- 
 wards surrendered his lease to the ground landlord, took a 
 new lease not containing the old restrictions, and commenced 
 building on plot C in a way which would obstruct the sea- 
 view from houses on plot B belonging to the plaintiff, who 
 was the assignee of H ; it was held that the right of H under 
 the defendant's covenants to observe the covenants in the 
 original lease, was not affected by the surrender, and that 
 the plaintiff was on that ground entitled to an injunction 
 to restrain the defendant from buildiug in contravention 
 of those covenants.* 
 
 Sec. 42. Demise by Tenant from Year to Year. — Surrender 
 by lease does not affect a sub-lessee. A demise by a tenant 
 
 unable to surrender such estate, and i Co. Litt. 238 b ; Davenport's 
 
 that a person who is disabled from Case, 8 Co. 145 b. 
 
 taking by grant is disabled from tak- " Doe v. Pyke, 5 M. & S. 146. 
 
 ing by surrender, rurnivall v. Grove, ^ Pleasant v. Benson, 14 East, 237 ; 
 
 8C.B. (N.S.)403; Pleasant w. Benson, Torriano v. Young, 6 C. & P. 8. 
 
 4 East, 234; Doe v. Pyke, 5 M. & S. * Piggott o. Stratton, 1 De G. P. 
 
 154. & J. 33. 
 
78 STATUTE OF FEATJDS. [CHAP. II. 
 
 from year to year to anotlier, also to hold from year to year, 
 is a demise from year to year during the continuance of the 
 original demise, although at the time of making the contract 
 no such qualification is mentioned ; for, although the lessee 
 might surrender, his estate would as to the under-lessee 
 have continuance.^ It is well settled that the surrender of a 
 lease wiU not affect or prejudice an under-lease previously 
 granted,^ unless the sub-tenant expressly assents thereto and 
 in effect attorns to him.^ Thus, in an English case,* at 
 Michaelmas, 1851, A, the owner of two adjoining houses, 
 Nos. 4 and 5, let No. 5 to A, as tenant from year to year. 
 Defendant having become tenant to W of No. 4, A let him 
 the cellars under No. 5, from year to year from Michaelmas, 
 1861. There was in the front cellar a gas-meter communi- 
 cating with the house No. 5, and it was a term of the letting 
 that A should be allowed to go to the meter, if necessary, 
 whenever defendant's premises were open. In July, 1871, it 
 was agreed between A, W, and D, that A should give up pos- 
 session of No. 6 to- W, and D became tenant from year to 
 year to W from Michaelmas, 1871. Defendant was aware 
 that No. 5 was given up by A and re-let to D, but no notice 
 to quit the cellars was given to defendant. In March, 1872, 
 D put up in the cellars a water-meter communicating with 
 his house, without either objection or express permission of 
 the defendant. Afterwards D surrendered his interest in 
 favor of the plaintiff, and W let No. 6, expressly including 
 the cellars, to the plaintiff for fourteen years, from the 24th 
 of June, 18.72. The plaintiff entered into occupation, the 
 cellars remaining occupied by the defendant, and plaintiff, 
 without objection or permission of the defendant, put up more 
 pipes and some bell-wires in the cellars. In July, 1872, the 
 plaintiff demanded possession of the cellars, but the defend- 
 ant refused to give them up without a proper notice to quit, 
 and he retained possession till April, 1873. On the 10th of 
 
 1 Pike V. Eyre, 9 B. & C. 909; 4 Torriano v. Yoiing, 6 C. & P. 8; Hay- 
 Mann. & E. 661 ; Lambert v. McDon- ton v. Benson, 14 East, 237. 
 
 nell, 15 It. C. L. E. 136 ; The London ^ Lambert v. McDonnell, 15 Ir. 
 
 Discount Co. v. Drake, 6 C. B. (N. S.) C. L. 136. 
 
 798. * Mellor v. Watkins, L. E. 9 Q. B. 
 
 2 Piggott V. Stanton, 1 De G. P. & 400. 
 J. 33; Beaden v. Pyke, 5 M. & S. 146; 
 
SEC. 42.] ASSIGNMENT AND STJEBENDER. 79 
 
 January, 1873, the defendant cut off the plaintiff's water 
 supply by hammering up the service pipe passing through 
 the cellars, and cut the gas-pipes and bell-wires. The plain- 
 tiff having brought an action for being kept out of possession 
 of the cellars, and for the damages caused by the defendant's 
 cutting the pipes, etc., it was held that the defendant was 
 entitled to keep possession until a proper notice to quit had 
 been given ; for that the voluntary surrender by A could not 
 affect the interest of the defendant, his sub-lessee, and that 
 plaintiff was entitled to damages for the. cutting of his pipes 
 and wires; because a licensee, under a revocable license, 
 was entitled to notice of revocation and a reasonable time 
 afterward to remove his goods.^ Not only is a sub-tenant 
 protected against a surrender by the lessee, but a mortgagee 
 of his term is also protected therefrom, and even a mortgagee 
 of the tenant's fixtures, it not being competent to the tenant 
 to defeat his grant by a voluntary surrender subsequent to 
 the grant.^ Thus, a party seized of a leasehold estate for 
 life, subject to a covenant against waste, cannot defeat the 
 rights of a mortgagee under a mortgage executed by hiinself, 
 by a mere confession of waste to the landlord, and a surren- 
 der of possession to him for a consequent forfeiture of the 
 lease. As against such mortgagee, and indeed, even as 
 between the landlord and tenant, a re-entry for the forfeit- 
 ure, hy suit at law, is necessary to terminate the lease.* 
 
 1 McKenzie v. Lexington, 4 Dana neglect or refuse to pay his rent after 
 (Ky.) 129. a regular demand, or is guilty of ani/ 
 
 2 The London &c. Loan and Dis- other breach of the condition of a re- 
 count Co. 17. Drake, 6 C. B. N. S. 798. entry, the lease is only voidable, and, 
 
 ^ Allen V. Brown, 60 Barb. (N. Y.) therefore, not determined until the 
 
 39. In this case Millek, P. J., said : lessor re-enters ; that is, brings an 
 
 " There is no reported case in the ejectment for the forfeiture ; and this, 
 
 books which holds that where there though the clause of the condition 
 
 is a condition in a lease that a party should be that, for non-payment of 
 
 shall not commit waste, that the lease rent, or the like, the lease shall cease 
 
 becomes forfeited without a trial and and be void ; for it is a rule that 
 
 a judgment at law in favor of the where an estate commences by liv- 
 
 party claiming the forfeiture. There ery, it cannot be determined before 
 
 is a difference between leases for lives entry.' 
 
 and for years. In Woodf all's Land. " Applying the rule laid down, there 
 
 and T., 271, it is said: 'In cases of can be no question that the plaintiff's 
 
 conditions of re-entry, there is a dif- action cannot be maintained. The 
 
 ference between leases for lives and authority quoted is cited in Jackson 
 
 leases for years'... 'As to leases w. Elsworth, 20 John. (N. Y.) 180, and 
 
 for lives, it is held that if the tenant there is no case referred to which 
 
80 
 
 STATUTE OF PEATJDS. 
 
 [chap. n. 
 
 Where a lessor, in consideration of the payment of an annual 
 sum during a term of years, grants certain priTileges to an 
 under-tenant, which the mesne landlord was incapable of 
 granting, a surrender to the latter will not affect the tenant's 
 liability on his contract with the permanent lessor.^ 
 
 Sec. 43. Lessee reserving Interest not Good Surrender. — If 
 
 a lessee reserves to himself any part of the estate, it is not a 
 good surrender, as if he grants all his term to the lessor 
 except the last year, month, or day.^ 
 
 A surrender does not operate as such unless it is accepted 
 by the reversioner.^ 
 
 Sec. 44. Surrenders are of Two Sorts. Proper Operative 
 ■Words. — A surrender, properly taken, is of two kinds. 
 
 disturbs the doctrine there laid down. 
 It must, therefore, be considered as 
 decisive, and the question as res adjvn 
 dicata. I am also inclined to think 
 that a forfeiture and re-entry on ac- 
 count of waste is a condition and not a 
 limitation of an estate, and, therefore, 
 waste of itself, without the institution 
 of legal proceedings, does not termi- 
 nate the estate. The condition does 
 not defeat the estate, although it be 
 broken, until entry by the grantor, or 
 his heirs or representatives. The 
 landlord may terminate the estate, if 
 he chooses, by a proper proceeding, 
 and take advantage of a breach of the 
 condition. If he fails to do this, the 
 estate continues the same as if there 
 had been no breach of the condition, 
 and the condition is waived. (2 Black. 
 Com. 155; 4 Kent, 126, 127.) 
 
 " There is another difficulty, I think, 
 in the way of the plaintiff and this 
 action. James J. Allen, the owner of 
 the leasehold estate, having conveyed 
 his interest in the same by way of 
 mortgage, I am strongly inclioed to 
 think that he could not make or exe- 
 cute a valid surrender of the premises 
 as against the mortgagee, and thus 
 defeat him from holding under the 
 mortgage. The mortgage purports 
 to convey the premises to the mort- 
 gagee, subject to be defeated upon 
 
 the performance of the condition con- ' 
 iained in the mortgage. The mort- 
 gagor parts with an interest in the 
 mortgaged premises, by the execution 
 of the mortgage, and if he can sur- 
 render the premises in despite of the 
 obligations he has incurred, it would 
 open the door to collusion and the 
 grossest fraud and injustice. A s'ur- 
 render is only a conveyance of the 
 estate which the lessee has, and if it 
 be subject to a mortgage, then the 
 landlord can receive no greater estate 
 than could be conveyed to any other 
 person, and such as the tenant had, 
 subject to the incumbrance thereon. 
 There is eminent justice and equity 
 in such a rule, and I can discover no 
 good reason why it should not be ap- 
 plied. The lease is executed with 
 knowledge that the property may be 
 incumbered by mortgage, and no 
 rights are lost if the incumbrance ia 
 recognized, without injury to the 
 landlord, to prevent a forfeiture which 
 must destroy the claim of the mort- 
 gage, and which the law abhors. See 
 Keech v. Hall, 1 Douglass, 21; 1 
 Smith Leading Cases, 293." 
 
 1 Doscher v. Shaw, 52 N.Y. 602. 
 
 2 Com. Dig. tit. Surrender (H.) ; 
 Bac. Abr. tit. Leases, § 3. 
 
 8 Colles V. Evanson, 19 C. B. (N. S.) 
 382, per Byles, J. 
 
SEC. 44.] ASSIGNMENT AND SUREENDEE. 81 
 
 namely, a surrender in deed, or by express words, and a sur- 
 render in law, wrought by consequent operation of law.i 
 The proper operative words of a surrender are, " surrender 
 and yield up." ^ But in an express surrender, it is not neces- 
 sary to use the formal word "surrender" in the conveyance ; 
 nor, indeed, is any particular form essential, but any words, 
 whereby the intent and agreement of the parties to that end 
 appear, are sufficient to work a surrender, and the law will 
 direct the operation and construction of the words accord- 
 ingly.^ If a lessee for life or years grants all his estate to 
 bis lessor, that is a surrender.* Thus, in Farmer v. Rogers,^ 
 A B by deed indented, mortgaged lands to C D for five hun- 
 dred years, with a proviso for cesser on payment of £ 500 
 and interest upon a certain day. This mortgage was set up 
 as a defence to an action of ejectment, when the deed ap- 
 peared to contain the following indorsement : " Received this 
 
 day of March, 1738 (being after the day limited by the 
 
 proviso), of A B so much money for all principal money and 
 interest till this day ; and I do release the said A B, and dis- 
 charge the within-mortgaged premises from the term of five 
 hundred years." Signed by C D, the mortgagee. The indorse- 
 ment was held to be a sufficient surrender of the terrii, the 
 court observing that the words "release and discharge the 
 term of five hundred years" were much stronger than words 
 which, in many cases, had amounted to a surrender, ut res 
 magis valeat quam pereat. So where a lease came into the 
 hands of the original lessor by an agreement between him 
 and the assignee of the original lessee, " that the lessor should 
 leave the premises, as mentioned in the lease, and should pay 
 a particular sum over and above the rent, annually, towards 
 the good will already paid by such assignee," the agreement 
 was held to operate as a surrender of the whole term, and 
 the sum mentioned in the agreement was considered as a 
 sum to be paid annually in gross.® The statute does not, 
 except in Florida, make a deed essential to a surrender, the 
 words being either " by deed or note in writing," or "by deed 
 
 1 Co. Litt. 338 a. (N. C.) 564 ; 7 Scott, 690 ; and see 2 
 
 2 Woodf. L. & T. 9th ed. 267. Boll. Abr. 497 (H.) pi. 1. 
 
 » 1 Wms. Saund. 289, citing Wil- * 2 Roll. Abr. 497, pi. 15. 
 liams V. Sawyer, 3 Brod. & B. 70 ; 6 ^2 Wils. 26, 27. 
 Moore, 226 ; Doe v. Stagg, 5 Bing. « Smith v. Mapleback, 1 T. R. 441. 
 
82 
 
 STATUTE OF FRAUDS. 
 
 [GHAP. II. 
 
 or conveyance in writing," signed, ete.,^ and any instrument 
 in writing duly signed, and expressing an immediate purpose 
 of giving up the estate on the part of the tenant, if accepted 
 by the Jandlord, will be sufficient.^ Thus a written instru- 
 ment in this form, " we hereby renounce and disclaim, and 
 also surrender and yield up all right, etc.," a tenancy from year 
 to year being in existence has been held to be a surrender 
 and not a disclaimer.^ So a written request by a tenant to 
 the landlord to re-let the premises to some other person, or 
 even a parol agreement to surrender, if acted upon, amounts 
 to a surrender by operation of law.* But a parol agreement 
 between the landlord and a tenant for a term, that the land- 
 lord shall make a new lease to a third person for the unex- 
 pired term, and the tenant will surrender, does not operate 
 as a surrender by operation of law, unless the new lease is 
 executed, and passes on interest according to the intention of 
 the parties, even though the tenant quit, and such third per- 
 son enters and occupies for a time.* 
 
 1 Peters v. Barnes, 16 Ind. 219. 
 
 2 Shep. Touch. 306; Farmer v. 
 Rogers/ 2 Wils. 26; Harrison v. 
 Blackburn, 17 C. B. (N. S.) 679; 
 Smith V. Mapleback, 1 T. R. 441; 
 "Weddall v. Capes, 1 M. & W. 50. 
 Any words indicative of an intention 
 and desire to surrender will operate 
 as a surrender. Weddall v. Capes, 
 ante; Chamberlaine's Case, 4 Mod. 
 151, as dedi or concessi Co. Litt. 301 ft, 
 " the lessee doth discharge the prem- 
 ises from the term." Earl v. Rogers, 
 2 Wils. 26; Mason v. Treadway, 1 
 
 ' Lev. 145, " the lessee is content that 
 the lessor shall have the land." Pen- 
 ruddock V. Newman, 1 Leon, 279, have 
 been held sufficient. An interesse ter- 
 mini is no impediment to a surrender. 
 Anon. 2 Dyer, 112 a, pi. 49 ; but a re- 
 mainder is. Jenkin Cent. 256, case 49. 
 
 5 Wyatt V. Stagg, 5 Bing. (N. C.) 
 564. 
 
 * NickeUs v. Atherstone, 10 Q. B. 
 944. In Allen v. Devlin, G Bos. (N. Y.) 
 1, it was hold that a parol agreement 
 on a good consideration made in Jan- 
 uary, 1858, for the surrender of the last 
 year of the term ending in May, 1859, 
 
 and duly performed by the tenant, was 
 valid, and a good defence to an action 
 for rent. In Lamar v. McNamee, 10 
 G. & J. (Md.) 116, it was agreed by 
 parol, between landlord and tenant, 
 that the latter should give up his un- 
 expired term in a lease and certain 
 claims which he had for repairs done 
 to the dismised premises, in consid- 
 eration of which the landlord prom- 
 ised to pay the tenant a certain sum 
 of money, and the tenant actually sur- 
 rendered on the same day, and the 
 landlord took possession. It was held 
 that the agreement, being immediately 
 executed, was not void, and that the 
 action by the tenant for the money 
 was maintainable. "Wlien the tenant 
 abandons the premises, and the land- 
 lord, at the request of the surety, re- 
 lets them on his account, such reletting 
 does not amount to a surrender. Mc- 
 Kenzie v. Farrell, 4 Bos. (K. Y.) 192. 
 
 ^ Soheifflin v. Carpenter, 15 Wend. 
 (IS. Y.) 400. In Wood u. Walbridge, 
 19 Barb. (N. Y.) 156, it appeared that 
 in November, 1843, the plaintiff leased 
 a house of B and C for the term of 
 eight years, to commence April 1, 
 
SKC. 45.] ASSIGNJIENT AND SURRENDER. 
 
 83 
 
 Sec. 45. Estate Created 'v^ithout Deed may be Surrendered 
 without Deed. — Where the estate may commence without 
 deed, it may be surrendered without deed,i as for example, 
 and estate for life of lands, which may be surrendered with- 
 ovit deed, and without livery of seizin ; because it is but a 
 yielding or a restoring of the estate again to him in the 
 immediate reversion or remainder.^ But an estate for life 
 or years of things which lie in grant whereof a particular 
 estate cannot commence without deed, cannot be surrendered 
 without deed.^ 
 
 1844. In Eebruary, 1844, the house 
 was destroyed hy fire, and the plain- 
 tiff, who had been in possession, left 
 the premises, and requested the les- 
 sors to cancel the lease, insisting tliat 
 tliere had been a previous verbal 
 agreement to cancel tlie lease in case 
 of destruction by fire. The lessors 
 refused, and the premises were unoc- 
 cupied the first quarter : then the les- 
 sors entered. B conveyed his inter- 
 est to C, who built thereon, and 
 leased the same to defendants for 
 three years. The plaintiff made no 
 claim till November, 1846, when he 
 brought ejectment against the de- 
 fendant. Held, that the acts of the 
 lessors must be taken to have been 
 with the plaintiff's assent, and were 
 inconsistent with the continuance of 
 plaintiff's lease, which must be con- 
 sidered as surrendered by operation 
 of law. A parol agreement to sur- 
 render, predicated on a good con- 
 sideration, is binding on the tenant. 
 Bogert V. Dean, 1 Daly (N. Y. C. P.) 
 250. 
 
 I Co. Litt. 338 a ; Farmer v. Rogers, 
 2 Wils. 26; Lamar «. McNamee, 10 
 G. & J. (Md.) 126; Rowan w. Little, 11 
 "Wend. (N. Y.) 616 ; Peters v. Barnes, 
 16 Ind. 210; Bailey v. Wells, 8 Wis. 
 141. In Pennsylvania, it is held that 
 a surrender need not in all cases be 
 in writing : Keister v. Miller, 25 Penn. 
 St. 481 ; Greider's Appeal, 5 id. 422 ; 
 as where the lease is for less than four 
 years. McKinney v. Reader, 7 Watts 
 (Penn.) 123. Evidence of a parol 
 agreement entered into contempora- 
 
 neously with the making of the lease 
 cannot be shown. Brady v. Peiper, 1 
 Hilt. (N. Y. C. P.) 61. In Delaware, 
 an agreement to accept the surrender 
 of even a parol lease is required to be 
 in writing. Logan v. Barr, 4 Harr. 
 (Del.) 546. In Kentucky, a parol sur- 
 render is good. MclCenzie v. Lexing- 
 ton, 4 Dana (Ky.) 129. In Maine, a 
 surrender must be by deed or writing. 
 Hesseltine v. Seaver, 16 Me. 212. So 
 in Vermont, Gen. Stat., p. 450, § 21 ; 
 1 Wms. Saund. 236, note n., an unex- 
 pired term of one year may be surren- 
 dered by parol. Smith i . Devlin, 23 
 N. Y. 363. At the common law be- 
 fore the 29 Car. 2, ch. 3, corporeal 
 hereditaments might be surrendered 
 without either deed, writing, or livery. 
 Lynch v. Lynch, 6 Ir. L. R. 131 ; Lyon 
 V. Reed, 13 M. & W. 285; Co. Litt. 
 336 a; Perkins v. Perkins, Cro. Eliz. 
 269; Close v. McCuUough, Gilb. Eq. 
 Rep. 235. And the circumstance that 
 a lessee delivered up his lease to the 
 lessor was a strong evidence of a sur- 
 render in fact. Lyon v. Reed, 13 M. 
 & W. 285. But a deed was indispen- 
 sable to a surrender of incorporeal 
 hereditament. 2 Piatt on Leases, 499 ; 
 Co. Litt. 338 a ; Bennett's Case, 2 
 Rolle, 20 ; Lyon v. Reed, ante ; Wood- 
 fall's L. & T. 267. 
 
 2 Co. Litt. 838 a; Wilston v. Pilk- 
 ney, 1 Vent. 242 ; Cartwright v. Pink- 
 ney, id. 272. 
 
 8 Shep. Touch. 397 ; Co. Litt. 338 a ; 
 Perkins v. Perkins, Cro. Eliz. 269; 
 Lyon V. Reed, 13 M. & W. 310 ; 13 L. 
 J. Ex. 377. 
 
84 STATUTE OB" FEAITDS. [CHAP. H. 
 
 Sec. 46. Effect of Surrender. — A surrender immediately 
 diverts the estate out of the surrenderor, and vests it in the 
 surrenderee ; for this is a conveyance at common law, to the 
 perfection of which no other act is requisite but the bare 
 grant ; and though it be true that every grant is a contract, 
 and there must be an actus contra actum, or a mutual con- 
 sent ; yet that consent is impKed ; a gift imports a benefit, 
 and an assumpsit to take a benefit may well be presumed, 
 and there is the same reason why a surrender should vest the 
 estate before notice or agreement, as why a grant of goods 
 should vest a property, or sealing of a bond to another in 
 his absence should be the obligee's bond immediately, with- 
 out notice.^ 
 
 Sec. 47. Surrender on Condition Particular Estate may Re- 
 vest. — A surrender, like any other conveyance, may be made 
 upon condition ; ^ and if the condition is broken, the particu- 
 lar estate may be revested,^ whether the surrender be express 
 or implied,* and the landlord's right to distrain will con- 
 tinue. Thus, where a tenant from year to year entered into 
 a conditional agreement with his landlord to surrender, 
 which was never acted upon, it was held that there was no 
 surrender.^ 
 
 Sec. 48. No Surrender to take Effect In Puturo. — There 
 cannot be a surrender of an estate in possession, to take 
 effect in futuro? A lessee for years to begin presently can- 
 not, until entry or waiver of the possession by the lessor, 
 merge or drown the same by any express surrender, because 
 until entry there is no reversion wherein the possession may 
 drown ; but if the lessee enters and assigns his estate to an- 
 other, such assignee before entry may surrender his estate to 
 the lessor, because by the entry of the lessee the possession 
 
 1 Thompson v. Leach, 2 Salk. 617. ^ Coupland v. Maynard, 12 East. 
 
 2 Perk. § 624. 134; Johnston v. Huddlestone, 4 B. & 
 8 Co. Litt. 218 h. C. 922 ; 7 D. & R. 411 ; Weddall w. 
 4 Doe V. Poole, 11 Q. B. 716; 17 Capes, 1 M. & W. 50 ; Doe u. Milward, 
 
 L. J. Q. B. 143 ; and see lioyd v. Lang- 3 M. & W. 332 ; 7 L. J. (N. S.) Ex. 57 ; 
 
 ford, 2 Mod. 176. Eoquet v. Moore, 7 Ex. 870 ; 22 L. J. 
 
 ^ Coupland v. Maynard, 12 East. Ex. 35; and see Bessell v. Landsberg, 
 
 134 ; and see Cocking v. "Ward, 1 C. 7 Q. B. 638 ; 14 L. J. Q. B. 355. 
 B. 868. 
 
SEC. 48.] ASSIGNMENT AND SXTEEENDEE. 85 
 
 is severed and divided from the reversion, which possession 
 being by the assignment transferred to the assignee, may 
 without any other entry be surrendered and drown in the 
 reversion.^ 
 
 If a lease for years is made, to begin at a future day, this 
 future interest cannot be surrendered; but if the lessee 
 before that day take a new lease for years, either to begin 
 presently or at the days named, this is a surrender in law of 
 the first lease.^ A lessee for years of a term to begin at a 
 day to come, cannot surrender it by an actual surrender 
 before the day the term begins, as he may by a surrender in 
 law.* A notice to quit may operate as a surrender, but not 
 if it was given under a mistake as to the time when the term 
 expires, and consequently is not good as a notice to quit. 
 Thus, in a ease previously cited,* a tenant from year to year, 
 believing that his tenancy determined at Midsummer, gave 
 a written notice to quit at that period, which the landlord 
 accepted, and made no objection to. The tenant having 
 afterwards discovered that his tenancy expired at Christmas, 
 gave his landlord another notice accordingly, and, on posses- 
 sion being demanded at Midsummer, refused to quit the 
 premises. An ejectment having been brought, it was held 
 that the tenancy was not determined by notice, inasmuch as 
 it was not good as a notice to quit, and could not operate, as 
 a surrender by note in writing under the statute being to 
 take effect in future. Parke, B., said : " I am very strongly 
 of opinion that there cannot be a surrender to take place 
 in future. In Johnstone v. Huddlestone, ante, it was held that 
 an iusufficient notice to quit, accepted by the landlord, did 
 not amount to a surrender by operation of law, and it was 
 there agreed that there could not be a surrender to operate 
 in futuro. The case of Aldenburg v. Peaple,^ was much 
 shaken by the decision of this court in Weddall v. Capes, 
 ante ; for, although this precise point is not there determined, 
 yet it is clear that the court were of opinion that the in- 
 strument could not operate as a surrender in futuro." 
 
 ' Bac. Abr. tit. Leases, § 2; and ' Shep. Touch. 304; Ive v. Sams, 
 
 see Doe v. Walker, 7 D. & B. 487 ; 5 Cro. Eliz. 521 ; Hutchins v. Martin, 
 
 B. & C. 111. il). 605. 
 
 2 Bac. Abr. tit. Leases, § 2 ; Shep. * Murrell v. Milward, 3 M. & W. 327. 
 
 Touch. 302. 6 6 C. & P. 212. 
 
86 STATUTE OP FiBAUDS. [CHAP. n. 
 
 Sec. 49. Surrender for the Purpose of Renewal. — The sur- 
 render of a lease will not affect an existing sub-lease. 
 Formerly, if a lessee created out of his estate an under-lease 
 for a less term, and surrendered his immediate reversion to 
 his own reversioner, as his estate became merged, there was 
 no reversion on the sub-lease, and the rent as incident to 
 such reversion ceased.^ As regards surrenders for the pur- 
 pose of renewal, it is provided by 4 Geo. II. c. 28, § 6, that 
 in case any lease shall be duly surrendered in order to be 
 renewed, and a new lease made and executed by the chief 
 landlord, or landlords, the same new lease shall, without a 
 surrender of all or any of the under-leases, be as good and 
 valid to all intents and purposes, as if all the under-leases 
 derived thereout had been likewise surrendered at or before 
 the taking of such new lease ; and all and every person and 
 persons, in whom any estate for life, or lives, shall from time 
 to time be vested by virtue of such new lease, and his, her, 
 and their executors and administrators, shall be entitled to 
 the rents, covenants, and duties, and have like remedy for 
 the recovery thereof; and the under-lessees shall hold the 
 messuages, etc., in the respective under-leases comprised, as 
 if the original leases, out of which the under-leases are de- 
 rived, had been kept on foot and continued ; and the chief 
 landlord and landlords shall have and be entitled to such 
 and the same remedy, by distress or entry in and upon 
 the messuages, etc., for the rents and duties reserved by such 
 new lease, so far as the same exceed not the rents and duties 
 reserved in the lease out of which the under-lease was de- 
 rived, as they would have had in case such former lease had 
 been still continued, or as they would have had in case the 
 under-leases had been renewed under such new principal 
 lease. The object of the legislature in framing this clause 
 appears to have been to place all parties as to every matter 
 in the same situation as if no surrender had taken place.^ 
 In England, by 8 & 9 Vict. c. 106, § 9, it is provided that, 
 when the " reversion expectant on a lease made either before 
 or after the passing of the Act, shall, after the 1st of Octo- 
 
 1 Thre'r v. Barton, Moore, 94 ; 2 Doe v. Marchetti, 1 B. & Ad. 721, 
 
 Shep. Touch. 301 j Webb. v. Eussell, per Lord Tenterden, C. J. ; Cousins v. 
 
 3 T. E. 398; Burton v. Barclay, 7 Phillips, 3 H. & C. 892; re Ford's 
 
 Bing. 756 ; 5 M. & P. 785. Estate, L. K. 8 Eq. 309. 
 
SEC. 52.] ASSIGNMENT AND SUnREKDEE. 87 
 
 ber, 1845, be surrendered or merge, the estate which shall 
 for the time being confer as against the tenant under the 
 same lease the next vested right to the same tenements or 
 hereditaments, etc., shall, to the extent and for the purpose 
 of preserving such incidents to and obligations on the same 
 reversion as, but for the surrender or merger thereof, would 
 have subsisted, be deemed the reversion expectant on the 
 same lease." ^ 
 
 Sec. 50. Requisites to Good Surrender. — To make a good 
 surrender it is essential : 1st. That the surrenderor be a per- 
 son able to grant and make, and the surrenderee, a person 
 capable and able to iake and receive or surrender, and that 
 they both have such estates as are capable of a surrender ; 
 and for this purpose that the surrenderor have an estate in 
 possession [or rather an actual vested estate] of the thing 
 surrendered at the time of surrender made, and not a bare 
 right thereunto only. 2d. That the surrender be to him 
 that hath the next immediate estate in remainder or rever- 
 sion, and that there be no intervenient estate coming be- 
 tween. 3d. That there be a privity of estate between the 
 surrenderor and the surrenderee. 4th. That the surrenderee 
 have a higher and greater estate in the thing surrendered 
 than the surrenderor has [or an estate equally large], so that 
 the estate of the surrenderor may be drowned therein. 5th. 
 That he have the estate in his own right, and not in the right 
 of another. 6th. And that he be sole seized of the estate in 
 remainder or reversion, and not in joint tenancy.^ 
 
 Sec. 51. To whom Surrender made. — Under the rules 
 stated, a lessee for years may surrender to him who has the 
 reversion only for years ; though the lease be for several years 
 and the reversioner has it only for one year or a less term.^ 
 
 Sec. 52. who may Surrender. — Those persons who are 
 disabled to grant are unable to surrender ; and such persons 
 
 1 Farmer v. Rogers, 2 "Wils. 26 ; » Hughes a. Eobotham, Cro. Eliz. 
 Williams v. Sawyer, 3 Brod. & B. 70; 302 ; Dighton v. Greenvil, 2 Vent. 326, 
 Doe V. Stagg, 5 Bing. (N. C.) 564; 7 327 ; Challoner v. Davis, 1 Ld. Raym. 
 Scott, 690. 402 ; Bac. Abr. tit. Leases, § 2 ; 
 
 2 Shep. Touch. 303. See note, ante, Edwards .,. Wickwar, L. K. 1 Eq. 68, 
 p. 76. 403. 
 
88 STATUTE 0¥ FRAUDS. [CHAP. U. 
 
 as are disabled to take by a grant are unable to take by a 
 surrender.! A sub-lessee cannot surrender to tbe original 
 lessor, by reason of the intermediate interest, but the lessee 
 may surrender to the lessor and then the sub-lessee likewise, 
 because then his lease is become immediate to the reversion 
 of the lessor.'^ If a husband has a lease or estate for years 
 in the right of his wife, he alone, or he and his wife together, 
 may surrender the lease. But if the husband has an estate 
 for life in the right of his wife, being tenant in dower or 
 otherwise, and he alone, or he and she together, surrender it, 
 the surrender is good only during the life of the husband, 
 except it is made by fine, nor even if there be a fine, unless 
 the wife join.^ One executor may surrender an estate or 
 lease for years wliich the executors have in the right of their 
 testator.* One joint-tenant cannot surrender to another joint- 
 tenant, but a release is the proper assurance between them.* 
 Where the lessee of premises under a covenant of re-entry, 
 if the rent should be in arrear twenty-eight days, died in bad 
 circumstances, and his brother administered de son tort, and 
 agreed with the landlord to give him possession and suffer 
 the lease to be cancelled on his abandoning the rent, which 
 was twenty-eight days in arrear, and took out letters of 
 administration, it was held that the agreement of the brother 
 made as administrator de son tort, did not conclude him as 
 rightful administrator, nor give a right of possession to the 
 landlord who had entered under the agreement, but who had 
 not made any formal claim in respect of the forfeiture, nor 
 taken a regular surrender of the lease .^ Where a lessee gave 
 up possession on the last day of the term to a trustee to whom 
 he had been in the habit of paying his rent, and not to the 
 person having the legal estate, it was held there was no sur- 
 render.'' So a surrender to sequestrators is not sufficient.® 
 The surrender of an infant lessee by deed is void ; but his 
 surrender in law by the acceptance of a new lease is good, if 
 such new lease increases his term or decreases his rent.^ 
 
 1 "Woodf. L. & T. 9th ed. 277; « Doe v. Glenn, 1 Ad. & El. 49. 
 Shep. Touch. 303. i Ackland v. Lutley, 9 Ad. & El. 879. 
 
 2 Bac. Abr. tit. Leases, § 2. 8 Cornish v. Searell, 8 B. & C. 471. 
 8 Shep. Touch. 303. 9 Lloyd v. Gregory, Cro. Car. 501 ; 
 * Shep. Touch. 303. see Zouch v. Parsons, 3 Burr. 1794. 
 
 6 lb. 303-4. 
 
SEC. 54.] ASSIGNMENT AND StJEEENDER. 89 
 
 Sec. 53. At 'what Time a Surrender may be made. — A les- 
 see for a term of years to begin presently cannot, before 
 entry, merge or drown the term by a surrender, because until 
 entry there is no term, and no reversion in the possession to 
 drown ; but if the lessee enters and assigns his estate to an- 
 other, such assignee may, before entry, surrender his term to 
 the lessor, because by the entry of the lessee the possession 
 was severed and divided from the reversion, which posses- 
 sion, being by assignment transferred to the assignee, may 
 without other entry be surrendered and drowned in the rever- 
 sion ;^ but it is not necessary that the surrenderor of a lease 
 to begin at a future day should be in possession, in order to 
 make a surrender before the period of commencement.^ As 
 to surrender of leases in futuro or future interest, there is 
 this distinction to be observed, that a lessee for years of a 
 term, to begin at a day to come, cannot surrender it by an 
 actual surrender before the day of the term begins, but he 
 may by a surrender in law.^ Whenever a deed purporting 
 to be a surrender cannot operate as such, it will probably 
 take eJBfect as an assignment or as a release of the right to 
 the term, ut res magis valeat quam pereat.'^ 
 
 Sec. 54. Cancelling Lease not Surrender. — Since the stat- 
 ute of frauds, a lease for years cannot be surrendered by 
 cancelling, without writing, because the intention of the 
 statute was to take away the former manner of transferring 
 interests in lands by signs, symbols, and words only ; and 
 therefore, although the cancelling of a lease was a sign of 
 surrender before the statute, it is now taken away unless 
 there is a writing under the hand of the party ; ^ and the fact 
 
 1 Bacon's Abr. tit. Leases, § 2. lease, it was held that if the old lease 
 
 ^ Shep. Touch. 302. was not duly surrendered by writing 
 
 ' Shep. Touch. 304 ; Itcs u. Sams, within the statute of frauds, yet that 
 
 Cro. Eliz. 521 ; Hutchins v. Martin, id. A could recover no more land than 
 
 605. what he could prove with absolute 
 
 * "Wood's Landlord and Tenant,803. certainty was covered by the lease, 
 
 5 Magennis u. MacCullough, Gilb. especially after the premises had been 
 
 Eq. Eep. 236, per Gilbert, C. B. ; Roe in the possession of another for near 
 
 0. Abp. of York, 6 East, 86. A de- 16 years. Jackson v. Gardner, 8 
 
 struction of the lease does not operate Johns. (N. Y.) 394 ; Leech v. Leech, 2 
 
 as a- surrender. Thus, where A vol- Chitt. 100; Courtail v. Tliomas, 9 B. 
 
 untarily delivered up and destroyed a & C. 288 ; Close v. McCuUough, Gilb. 
 
 lease of land, and took a new lease, Eq. Gas. 235. A recital in a lease by 
 
 and afterwards claimed under the old one party, that a former lease granted 
 
90 
 
 STATUTE OF FKAUDS. 
 
 [chap. n. 
 
 that the lessor has the lease in his possession in a cancelled 
 state does not proye a surrender, but he must show a sur- 
 render by deed or note in -writing. And it appears that the 
 rule is the same, whether the deed relates to things lying in 
 livery, or to those which lie in grant.^ The deed is evidence 
 of title, and if it is loss, secondary evidence may be produced 
 to show the grant.^ Moreover, alterations in a deed do not 
 prevent it from being received in evidence.* Where prem- 
 ises were demised to B, which he again demised to C, and 
 subsequently sold his interest to D, upon which D obtained 
 a new lease from A, the first lease having been cancelled, it 
 was held that B's interest had not been surrendered.* 
 
 Sec. 55. Nor Evidence of Surrender, unless Other Evidence. 
 
 — Nor is the fact that the lease is cancelled by the parties 
 prima facie evidence that there was a surrender by deed or 
 note in writing.^ But where the lease was produced from 
 the lessee's custody with the seals torn off, and it was proved 
 
 to another had been surrendered, 
 does not of itself afford any evidence 
 against strangers, of the fact of sur- 
 render. Lyon V. Reed, 13 M. & W. 
 285. Nor would the execution of a 
 counterpart of a new lease taken by 
 the lessee prior to the determination 
 of his former interest, and reciting 
 that it was granted iu consideration 
 of the surrender of the former lease 
 (unless it were by operation of law), 
 inasmuch as it did not purport of 
 itself to be a surrender, having no 
 words in it which could denote, or 
 amount to, a yielding or rendering up 
 of the interest of the lessee. Earl of 
 Berkeley v. The Archbishop of York, 
 6 East, 86. So, a surrender would 
 not be presumed from the circum- 
 stance of the rent having regularly 
 been paid by a third person. Cope- 
 land V. Watts, 1 Stark. 95. Nor 
 would the mere fact of a lease being 
 in the custody of the lessor, and in a 
 cancelled state, furnish a presumption 
 of there having been the requisite 
 deed or note in writing. It might 
 raise a presumption of intention to 
 determine the term, but no more. 
 And if the lessor relied on such a 
 
 cancellation as evidence, it was in- 
 cumbent on him to prove a surrender; 
 not on the lessee to show how the 
 lease came to be in that condition. 
 If, however, the lease had been in the 
 lessor's possession for a long series of 
 years — twenty, for instance — with- 
 out any dispute ; or if there had been 
 any destruction of his papers, or 
 change of residence, or any founda- 
 tion for supposing that there might 
 have been a deed or note in writing, 
 and that that deed or note had been 
 destroyed) that might have been a 
 ground for raising a presumption that 
 there was a deed or note in writing 
 accompanying the lease when it got 
 into his possession. Courtail v. 
 Thomas, 9 B & C. 288. 
 
 1 Bolton V. Bp. of Carlisle, 2 H. Bl. 
 263, 364; "Walker v. Richardson, 2 M. 
 & W. 892 ; 6 L. J. (N. S.) Ex. 229. 
 
 2 Bolton V. Bp. of Carlisle, 2 H. 
 Bl. 263. 
 
 8 Stewart v. Aston, 8 Ir. C. L. E. 
 35. 
 
 * "Wootley v. Gregory, 2 Y. & J. 
 536. 
 
 s Doe V. Thomas, 9 B. & C. 288; 4 
 Mann. & R. 218. 
 
SEC. 55.] ASSIGNMENT AND SUEUENDEK. 91 
 
 to be the custom to send in old leases to the lessor's office 
 before a renewal was made, which old leases were thereupon 
 cancelled, it was held that there was evidence from which 
 the jury might presume a surrender by operation of law.i 
 The fact that the lease is cancelled by the mutual consent of 
 both parties does not destroy the estates already vested or 
 their incidents, nor prevent the lessor from maintaining an 
 action of debt for the recovery of the rent.^ In an English 
 case ^ the plaintiff leased to the defendant a building called 
 "Her Majesty's Theatre," in Haymarket, for the term of 
 four years and nine months, for the yearly rent of £6275, 
 payable quarterly in advance. In an action for three-quar- 
 ter's rent, the defendant set up in defence that the lease, by 
 and with the assent of the plaintiff, was wholly cancelled, 
 and that he, the defendant, never entered into the possession 
 of the premises, and therefore claimed that he had duly sur- 
 rendered the premises to the plaintiff, and was not liable for 
 the rent thereof. The court held that this defence was not 
 available, Martin, B., saying, " When a man demises land 
 for a term of years, reserving to himself a rent, the effect of 
 it is to create two estates, viz., the estate of the lessee, and 
 the reversion of the lessor, and the rent is incident to the 
 reversion. When the day of payment arrives, the rent still 
 remains annexed to the reversion. Here the question is, 
 whether the simply cancelling a lease destroys the lessor's 
 right of action for the recovery of the rent. I am of opin- 
 ion that it does not, because the cancelling a lease does not 
 destroy the estate already vested, nor its incidents." Watson, 
 B., said, " The authorities are clear that the cancelling a deed 
 does not divest the estate of the lessee, or deprive the lessor 
 of his right of action upon the demise." The rule seems to 
 be well established, that when a conveyance of land operates 
 as a transmutation of possession, the cancellation, destruc- 
 tion, or even the redelivery of the deed by mutual consent 
 will not of itself revest the estate in the grantor, even 
 though the deed has never been recorded.* But where there 
 
 1 Walker v. Richardson, 2 M. & ^ Ward v. Lumley, ante. 
 
 W. 882; 6 L. J. (N. S.) Ex, 229. * Wiley v. Christ, 4 Watts (Penn.) 
 
 2 Ward V. Lumley, 5 H. & N. 87 ; 199 ; Hatch v. Hatch, 9 Mass. 307 ; 
 Doe V. Thomas, 9 B. & C. 288; 4 Jones „. Neale, 2 P. & H. (Va.) 339; 
 Mami. & E. 218. Parker v. Kane, 4 Wis. 1 ; Holhrook 
 
92 STATUTE OF FRAUDS. [CHAP. II. 
 
 has been no delivery of the deed, as where it is delivered to 
 a person to hold ia escrow until a certain time, or the hap- 
 . pening of a certain event, the redelivery of the deed to the 
 grantor would put an end to the 'transactions relative thereto 
 between the parties, because no estate had ever vested in the 
 grantee under the deed.^ 
 
 Sec. 56. Definition of " Surrender by Act and Operation of 
 Law." — A surrender by " act and operation of law " may be 
 defined as a surrender effected by the construction put by 
 the courts on the acts of the parties, in order to give those 
 acts the effect substantially intended by them ; and when the 
 courts see that the acts of the parties cannot have any oper- 
 ation, except by holding that a surrender has taken place, 
 they hold it to have taken place accordingly.^ 
 
 Sec. 57. Cases to ■which these Words Applied. Estoppel. — 
 The cases to which these words are to be applied are those 
 where the owner of a particular estate has been a party to 
 some act, the validity of which he is by law afterwards 
 estopped from disputing, and which would not be valid if 
 his particular estate had continued to exist. There the law 
 treats the doing of such an act as amounting to a surrender. 
 The acts in pais which bind parties by way of estoppel are 
 all acts which anciently really were, and in contemplation of 
 law have always continued to be, acts of notoriety not less 
 formal and solemn than the execution of a deed, such as liv- 
 ery, entry, acceptance of an estate, and the like. Whether 
 a party had or had not concurred in an act of this sort was 
 deemed a matter which there could be no difficulty in ascer- 
 
 u. Tirrell, 9 Pick. (Mass.) 105; Gray- (N. Y.) 373; King v. Crocheran, 14 
 
 son V. Eichards, 10 Leigh (Va.) 57; Ala. 822; Lawrence v. Lawrence, 24 
 
 Gilbert v. Bulkley, 5 Conn. 262 ; Coe Mo. 369 ; Connelly v. Doe, 8 Bleakf. 
 
 V. Turner, 5 id. 86 ; Botsford v. More- (Ind.) 320; Chessman u. Whittimore, 
 
 house, 4 id. 550; Mallory v. Stodder, 23 Pick. (Mass.) 231. But in New 
 
 6 Ala. 801 ; Morgan v. Elam, 4 Yerg. Hampshire under the statute relative 
 
 (Tenn.) 375; Hine v. Bobbins, 8 to recording deeds, etc., the rule is 
 
 Conn. 347 ; Libeau v. Libeau, 19 Mo. otherwise. Dodge v. Dodge, 33 N. H. 
 
 269; Jackson v. Anderson, 4 Wend. 487. 
 (N. Y.) 474; Eaynor v. Wilson, 6 i Coe v. Turner, ante. 
 HiH(]Sr. Y.) 469; Jordan v. Jordan, ^ Lynch v. Lynch, 6 Ir. L. E. 136, 
 
 14 Ga. 145 ; Jackson v. Page, 4 Wend, per Brady, C. B. ; see Cannan v. Hart- 
 
 (N. Y.) 585 ; Schutt v. Lange, 6 Barb, ley, 9 C. B. 634 ; 19 L. J. C. P. 323. 
 
SEC. 60.] ASSIGNMENT AND SUEEENDEE. 93 
 
 taining, and then the legal consequences followed.^ The sur- 
 render is presumed to have preceded the act to which the 
 tenant is party .^ 
 
 Sec. 58. Disclaimer. — A tenant for a definite term of 
 years will not forfeit his term by orally refusing, upon de- 
 mand of the rent made by his landlord, to pay the rent, 
 and disclaiming his landlord's title.* 
 
 Sec. 59. Agreement to Pay Additional Rent. — A parol agree- 
 ment by the tenant to pay an additional rent will not have the 
 effect of creating a new tenancy.* So a parol agreement by 
 the landlord to lay out money on the premises, the tenant 
 paying an increased rent or a percentage on the outlay, 
 does not create a new demise so as to amount to a surrender 
 of the then existing term, for it cannot be supposed to be in 
 the contemplation either of the landlord or tenant that the 
 old lease should be at an end, and that instead of it a new 
 lease should be created, which being by parol would only 
 have the effect of a lease at will.^ Nor does such an agree- 
 ment come within the statute for the reason that no addi- 
 tional interest in the land is thereby conferred, but in that 
 respect the interest of the parties remains the same as 
 before,^ and the new agreement is merely collateral, and the 
 additional rent cannot be distrained for, because it is not 
 embraced in the lease. 
 
 Sec. 60. Agreement to Purchase. — An agreement by the 
 tenant to purchase the premises from the landlord does not 
 amount to a surrender,^ as there is an implied condition in 
 the contract that the landlord shall make out a good title ; 
 but the contract may be so specially worded as to be an 
 
 1 Lyon 0. Eeed, 13 M. & W. 306, Doe v. Geekie, 5 Q. B. 841 ; Crowley 
 309 ; 13 L. J. Ex. 377, per Parke, B. ; o. Vitty, 7 Exch. 319. 
 
 see also Bessel v. Landsberg, 7 Q. B. ^ Donellan v. Read, 3 B. & Ad. 
 
 638 ; Nickells v. Atherstone, 10 Q. B. 905 ; Lambert v. Norris. 2 M. & W. 
 
 944. 335. 
 
 2 Caiman v. Hartley, 9 C. B. 634, ^ Donellan v. Read, ante. 
 
 II. a. "< Tarte v. Darby, 15 M. & W. 601 ; 
 
 ' Doe V. "Wells, 10 Ad. & El. 435. 15 L. J. Ex. 326 ; and see Hamerton 
 
 4 Geekie v. Monk, 1 C. & K. 307 ; v. Stead, 3 B. &. C. 483, per Little- 
 dale, J. 
 
94 STATUTE OF PEAtTDS. [CHAP. n. 
 
 absolute contract for purchase, whether the vendor shows a 
 good title or not.^ 
 
 Sec. 61. Determination of Tenancy from Year to Year. — A 
 
 tenancy from year to year cannot be determined unless there 
 is either a legal notice to quit, or a surrender in writing or hy 
 operation of law? And such a tenancy cannot therefore be 
 determined hj a parol license from the landlord to quit in 
 the middle of a quarter, although the tenant leaves the 
 premises, as there is a subsisting term in the premises which 
 can only be surrendered by deed or note in writing, or by 
 act and operation of law.^ 
 
 Sec. 62. ineffectual Notice to Quit. — Nor can such a 
 tenancy be determined by an ineffectual notice to quit, and 
 the tenant's quitting accordingly, if the landlord does not 
 accept possession. Where a tenant from year to year, by a 
 Lady Day holding, agreed by parol with his landlord's agent 
 to quit at the ensuing Lady Day, which was within half a 
 year ; and the premises were re-let by auction, at which the 
 tenant attended and bid, but the new tenant was not put 
 into possession : it was held that the tenancy was not deter- 
 mined, there not having been either a sufficient notice to 
 quit, or a surrender by operation of law.* So where the 
 tenant gave a parol notice to the landlord, less than six 
 months before the 25th of March, that he would quit on that 
 day, and the landlord verbally accepted and assented to the 
 notice, it was held that there had been no surrender.^ Again, 
 where the tenant accepted an insufficient notice to quit, and 
 agreed to give up the key of the premises, but afterwards 
 refused to do so, saying that the notice was bad, to which 
 the landlord replied, there would soon be another quarter's 
 rent due ; it was held that the tenant's agreeing to give up 
 the key was no acquiescence in the notice, and no surrender 
 within the statute.^ A notice to quit, signed by two only of 
 
 ' Doe «. Stanion, 1 M. cSb W. 695, ^ Johnstone v. Huddlestone, 4 B. & 
 
 701 ; Tyr. & Gr. 1065 ; 5 L. J. (N. S.) C. 922 ; 7 D. &. E. 411 ; and see Doe 
 
 Ex. 253. V. Milward, 3 M. & W. 328 ; Bessel v. 
 
 2 Doe V. Kidout, 5 Taunt. 519. Landsberg, 7 Q. B. 638. 
 
 8 Mollett V. Brayne, 2 Camp. 103 ; « Brown v. Burtinshaw, 7 D & E. 
 
 Thomson v. Wilson, 2 Start. 379. 603. 
 
 * Doe u. Johnstone, McClel. &Y.141. 
 
SEC. 63.] ASSIGNMENT AND SUEEBNDBR. 
 
 95 
 
 three executors of the original lessor, expressing the notice 
 to be given on behalf of themselves and the third executor, 
 is not good.i 
 
 Sec. 63. Surrender by Consent, and Acceptance of Posses- 
 sion. — As has already been stated, a surrender by operation 
 of law properly arises where the landlord or tenant has been 
 a party to some act the subject of which cannot be affected 
 while the particular estate exists, and the validity of which 
 he is by law estopped from disputing. Such a surrender is 
 the act of the law, and takes place independently, and even 
 in spite of the intention of the parties,^ and is presumed to 
 have preceded the act to which the tenant is a party. In 
 obedience to the rule stated, it is held that a surrender of 
 demised premises by a tenant and their acceptance hy the 
 landlord, even though there is a lease under seal, without any 
 written agreement, terminates the tenancy.^ A tenancy from 
 year to year cannot be determined without either a suflScieht 
 
 1 Right V. Cuthell, 5 East, 491. 
 
 "■ Lyon V. Eeed, 13 M. & W. 285. 
 
 5 Hanham v. Sherman, 114 Mass. 
 19; Eaudall v. Eich, 11 Mass. 493. 
 In Amory v. Kanoffsky, 127 ed. 117, 
 the lessee of land sub-let it, and when 
 the first instalment of rent came due, 
 both the lessee and sub-lessee paid it 
 to the lessor. The lessee then told 
 the lessor that if he continued to re- 
 ceive the rent from the sub-lessee, he 
 must release him from liability under 
 the lease. The lessor replied that he 
 might give up his lease, and then re- 
 funded the money he had paid. The 
 lessee took his lease to the office of 
 the lessor and delivered it to a person 
 there, who gave a receipt for it. The 
 lessor knew that the lease had been 
 left at his office, and did not return 
 it, and without making any demand 
 upon the lessee therefor, continued to 
 receive the rent for several months 
 from the sub-lessee, against whom he 
 subsequently brought an action to 
 recover possession. In an action 
 brought by him against the lessee to 
 recover the rents, it was held that 
 there had been a surrender by operar 
 
 tion of law, although there was no 
 evidence that the person to whom the 
 lease was delivered, as before stated, 
 had authority to accept the surrender 
 of leases, and that the record of the» 
 action brought against the sub-lessee 
 was competent evidence of a surren- 
 der. The fact that the lease is for a 
 longer term than three years does not 
 prevent a rescission thereof by a parol 
 agreement of the parties when accom- 
 panied by a surrender of the term 
 and possession by the tenant to the 
 landlord, and the acceptance thereof 
 by the latter. It is not like a sale 
 and transfer to a stranger of an in- 
 terest in land greater than a term 
 of three years, and therefore is not 
 within the statute of frauds. It is a 
 yielding up to the reversioner the 
 limited estate derived from him, 
 whereby the future tenancy is re- 
 scinded. The relation of landlord 
 and tenant is thereby ended. See 
 Boyce v. McCulloch, 3 W. & S. 
 (Penn.) 428; Eaffensberger „. CuUi- 
 son, 28 Penn. St. 426 ; Magaw v. Lam- 
 bert, 3 Penn. St. 444; Auer v. Penn., 
 Penn. Sup. Ct. 1880. 
 
96 
 
 STATUTE OP PKAUDS. 
 
 [chap. II. 
 
 notice to quit or a surrender/ and even a parol license given 
 by the landlord to quit before the end of the year, and the 
 tenant quitting accordingly, of itself is not sufficient to 
 amount to a surrender ;2 but if under such a license the 
 tenant quits and the landlord accepts the possession of the 
 premises, a complete surrender results which destroys the 
 lessor's right to rent either for the balance of the year or 
 that for the portion of the year already expired.^ Thus, in a 
 Massachusetts case,* it was held that the surrender of leased 
 premises by the administrator of a deceased lessee who has 
 occupied the premises after the death of the lessee, and its 
 acceptance by the lessor, without any reservation of, or 
 agreement for, a right to sue the administrator or to prove 
 against the insolvent estate of the lessee, terminates all 
 liability of the administrator or of the estate, upon the 
 covenants of the lease. In all cases, an executed agreement 
 to surrender is operative as a surrender.^ Thus, where a 
 tenant consented that the lessor might lease the premises to 
 another and gave up possession to the new lessee, a surrender 
 by operation of law was held to transpire ; ® and this doctrine 
 
 1 Eead v. Ridout, 5 Taunt. 519. 
 
 2 MoUett I/. Brayne, 2 Camp. 103 
 Thompson v. "Wilson, 2 Stark. 379 
 Gore V. Wright, 6 Ad. & El. 118 
 "Whitehead v. CUfford, 6 Taunt. 518 
 Dodd V. Acklom, 6 M. & G. 672 
 Stone V. "Whitney, 2 Stark. 235 
 Eeeve o. Bird, 4 C. M. & K. 31 
 Thomas v. Cooke, 2 B. & Aid. 119 
 Matthews v. Sawell, 8 Taunt. 270 
 Phipps V. Sculthorpe, 1 B. & Aid. 50 
 Grimson v. Legge, 2 B. & C. 324 
 Walls V. Atcheson, 8 Bing. 462 ; Hav- 
 land u. Bromley, 1 Stark. 455 ; Red- 
 path V. Roberts, 3 Esp. 325. But the 
 doctrine of these cases has been much 
 shaken by Lyon v. Reed, ante ; but in 
 Nicholls V. Atherstone, 11 Jur. 778, 
 the Court of Queen's Bench dissented 
 from the reasoning and observations 
 on tlie previous cases in that judg- 
 ment, and said there was no estoppel 
 in the case, although the judgment 
 was correct. In Biddulph v, Poole, 
 12 Jur. 450, is an elaborate judgment 
 upon tlie effect of a surrender by ac- 
 ceptance of a new lease, which is 
 
 voidable and afterwards avoided ; and 
 it was there held, that, to operate as 
 a surrender, the estate passing by the 
 new lease must be such as was con- 
 templated by the parties at the time. 
 See Lyon v. Reed, discussed, 2 Smith's 
 Leading Cases, 459 a, 459 i. 
 
 3 Grimman v. Legg, 8 B. & C. 324 
 Brown v. Burtinshaw, 7 D. & K. 603 
 Allen V. Devlin, 6 Bos. (N. T.) 1 
 Lamar v. McNamee, 10 G. & J. (Md.) 
 116. 
 
 * Deane v. Caldwell, 127 Mass. 242. 
 
 ^ Whitney u. Meyers, 1 Den. 
 (N. Y.) 266; Davison v. Gent, 1 H. & 
 N. 744. 
 
 6 Nickells v. Atherstone, 10 Q. B. 
 944; Thomas „. Cook, 2 B. & Aid. 
 119; Davison v. Gent, ante. The 
 doctrine of Thomas v. Cook, ante, was 
 impugned in Lyon v. Reed, 13 M. & 
 W. 285, but the first and last cases 
 Cited in this note, which were decided 
 after Lyon v. Reed, re-afiirmed the 
 doctrine of Thomas v. Cooke. In the 
 case first cited Lokd Denman, C. J., 
 said; "In this case, tlie defendant 
 
SEC. 63.] ASSIGNMENT AND STTBEENDER. 
 
 97 
 
 has been held in numerous cases in our courts.^ Where a 
 tenant abandons the possession, and the landlord enters and 
 
 1 Murray v. Shane, 2 Den. (N. Y.) 
 182 ; Randall v. Rich, 11 Mass. 494 ; 
 Gehegau v. Young, 23 Penn. St. 18 ; 
 Smith V. Nevins, 2 Barb. (N.Y.) 180; 
 Seheffelin v. Carpenter, 15 Wend. 
 (N. Y.) 400; Heseltine v. Leary, 16 
 Me. 212 ; Baker .,. Pratt, 15 111. 569 ; 
 Whitney u. Myers, 1 Den. (N. Y.) 
 266; Creigh v. Blood, 1 Jones & S. 
 
 being the lessee in possession of the 
 premises, the plaintiff, his landlord, 
 •with his consent, let them to a new 
 tenant, and put him in possession, 
 and discharged the defendant from 
 his liability as tenant. The judge 
 who tried the case held that these 
 facts constituted a surrender by oper- 
 ation of law, and, therefore, a defence 
 against the plaintiff's claim for rent. 
 The correctness of that holding has 
 been brought into question before us 
 in consequence of the opinion ex- 
 pressed by the Court of Exchequer 
 in Lyon v. Keed, 13 M. & W. 385, 305- 
 310 ; but we are of opinion that it is 
 correct. If the expression ' surrender 
 by operation of law' be properly 
 ' applied to cases where the owner of 
 a particular estate has been party to 
 some act, the validity of which he is 
 by law afterwards estopped from dis- 
 puting, and which would not be valid 
 if his particular estate had' continued,' 
 it appears to us to be properly ap- 
 plied to the present. As far as the 
 plaintiff, the landlord, is concerned, 
 he has created an estate in the new 
 tenant which he is estopped from dis- 
 puting with him, and which is incon- 
 sistent with the continuance of the 
 defendant's term. As far as the new 
 tenant is concerned, the same is true. 
 As far as the defendant, the owner of 
 the particular estate in question, is 
 concerned, he has been an active 
 party in this transaction, not merely 
 by consenting to the creation of the 
 new relation between the landlord 
 and the new tenant, but by giving up 
 possession, and so enabling the new ten- 
 
 (S. Y.) 133; Dayton i>. Craik, 26 
 Minn. 133 ; Smith u. Pendergast, 26 
 id. 818. And where the tenant aban- 
 dons the premises and the landlord 
 takes possession, a surrender by opera- 
 tion of law results. Smith v. Wheeler, 
 8 Daly (N. Y. C. P.) 135 ; ICrank v. 
 Nichols, 6 Mo. App. 72; Stewart v. 
 Munford, 91 111. 58. 
 
 ant to enter. If the defendant cannot 
 technically be said to be estopped from 
 disputing the validity of the estate of 
 the new tenant, still, according to the 
 doctrine of Pickard v. Sears, 6 Ad. & 
 El. 469, he would be precluded from 
 denying it with effect ; and the result 
 is nearly the same as an estoppel. If 
 an act which anciently really was, in 
 contemplation of law, and has always 
 continued to be, an act of ' notoriety, 
 not less formal and solemn than the 
 execution of a deed, such as livery, 
 entry, acceptance of an estate, and 
 the like' (Lyon v. Reed, 13 M. & W. 
 309), be required as requisite for a 
 surrender by operation of law, and if 
 the acts of the three parties are re- 
 garded together, this requisite is here 
 found. Indeed, the notoriety is essen- 
 tially greater than that which accom- 
 panies a parol redemise between the 
 same landlord and tenant, which is a 
 clear surrender by operation of law. 
 In the present case three are con- 
 cerned, and there is an actual change 
 of possession: in the other, two are 
 concerned, and there is no change of 
 possession. This surrender by opera- 
 tion of law has been judicially recog- 
 nized in each of the superior courts. 
 Matthews o. Sawell, 8 Taunt. 270; 
 Thomas u. Cook, 2 B. & Aid. 119; 
 Walker v. Richardson, 2 M. & W. 
 882 ; Bees v. Williams, 2 C. M. & R. 
 581 ; S. C. Tyr. & G. 23. And held 
 valid at nisi prius in Stone v. Whiting, 
 2 Stark. N. P. C. 235, and many sub- 
 sequent cases. When the decisions 
 on a point are numerous and uniform, 
 and carry into effect the lawful inten- 
 
98 
 
 STATUTE OF FRAUDS. 
 
 [chap. II. 
 
 uses the premises as his own,^ as to make repairs^ or to show 
 the premises to parties with a view to letting them on his own 
 account^ or does any acts thereon which show that the land- 
 lord has resumed the possession as owner. Thus, in the case 
 last cited, the defendant took a lease o£ a house, stable, and 
 three cottages, at an entire rent for the term of seven years. 
 The house and cottages were underlet to different tenants, 
 the defendant only occupying the stable and yard. Before 
 the expiration of the term the defendant assigned the 
 
 1 Krank v. Nichols, ante; Smith v, 
 Wheeler, ante; Phen^ v. Popplewell, 
 12 C. B. N. s. 334. 
 
 2 MacKellar v. Sigler, 47 How. Jr. 
 (N. Y.) 20. 
 
 8 Reeve v. Bird, 1 C! M. & K. 81. 
 
 tions of the parties according to the 
 truth, and are opposed by no princi- 
 ple, the law on the point ought not to 
 be considered doubtful because the 
 reported decisions are only of modern 
 date, as the fact that the reports on 
 the point do not begin till lately may 
 arise from there being no question on 
 the point in earlier times. Indeed, in 
 1809, it seems probable that a res- 
 toration of the possession to the land- 
 lord, and a discharge of the tenant by 
 him, was considered a surrender by 
 operation of law. The defence in 
 Mollett V. Brayne, 2 Campb. 10.3, was 
 shaped on that principle ; but, as the 
 evidence failed to show a change of 
 possession by mutual consent of land- 
 lord and tenant, the defence failed. 
 In Whitehead v. Clifford, 5 Taunt. 
 518, where there was such change of 
 possession by mutual consent, the de- 
 fence to a claim for use and occupa- 
 tion succeeded ; and the court distin- 
 guished the case from Mollett v. 
 Brayne, 2 Campb. 103, for that rea- 
 son. Where there is an agreement to 
 surrender a particular estate, and the 
 possession is changed accordingly, it 
 is more probable that the legislature 
 intended to give effect to an agree- 
 ment so proved, as a surrender by 
 operation of law, than to allow either 
 party to defeat the agreement by 
 alleging the absence of written evi- 
 dence. Although we do not assent to 
 the observatipns upon the line of cases, 
 
 from Thomas v. Cooh, 2 B. 4- Aid. 119, 
 downwards, in the learned and able 
 judgment given in Lyon v. Reed, 13 
 M. §• W. 285, we wish to express our 
 entire concurrence in the decision of that 
 case. The question there was not 
 upon the estate of the tenant in pos- 
 session of the premises, but upon the 
 title of the plaintiff as assignee of the 
 reversion; whether a lease of the 
 reversion, granted to Ord and Planta 
 in 1812, for ninety-nine years, could 
 be presumed to be surrendered, from 
 the fact that such lease was found 
 among the deeds of the tenant in fee, 
 who had granted in 1814 a term in 
 the reversion to Osborne and Burt, 
 through whom the plaintiff claimed. 
 There was no change in the possession 
 of the land. No actual change in the 
 possession of the reversion could be 
 made apparent ; and the facts stated 
 lead to the conclusion that Ord and 
 Planta did not know of the demise to 
 Osborne and Burt; but the proba- 
 bility is, that the term in them as 
 trustees had been forgotten at the 
 time when their concurrence was 
 requisite for the new lease. As the 
 defendant is entitled to our judgment 
 on this point, it is not necessary to 
 consider the effect of his letter as 
 evidence of a surrender." See note 
 to Christmas v. Oliver, 2 Smith's Lead. 
 Ca. 459 a, 459 i, 3d ed. ; and Creagh 
 V. Blood, 3 Jones & Latouche, 133, 
 there cited. 
 
SEC. 63.] ASSIGNMENT AND SUEBENDEE. 99 
 
 premises to one Bullock, and quit the possession. The land- 
 lord, after the defendant quit the possession, accepted and 
 received the rent of the house and cottages from the several 
 tenants, and gave them receipts therefor, which indicated 
 that he treated and regarded them as his tenants. The 
 tenants of two of the cottages quit before the expiration of 
 the term named in the lease to the defendant, and the plain- 
 tiff advertised the premises " to be let on lease, or to be sold 
 bj"^ private contract." It was not stated in the advertisement 
 that the premises were in the possession of a tenant, nor was 
 any time for giving possession of the premises named. At 
 the expiration of the term the plaintiff brought an action 
 against the defendant for the rent. The defendant claimed 
 that the premises had been surrendered by him, and set up 
 the facts detailed as evidence thereof. Loed Denman, C. J., 
 upon these facts directed a non-suit to be entered, and upon 
 hearing in exchequer, his ruling was sustained, it not 
 appearing that the plaintiff requested to have the question 
 left to the jury. In such cases, in the absence of any 
 positive agreement, the decisive question is, whether the 
 landlord accepts or takes possession of the premises and 
 deals with them in such a manner as indicates that he takes 
 the possession as owner, and not for or on account of the 
 tenant, or for the mere protection of the premises against 
 damages from the elements, etc.i Thus, where the landlord 
 entered, after the tenant had quit possession, and put up 
 a " To Let " in the windows, Loed Kenyon held that such 
 acts afforded no evidence of an acceptance of the possession 
 by the landlord, saying "it was for the benefit of the 
 tenant that the premises should be let, and that he would 
 not from that fact alone infer that the contract was put an 
 
 1 In Griffiths o. Hodges, 1 C. P. enters and uses such premises or any 
 
 419, the defendant having quit pos- part of them, that will deprive him 
 
 session, the plainti£f, during the unex- of his claim to rent. But here, the 
 
 pired term, entered and built a fire defendant had left the apartments 
 
 and cooked a hare, and it was in- vacant ; and, as it was proper that fires 
 
 sisted that this amounted to such a should be lighted in them, I do not 
 
 resumption of possession by him as think that the plaintiff's lighting such 
 
 created a surrender by operation of fire, or even making some use of it 
 
 law. But Abbott, C. J., said : "If a when he had lighted it, is a sufficient 
 
 landlord, while his tenant is in the taking possession of the premises to 
 
 possession and use of apartments, deprive him of his right to rent." 
 
100 STATUTE OF FBATJDS. [CHAP. H. 
 
 end to." In a Pennsylvania case^ the fact that the landlord 
 accepted the key to the house, put up a " To Let," and had 
 repairs made, was held not sufficient to establish a surrender ;2 
 and in no case can a surrender be established from the mere 
 circumstance that the landlord accepted the key of the 
 premises,* but it must also be shown that he s'uhsequently dealt 
 with the property in such a manner as to indicate that he 
 regarded the tenant's estate at an end ;^ as, if the landlord 
 accepts the key and re-lets the premises,^ or if he accepts the 
 key under a parol agreement that the rent shall eease,^ or if he 
 accepts the key and deals with the premises in such a 
 manner as warrants an inference that he intended to resume 
 possession^ Where two persons let a house by lease in 
 writing, one of whom, after signing the lease, never further 
 interfered, and the other, before the first quarter's rent 
 became due, accepted the key from the tenant's wife, it was 
 held that there was a sufficient surrender by the tenant 
 which boimd both the lessors, the wife of the tenant acting 
 as his agent, and the lessor who accepted the key as the 
 agent of the other ;^ but a plea that three executors had 
 agreed to accept a third person as tenant in lieu of the 
 defendant is not proved by evidence that one of the plain- 
 tiffs had made the agreement.^ Where a lessee quit in the 
 middle of his term apartments which he had taken for a 
 year, and the lessor let them to another person, so that the 
 lessee could not have come back if he had chosen, it was 
 held that by so doing the lessor dispensed with the necessity 
 of a written surrender.^" Where the owner of a ferry let it 
 
 ^ Pier V. Carr, 69 Penn. St. 316 ; The evidence must be such as to war- 
 
 Snyder v. Middleton, 4 Phila. (Penn.) rant a presumption that the landlord 
 
 343. intended to resume possession. Lan- 
 
 * Snyder v. Middleton, 4 Phila. das v. Hollingshead, 4 Phila. (Penn.) ; 
 
 (Penn.) 343; Eastler v. Henderson, Bloomer v. Merrill, 1 Daly (N. T. 
 
 L. E. 2 Q. B. D. 376. See also With- C. P.) 485; Hegeman v. McArthur, 
 
 ers V. Larrahee, 48 Me. 570 ; Matthews 1 E. D. S. (N. Y. C. P.) 147. 
 
 V. Lobenor, 39 Mo. 115; Hanham v. ^ Eandall b. Rich, arte. 
 
 Sherman, 114 Mass. 19 ; Harland v. « Whitehead v. Clifford, 5 Taunt. 
 
 Brawley, 1 Stark. 455. 518; Furnivall v. Grove, SC.B.n.s. 496. 
 
 8 Thomas v. Nelson, 69 N.. Y. 118 ; ' Landas v. Hollingshead, 4 Phila. 
 
 Morgan v. Smith, 70 id. 537 ; Kandall (Penn.) 57 ; Dodd v. Acklom, 6 M. & 
 
 V. Eich, 11 Mass. 494 ; Prentiss v. G. 672. 
 
 Warne, 10 Mo. 601 ; Townsend v. Al- * Dodd v. Acklom, ante. 
 
 bens, 3 E. D. S. (N. Y. C. P.) 560. » Turner v. Hardy, 9 M. & W. 770. 
 
 4 Ladd u. Smith, 6 Oregon, 316. m Walls v. Atoheson, 3 Bing. 462. 
 
SBC. 63.] ASSIGNMENT AND SUBEENDEE. 101 
 
 for a year, but after a few weeks the lessee, finding it un- 
 profitable, agreed instead to become servant to the owner, 
 and received daUy wages for attending to the ferry for him, 
 it was held to be a surrender by act and operation of law.^ 
 Where a tenant from year to year agreed to buy the free- 
 hold of the land, it was held that the agreement, not being 
 absolute, but conditional on a good title being found, did 
 not operate as a surrender of the tenancy by operation of 
 law.2 The fact that the landlord re-lets the premises after 
 they are abandoned by the tenant affords evidence from 
 which a surrender may be found, but this is not the case 
 where the landlord re-lets them on the tenant's account. 
 Thus, where the tenant informed the landlord that he should 
 leave the premises on a specified day, and the landlord told 
 him that if he did he should let the premises on his (the 
 tenant's) account, and hold him responsible for the rent, and 
 the tenant moved out, and the landlord sent a person to 
 occupy the house, it was held not to amount to a surrender, 
 and that the tenant still remained liable for the rent. But 
 where a tenant informed the landlord of his intention to 
 leave, and the landlord said that he was sorry, for then he 
 must get some one else to hire the premises, and gave the 
 tenant permission to leave some of his tilings on the premises, 
 it was held that the facts afforded evidence from which a 
 surrender could be implied.* But if the tenant abandons 
 and the landlord re-lets the premises, giving the tenant notice 
 that he does so for and on his account, a surrender is not 
 established.* And this is also the rule where the lease pro- 
 vides that in case the tenant leaves the landlord may re-let.^ 
 Premises may be surrendered by the mutual agreement of 
 the parties, even by parol, and when executed on both sides, 
 a surrender by operation of law results, although the agree- 
 ment under which it arose was invalid as such. And an 
 agreement may be implied by operation of law, even where 
 the tenant has quit without a sufficient notice, and the land- 
 lord re-enters and uses the premises in a manner which is 
 
 1 Peters v. Kendall, 6 B. & C. 703. * Peter v. Kendal, 6 B. &, C. 703; 
 
 2 Gray v. Stanion, 1 M. & W. 695 ; Walla v. Atcheaon, 3 Bing. 462. 
 Tarte v. Darby, 15 id. 601. - « Ogden v. Rowe, 3 E. D. S. (N. Y. 
 
 8 Stanley v. Koehler, 1 Hilt. (N. Y. C. P.) 312. 
 C. P.) 354. 
 
102 
 
 STATUTE OF PEATJDS. 
 
 [chap. II. 
 
 inconsistent with an outstanding right to the possession in 
 the lessee.^ Surrenders by operation of law result from the 
 
 1 Mollett V. Brayne, ante ; Thomp- 
 son V. Wilson, 2 Stark. 379 ; Amory 
 V. Kanoffsky, 117 Mass. 357-; McGlynn 
 V. Brack, 111 'id. 219. In an Ohio 
 case r rented certain premises to S 
 for one year at an agreed rent of two 
 hundred dollars, and possession was 
 taken by S under the agreement. S 
 sent word to F that he would no 
 longer retain possession of the prem- 
 ises, but intended to abandon them. 
 F. directed a person in the event of 
 such abandonment to take charge of 
 the premises. After this, S left the 
 premises, and the possession was re- 
 sumed by F.' It was held, that the 
 contract was put an end to by the 
 concurrent act of the parties, and 
 that the right of F to recover rent for 
 the time S enjoyed the premises must 
 be decided by the same rules as if 
 possession had been originally taken 
 upon an imderstanding that S should 
 pay what was reasonable. Fitch v. 
 Sargeant, 1 Ohio, 352. See also Ladd 
 V. Smith, 6 Oreg. 316 ; Jackson v. 
 Gardner, 8 John. (N. Y.) 394; Cole- 
 man V. Maherly, 3 T. B. Mon. (Ky.) 
 220. A tenancy from year to year, 
 created by parol, is not determined 
 by a parol license from the landlord 
 to quit in the middle of a, quarter, 
 and the tenant quitting the premises 
 accordingly. Botting v. Martin, 1 
 Camp. 318. But contra, see Amory 
 V. Kanoffsky, 117 Mass. 357. But if 
 in such case both parties act upon 
 such parol notice or license to quit, 
 that is, the landlord himself take 
 possession, so as to render it impossi- 
 ble for the tenant to use or occupy 
 the premises, the tenancy is thereby 
 legally determined. Mollett v. Brayne, 
 2 Camp. 103; Thompson u. Wilson, 
 2 Stark. 379. And i£, during a letting 
 from year to year, the landlord, vrith 
 the assent of his tenant, who quits 
 the premises, accepts and treats a third 
 person as his (the landlord's) tenant, 
 this amounts to a valid surrender of 
 the original tenant's interest by act 
 
 and operation of law. But in such 
 case the express consent of all parties 
 to the change of tenancy seems neces- 
 sary : Grimman v. Legge, ante ; Ack- 
 land V. Lukey, 1 P. & D. 640; Gore 
 V. Wright, 3 N. & P. 243; though the 
 assent of the old tenant may be pre- 
 sumed upon the landlord's producing 
 the old lease cancelled, and on proof 
 of a user in his office to have all old 
 leases sent to be cancelled before re- 
 newals are granted. Reeve v. Bird, 1 
 C. M. & E. 31 ; Thomas v. Cook, 2 B. 
 & Aid. 119; Phipps v. Sculthorpe, 1 
 id. 50; Mathews v. Sewell, 8 Taunt. 
 270; Stone v. Whiting, 2 Stark. 235; 
 Hamerton v. Stead, 3 B. & C. 478; 
 Walls V. Atcheson, 3 Bing. 462 ; Bees 
 u. WilUams, 2 C. M. & E. 581; Eex 
 V. Banbury, 1 Ad. & El. 136; Wed- 
 dall V. Capes, 1 M. & W. 50; Walker 
 u. Eichardson, 2 M. & W. 882. There 
 must be_ a clear case of substitution 
 and acceptance of the new tenant, 
 and merger of the old tenant's inter- 
 est; and it seems that the merely 
 taking rent from the new occupier 
 will not suffice. Graham v. Wichclo, 
 1 C. & M. 188. Thus where, as in 
 the case last cited, there was a letting 
 to A and B as partners, and A retired 
 and C entered, and a receipt for rent 
 from B and C was given, it was held 
 that A was not discharged. And unless 
 there is a written demise to the new ten- 
 ant, or he takes possession, it appears 
 that no surrender of the prior tenancy 
 is effected by legal operation. Taylor 
 V. Chapman, Peake's Addl. Cas. 19. 
 Where a tenancy is thus determined 
 in the middle of a quarter, while the 
 rent is current, the tenant, in the ab- 
 sence of an express agreement, is not 
 liable for a proportion of the current 
 quarter's rent from the preceding 
 quarter day to the day of quitting. 
 Hall V. Burgess, 5 B. & C. 332; Grim- 
 man u. Legge, ante; .Walls v. Atche- 
 "son, 2 C. & P. 268; 3 Bing. 462. 
 There cannot, however, be a surrender 
 to take place in future, and therefore 
 
SEC. 63.] ASSIGNMENT AND STJEEENDEE. 
 
 103 
 
 acts of the parties, and are in no wise dependent upon their 
 intention, and exist in spite of the real intention of the 
 parties. They are inferences of law from the facts, and 
 cannot be overcome by showing that the landlord did not 
 intend his act to operate as an acceptance of the surrender.^ 
 Under this rule it follows as a matter of course that, where 
 an oral agreement is entered into between the landlord and 
 the tenant, that another tenant shall be substituted in his 
 place, while it is not valid as an executory agreement, it is 
 binding when it has been executed, by the tenant giving up 
 the possession on the one hand, and the landlord substitut- 
 ing another tenant on the other.^ So, if a tenant who has 
 
 where a tenant, believing that his 
 tenancy determined at a certain time, 
 gave a written notice to quit at that 
 period, which the landlord accepted 
 and made no objection to ; but the 
 tenant, having afterwards discovered 
 that his tenancy did not expire until 
 a later period, and he gave his land- 
 lord another notice accordingly, and 
 on possession being demanded at the 
 time named in the first notice to quit, 
 it was held, that the first notice to 
 quit not being good as a notice did 
 not operate as such to determine the 
 tenancy, and that it could not be 
 treated as a surrender by note in 
 writing within the statute of frauds. 
 MurreU v. Milward, 3 M. & W. 328; 
 Weddall ^. Capes, 1 M. & W. 50, 
 overruling Aldenburgh v. People, 6 
 C. & P. 212. And where a tenant 
 from year to year agreed by parol 
 with his landlord's agent to quit at 
 the end of the year ensuing, which 
 was within half a year, and the prem- 
 ises were re-let by auction, at which 
 the tenant attended and bid : but the 
 new tenant was not let into posses- 
 sion, and the old tenant refused to quit ; 
 it was held that this did not amount 
 to a surrender by operation of law. 
 Huddlestone v. Johnson, 1 McCl. & 
 T. 141. And where a defective parol 
 notice to quit was given, and the 
 landlord verbally assented to it, yet 
 the notice was holden inoperative, it 
 not being in writing, and there not 
 being any sufficient surrender by 
 
 operation of law. Johnston v. Hud- 
 dlestone, 4 B. & C. 922, in which the 
 avowry was for double- rent, and it 
 was held that double rent could not 
 be recovered on a defective notice, 
 nor single rent on an avowry for 
 double. The. mere cancellation of a 
 lease, without a, written surrender, 
 does not amount to a surrender by 
 operation of law ; Berkeley v. York, 6 
 East, 86 ; Wooley u. Gregory, 2 Y. & 
 J. 536; and where a lease appeared 
 to have the names and seal of the 
 parties torn off, it was decided that 
 this was neither a surrender by con- 
 struction of law, nor prima facie evi- 
 dence of a written surrender. Cour- 
 tail V. Thomas, 9 B. & C. 288 ; Walker 
 u. Richards, ante, 330. The accep- 
 tance of a, new lease for a term, to 
 commence during the existence of a. 
 former demise, is a surrender of the 
 first term : Hamerton v. Stead, 3 B. & 
 C. 478; Livingston v. Potts, 16 Johns. 
 (N. Y.) 28; and where A during his 
 tenancy agreed with his landlord that 
 he and B should become tenants, and 
 B entered^ this was held to determine 
 the first tenancy. Hamerton v. Stead, 
 5 B. & C. 478. 
 
 1 Creagh v. Blood, 3 J. & L. 133; 
 Nichols 0. Atherstone, ante; Talbot 
 V. Whipple, 24 Allen (Mass.) 177; 
 Hall V. Burgess, 5 B. & C. 332 ; Wood 
 V. Partridge, 11 Mass. 493 ; Murray v. 
 Shane, 2 Duer (N. Y.) 183. 
 
 2 Stone V. Whitney, 2 Stark. 235 ; 
 Hobson V. Camley, 25 L. J. Excliq. 
 
104 
 
 STATUTE OF PEAtTDS. 
 
 [chap. n. 
 
 under-let the premises surrenders tlie term by parol, the 
 landlord's acceptance may be shown by the fact that he 
 subsequently notified the undertenant that the rent must 
 be paid to him, as the original tenant has no estate in the 
 premises.^ So, if the lessor consents to a change in the 
 tenancy, and receives rent from the new tenant as an original 
 and not as a sub-tenant, he cannot charge the first tenant for 
 rent subsequently accruing.^ But the mere circumstance 
 
 209; Lawrence v. Faux, 2 F. & F. 435. 
 In Murray v. Shaw, 2 Duer (N. Y.) 
 182, a lease haying been executed for 
 a year, to commence in future, the 
 tenant wished to abandon it, and ob- 
 tained a substitute, who, by agree- 
 ment endorsed on the lease, agreed to 
 assume the lease and perform all the 
 covenants, but changing the mode of 
 paying rent. It was held, that tlie 
 lessor, by accepting this, released the 
 former lessee, and he could not alter 
 the effect of the surrender by express- 
 ing, in his receipts for rent, that it 
 was paid under the original lease. 
 Murray w. Shave, 2 Duer (N. Y.) 
 182; Smith u. Niver, 2 Barb. (N, Y.) 
 180. By consenting to a change of 
 tenancy, the original lessee is dis- 
 charged. Page V. Ellsworth, 44 Barb. 
 (N. Y.) 636. 
 
 1 Bailey v, Delaplaine, 1 Sandf. 
 (N. Y.) 5. 
 
 2 Smith V. Miner, 2 Barb. (N. Y.) 
 180; Thomas v. Cook, ante; Mines 
 Eoyal Society u. Magnay, 18 Jur. 
 1028. But the assent of the landlord 
 to the assignment must be established 
 as well as his acceptance of the new 
 tenant as a substitute for the former 
 tenant. The case of Thomas v. Cook, 
 ante, sanctions the rule that a surren- 
 der in law will be implied from the 
 fact that a tenant has put a third 
 person in possession of the demised 
 premises, and that each third person 
 has been accepted as tenant with the 
 assent of the original tenant; but 
 this- case was criticized strongly in 
 Lyon V. Eeed, 13 M. & W. 285. The 
 court, in the principal case, says: 
 " To ascribe the effect of a surrender 
 to the mere act of the landlord ac- 
 
 cepting the assignee as his tenant, 
 and receiving rent from him, would 
 be going beyond the precedents. To 
 warrant the inference that the origi- 
 nal lease has been annulled, the facts 
 ought to be of an entirely conclusive 
 character." See, also, MOls v. Auriol, 
 1 Smith's L. C. (Phil. ed. Hare & 
 Wallace's notes) 1239, where it is 
 said by Lokd Kenton that, "It is 
 extremely clear that \a, person who 
 enters into an express covenant in a 
 lease continues liable on his cove-, 
 nant, notwithstanding the lease be 
 assigned over. If the lessee assigu 
 over liis lease and the lessor accept 
 the assignee as his lessee, either 
 tacitly or expressly, it appears from 
 the authorities that the action of debt 
 will not be against the original lessee ; 
 but all those cases with one voice de- 
 clare that if there be an express cove- 
 nant, the obligation on such covenant 
 still continues." See, also, Griffith v. 
 Hodges, 1 C. & P. 419; Talbot v. 
 Whipple, 14 Allen (Mass.) 180 ; Stobie 
 V. Dills, 62 111. 432 ; Baker v. Pratt, 
 15 id. 568 ; Hegeman v. McArthur, 1 
 E. D. S. (N. Y.) 147; Dodd v.. Ack- 
 lom, 6 M. & G. 673; Grimman o. 
 Legge, 8 B. & C. 324. The mere re- 
 ceipt of rent by the landlord from an 
 undertenant does not evidence the 
 landlord's assent to the tenant's aban- 
 donment of the premises. Slocum v. 
 Branch, 5 Cr. (U. S. C. C.) 315 ; Cope- 
 land V. Watts, 1 Stark. 65 ; Burnham 
 V. Hubbard, 36 Conn. 542; Bacon u. 
 Brown, 9 id. 334; Hill v. Robinson, 
 23 Mich. 24. In Hull v. Wood, 14 M. 
 & W. 682, a tenant from year to year 
 died, and his widow remained in pos- 
 session, paying the rent to the land- 
 
SEC. 63.] ASSIGNMENT AND STJEEENDEE. 105 
 
 that the landlord receives the rent from a sub-tenant is not 
 of itself sufficient to establish a surrender. Thus, where A 
 and H, who were partners by agreement, in March, 1827, 
 became tenants to the plaintiff, and in 1828, W retired from 
 the partnership, and in January, 1829, H entered into 
 partnership with S, and the plaintiff gave receipts for rent 
 as received from H after W retired, and as received from H 
 and S after S became a partner ; and also gave H a letter to 
 his attorney, signifying that a lease might be made to H and 
 S, but which was kept by H and not acted upon, and no 
 lease was prepared ; it was held, that W remained liable for 
 the rent accruing at the time of H and S.^ But, where a 
 lease is made to a firm with a covenant for revenues, and 
 during the original term one or more of the partners retire 
 from the firm, and new partners take their place, and the 
 new firm, after the expiration of the term, continue in pos- 
 session under the old lease, paying rent according to the 
 terms of the old lease, the retiring partners cannot be held 
 for the rent accruing after the expiration of the original 
 term.^ Where premises had been let to B for a term 
 determinable by a notice to quit, and pending the term A, 
 the landlord, agreed to let C stand in B's place, and C offered 
 to pay rent, it was held, in an action for use and occupation 
 against C, that he could not set up as a defence that B's 
 term had not been determined! either by a notice to quit or 
 a surrender in writing. 
 
 Consequently where there is an agreement that the 
 tenancy shall be put an end to, which is acted upon by the 
 tenant's quitting accordingly, and the landlord, by some 
 unequivocal act, takes possession of the premises, that will 
 amount to a surrender by operation of law. Where, there- 
 fore, the tenant left the key of the premises at the counting- 
 house of the landlord, and the latter, though he at first 
 refused to accept it, afterwards put up a board to let the 
 premises and used the key to show them, and painted out 
 
 lord. Subsequently, a person who i Graham o. Nichols, 1 C. & M. 
 
 knew the facts took out letters of 188; Woodcock v. North, 8 Bing. 
 
 administration upon the estate, the 170 ; Beall v. White, 94 N. S. 382. 
 widow still continuing to pay the ^ James v. Pope, 19 N. Y. 324; 
 
 rent. It was held that this did not Kinsey v. Winnick, 34 Md. 112. 
 amount to a surrender of the tenancy 
 by operation of law. 
 
106 STATUTE or PEATJDS. [CHAP. II. 
 
 the tenant's name from the front, it was held that there was 
 sufficient evidence of surrender by act and operation of law.^ 
 So where A and B demised a house by lease in writing to 
 C at a rent payable quarterly, and the key of the house was 
 dehvered to C's wife, and C entered into possession, but 
 before the first quarter's rent became due (there having 
 been some dispute as to arrears of rent and taxes) C's wife 
 delivered back the key to A, who accepted it, it was held 
 that the delivering back of the key animo sursum reddendi, 
 and the acceptance of it by the landlord, amounted to a 
 surrender by act and operation of law.^ The case was dis- 
 tinguished from Mollett v. Brayne^ on the ground that in 
 that case it was not shown that the landlord took possession, 
 and it was also distinguished from Johnstone v. Huddlestone * 
 on the ground that there the agreement to put an end to the 
 tenancy was never carried out. Where, however, A was 
 tenant to B, who became bankrupt, and A sent the key of 
 the rooms to the office of the official assignee, where it was 
 left with a clerk, who was told that it was the key of the 
 rooms, and A immediately quitted possession, and no further 
 communication took place, it was held that there was no 
 surrender, and the case was distinguished from Dodd v. 
 Acklom,^ on the ground that the lessor in that case had 
 authority to act for both.^ If the landlord enters into pos- 
 session of the premises in pursuance of an agreement for a 
 surrender, he cannot afterwards refuse to accept the sur- 
 render.^ Thus, in a New York case,^ after a lessee had 
 
 ' Phen^ u. Popplewell, 12 C. B. all breaches of covenant occurring 
 
 (N. S.) 334; 31 L. J. C. P. 235; and be/ore the surrender. Roe v. Conway, 
 
 see Whitehead „. CHfEord, 5 Taunt. 74 N. Y. 201. 
 
 518 ; Ackland ,;. Lutley, 9 Ad. & El. « Do^d v. Acklom, 6 M. & Gr. 672 ; 
 
 879; Grimmanv.Legge.SB. &C.324; 7 Sc. (N. E.) 415; 13 L. J. C. P. 11. 
 Smith V. Lovell, 10 C. B. 6; 20 L. J. 8 2 Camp. 103. 
 
 C. P. 37 ; Purnival o. Grove, 8 C. B. ^ 4 B. & C. 922 ; 7 D. & E. 411. 
 
 (N. S.) 496 ; 30 L. J. C. P. 3. A sur- ^ e M. & Gr. 672 ; 7 Sc. (N. R.) 
 
 render is effected either by words 415. 
 
 manifesting the intention of the les- " Cannan v. Hartley, 9 C. B. 634; 
 
 see to yield up his estate, or by oper- 19 L. J. C. P. 323. 
 ation of law, where the parties with- ^ Natchbolt v. Porter, 2 Vern. 112 ; 
 
 out such words do some act which "Whitehead v. Clifford, 5 Taunt. 518; 
 
 implies that they both agree to con- Furnivall i;. Grove, 8 C. B. (K S.) 
 
 sider the surrender as made. Beall 496 ; 30 L. J. C. P. 3. 
 o. White, 94 U. S. 382. But the les- « Bailey v. Delaplaine, 1 Sandf. 
 
 Bee remains liable xmder liis lease for (N. Y.) 5. 
 
SBC. 66.] ASSIGNMENT AND SUERENDEE. 107 
 
 underlet the whole of the demised premises, by two written 
 sub-leases, the landlord called on the undertenants, produced 
 the sub-leases, demanded of them the rent, forbade their 
 paying any more rent to the original lessee, and said he was 
 the rightful landlord, and had taken the place off the lessee's 
 hands ; and he afterwards collected all the rents which were 
 collected of the sub-tenants, it was held that there was a 
 surrender of the original lease by operation of law, and that 
 the landlord could not collect the subsequent rent of his 
 original lessee. 
 
 Sec. 64. Presumption of Acceptance of Surrender when Re- 
 butted. — But the mere fact of the landlord's taking posses- 
 sion will not necessarily amount to a surrender. Thus, if 
 the tenant abandons possession of the premises during the 
 term, and the landlord enters and does repairs, or even if he 
 uses the premises, the tenancy may not be determined.^ So 
 where the tenant quitted without giving notice, the fact of 
 the landlord's having put up a bill to let the apartments did 
 not prevent his recovering in assumpsit for use and occupa- 
 tion.^ 
 
 Sec. 65. Landlord Taking Tenant as Servant. — Where the 
 owner of a ferry demised it by parol to A, who, finding it 
 unprofitable, agreed to become the lessor's servant as boat- 
 man, and received wages, it was held that there was a 
 surrender by act and operation of law.^ The acts from which 
 it is sought to be inferred that the tenancy has been put an 
 end to must be unequivocal.* 
 
 Sec. 66. Surrender by Operation of Law. — The statute of 
 frauds in all the States where provision is made relative to 
 surrenders, excepts implied surrenders, or surrenders re- 
 sulting by act and operation of law, and of this class are 
 those created by the acceptance by the tenant of a new 
 lease from the reversioner, or other conveyance inconsis- 
 tent with the first lease, whether for a longer or a shorter 
 
 1 Eessell v. Landsberg, 7 Q. B. 638 ; » Peter v. Kendal, 6 B. & C. 703. 
 14 L. J. Q.B. 355; Griffiths. Hodges, * Ackland u. Lutley, 9 Ad. & EL 
 1 C. & P. 419. 879, 894. 
 
 2 Redpath v. Roberts, 3 Esp. 225. 
 
108 STATUTE OF FEAtTDS. [CHAP. K. 
 
 term, or to begin presently or at a future period during the 
 term, because the acceptance of a new lease, to take efPect 
 during an existing term, necessarily implies a relinquishment 
 of the former term, from the time when the new lease takes 
 effect^ unless there are facts which rebut the presumption 
 that a surrender was intended.^ But a surrender cannot be 
 implied by the acceptance by the tenant of an invalid new 
 lease ^ or from a mere agreement for a fviure lease.* Where 
 a new lease is made, to take effect at a future time, in so far 
 as the provisions of the new lease are inconsistent with the 
 old, the former wiU prevail, the presumption being that a 
 surrender of the old lease was intended ; ^ but a parol agree- 
 ment between the parties to a lease under seal, reducing the 
 rent, does not amount to a surrender, nor, unless founded 
 upon a new consideration, has it any validity.* But it has 
 been held that a subsequent unsealed agreement to surrender 
 upon a failure to perform certain conditions, the original 
 lease being imder seal, although inoperative as a defeasance, 
 is valid as a contingent surrender, the agreement being 
 treated as a conveyance in presenti to commence in futuro ; "< 
 but this doctrine is opposed to that held in England,* where, 
 as we have seen,^ it is held that a surrender cannot be made 
 to take effect in futuro, although we. confess that we can see 
 no reason or justice in the rule, and cannot understand why 
 a valid contract in this respect cannot be made, as well as in 
 reference to any other matter ; consequently we believe that 
 the New York case, cited supra, expresses the better rule, 
 and the one which will be most likely to obtain in this 
 country. 
 
 A parol agreement to change a lease, or for a new lease for 
 a longer period than that excepted from the statute, is inoper- 
 
 1 Livingston v. Potts, 16 John. (N. » Biddulph v. Poole, 11 Q. B. 713. 
 Y.) 28; Bromley v. Stanley, 4. Burr. * Foquet v. Moore, 7 Exchq. 870; 
 2210 ; Eurnivall v. Grove, 8 C. B. n. s. John v. Jenkins, 1 C. & M. 227. 
 
 496 ; Crowley v. Vitty, 7 Exchq. 319 ; ^ Jungernian v. Bovee, 19 Cal. 354. 
 
 Logan V. Anderson, 2 Doug. (Mich.) ^ Qqq „ Hobby, 72 N. Y. 143. 
 
 101 ; "Whitney v. Meyers, 1 Duer. (N. ' Allen v. Jaquish, 21 Wend. (N. 
 
 Y.) 266; Clemens v. Broomfield, 19 Y.) 628. 
 
 Mo. 118. 8 Doe „. Milward, 3 M. & "W. 328; 
 
 2 Van Eensselaer v. Penniman, 6 Weddal v. Capes, 1 id. 50 ; Johnstone 
 "Wend. (N. Y.) 569; Livingston v. u. Huddlestone, 4 B. & C. 922. 
 Potts, 16 John. (N. Y.) 28. » Ante, p. 84. 
 
SEO. 66.] ASSIGNMENT AND SUEKENDEB. 
 
 109 
 
 ative and invalid as a surrender or as a contract. Thus, in 
 a New York case,^ certain tenants who were holding under a 
 lease made in 1869, for ten years, under seal at a yearly- 
 rental of $5,000, claimed that prior to the sale of the 
 premises by the lessor in 1873 they entered into an agree- 
 ment with her by which she agreed to reduce the rent to 
 $4,000 a year. The agreement was not in writing, nor was 
 there any consideration therefor. The court held that there 
 was no surrender of the old lease, and that the agreement, 
 not being in writing or predicated upon a good consideration, 
 was void.2 The reason why the acceptance of a new lease 
 
 1 Coe V. Holiby, 72 N. Y. 141. 
 
 2 Allen, J., in delivering the opin- 
 ion of the court in Coe v. Hobby, ante, 
 said: "The defendants contend that 
 they are no longer liable upon and ac- 
 cording to the lease made in 1868, from 
 Mrs. Ingersoll, the plaintiff's grantor 
 and assignor, to the defendants, upon 
 the ground that by the act of the par- 
 ties and operation of law, the lease was 
 surrendered in 1872, and that from 
 that time the occupation of the 
 premises by the defendants has been 
 in pursuance of a new contract of 
 hiring, then made, at a different rent 
 and upon different terms. There 
 was no written surrender or cancel- 
 lation of the original lease; neither 
 was there any surrender of the posses- 
 sion of the demised premises, nor was 
 any authority or dominion over the 
 premises exercised by the landlord 
 inconsistent with the rights of the 
 tenant under that demise. Neither 
 was there at any time any contract 
 or lease, by deed or in writing, be- 
 tween the parties other than the 
 indenture of 1868. The claim is, that 
 there was a new letting of the prem- 
 ises by the lessor to the defendants at 
 the time mentioned, by parol, and 
 that by reason of such parol letting 
 the original lease, and the term there- 
 by created, were by act and oper- 
 ation of law surrendered. A surrender 
 is the restormg and yielding up an 
 estate or interest in lands to one who 
 has an immediate estate in reversion 
 or remainder, and by the statute of 
 
 frauds a term exceeding one year 
 cannot be surrendered, unless by act 
 or operation of law, or by a deed of 
 conveyance in writing. A surrender 
 is implied and so effected by operation 
 of law within the statute quoted, 
 when another estate is created by the 
 reversioner or remainder-man, with 
 the assent of the termor, incompatible 
 with the existing estate or term. In 
 the case of a term for years, or for 
 life, it may be by the acceptance by 
 the lessee or termor of an estate in- 
 compatible with the term, or by the 
 taking of a new lease by a lessee. It 
 will not be implied against the intent 
 of the parties, as manifested by their 
 acts ; and when such intention cannot 
 be presumed, without doing violence 
 to common sense, the presumption 
 will not be supported. Van Rens- 
 selaer's Heirs v. Penniman, 6 Wend. 
 (N. Y.) 569. In the case referred to, 
 the devisee of the lessor had made a 
 new lease to the assignee of the lessee 
 for the same time, and upon the same 
 conditions as the first lease, but it 
 was held that the original lease was 
 not thereby surrendered, but remained 
 in force, entitling the lessee and his 
 assignees to the benefits of its pro- 
 visions, and that under the circum- 
 stances the new lease was probably 
 given to confirm the prior lease, and 
 to give the lessee greater security for 
 his improvements than he had by the 
 first lease. There is an implication of 
 intention to surrender an existing 
 lease upon the giving of a second 
 
110 
 
 STATUTE OP rEAXJDS. 
 
 [chap, n. 
 
 operates as a surrender of the old one is, because the lessee, 
 by accepting the new lease, has been a party to an act the 
 
 lease, for the reason that the lessor 
 cannot legally execute a second lease 
 of the same premises during the term 
 of a first lease ; and when the lessee 
 accepts a second lease unexplained, 
 he admits the power of the lessor 
 which he cannot legally have without 
 a surrender of the first. The pre- 
 sumption of law is, therefore, that a 
 surrender has been made. Livingston 
 V. Potts, 16 John. (N. Y.) 28; Schief- 
 felin V. Carpenter, 15 Wend. (N. Y.) 
 400. It is said in that case by Nel- 
 son, J., that unless such new lease be 
 executed so as to pass an Interest ac- 
 cording to the contract and intention of 
 the parties, it will not operate as a sur- 
 render of the prior lease by operation of 
 law. And it was so held where there 
 was a, parol letting for a term of 
 years to third persons, who had 
 entered into possession and paid rent 
 to the landlord for a portion of the 
 term agreed upon. The conclusion 
 was that a valid parol lease, since the 
 statute of frauds, might produce a 
 surrender in law, and that the true 
 rule was as laid down in 2 Starkie's 
 Ev. 342, that the taking a new lease 
 by parol is by operation of law a 
 surrender of the old one, although it 
 be by deed, provided it be a good one, 
 and pass an interest according to the 
 contract and intention of the parties; 
 for otherwise thfe acceptance of it is 
 no implied surrender of the old one. 
 See, also, Bedford t)..Terhune, 30 K 
 Y. 453, approving tliis case. See, 
 also, Eowan v. Lytle, 11 Wend. (N. 
 Y.) 617, and Lawrence o. Brown, 5 
 N. Y. 394. In England the rule is, 
 that if there be a tenancy under a 
 lease, and the parties make a verbal 
 agreement for a sufficient consider- 
 ation, that instead of the existing 
 term there shall be a tenancy from 
 year to year, at a different rent, that 
 would not be a surrender of the lease 
 by operation of law. Eoquet v. Moor, 
 7 Exch. 870. The farthest that our 
 courts have gone, is to hold that to 
 
 effect a surrender of an existing lease 
 by operation of law, there must be a 
 new lease, valid in law, to pass an in- 
 terest according to the contract and 
 intention of the parties. Within "this 
 rule there was no surrender of the 
 lease upon which this action is 
 brought. There was no new lease 
 which could take effect according to 
 the verbal contract of the parties as 
 stated by the defendant. The claim 
 is that in 1872, by the verbal agree- 
 ment of the parties, there was in effect 
 a new lease for the unexpired term of 
 seven years, at a reduced rent, with 
 liberty to the lessee to terminate the 
 lease at any time on giving three 
 months' notice. This could only 
 operate as a lease from year to year, 
 as long as the parties elected to con- 
 tinue the relation. Schuyler v. Leg- 
 gett, 2 Cow. {N. Y.) 660; People v. 
 Eickert, 8 id. 226; Lounsbery v. 
 Snyder, 31 N. Y. 514. This was not 
 the contract intended by the parties, 
 and there was therefore no surrender 
 of the existing lease implied by law 
 as resulting from the intention of the 
 parties. But there was no new lease, 
 or a letting from year to year, as the 
 legal result of a verbal lease for a 
 term of years. Assuming that the 
 contract and agreement of the parties 
 was, that from the time of making it 
 the rent should be reduced to ^4,000 
 per annum, and that the lessor should 
 have the right to terminate the lease 
 upon notice, and that such agreement 
 was valid, it was but a modification of 
 the terms of the original demise, 
 leaving all the other covenants and 
 conditions intact. There was no 
 agreement inconsistent with the exist- 
 ing lease, or any assumption of do- 
 minion over the estate by the lessor 
 Inconsistent with the term vested in 
 the lessee. Each, in dealing with the 
 other, dealt with matters over which 
 they had control under and by virtue 
 of the lease. The lessor assumed to 
 release Ms right to a portion of the 
 
SEC. 66.] 
 
 ASSIGNMEaTT AND STJREENDER. 
 
 Ill 
 
 validity of which he is afterwards estopped from denying, 
 and which would not be valid if the first lease continued to 
 exist, for he would be estopped from saying that the lessor 
 had no power to make the new lease ; and as the lessor 
 could not grant the new lease until the first lease was 
 surrendered, the acceptance of the new lease is of itself a 
 surrender of the old.^ The question whether the taking of 
 
 rent, which he might lawfully do, and 
 the lessee undertook to yield con- 
 ditionally, and upon notice in the 
 future, a portion of his term. It can 
 not be assumed or implied from such 
 agreement that a surrender of the old 
 lease was contemplated by either 
 party. The lease continued in full 
 force, except as modified by the agree- 
 ment. It is preposterous to say that 
 a reduction of the rent is a surrender 
 of an existing lease, and the granting 
 of a new one. The new agreement in 
 such case is yirtually incorporated 
 into, and made a part of, the ante- 
 cedent agreement, and the two would 
 constitute the lease for the unexpired 
 term. Evans v. Thompson, 5 East, 
 193 ; Hasbrouck v. Tappen, 15 John. 
 (N. T.) 200. There was no surrender 
 of the lease by operation of law, for 
 the reason that there was no dealing 
 with the estate by the lessor incom- 
 patible with the lease, and no new 
 letting of the premises by parol or 
 otherwise. The defendants, in their 
 answer, and upon the trial, relied 
 upon an alleged surrender of the 
 lease ; but upon appeal they contend 
 that there was a valid agreement to 
 reduce the rent, and that they are 
 now entitled to the benefit of such 
 modification of the terms of the lease. 
 At most, the agreement alleged was 
 executory and verbal, and it is well 
 settled that before breach a covenant 
 or contract under seal cannot be 
 modified by a parol executory con- 
 tract. Delarnoix v. Bulkley, 13 
 Wend. (N. T.) 71; Hasbrouck v. 
 Tappen, ante. 
 
 1 In Lyon v. Eeed, 13 M. & W. 285, 
 Paeke, B., said : " The real question 
 for our consideration is, whether the 
 
 plaintifE has succeeded in showing 
 that the term of the 7th April was 
 surrendered previously to the exe- 
 cution of the indenture of the 31st of 
 August, 1812. On this subject it was 
 argued by the counsel for the plain- 
 tiff, first, that the circumstances of 
 the case warranted the conclusion 
 that there was an actual surrender in 
 fact; and if that be not so, then, 
 secondly, that they prove conclu- 
 sively a surrender in point of law. 
 We will consider each of these prop- 
 ositions separately. And first, as 
 to a surrender in fact. The subject- 
 matter of the lease of the 7th April, 
 1812, was, it must be observed, a 
 reversion; a matter, therefore, lying 
 in grant, and not in livery, and of 
 which, therefore, there could be no 
 valid surrender in fact otherwise than 
 by deed ; and what the plaintiff must 
 make out, therefore, on this part of 
 his case is, tliat, before the execution 
 of the first lease for ninety-nine years, 
 Ord and Planta, by some deed not 
 now forthcoming, assigned or sur- 
 rendered to the dean the interest 
 which they had acquired under the 
 lease of the 7th of April. But what 
 is there to warrant us in holding that 
 any such deed was ever executed'? 
 Prima facie a person setting up a deed 
 in support of his title is bound to 
 produce it. But undoubtedly this 
 general obligation admits of many 
 exceptions. Where there has been 
 long enjoyment of any right, which 
 could have had no lawful origin ex- 
 cept by deed, then, in favor of such 
 enjoyment, all necessary deeds may 
 be presumed, if there is nothing to 
 negative such presumption. Has 
 there, then, in this case been any 
 
112 
 
 STATUTE OP FEATJDS. 
 
 [chap. n. 
 
 a new lease operates as a surrender of the old,^depends upon 
 the circumstance whether the new lease confers a neio interest so that 
 
 1 See also Beesell v. Liindsberg, 7 G. B. 638. 
 
 such enjoyment as may render it un- 
 necessary to show the deed on which 
 it has been founded t The only fact 
 as to enjoyment stated in this case 
 has precisely an opposite tendency; 
 it is stated, so far as relates to the 
 property, the rent of which forms the 
 subject of this action, namely, the 
 houses, etc., underlet to Eeed, that no 
 rent has ever been paid ; and there- 
 fore, as to that portion of the property 
 included in the lease of April, 1812, 
 there has certainly been no enjoy- 
 ment inconsistent with the hypothesis 
 that that lease was not surrendered. 
 The circumstances on which the 
 plaintiff mainly relies as establishing 
 the fact of a surrender by deed, are 
 the statements in the two leases to 
 Osborn and Burt, that they were 
 made in consideration, inter alia, of 
 the surrender of the lease of the 7th 
 April, and the fact of that lease being 
 found among the dean's instruments 
 of title. These circumstances, how- 
 ever, appear to us to be entitled to 
 very little weight. The ordinary 
 course pursued on the renewal of a 
 lease is for the lessee to deliver up 
 the old lease on receiving the new 
 one, and the new lease usually states 
 that it is made in consideration of the 
 surrender of the old one. No sur- 
 render by deed is necessary, where, as 
 is commonly the case, the former 
 lessee takes the new lease, and all 
 which is ordinarily done to warrant 
 the statement of the surrender of the 
 old lease as a part of the consider- 
 ation for granting the new one, is, 
 that the old lease itself, the parchment 
 on which it is engrossed, is delivered 
 up. Such surrender affords strong 
 evidence that the new lease has been 
 accepted by the old tenant, and such 
 acceptance undoubtedly operates as a 
 surrender by operation of law, and 
 so both parties get all which they 
 require. We collect from the docu- 
 ments that this was the course pur- 
 
 sued on occasion of making the lease 
 of the 26th of December, 1803, and 
 the lease of the 7th of April, 1812; 
 and we see nothing whatever to war- 
 rant the conclusion that anything 
 else was done on occasion of mak- 
 ing the lease to Osborn and Burt. 
 .Where a surrender by deed was un- 
 derstood by the parties to be neces- 
 sary, as it was with reference to the 
 term assigned to Barber and Pany, 
 there it was regularly made, and the 
 deed of surrender was endorsed on 
 the lease itself. There is no reason 
 for supposing that the same course 
 would not have been pursued as to 
 the lease of April, 1812, if the parties 
 had considered it necessary. If any 
 surrender had been made, no doubt 
 the deed would have been found with 
 the other muniments of title. No 
 such deed of surrender is forthcom- 
 ing, and we see nothing to justify us 
 in presiiming that any such deed ever 
 existed. We may add, that the state- 
 ment in the new lease, that the old 
 one had been surrendered, cannot 
 certainly of itself afford any evidence 
 against the present defendants, who 
 are altogether strangers to the deed 
 in which those statements occur. It 
 remains to consider whether, although 
 there may have been no surrender 
 in fact, the circumstances of the 
 case will warrant us in holding that 
 there was a surrender by act and 
 operation of law. On the part of the 
 plaintiff it is contended, that there is 
 sufficient to justify us in conung to 
 such a conclusion, for it is said, the 
 fact of the lease of the 7th of April, 
 1812, being found in possession of the 
 dean, even if it does not go the length 
 as establishing a surrender by deed, 
 yet furnishes very strong evidence to 
 show that the new lease granted to 
 Osborn and Burt was made with the 
 consent of Ord and Planta, the lessees 
 under the deed of the 7th of April, 
 1812. And this, it is contended, on 
 
SBC. 66.] 
 
 ASSIGNMENT AND STTREENDBK. 
 
 113 
 
 the two cannot stand together because inconsistent with each other. • 
 Thus, where a tenant under a lease of a house for a term of 
 
 > Gybson v. Searl, Cro. Jao. 177 ; Gie v. Rider, Sid. 76. 
 
 the authority of Thomas v. Cooke, 2 
 B. & Aid. 119, and Walker v. Richard- 
 son, 2 M. & W. 882, is sufficient to 
 cause a surrender by operation of 
 law. In order to ascertain how far those 
 two oases can be relied on as authori- 
 ties, we must consider what is meant 
 by a surrender by operation of law. 
 This term is applied to cases where 
 the owner of a particular estate has 
 been a party to some act, the validity 
 of which he is by law afterwards es- 
 topped from disputing, and which 
 would not be valid if his particular 
 estate had continued to exist. There 
 the law treats the doing of such act 
 as amounting to a surrender. Thus, 
 if lessee for years accept a new lease 
 from his lessor, he is estopped from 
 saying that his lessor had not power 
 to make the new lease ; and, as the 
 lessor could not do this until the prior 
 lease had been surrendered, the law 
 says that the acceptance of such new 
 lease is of itself a surrender of the 
 former. So, if there be tenant for 
 life, remainder to another in fee, and 
 the remainder-man comes on the land 
 and makes a feoffiuent to the tenant 
 for life, who accepts livery thereon, 
 the tenant for life is thereby estopped 
 from disputing the seizin in fee of the 
 remainder-man, and so the law says, 
 that such acceptance of livery 
 amounts to a surrender of his life 
 estate. Again, if tenant for years 
 accepts from his lessor a grant of a 
 rent issuing out of the land and pay- 
 able during the term, he is thereby 
 estopped from disputing his lessor's 
 right to grant the rent, and as this 
 could not be done during his term, 
 therefore he is deemed in law to have 
 surrendered his term to the lessor. 
 It is needless to multiply examples; 
 all the old eases will be found to 
 depend on the principle to which we 
 have adverted, namely, an act done by 
 or to the owner of a particular estate, 
 the validity of which he is estopped 
 
 from disputing, and which could not 
 have been done if the particular 
 estate continued to exist. .The law 
 there says, that the act itself amounts 
 to a surrender. In such case it will 
 be observed there can be no question 
 of intention. The surrender is not the 
 result of intention. It takes place inde- 
 pendently, and even in spite of intention. 
 Thus, in the cases which we have 
 adverted to of a lessee taking a 
 second lease from the lessor, or a 
 tenant for life accepting a feofEment 
 from the party in remainder, or a, 
 lessee accepting a rent-charge from 
 his lessor, it would not at all alter 
 the case to show that there was no 
 intention to surrender the particular 
 estate, or even that there was an ex- 
 press intention to keep it unsur- 
 rendered. In all these cases the 
 surrender would be the act of the 
 law, and would prevail in spite of the 
 intention of the parties. These prin- 
 ciples are all clearly deducible from 
 the cases and doctrine laid down in 
 EoUe, and collected in Viner's Abridg- 
 ment, tit. ' Surrender,' F. and G., and 
 in Comyns' Dig., tit. 'Surrender,' T. 
 and I. 2, and the authorities there 
 referred to. But, in all these cases, 
 it is to be observed, the owner of the 
 particular estate, by granting or ac- 
 cepting an estate or interest, is a 
 party to the act which operates as a 
 surrender. That he agrees to an act 
 done by the reversioner is not suf- 
 ficient. Brooke, in his Abridgment, 
 tit. 'Surrender,' pi. 48, questions the 
 doctrine of Pkowike, C. J., who says : 
 'If a termor agrees that the rever- 
 sioner shall make a feofEment to a 
 stranger, this is a surrender,' and 
 says he believes it is not law; and 
 the contrary was expressly decided in 
 the case of Swift v. Heath, Carthew, 
 110, where .it was held, that the con- 
 sent of the tenant for life to the 
 remainder-man making a feoffment to 
 a stranger, did not amount to a sur- 
 
114 
 
 STATUTE OF FRAUDS. 
 
 [CHAP. n. 
 
 years accepts a grant of the custody of the same house, it is 
 a surrender, because a grant of the custody of a thing which 
 
 render of the estate for life, and to 
 the same effect are the authorities in 
 Viner's Abr., ' Surrender,' F. 3 and 4. 
 If we apply these principles to the 
 case now before us, it will be seen 
 that they do not at all warrant the 
 conclusion that there was a surrender 
 of the lease of the 7th of April, 1812, 
 by act and operation of law. Even, 
 adopting, as we do, the argument of 
 the plaintiff, that the delivery up by 
 Ord and Planta of the lease in ques- 
 tion alfords cogent evidence of their 
 having consented to the making of 
 the new lease, still there is no estoppel 
 iu such a case. It is an act which, 
 like any other ordinary act in pais, is 
 capable of being explained, and its 
 effect must therefore depend, not on 
 any legal consequence necessarily 
 attaching on and arising out of the 
 act itself, but on the intention of the 
 parties. Before the statute of frauds, 
 the tenant in possession of a corporeal 
 hereditament might surrender his 
 term by parol, and therefore the cir- 
 cumstance of his delivering up his 
 lease to the lessor might afford strong 
 evidence of a surrender in fact ; but 
 certainly could not, on the principles 
 to be gathered from the authorities, 
 amount to a surrender by operation 
 of law, which does not depend on 
 intention at all. On all these grounds, 
 we are of opinion that there was in 
 this case no surrender by operation 
 of law, and we should have consid- 
 ered the case as quite clear had 
 it not been for some modern cases, 
 to which we must now advert. 
 The first case, we believe, iu which 
 any intimation is given that there 
 could be a surrender by act and oper- 
 ation of law by a demise from the 
 reversioner to a stranger with the 
 consent of the lessee, is that of Slone 
 V. Whiting, 2 Stark. 230, in which 
 HoLKOYD, J., intimates his opinion 
 that there could; but there was no 
 decision, and he reserved the point. 
 This was followed soon afterwards by 
 
 Thomas v. Cooke, 2 Stark. 408; 2 B. 
 & Aid. 119. That was an action of 
 debt by a landlord against his tenant 
 from year to year, under a parol 
 demise. The defence was, that the 
 defendant Cooke, the tenant, had put 
 another person (Parkes) in possession, 
 and that Thomas, the plaintiff, had, 
 with the assent of Cooke, the defend- 
 ant, accepted Parkes as his tenant, 
 and that so the tenancy of Cooke had 
 been determined. The Court of 
 King's Bench held, that the tenancy 
 was determined by act and operation of 
 law. It is matter of great regret that a 
 case involving a question of so much 
 importance and nicety should have 
 been decided by refusing a - motion 
 for a new trial. Had the case been 
 put into a train for more solemn 
 argument, we cannot but think that 
 many considerations might have been 
 suggested which would have led the 
 court to pause before they came to 
 the decision at which they arrived. 
 Mr. Justice Batley, in his judgment 
 says, the jury were right in finding 
 that the original tenant assented, 
 because, he says, it was clearly for 
 his benefit, an observation which 
 forcibly shows the uncertainty which 
 the doctrine is calculated to create. 
 The acts in pais which bind parties 
 by way of estoppel are but few, and 
 are pointed out by Lord Coke, Co. 
 Litt. 352 a. They are all acts which 
 anciently really were, and in contem- 
 plation of law have always continued 
 to be, acts of notoriety, not less for- 
 mal and solemn than the execution of 
 a deed, such as livery, entry, acceptance 
 of an estate, and the like. Whether a 
 party had or had not concurred in an 
 act of this sort was deemed a matter 
 which there could be no difficulty in 
 ascertaining, and then the legal con- 
 sequences followed. But in what 
 uncertainty and peril will titles be 
 placed, if they are liable to be affect- 
 ed by such accidents as those alluded 
 to by Mr. Justice Bayley. If the 
 
SEC. 66.] 
 
 ASSIGNMENT AND STJEKENDEE. 
 
 115 
 
 was leased before, is another interest in the same thing leased, 
 and cannot stand with the first lease.^ But the taking of a 
 new lease, to commence upon the expiration of the old lease, 
 does not operate as a surrender of the latter, because the 
 second lease being reversionary, is not inconsistent with the 
 existing demise,^ nor does the acceptance of a lease to com- 
 
 1 Gybson v. Searl, ante; Arundale 
 c. Gray, 2 Dyer, 200 j "Woodward „. 
 Aston, 1 Vent. 296. 
 
 doctrine of Thomas v. Cooke should 
 be extended, it may very much affect 
 titles to long terms of years, mortgage 
 terms, for instance, in which it fre- 
 quently happens that there is a con- 
 sent, express or implied, by the legal 
 ' termor to a demise from a mortgagor 
 to a third person. To hold that such 
 a transaction could, under any cir- 
 cumstances, amount to a surrender by 
 operation of law, would be attended 
 with most serious consequences. 
 The case of Thomas v. Cooke has 
 been followed by others, and acted 
 upon to a considerable extent. What- 
 ever doubt, therefore, we might feel 
 as to the propriety of the decision, 
 that in such a case there was a sur- 
 render by act and operation of law, 
 we should probably not have felt 
 ourselves justified in overruling it. 
 And, perhaps, the case itself, and 
 others of the same description, might 
 be supported upon the ground of the 
 actual occupation by the landlord's 
 new tenants, which would have the 
 effect of eviction by the landlord 
 himself in superseding the rent or 
 compensation for use and occupation 
 during the continuance of that occu- 
 pation. But we feel fully warranted 
 in not extending the doctrine of that 
 case, which is open to so much doubt, 
 especially as such a course might be 
 attended with very mischievous con- 
 sequences to the security of titles. 
 If, in compliance with these cases, 
 we hold that there is a surrender by 
 act and operation of law where the 
 estates dealt with are corporeal and 
 in possession, and of which demises 
 may therefore be made by parol or 
 
 2 Rawlings v. "Walker, 5 B. & C. 
 Ill ; Anon., Dal. 74 pi. 58. 
 
 writing, and where there is an open 
 and notorious shifting of the actual 
 possession, it does not follow that we 
 should adopt the same doctrine where 
 reversions or incorporeal heredita- 
 ments are disposed of, which pass 
 only by deed. "With respect to these, 
 we think we ought to abide by the 
 ancient rules of the common law, 
 which have not been broken in upon 
 by any modern decision, for that of 
 "Walker v. Richardson, 2 M. & "W. 
 882, which has been much relied on 
 in argument, is not to be considered 
 as any authority in this respect, inas- 
 much as the distinction that the right 
 to tolls lay in grant was never urged, 
 and probably could not have been 
 with success, as the leases, perhaps, 
 passed the interest in the soil itself. 
 Moreover, according to the report of that 
 case, it would seem that the new 
 lessees had, before they accepted 
 their lease, become entitled to the old 
 lease by an actual assignment from 
 the old lessee. If this were so, then 
 there could, of course, be no doubt 
 but that the old lease was destroyed 
 by the grant and acceptance of the 
 new one. It is, however, right to say, 
 that w# believe this statement to have 
 crept into the report inadvertently, 
 and that there was not, in fact, any 
 such assignment. The result of our 
 anxious consideration of this case is, 
 that the verdict on the issues on the 
 first plea and on the rejoinder to the 
 replication to the fifth plea, must be 
 entered for the defendants, and as 
 those pleas go to the whole cause of 
 action, the judgment must be for 
 them." 
 
116 STATUTE OP FBAtTDS. [CHAP. H. 
 
 melace upon a contingency which may not occur until after 
 the termination of the first term ; as, if a lessee for a term of 
 twenty years, takes a lease of the same lands for forty years, 
 to commence upon the death of a certain person named, the 
 acceptance of such lease does not operate a present surrender 
 of the first lease, because the contingency may not occur 
 during the term ; but if it does occur, the acceptance of the 
 last lease operates as a surrender of the first from the date 
 of its occurrence,^ even though the second lease is afterwards 
 defeated by the non-performance of a condition subsequent.^ 
 So if a lessee for twenty years accepts a new lease for ten 
 years, to begin at a certain fixed period, the term of twenty 
 years is thereby surrendered immediately, because by the 
 acceptance of the new lease he admits that the lessor is in 
 a situation to lease to him, notwithstanding the existence of 
 the other lease.^ But a mere agreement for a new lease is 
 
 ' Anon., Leon, 30 pi. 83. In case Roll. Abr. 496, pi. 15. So, according 
 
 the contingency does occur, what is to Tanfield, J., if a man possessed of 
 
 left of the old term is surrendered Black Acre and other lands in D, let 
 
 and gone, because the new lease then ^Black Acre for twenty-one years, and 
 
 becomes instantly operatire. Bacon's the next day let (to the same person) 
 
 Abr. tit. " Leases," § 3. all his lands in D for ten years, it is 
 
 2 Plowden, 107 6. not a surrender of Black Acre; but 
 
 3 Ives V. Sams, Cro. Eliz. 522 ; amounts to a lease of all the other 
 Hutching v. Martin, id. 604. The lands, which may well stand with 
 early books are not agreed as to the the former lease. Id. ; and Cro. Jae. 
 principle on which these cases of im- 84. So, acceptance of the equitable 
 pUed surrenders depend. Coke states interest in a lease made to a friend as 
 it to be, that, by taking the new in- a trustee will not work a surrender of 
 terest, the lessee affirms the lessor's a former lease held by a cestui que 
 ability to confirm it; an ability he trust. Gie v. Eider, 1 Sid. 75; Jay w. 
 cannot possess if the first lease is to Eider, 1 Keb. 285. And it is held 
 stand; such new interest, therefore, that the lessee's acceptance of an 
 being regarded as inconsistent with, office collateral to the lands demised 
 and destructive of, the lessee's former — as by a lessee of a park, of the 
 estate. Ive's Case, 5 Coke, 11 6. office of park-keeper; or by a lessee 
 The principle propounded ii#Lyou v. for years of a manor, of the office of 
 Eeed has already been noticed, ante, surveyor, bailiff, or steward thereof — 
 p. 111. But there will be no sur- will not effect a surrender by oper- 
 render if a lessee for years takes a ation of law. And, on the same prin- 
 grant of a rent-charge out of the same ciple, if a lessor makes a feoffment, 
 lands for life, or without limiting the and appoints the lessee his attorney 
 period of its commencement ; or if a to deliver seizin, it Is not a surrender, 
 lessee for life takes a grant for years ; as the livery is made by the lessee in 
 for in each case he may have the his official capacity. 1 Dy. 33 6. In 
 benefit of the rent after the determi- cases of surrender by operation of 
 nation of the estate in the land, law, it must be understood that the 
 Gybson v. Searl, Cro. Jac. 176-7; 2 lessee takes the actual interest contracted 
 
SEC. 66.] 
 
 ASSIGNMENT AND STJEEENDER. 
 
 117 
 
 not sufficient to create an implied surrender of the old one,^ 
 nor is the acceptance of a new lease in trust for another.'* 
 A notice given by the tenant to the landlord of his intention 
 
 for under the second lease; for it is 
 settled, in opposition to some early 
 cases: Whitley v. Gough, 2 Dy. 140 
 b; Mallows v. May, Cro. Eliz. 873; 
 Corbet's Case, 3 Dy. 280 a. And see 
 Brewster v. Parrot, Cro. Eliz. 264, 
 that the acceptance of a new lease which 
 is void will not effect an extinguishment 
 of the one previously subsisting. Baker 
 V. Willoughby, cited, Hutt. 105; 
 Lloyde v. Gregory, Cro. Car. 502; 
 "Watt u. Maydewell, Hutt. 104-5; 
 Wilson V. Sewell, 4 Burr. 1975 ; Brom- 
 ley V. Stanley, 4 Burr. 2210 ; Earl of 
 Berkeley v. The Archbishop of York, 
 6 East, 86; Hamerton v. Stead, 3 B. 
 & C. 481; Bishop of Rochester v. 
 Bridges, 1 B. & Ad. 874; Lowther v. 
 Troy, 1 It. T. K. 192. And, accord- 
 ingly, where a lessee for years under 
 the crown took a new lease for years 
 of the same estate, which was void 
 for want of a recital of the former 
 lease, it was held that the former was 
 not surrendered. Harris v. Wing, 3 
 Leon. 242 ; Wing v. Harris, Cro. Eliz. 
 231 ; cited, Cro. Car. 198. So, where 
 one seized in fee granted a lease for 
 ninety-nine years, and having in the 
 interim made a settlement, and taken 
 back an estate for life only, granted, 
 previously to the determination of the 
 former, a new lease of ninety-nine 
 years, to the same lessee, who was not 
 informed of the settlement, and then 
 died, the court held that the latter 
 did not annul the former, as it would 
 be inconsistent with the intention of 
 the parties to the contract, that an in- 
 valid lease should be substituted for 
 a valid one. Bromley v. Stanley,' 2 
 Burr. 2210. So a contract by a tenant 
 from year to year with his landlord 
 to purchase the fee will not amount 
 to a surrender by operation of law of 
 the existing tenancy, unless the tenant's 
 continuance in possession is clearly 
 referable to an agreement for holding 
 as tenant at will under the contract. 
 Denison v. Wertz, 7 S. & R. (Penn.) 
 
 372. If the contract is conditional to 
 purchase only provided a good title 
 be made out, and to pay the purchase- 
 money when that shall have been 
 done, and the estate conveyed, there 
 is no room for imj)lying any agree- 
 ment as tenant at will in the mean 
 time, the effect of which would be 
 absolutely to surrender the existing 
 term, whilst it would be uncertain 
 whether the purchase would be com- 
 plete or not. Gray v. Stanion, 1 M. 
 & W. 695. So, an agreement for a 
 new lease will not put an end to a 
 former tenancy, unless a new tenancy 
 is actually created. But if a tenant 
 from year to year agrees during a, 
 current year to take a lease of the 
 premises jointly with another, and he 
 and his co-tenant actually enter and 
 enjoy the property, this joint occu- 
 pation, coupled with the agreement, 
 will operate as a surrender in law of 
 the separate tenancy: Hamerton v. 
 Stead, 3 B. & C. 478; Jay v. Ryder, 1 
 Keb. 285; Gie v. Rider, 1 Sid. 75; 
 Perryn v. Allen, Cro. Eliz. 173. It is, 
 however, to be observed, that, with 
 regard to an actual surrender by deed, 
 a different rule prevails. The Bishop 
 of Rochester v. Bridges, 1 B & Ad. 
 847. In Dankersley v. Levy, 38 Mich. 
 54, an agent executed a lease to cer- 
 tain parties for his principal while it 
 was still in force, the principal exe- 
 cuted a lease of the same premises to 
 the agent, who then verbally leased 
 them to the same tenants, for a 
 smaller rent than before, who con- 
 tinued in possession without change. 
 It was held, that the original lease 
 was surrendered by operation of law, 
 and not assigned to the agent, and 
 consequently that he could not claim 
 the rent under the old lease. 
 
 1 John V. Jenkins, 1 C. & M. 227; 
 Parris v. Allen, Cro. Eliz. 173. 
 
 2 Comyn's Dig. tit. Surrender (H.) 
 (D. 1.). 
 
118 STATUTE OP FEATJDS. [CHAP. II. 
 
 to quit does not operate as a surrender,^ but a written 
 request by the tenant to his landlord to re-let the premises 
 to some other person, if acted upon by the landlord, amounts 
 to a surrender by operation of law,^ and it has been held that 
 the same result ensues when the premises are re-let at the 
 request of a surety for the lessee ; ^ but we apprehend that 
 the latter doctrine can only apply where the tenant has 
 abandoned the possession of the premises. Provision may 
 be made in the lease itself for its surrender by the tenant 
 upon doing certain things : he can only surrender the lease 
 in the mode named therein,* unless he can clearly establish a 
 waiver by the landlord, of the modes named in the lease ; as, 
 where notice in writing is named, that the .landlord waived 
 such notice and accepted the possession.^ A recital in a 
 second lease, that it was granted in consideration of the 
 surrender of the first, is not a surrender by deed or note in 
 writing, as it does not purport to be of itself a surrender or 
 yielding up of the interest in the first lease.® 
 
 Sec. 67. Effect of 'Sew Lease of a Part of Premises. — If a 
 
 tenant accepts a new lease of a part of the premises embraced 
 in a prior lease, such new lease operates only as a surrender 
 of that part only, and does not affect his interest in the 
 remainder of the premises ; '^ and the rule that a contract for 
 
 1 Bessell v. Landsberg, 7 Q. B. 638 ; of the copyholders. But on the part 
 
 Murrell v. Milward, 3 M. & W. 328. of the defendant it was shown, that 
 
 ^ Nickells v. Atherstone, 10 Q. B. King Henry III., in the 16th year of 
 
 944. his reign, granted by charter under 
 
 8 McKenzie v. Tarrell, 4 Bos. (N. the great seal of the then Bishop of 
 
 Y.) 192. Winchester and his successors free 
 
 ^ Kettle V. St. John, 7 Neb. 73. warren in all their demesne lands of all 
 
 * Farson v, Goodale, 8 Allen their manors in England; and it was 
 
 (Mass.) 202. contended that, by this grant, the 
 
 8 Berkley v. York, 6 East, 86 ; bishop and all deriring title under 
 
 Egremout v. Courtnay, 11 Q. B. 702. him were estopped from setting up 
 
 ' Fish V. Campion, 2 Eoll. Abr. 498 the original title 'by prescription, and 
 
 (M.) ; "Williams u. Sawyer, 3 B. & B. so that the free warren over the lands 
 
 70; Morrison v. Chadwick, 7 C. B. of the copj/XoWers was gone; no such 
 
 266. In Earl CamarTon v. Villebois, right having been conveyed by the 
 
 13 M. & W. 313, Aldbeson, B., said : charter, which was confined to the 
 
 "At the trial, the plaintiff established demesnes. The defendant, in support 
 
 his title by prescription through the of this proposition, relied on Com. 
 
 bishops of Winchester to a general Dig. tit. Prescription (G), and 17 
 
 right of free warren over all the lands Vin. Ahridg. tit. Prescription, (T), 
 
 of these manors, including the lands pi. 5, and several old authorities there 
 
SEC. 68.] ASSIGNMENT AND SUEKBNDEE. 
 
 119 
 
 years cannot be divided or severed so as to be good for a 
 part of the term, and avoided as to the residue, has no 
 application because, while the contract cannot be divided, 
 the land may be, and the tenant may surrender a part, either 
 expressly or by operation of law, and the lease will stand 
 good as to the residue.^ An unconditional assignment of a 
 lease to the lessor operates as a surrender, but a conditional 
 assignment for collateral purposes only, as to secure a loan, 
 etc., does not so operate.^ 
 
 Sec. 68. Acceptance of a New Lease. — If a lessee for years 
 accepts a new lease from his lessor, he is estopped from saying 
 that his lessor had not power to make the new lease ; and as 
 the lessor could not do this until the prior lease had been 
 surrendered, the law says that the acceptance of such new 
 lease is of itself a surrender of the premises.^ So if there is 
 a tenant for life remainder to another in fee, and the remain- 
 der-man comes on the land, and makes a feoffment to the 
 tenant for life, who accepts livery thereon, the tenant for 
 
 referred to, particularly a case frpm 
 the Year Books, 21 Hen. 7, fo. 5, and 
 Brooke's Abridg., Estoppel, 210, and 
 Prescription, 102. It may well be 
 doubted whether any such principle 
 as that contended for can be applied 
 to a grant like the present, which 
 probably was never intended as any 
 thing more than a confirmation of 
 rights already existing. It is not, 
 however, necessary to go into this 
 question, for it is clear the doctrine 
 is not applicable to the case where the 
 subject-matter of the grant and of the 
 prescription are different. Now here, 
 adopting the argument of the defend- 
 ant that the copyholds are not to be 
 considered as demesnes, then it fol- 
 lows that the prescriptive right was 
 one which extended over two descrip- 
 tions of land, namely, 'copyholds and 
 demesnes. The grant was of a right 
 over demesnes only. In such a state 
 of things, it appears to us clear that 
 the grant could not affect the pre- 
 scription so far as related to the 
 copyholds. It is, as was put by Mr. 
 Smikke in his argument, to be likened 
 
 to the case of tenant for years or for 
 life of Blackacre and Whiteacre ac- 
 cepting from his lessor a new lease of 
 Blackacre only. This is, no doubt, a 
 surrender by operation of law of 
 Blackacre, but it in no respect affects 
 the title to Whiteacre. On this short 
 ground, even asuming that the charter 
 in question is to be construed as a 
 grant and not as a confirmation, and 
 that it was duly accepted by the 
 grantee, and that its effect was to 
 destroy the prescriptive title to the 
 free warren over the demesnes, still it 
 left the right over the lands of the copy- 
 holders untouched." 
 
 1 Bacon's Abr. tit. Leases, § 3. 
 
 2 Breese v. Bangs, 2 E. D. S. (N. Y. 
 C. P.) 474. 
 
 8 Lyon V. Eeed, 13 M. & W. 305 ; 
 13 L. J. Ex. 377, per Pakke, B.; and 
 see Bernard v. Bonner, Aleyn. 59; 
 Ives V. Sams, Cro. Eliz. 521 ; Hutchins 
 V. Martin, ib. 505; Mallows v. May, 
 ib. 874; Gybson v. Searl, Cro. Jac. 
 177; Crowley v. Vitty, 7 Exch. 319; 
 Pumivall V. Grove, 8 C. B. (N. S.) 
 496. 
 
120 STATUTE OF FEAT7DS. [CHAP. II. 
 
 life is thereby estopped from disputing the seizin in fee of 
 the remainder-man ; and so the law says such acceptance of 
 livery amounts to a surrender of his life estate. Again, if 
 tenant for years accept from his lessor a grant of a rent 
 issuing out of the land and payable during the term, he is 
 thereby estopped from disputing his lessor's right to grant 
 the rent, and as this could not have been done during his 
 term, therefore he is deemed in law to have surrendered his 
 term to the lessor.^ In these cases it will be observed there 
 can be no question of intention ; it is the act of the law, and 
 will prevail in spite of the intention of the parties.^ 
 
 Sec. 69. New Lease need not be in Writing. — In Magennis 
 V. MacCullogh,3 Loed C. B. Gilbert said that the words 
 " by act and operation of law " are to be construed a surren- 
 der in law by the taking a new lease which, being in writing, 
 is of equal notoriety with a surrender in writing.* Accord- 
 ing to this reasoning the new lease must be in writing. But 
 in Thomas v. Cook,^ the tenancy, which was from year to 
 year, was created by parol, and was held to have been 
 surrendered by a parol under-lease, and the acceptance of 
 the new tenant by the landlord, and therefore it would 
 seem that the acceptance of a lease to himself by parol, by 
 the old tenant, wiU be a surrender of the existing lease.® A 
 recital in a second lease, that it was granted in consideration 
 of the surrendering up into the hands of the lessor by the 
 lessee at or before the delivery thereof of the lease first 
 granted, is not a sufficient surrender.'^ 
 
 Sec. 70. Agreement for New Lease. — A mere agreement 
 to grant a new lease will not put an end to the tenancy 
 unless a new tenancy is actuq^y created.^ Thus where the 
 
 1 Lyon V. Reed, 13 M. & "W. 305; < And see Roe v. Abp. of York, 6 
 
 13 L. J. Ex. 377, per Pakke, B.; and East, 86. 
 
 see Bessell v. Landsberg, 7 Q. B. 640 ; » 2 Stark. 408 ; 2 B. & Aid.' 119. 
 
 14 L. J. Q. B. 355 ; Mokells v. Ather- « See 1 Wm. Saund. 203, n. u. 
 stone, 10 Q. B. 944; 16 L. J. Q. B. ' Doe v. Courtenay, 11 Q. B. 702; 
 371 ; Vin. Abr. tit. Surrender (F. & 17 L. J. Q. B. 151 ; Roe v. Abp. of 
 G.), Com. Dig. tit. Surrender (T. & J.). York, 6 East, 86. 
 
 2 Lyon V. Reed, 13 M. & W. 306 ; » Hamerton v. Stead, 3 B. & C. 482 ; 
 13 L. J. Ex. 377. 6 D. & E. 206. 
 
 8 GHb. Eq. Rep. 236, 
 
SEO. 72.] ASSIGNMENT AND SUEEBNDEE. 121 
 
 tenant agreed to relinquish his interest under his lease, and 
 to accept a fresh lease, and to hold the premises as tenant 
 from year to year until such lease was tendered, and no lease 
 was executed : in an action for rent it was argued for the 
 defendant that, if there is a tenancy under a lease, and the 
 parties make a verbal agreement for a sufficient considera- 
 tion, that instead of the existing term, there should be a 
 tenancy from year to year, at a different rent, that would be 
 a surrender of the lease by operation of law ; but it was held 
 that the term created by the existing lease would not be de- 
 termined until the new lease was executed.^ So also an 
 agreement between the lessor and a stranger, that the lessee 
 shall have a new lease, is not a surrender .^ But if a' tenant 
 from year to year of premises gives them up to the landlord 
 in pursuance of a parol agreement that the tenant shaU take 
 other rooms upon the same terms, this amounts to a sur- 
 render.^ 
 
 Sec. 71. New Lease to Begin Presently. — Where a lessee 
 for twenty-one years took a lease of the same lands for forty 
 years, to begin immediately after the death of J S, it was 
 held that this was not any present surrender of the first term, 
 because J S might wholly outlive that term, and then there 
 would be no union to work a surrender; and it being in 
 equilihrio in the meantime whether he would survive it or 
 not, the first term should not be hurt till that contingency 
 happened ; for if J S died within the first term, then what 
 remained of it was surrendered and gone by the taking place 
 of the second.* 
 
 Sec. 72. "What is a Sufficient New Lease. — If a lessee 
 accepts a new lease de vestura terrae, it will be a surrender.^ 
 So, also, if he accepts a grant of common, or rent out of the 
 same land, to commence at a certain day within the term.^ 
 
 1 Foquet v. Moore, 7 Exch. 870 ; " Perry v. Allen, Cro. Eliz. 173. 
 22 L. J. Ex. 35; and see John v. Jen- » Giles v. Spencer, 3 C. B. (N. S.) 
 
 kins, 1 Cr. & M. 227 ; Crowley v. Vitty, 251. 
 
 7 Exch. 319 ; Badeley v. Vigurs, 4 E. * Bac. Abr. tit. Leases, § 2. 
 & B. 71 ; 23 L. J. Q. B. 377 ; 23 L. T. « Com. Dig. tit. Surrender (T.) 1. 
 297; Whitley w. Gongh, Dyer, 140 5; « Mallows v. May, Cro. Eliz. 174; 
 
 Weddall v. Capes, 1 M. & W. 51 ; Doe Gybson v. Searl, Cro. Jac. 176. 
 V. MUward, 3 M. & "W. 328. 
 
122 STATUTE or FEATJDS. • [CHAP. II. 
 
 Where the lessee for years of a house accepts a grant of the 
 custody of the same house, that is a surrender ; for the cus- 
 tody of the same thing which was let before is another in- 
 terest in the same thing leased, and cannot stand with the 
 first lease.i If the sovereign grants an ofl&ce by patent, or 
 makes a demise for years, the acceptance of a new patent in 
 the one case, or of a new lease in the other, is no surrender 
 of the first grant.^ So where a lessee for years of a park or 
 a manor accepts a grant of the office of park-keeper of the 
 same park for his life, or takes a lease of the bailiwick of the 
 manor, that is not a surrender, because it is an office collat- 
 eral to the land ; ^ and the acceptance of a new lease in trust 
 is not a good surrender.* If a lessee for twenty years takes 
 a lease for ten years, to begin at Michaelmas, there is no 
 doubt but that the term for twenty years is surrendered or 
 determined presently; for by the lessee's acceptance the 
 lessor hath power to make a new lease during the former.^ 
 Where the lessee for years of an advowson was presented to 
 the advowson by the lessor, it was adjudged to be a sur- 
 render of his term.® 
 
 If a lessee re-demises his whole term to the lessor with a 
 reservation of rent, it will operate as a surrender.'^ Where 
 the tenant, by letter, authorized the lessor to let the premises 
 to any one else, and the lessor did so, and the new tenant 
 entered into possession, it was held that there was a sur- 
 render by operation of law.^ If there be two lessees for life, 
 or years, and one of them takes a new lease for years, this is 
 a surrender of his moiety.^ Again, if a lessee for years of 
 lands accepts a new lease by indenture of part of the same 
 lands, that is a surrender of that part only, and not for the 
 whole, because there is no inconsistency between the two 
 leases, for any more than that part only which is so doubly 
 leased, and though a contract for years cannot be so divided 
 and severed as to be avoided for part of the years, and to 
 
 1 Gybson v. Searl, Cro. Jac. 177 ; « jygg „, Sams, Cro. Eliz. 522 ; Hut- 
 Earl of Arundel «. Lord Gray, Dyer, chins v. Martin, ib. 605. 
 
 ■ 200 b. e Gybson v. Searl, Cro. Jac. 84. 
 
 2 Brook «. Goring, Cro. Car. 197. ' Loyd v. Langford, 2 Mod. 174; 
 8 Gybson v. Searl, Cro. Jac. 176; Smith v. Mapleback, 1 T. R. 441. 
 
 Woodward v. Aston, 1 Vent. 296. « Nickells v. Atherstone, 10 Q. B. 
 
 4 Gie V. Ryder, Sid. 75; Com. Dig. 944; 16 L. J. Q. B. 371. 
 tit. Surrender (H.) L. 1. 9 Shep. Touch. 302. 
 
SEC. 74.] ASSIGNMENT AND STJERENDER. 123 
 
 subsist for tlie residue, either by act of the party or act in 
 law, yet the land itself may be divided or severed, and he 
 may surrender one or two acres either expressly or by act 
 in law, and yet the lease for the residue stands good and un- 
 touched, because here the contract for the residue remains 
 entire, whereas in the other case the contract for the whole 
 would be divided, which the law will not allow.^ 
 
 In Morrison v. Chadwick,^ the landlord evicted his tenant 
 from a part of the demised premises. It was held that the 
 entire rent was suspended during the continuance of the 
 eviction ; but that the tenancy was not put an end to, nor 
 was the tenant discharged from the performance of his cove- 
 nants, other than the covenant for the payment of rent. 
 
 Sec. 73. Term Taken in Execution. — A sheriff who takes 
 a term in execution under a writ of fieri facias, and sells, 
 must execute an assignment of the term, according to the 
 provisions of the statute, or the term will still remain in the 
 debtor, and the purchaser will have no defence in an action 
 for the recovery of lahd.^ 
 
 Sec. 74. New Iiease Voidable on Condition may be Sur- 
 render. — The acceptance of a new lease, made voidable upon 
 condition, may be a surrender by operation of law, if ren- 
 dered Toid according to the contract ; * for the surrender, by 
 taking the new lease, is executed absolutely at the time, and 
 it is not defeated, although the condition makes the second 
 lease void, ah initio, for various purposes.^ 
 
 But no surrender, express or implied, in consideration of a 
 new lease, will bind if the new lease is absolutely void ; for 
 the ground of the surrender fails.^ It creates no new estate, 
 
 1 Bac. Abr. tit. Leases, § 3; citing Wilson v. Sewell, 4 Burr, 1980; Eoe 
 Fish V. Campion, 2 Roll. Abr. 498 ; v. Abp. of York, 6 East, 102 ; Doe v. 
 see also Earl of Carnarvon v. Ville- Courtenay, 11 Q. B. 712 ; 17 L. J. Q. 
 bois, 13 M. & W. 342. B. 151 ; Doe v. Poole, ib. 716 ; 17 L. 
 
 2 7 C. B. 266 ; 6 D. & L. 567 ; 18 J. Q. B. 143. No Implied surrender 
 L. J. C. P. 189. by the grant of a new lease will take 
 
 ' Doe V. Jones, 9 M. & "W. 372. effect if the new lease is absolutely 
 
 * Doe V. Poole, 11 Q. B. 716. void: Abbott w. Parsons, 3 Burr, 1807 ; 
 
 6 Fulmerston v. Steward, Plowd. "Wilson v. Sewell, 4 Burr, 1980; 1 W. 
 
 107 ; and see Eoe v. Abp. of York, 6 Blac. 617 ; Earl of Berkeley v. Abp. 
 
 East, 102, and Co. Litt. 45 a. of York, 6 East, 86 ; Bromley v. Stan- 
 
 6 Zouch V. Parsons, 3 Burr, 1807 ; ley, 4 Burr, 2210 ; Earl of Egremont 
 
124 
 
 STATUTE OP FEATJBS. 
 
 [chap. n. 
 
 and is no estate inconsistent with the tenant's former inter- 
 est.^ Besides, a void contract for a thing that a man cannot 
 enjoy, cannot in common sense or reason imply an agreement 
 to give up a former contract.^ But where tenant from year 
 to year entered into an agreement during a current year for 
 a lease to be granted to him and A B, and from that time 
 A B entered and occupied jointly with him, it was held that 
 by this agreement, and the joint occupation under it, the 
 former tenancy was determined, although the lease contracted 
 for had never been granted, Abbott, C. J., saying : " In Roe 
 V. The Archbishop of York, the occupation, by virtue of the 
 new lease, took place under a mistaken idea that it was a 
 good and valid lease ; and when that was discovered to be 
 
 V. Courtenay, 11 Q. B. 702; Smith, 
 L. & T. 307, 2d ed.; 3 Priest. Conv. 
 164, 166 ; or if the new lease does not 
 pass an interest according to the con- 
 tract and intention of the parties, an 
 acceptance of it does not amount to 
 an implied smrender of the old lease : 
 Com. Dig. tit. Estates (G.) 13; Whit- 
 ney V. Myers, 1 Duer, 266 ; Schiefflin 
 V. Carpenter, 15 Wend. (N. Y.) 400; 
 Eton V. Luyster, 60 N. Y. 252. The 
 acceptance of a voidable lease which 
 is afterwards made void contrary to 
 the intention of the parties, but which 
 has operated to pass some part of the 
 term contracted for, is not a surrender 
 of a valid former lease inconsistent 
 therewith: therefore, where a tenant 
 for life, with a power of leasing, made 
 a lease of part of some land, which 
 was not a good execution of the power, 
 in consideration of the surrender of 
 two prior leases of the whole of the 
 land, and in order to effectuate an 
 agreement entered into between the 
 lessee .and aijother person for the sale 
 of the remaining part of the land, 
 which the lease recited that it was 
 intended to lease to the vendee by 
 indenture of even date, and which 
 was done, it was held, after the death 
 of the tenant for life, that this new 
 lease as to the premises thereby de- 
 mised did not operate as a surrender 
 of the two prior leases : Biddulph v. 
 Poole, 11 Q. B. 713 ; Earl of Berkeley 
 
 V. Abp. of York, 6 East, 86 ; 2 Smith, 
 L. C. 655, 4th. ed. ; Smith, L. & T. 308, 
 2d ed. So where a tenant for life, 
 with power of leasing, granted a lease 
 in "consideration of the surrender up " 
 of a former lease, "which surrender 
 is hereby made and accepted," it was 
 held, the new lease not being a good 
 execution of the power, and therefore 
 voidable, did not operate as a sur- 
 render of the prior lease : Earl of 
 Egremont v. Courtenay, 11 Q. B. 
 702; overruling Earl of Egremont v.- 
 Forwood, 3 Q. B. 627. Where a void- 
 able lease, which had been granted in 
 consideration of a surrender by deed 
 executed a few days before of a prior 
 lease, was avoided, it was held that 
 the first lease was not revived by such 
 avoidance. Murray v. Bridges, 1 B. & 
 Aid. 847. A surrender is effected if 
 the tenant relets to his landlord for 
 the entire term, reserving an annual 
 rent : Lloyd v. Langford, 2 Mod. 174 ; 
 Winton v. Pinkeney, 2 Lev. 80; 
 Wilson V. Pig, 3 Keb. 95 ; Gartwright 
 V. Pinkeney, 1 Vent. 272; Smith v. 
 Mapleback, 1 T. R. 441 ; though not 
 if he retains a reversion : 2 Roll. Abr. 
 497, pi. 13; Mallows v. May, Cro. Eliz. 
 873; Lit. § 144; Gourtail v. Thomas, 
 9 B. & C. 298 ; Bernard v. Bonner, Al. 
 58-9 ; Shep. Touch. 
 
 1 Lynch v. Lynch, 6 Ir. L. R. 142. 
 
 2 Davison v. Stanley, 4 Burr, 2213. 
 
SEC. 75.] ASSIGNMENT AND SUREENBEE. 125 
 
 void, the court very properly held that it should not operate 
 as a surrender of the former lease." Here there is nothing 
 to show that the defendant refused to grant such a lease as 
 was contracted for ; and we find, in fact, that a new contract 
 was made to let the premises to two persons instead of one, 
 and that both entered and occupied.^ 
 
 The acceptance of a lease which is voidable, and after- 
 wards made void, contrary to the intention of the parties, 
 and which does not pass an interest according to the con- 
 tract, will not operate as a surrender. Thus, where tenant 
 for life, with a power of leasing, granted a new lease to the 
 original lessee, which purported to be made in consideration 
 of the surrender of the original lease, but the new lease was 
 not a due execution of the power, it was held that the new 
 lease did not operate as a surrender.^ And the rule is the 
 same whether the surrender be implied or express, for in the 
 case of a surrender implied by law from the acceptance of a 
 new lease, a condition ought also to be understood as implied 
 by law, making void the surrender in case the new lease 
 should be made void ; and in the case of an express surren- 
 der so expressed as to show the intention of the parties to 
 make the surrender only in consideration of the grant, the 
 sound construction of such instrument in order to effectuate 
 the intention of the parties would make that surrender also 
 conditional to be void in case the grant should be made void.* 
 
 "Where a voidable bishop's lease, which had been granted 
 in consideration of the surrender of a prior lease by deed 
 poll, was avoided by the bishop's successor, it was held that 
 the first lease was not revived by such avoidance.* 
 
 Sec. 75. New Lease Granted to Third Party. — If the land- 
 lord and tenant agree that a new lease shall be granted to a 
 third party, and such third party either continues in or enters 
 into possession, this will amount to a surrender by operation 
 of law, though no new lease is ever granted. Thus, where 
 A being tenant from year to year underlet the premises to B, 
 
 1 Hamerton v. Stead, 3 B. & C. 478 ; 17 L. J. Q. B. 151 ; overruling Doe v. 
 5 D. & K. 206. Forwood, 3 Q. B. 627 ; 11 L. J. Q. B. 
 
 2 Doe V. Poole, 11 Q. B. 716; 17 321. 
 
 L. J. Q. B. 143. 4 Doe v. Bridges, 1 B. & Aid. 847. 
 
 3 Doe V. Courtenay, 11 Q. B. 712; 
 
126 STATUTE OF FBATJDS. [CHAP. n. 
 
 and the original landlord with the assent of A accepted B as 
 his tenant, but there was no surrender in writing of A's 
 interest, it was held that there had been a valid surrender 
 by act and operation of law.^ But where a tenant from year 
 to year whose holding commenced at Lady Day gave notice 
 at Christmas to his landlord that he would quit the Lady 
 Day following, and the landlord agreed to accept such notice, 
 it was held that this was no determination of the tenancy, 
 there not being a half year's notice, nor a surrender either 
 in writing or by operation of law.^ Bayley, J., observed 
 that the question whether the landlord's assent to the notice 
 operated as an actual surrender was not raised, inasmuch as 
 that assent was not expressed in writing. The case of 
 Thomas v. Cook was recognized by the court, but distin- 
 guished on the ground that there the surrender operated not 
 by reason of the agreement of the parties alone, but by reason 
 of that agreement coupled with the change of possession.^ 
 
 The tenancy will not be surrendered unless the agreement 
 is in writing, or the new tenant takes possession.* Where 
 the landlord grants a new lease to a stranger with the assent 
 of the tenant under an existing lease, and the latter gives up 
 his own possession, that is a surrender by operation of law.^ 
 The privity of estate between the lessor and the first lessee 
 is destroyed by the acceptance of a new tenant,^ and it is 
 more probable that the legislature intended to give effect to 
 an agreement, so proved as a surrender by operation of law, 
 than to allow either party to defeat the agreement by alleg- 
 ing the absence of written evidence.^ The reason of the 
 rule is that, as a new letting to an old tenant, commencing 
 
 1 Thomas v. Cook, 2 B. & Aid. 119 ; * Taylor v. Chapman, Peake Add. 
 2 Stark, 408; and see Stone «. Whiting, Cas. 19; and see Cocking v. Ward, 1 
 2 Stark, 235; Hamerton v. Stead, 3 C. B. 868; Kelly v. Webster, 12 C. 
 
 B. & C. 482; 5 D. & R. 206; 3 L. J. B. 283; Doe ■/. Johnston, McClel. & 
 (K. B.) 33; Rex u. Banbury, 3 Nev. Y. 141. 
 
 & Man. 292; Lynch v. Lynch, 6 Ir. L. 6 Davison v. Gent, 1 H. & N. 744; 
 
 K. 131. Lawrance v. Faux, 2 F. & P. 435 ; Gore 
 
 2 Johnstone v. Huddlestone, 4 B. v. Wright, 8 Ad. & El. 118; 3 N. & P. 
 & C. 922 ; 7 D. & R. 411 ; and see Doe 243. 
 
 V. Johnston, McClel. & Y. 141 ; Bessell " Thomas v. Cook, 2 Stark, 408 ; 2 
 
 V. Landsberg, 7 Q. B. 638. B. & Aid. 119. 
 
 3 Johnstone v. Huddlestone, 4 B. & ' Nickells v. Atherstone, 10 Q. B. 
 
 C. 922; 7 D. & R. 411; and see Doe 950; 16 L. J. Q. B. 371. 
 V. Johnston, McClel. &Y. 141; Bessell 
 
 u. Landsberg, 7 Q. B. 638. 
 
SBC. 7S.] ASSIGNMENT AND STJREENDEE. 127 
 
 immediately, operates as a surrender of the original term, 
 because tlie lessor could have no power to create the new 
 term if the original term had subsisted ; so a new letting to 
 a third party, with the assent of the original tenant, has the 
 same operation.^ 
 
 Where the defendant took premises for a year certain, but 
 quitted at the end of the first quarter, and the plaintiff then 
 let the premises for a portion of the remaining three quarters 
 to another tenant at a less rent, it was held that by re-letting 
 the premises the plaintiff had assented to the determination 
 of the original tenancy, and dispensed with the necessity of 
 a legal surrender ; and the case was distinguished from Mol- 
 lett V. Brayne,^ as there the tenant had a subsisting term, 
 wliich could not be determined by a mere parol surrender.^ 
 
 Where the tenant of a house, three cottages, and a stable 
 and yard, let at an entire rent for a term of seven years; 
 before the expiration of the term assigned all the premises 
 to B for the remainder of the term, the house and cottages 
 being in the possession of undertenants, and the stables and 
 yard in that of A ; and the landlord accepted a sum of money 
 as rent up to the day of assignment, which was in the middle 
 of a quarter, and B took possession of the stables and yard 
 only ; and the occupiers of the cottages having left them 
 after the assignment, but before the expiration of the term, 
 the landlord re-let them ; and A paid no rent after the as- 
 signment, but the landlord received rent from the under- 
 tenants ; and before the expiration of the term the landlord 
 advertised the whole of the premises to be let or sold; it 
 was held that this was a surrender by operation of law of all 
 the premises.* Where two persons, holding from different 
 lessors, verbally agreed to exchange their holdings, and on 
 the same day each took possession of the other's land, the 
 steward of both the lessors expressing his concurrence, it 
 was held that there was evidence to go to the jury of sur- 
 render.^ A tenant from year to year died, leaving his widow 
 
 ' McDonnell v. Pope, 9 Hare, 705 ; 3 Bing. 462 ; and see Hall v. Burgess, 
 
 and see Hobson «. Cowley, 27 L. J. 5 B. & C. 332; Woodcock v. Nuth, 8 
 
 Exch. 209 ; Walker v. Richardson, 2 Bing. 170 ; 1 Moo. A. Sc. 317. 
 M. & W. 882; 6 L. J. (N. S.) Ex. 229. * Reeve v. Bird, 1 C. M. & R. 31 ; 
 
 2 2 Camp. 103. 4 Tyr. 612. 
 
 » Walls V. Atcheson, 11 Moo. 379; « Bees v. WilUams, 2 C. M. & R. 
 
128 STATUTE OF FEATXDS. [CHAP. H. 
 
 in- possession, with the knowledge of the administrator to the 
 deceased tenant. It was held that there was no evidence of 
 a surrender.! 
 
 Where premises had been let to B for a term, determinable 
 by a notice to quit, and, pending such term, C applied to A, 
 the landlord, for leave to become the tenant instead of B, 
 and upon A consenting, agreed to stand in B's place, and 
 offered to pay rent, it was held that A might maintain an 
 action for use and occupation against C, and that the latter 
 could not set up B's title in defence to that action.^ 
 
 Sec. 76. Commencement of Nevo- Tenancy Question of Fact. 
 
 — When there has been a surrender by the admission of a 
 new tenant, it is a question for the jury, and not for the 
 judge, to be determined by a consideration of all the facts, 
 at what time the tenancy commenced.^ In order that there 
 may be a valid surrender by the grant of a new lease to a 
 new tenant, the transaction must be assented to by all the 
 parties,* as the legal presumption, until the contrary appears, 
 is, that the new tenant came in as the assignee of the origi- 
 nal lessee.^ 
 
 Where W and H, by agreement, in March, 1827, became 
 tenants to the plaintiff for three years, of premises occupied 
 by them as partners, with power to them to extend the term 
 to seven years by giving the plaintiff notice, which they did 
 in January, 1827, and at Midsummer, 1828, W retired from 
 the partnership, which was carried on by H with a new part- 
 ner, S, the plaintiff giving receipts for rent as received from 
 H and S, and in February, 1829, gave H a letter to his attor- 
 ney signifying that a lease might be made to H and S, but 
 no lease was ever prepared, it was held that W remained 
 liable to the plaintiff for rent accruing in 1831.® 
 
 581; Tyr. & Gr. 23. In this case, 219; Trent v. Hunt, 9 Exoh. 14; 22 
 
 Thomas v. Cook does not appear to L. J. Exch. 318 ; Cadle v. Moody, 80 
 
 have been cited. L. J. Exch. 385. 
 
 1 Doe V. Wood, 14 M. & "W. 682; ^ Doe „. Williams, 9 D. & R. 30; 
 15 L. J. Ex. 41. 6 B. & C. 41. 
 
 2 Phipps V. Sculthorpe, 1 B. & Aid. ^ Graham v. Wichelo, 1 C. & M. 
 50 ; but see Hyde v. Moakes, 5 C. & P. 188 ; 3 Tyr. 201 ; and see Matthews v. 
 42. Sawell, 2 Moo. 262 ; 8 Taunt. 270 ; Lyon 
 
 8 Walker v. God6, 6 H. & N. 594 ; v. Eeed, 13 M. & W. 285 ; 13 L. J. Ex. 
 30 L. J. Ex. 172. 3775 McDoneU v. Pope, 9 Hare, 705. 
 
 Eex V. Stow Bardolph, 1 B. & Aid. 
 
SEC. 76.] ASSIGNMENT AND SUEEENDEE. 129 
 
 Assent to the grant of a new lease by one of several exec- 
 utors is not sufficient to determine the tenancy, although 
 possession is given up by the original tenant.^ 
 
 The foregoing cases apply exclusively to chattel interests, 
 and it is not quite clear whether the doctrine of surrender 
 by the grant of a new lease to a third party would apply to 
 the case of a freehold interest. In Lynch v. Lynch ^ it was 
 held that the doctrine did apply. In that case the original 
 lease was freehold.^ In Creagh v. Blood,* Loed St. Leon- 
 AEDS, referring to the doctrine of Thomas v. Cook, said: 
 " The case of Lynch v. Lynch was relied upon as an 
 authority that the doctrine equally applies to a freehold 
 interest like that in this case, and no doubt the point was so 
 decided. But with all my respect for the judges who decided 
 that case, I cannot follow it — I never so understood the law; 
 and the authorities quoted in Lyon v. Reed would seem to 
 establish the contrary to be the law. I think the new rule 
 would have a more extensive operation than at first sight 
 would appear. Upon this point, if I were compelled to de- 
 cide, I should be of opinion that the freehold interest could 
 not be held to be surrendered by operation of law on the 
 ground of an acquiescence in the new lease." The doctrine 
 of Thomas v. Cook does not extend to incorporeal heredita- 
 ments.^ 
 
 The doctrine of surrender by the grant of a new lease to 
 a third party, with the assent of the original lessee, coupled 
 with a change of possession, as laid down in Thomas v. Cook, 
 has been questioned in some later cases, and especially in 
 Lyon V. Reed.^ There it was decided that the delivery up 
 by a lessee, who had a term of years in a reversion, of his 
 lease, with an assent by him to the grant of a new lease by 
 the owner of the reversion expectant on his term, to a third 
 person, and the grant of such lease did not amount to a sur- 
 render by operation of law, as these acts were not such as 
 bound parties by way of estoppel. Paeke, B., said : " If the 
 doctrine of Thomas v. Cook should be extended, it may very 
 much affect titles to long terms of years — mortgage terms, 
 
 1 Turner v. Hardey, 9 M. & W. 770 ; * 3 J. & Lat. 133. 
 
 Bight V. Cuthell, 5 East, 491. 6 Lyoa v. Reed, 13 M. & W. 310. 
 
 2 6 Ir. L. E. 131. » 13 M. & W. 309. 
 8 See 2 Sm. L. C. 7th ed. 857. 
 
130 STATUTE OF FRAUDS. [CHAP. II. 
 
 for instance, in whicli it frequently happens that there is a 
 consent expressed or implied by the legal termor to a demise 
 from a mortgagor to a third person. To hold that such a 
 transaction could, under any circumstances, amount to a sur- 
 render by operatioii of law, would be attended with most 
 serious consequences. The case of Thomas v. Cook has been 
 followed by others, and acted upon to a considerable extent ; 
 whatever doubt, therefore, we might feel as to the propriety 
 of the decision that in such a case there was a surrender by 
 act and operation of law, we should probably not have felt 
 ourselves justified in overruling it. And perhaps the case 
 itself, and others of the same description, might be supported 
 upon the ground of the actual occupation by the landlord's 
 new tenants, which would have the eflfect of eviction by the 
 landlord himself in suspending the rent or compensation for 
 use and occupation during the continuance of that occu- 
 pation." The case of Gore v. Wright ^ was decided on a sim- 
 ilar ground, but the point was not raised in Thomas v. Cook, 
 and in Lynch v. Lynch ^ the action was brought by the 
 lessees themselves, who had consented to the new lease.* 
 The doctrine of Thomas v. Cook was, as we have seen, also 
 doubted by Lord St. Leonards in Creagh v. Blood.* The 
 original term in that case was freehold. His lordship, re- 
 ferring to Lynch v. Lynch,^ said: "The point came upon 
 me by surprise, and untU I heard of the decision I was not 
 aware of any such rule, and, speaking with great deference, 
 I think it will turn out that there is not such a rule of law. 
 Before I would act on it, I should require the question to 
 undergo further consideration ; for an estate of freehold 
 cannot, since the statute of frauds, be created or transferred 
 without writing, and where the statute speaks of surrender 
 by operation of law, it certainly alludes to those surrenders 
 where the party, whether by estoppel or otherwise, accepts 
 an estate inconsistent with the estate he has. If I am in 
 possession under a freehold lease, it is not by standing by, 
 while the lessor with my knowledge grants the lands to 
 another person, as if he were entitled to theni in possession, ' 
 that my estate is to be divested. I may, in consequence of 
 
 1 8 Ad. & El. 118 ; 3 N. & P. 243. 4 3 j. & Lat. 151. 
 
 2 6 Ir. L. E. 131. 6 6 Ir. L. E. 131. 
 8 See Taylor on Evid. 891, 6th ed. 
 
SEC. 77.] ASSIGNMENT AND STJEEENDEE. 131 
 
 my conduct, be compelled by a court of equity to transfer 
 my estate, but not being a party to the deed, and not having 
 transferred my estate or parted with the possession, I confess 
 it appears to me that such conduct cannot amount to a sur- 
 render by operation of law of the estate so vested in me. 
 . . . The case of Thomas v. Cook established a new doc- 
 trine, but it proceeded upon the act of the former tenant, 
 who had placed another in possession, and agreed to the 
 latter becoming immediate tenant to the landlord, and it is 
 so explained in Johnston v. Huddlestone^ by Bayley, J., 
 who joined in the decision in Thomas v. Cook. But I entirely 
 concur in the reasons given by Parke, B., in delivering the 
 judgment of the court in Lyon v. Eeed. If Thomas v. Cook 
 is not to be overruled, the doctrine should not be carried 
 further." « 
 
 But since these cases the Court of Queen's Bench, in 
 Nickells v. Atherstone,^ and the Court of Exchequer in Davi- 
 son V. Gent,* have approved of Thomas v. Cook. In Nickells 
 V, Atherstone, Lord Dbnman said : " If the expression 
 ' surrender by operation of law ' be properly applied to cases 
 where the owner of a particular estate has been party to 
 some act, the validity of which he is by law afterwards es- 
 topped from disputing, and which would not be valid if his 
 particular estate had continued, it appears to us to be prop- 
 erly applied to the present. As far as the plaintiff the land- 
 lord is concerned, he has created an estate in the new tenant 
 which he is estopped from disputing with him, and which is 
 inconsistent with the continuance of the defendant's term. 
 As far as the new tenant is concerned, the same is the case. 
 As far as the defendant, the owner of the particular estate, 
 is concerned, he has been an active party to this transaction, 
 not merely by consenting to the creation of the new relation 
 between the landlord and the new tenant, but by giving up 
 possession, and ap enabUng the new tenant to enter." ^ 
 
 Sec. 77. Surrender may be Presumed, 'When. — A surrender 
 may be presumed even where there is no direct evidence of 
 
 1 4 B. & C. 933; 7 D. & R. 411. ' See also McDonnell o. Pope, 9 
 
 2 3 J. & Lat. 160. Hare, 705, and the notes to Doe v. 
 
 3 10 Q. B. 944 ; 16 L J. Q. B. 371 Oliver, 2 Sm. L. C. 7th ed. 863. 
 * 1 H. & N. 744. 
 
132 STATUTE OP FEAUDS. [CHAP. II. 
 
 the fact,^ but such presumption must arise from facts and 
 circumstances independent of length of time which are suffi- 
 cient to warrant a jury in making it,^ and the court will 
 never presume a surrender, but leaves it as a matter of fact 
 to be found by the jury.^ Thus, in an English case,* A, 
 having granted a lease to B for twenty-one years, before the 
 expiration of the term granted another lease of the same 
 premises to 0. No surrender in writing of B's interest was 
 shown, but the lease granted to B was produced from A's 
 custody with the seals torn off, and it was proved to be the 
 custom to send in the old leases to A's office before a renewal 
 was made; and it was held that this was proper evidence 
 from which the jury might infer that B assented to the lease 
 to C, and to support a consequent presumption of a surrender 
 of B's interest under the lease.^ A surrender cannot, how- 
 ever, be presumed to bind the landlord from the naked cir- 
 cumstance that he has received the rent from a third person 
 and not from the original tenant.® Indeed, the general rule 
 may be said to be that a jury may presume a surrender of a 
 term when it dearly appears that all the purposes for which it was 
 created have been fully satisfied, and that it ought in justice and 
 equity to have been re-assigned or surrendered to the owner of the 
 reversion, especially if there has been any subsequent dealing with 
 the property of such a nature as would not have happened with 
 reasonable means, supposing the term had not been put an end to, 
 or there is other express evidence beyond the mere lapse of 
 time, from which such a presumption might arise.''' But a 
 presumption of a surrender cannot be raised except where a 
 title is shown by the party who calls for the presumption, or 
 the possession is shown to be consistent with the execution 
 of the surrender required to be presumed,^ and such presump- 
 tions are made in favor of the possession, and not against it.^ 
 
 1 Bridges v. Duke of Chandos, 4 v. Slade, 4 T. R. 682; Rees a. "Wil- 
 Burr, 1072; Bedford v. Terhune, 30 liams, 2 M. & "W. 749; Burdett v.. 
 N. Y. 463. Wright, 2 B. & Aid. 710 ; Blacknell v. 
 
 2 Harrop v. Cooke, 6 Bing. 174. Plowman, 2 B. & Aid. 573 ; Bowerman 
 
 3 Cottrell K. Hughes, 15 Q. B. 532. v. Syboum, 7 T. E. 2; Bartlett c 
 < Walker v. Richardson, 2 M. & W. Downs, 3 B & C. 616 ; Lloyd v. Pas- 
 
 822. singham, 6 id. 305. 
 
 6 Davidson v. Gent, 1 D. & K. 744. ^ Harrop v. Cooke, 6 Bing. 174. 
 6 Copeland v. Watts, 1 Stork. 96. ^ Rees v. Williams, ante ; Brandon 
 
 ' Hodson V. Staple, 2 T. R. 684 ; v. Calvert, 5 Taunt. 170. 
 
 Garrard v. Tuck, 8 C. B. 231 ; Syburn 
 
SEC. 77.] ASSIGNMENT AND SURRENDER. 133 
 
 The court will not require positive proof of a surrender 
 in any case where there is suificient presumption of it.^ 
 Thus we have seen that the production of a cancelled lease, 
 and evidence that it was the custom to send old leases to the 
 lessor's ofSce before a renewal, has been held evidence to go 
 to the jury, from which they might presume a surrender.^ 
 The case of Doe v. Thomas ^ is not, it is submitted, at variance 
 with this doctrine. In that case the simple production of the 
 lease in a cancelled state was considered not to be prima facie 
 evidence of a surrender ; whereas in Walker v. Richardson 
 there was also the evidence of custom, coupled with the fact 
 that the lease was produced from the custody of the person 
 whose duty it was to cancel the old leases.* The mere receipt 
 of rent by the landlord from a third party is not sufficient to 
 warrant the presumption of a surrender ; the prima facie pre- 
 sumption being that the rent was paid by the latter as the 
 agent of the original lessee and on his behaK.^ Where a, 
 mortgagor before mortgage let a farm to P as tenant from 
 year to year, and after the mortgage P let the defendant into 
 possession in his stead, and informed the mortgagor of the 
 fact, and the mortgagor subsequently received the rent from 
 the hands of the defendant, it was held that the tenant's term 
 was still in P, there being no effectual surrender, and con- 
 sequently that the mortgagee could not maintain ejectment 
 against the defendant without a notice to quit.® But the 
 production of receipts is strong confirmatory evidence of a 
 surrender.'^ The facts upon which the surrender is to be 
 presumed must be such as make it not unreasonable to believe 
 that the surrender was actually made.^ And the presump- 
 tion, if made at all, must be made by a jury and not by the 
 court.^ 
 
 1 Goodtitle v. Duke of ChandoB, 2 15 L. J. Ex. 41 ; Graham v. Wichelo, 
 Burr, 1072. 1 C. & M. 188 ; 3 Tyr. 201 ; 2 L. J. 
 
 2 "Walker v. Richardson, 2 M. & W. (N. S.) Ex. 70. 
 
 882 ; 6 L. J. (N. S.) Ex. 229. « Cadle v. Moody, 30 L. J. Ex. 385. 
 
 8 9 B. & C. 288 ; 4 Man. & R. 218. " Woodcock v. Nuth, 1 Moo. & Sc. 
 
 * And see Lyon v. Reed, 13 M. & 317 ; 8 Bing. 170 ; Lawrance v. Eaux, 
 
 W. 285 ; 13 L. J. Ex. 377 ; Davison v. 2 E. & E. 435. 
 
 Gent, 1 H. & N. 744. s Doe v. Cooke, 6 Bing. 174. 
 
 6 Copeland v. Gubbins, 1 Stark. » Cottrell v. Hughes, 15 C. B. 532. 
 963; Doe v. Wood, 14 M. & W. 682; 
 
134 STATUTE OF PEAITDS. [CHAP. II. 
 
 Sec. 78. Effect of Surrender oa Rent Due and Accruing. — 
 
 Where a lease containing a personal covenant for the payment 
 of rent is surrendered, the personal covenant is independent 
 of the estate in the property, and as to rent previously due 
 is not affected by the surrender, but the lessor remains a 
 specialty creditor for the rent which accrued due before the 
 surrender.! "Where the tenant quits the premises either with 
 or without notice, and the landlord accepts possession, he 
 cannot recover rent pro rata for the actual occupation of the 
 premises for any period short of the last rent day.^ Nor can 
 he recover for the time subsequent to his accepting posses- 
 sion.^ Where the tenant of several houses underlet each of 
 them to different persons, and the landlord gave notice to 
 quit to one of the undertenants, who quitted accordingly, 
 after which the house remained unoccupied some time, and 
 then the tenant underlet it again, Lord Ellbnbokottgh, C. J., 
 held that the landlord could not maintain an action for use 
 and occupation against the tenant for the rent during the 
 time the house remained unoccupied, considering the circum- 
 stances as proof of eviction.* 
 
 In an action for debt for rent, a plea that the landlord and 
 tenant agreed that the tenant should give up and the landlord 
 take possession of the premises, in consideration whereof the 
 tenant was to be discharged from the rent, and that posses- 
 sion was actually given up and accepted accordingly, was 
 held to be a good plea, as the defence set up was merely an 
 executed contract and not a surrender.^ 
 
 Sec. 79. How a Surrender should be Pleaded. — In setting 
 up a surrender in a plea, enough should be stated to show 
 that if the matter alleged is true, a surrender has transpired 
 either by virtue of a special contract or by operation of law. 
 If the surrender is by the acceptance of a new lease, it is not 
 sufficient to say that the lessee being possessed of a former 
 
 1 Att. Gen. v. Cox, 3 H. L. C. 240. & G. 673 ; Doe v. Benjamin, 9 A. & E. 
 
 2 Grimman «. Legge, 8 B. & C. 644; 1 P. & D. 440; 8 L. J. (N. S.) 
 324; 2 Man. & E. 438; Hall v. Bur- 117; Eurnivall v. Grove, 8 C. B. (N. 
 gess, 5 B. & C. 332 ; 8 D. & R. 67. S.) 496 ; 30 L. J. C. P. 3. 
 
 8 Whitehead v. Clifford, 5 Taunt. « Burn v. Phelps, 1 Stark, 94. 
 
 518; "Walls v. Atcheson, 3 Bing. 462; » Gore v. Wright, 8 A. & E. 118; 3 
 
 11 Moo. 379 ; and see Slack v. Sharp, N. & P. 243 ; Peter v. Kendal, 6 B. & 
 
 8 A. & E. 366; Dodd v. Acklom, 7 So. C. 703 ; Smith v. Lovell, 10 C. B. 6 ; 
 
 (N. R.) 415 ; 13 L. J. C. P. 11 ; 6 M. Purnivall v. Grove, 8 C. B. (N. S.) 496. 
 
SEC. 79.] ASSIGNMENT AND SUEEENDEE. 135 
 
 lease, the lessor demised to Mm ; but it should be stated that 
 the lessee surrendered, and then the lessor demised, or that 
 the lessor entered and demised,^ or that before the rent 
 sought to be recovered accrued, or before the breaches 
 alleged, the demised premises and all the residue of the 
 term then to come and unexpired were duly surrendered to 
 the plaintiff by act and operation of law ; that is to say, by 
 the defendant then giving up to the plaintiff, and the plain- 
 tiff then accepting from the defendant the possession of the 
 demised premises with the intention of then putting an end 
 to the term.2 The plea ought to state that the defendant 
 surrendered the estate and land; but if he pleads a surrender 
 of the lease only, it is sufficient to say that he surrendered 
 "the demise aforesaid." If it is not stated that the plaintiff 
 accepted the surrender, while the plea is open to demurrer, 
 yet the defect is cured by verdict.^ It is always best to 
 allege that the plaintiff re-entered ; but if it is alleged that he 
 agreed to the surrender, it will be presumed that he entered.* 
 In an action of debt for rent where the plea set up an agree- 
 ment to deliver up the premises, and also stated that they 
 were delivered up and accepted accordingly, it was held good 
 after verdict, not as setting up a surrender of the term, but 
 as a valid excuse for non-payment of the rent.^ 
 
 1 Com. Dig. tit. Surrender (N.). « Cannon v. Hartley, 9 C. B. 634. 
 
 2 Smith V. Lovell, 10 C. B. 6. « Gore v. Wright, 8 Ad. & El. 
 8 CoUes V. Evason, 10 C. B. (N. S.) 118. 
 
 282. 
 
SECTION IV. 
 
 GUARANTIES, ETC. 
 
 " No action shall be brought whereby to charge any executor or ad- 
 ministrator upon any special promise to answer damages out of his 
 own estate; or whereby 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 contract or sale of lands, 
 tenements, or hereditaments, or any interest in or concerning them; 
 or upon any agreement that is not to be performed within the space 
 of one year from the making thereof; unless the agreement 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 thereunto by him lawfully authorized." 
 
CHAPTER III. 
 
 GTTABANTIES. — PROMISE BY EXECTJTOES. 
 
 SECTION. 
 
 80. Must be Consideration. 
 
 81. What is Admission of Assets. 
 
 82. Exceptions. 
 
 83. Requisite to Promise. 
 
 84. What is Sufficient Consideration. 
 
 85. Forbearance to Sue. 
 
 86. Must be Cause of Action when Promise Made. 
 
 87. Moral Obligation. 
 
 88. *rime of Forbearance. 
 
 89. Promise to Pay at Future Time. 
 
 90. When not Necessary to Prove Assets. 
 
 91. Action Lies to Recover Specific Chattel, or on Promise in Consideration 
 
 of Assets. 
 
 92. Not Necessary to Allege Assets. 
 
 93. Executor not Bound to Plead Statute. 
 
 Section 80. Must be Consideration. — A promise by an 
 executor to pay a debt out of his testator's estate is nudum 
 pactum unless there are assets,^ and a consideration must be 
 alleged as of assets come to his hands, or of forbearance, 
 otherwise the promise will not be personally binding on 
 him.^ The satute of frauds was made for the relief of per- 
 
 1 Pearson v. Henry, 5 T. R. 6; sent such debt against the estate, 
 
 MUcheson v. Hewson, 7 T. R. 348. within the time limited by the court 
 
 ^ Reech v. Kennegal, 1 Ves. Sen. of probate, and the consequent loss 
 126 ; Barnard v. Pumfrett, 5 My. & of all claim upon said estate for such 
 Cr. 63. In an action on a special prom- debt, is a sufficient averment of a con- 
 ise to pay a debt, due from the estate sideration for such promise. A verbal 
 of a deceased person, whom the de- promise to pay a debt, due from a, de- 
 fendants represented as administra- ceased person, made to a creditor, in 
 tors, the allegation of forbearance, at consideration of forbearing to pro- 
 the request of the defendants, to pre- ceed against the estate which the 
 
138 
 
 STATUTE OP FRAUDS. 
 
 [chap. ni. 
 
 sonal representatives and others, and did not intend to 
 charge them further than by common law they were charge- 
 able. The words of the statute are merely negative, and say 
 that executors and administrators shall not be liable out of 
 their own estates, unless the agreement upon which the 
 action is brought, or some note or memorandum thereof, is 
 in writing, signed by the party. The common law required 
 a consideration, and the statute added writing.^ It is not 
 necessary to plead that the promise was in writing, though 
 it must be proved in evidence that it was.^ 
 
 Sec. 81. what Amounts to an Admission of Assets. — In a 
 case cited in the last note,^ Bullek, J., said: "I only 
 recollect two cases in which the question, what shall be 
 considered an admission of assets, has been discussed, — 
 Barry v. Rush,* and Cleverley v. Brett.® In the last of those 
 the executor had paid interest on a bond due from the tes- 
 tator, which was held on the trial to be an admission of 
 
 promisor represents, is not necessarily 
 within the clause of the statute of 
 frauds, which relates to " a special 
 promise [by an executor or adminis- 
 trator] to answer damages, out of his 
 own estate " ; but whether or not it is 
 so, depends upon his having, or not 
 haying, assets of the deceased. The 
 possession of assets is not, of itself, suffi- 
 cient to charge him personally, on such 
 promise, without u, new consideration. 
 In an action on such promise, the de- 
 fendants pleaded in bar, that neither 
 of the contracts, agreements, and 
 promises contained in the declaration, 
 nor any note or memorandum of them, 
 nor either of them, was ever made by 
 the defendants, and signed by them or 
 either of them, or by any person there- 
 to lawfully authorized. It was held, 
 that such plea did not constitute a 
 complete defence, without further al- 
 leging a want of assets. WTiere the 
 declaration, in such action, stated that 
 the defendants were the administra- 
 tors on the estate of the plaintiff's 
 debtor, it was held that such allega- 
 tion might be treated as surplusage, 
 and did not render it incumbent on 
 the plaintiff also to allege that they 
 
 had assets. The clause of the statute 
 which relates to a "special promise 
 [by one person] to answer for the debt, 
 default, or miscarriage of another," 
 was intended to apply only to prom- 
 ises made tothe person to whom another 
 is answerable ; and therefore, a promise 
 to A, to pay certain debts, which he 
 owed his creditors, being a promise to 
 him, and not to them, is not within 
 this provision of the statute. Pratt 
 V. Humphrey, 22 Qonn. 317. See also 
 Stebbins v. Smith, i Pick. (Mass.) 97; 
 Smithwick v. Shepherd, 4 Jones (N. 
 C.) L. 196. 
 
 1 Rann v. Hughes, 7 T. R. 350, n. 
 (a) ; 4 Bro. P. C. 27 ; and see Hawkes 
 V. Saunders, Cowp. 289 ; Philpot v. 
 Briant, 4 Bing. 717 ; 1 M. & P. 754. 
 But see also Herbert v. Powis, 1 Bro. 
 P. C. 355. 
 
 2 Anon., Salk. 519; "Williams v. 
 Leper, 3 Burr, 1890. 
 
 ' Pearson v. Henry, ante. 
 
 * 1 T. R. 691. 
 
 6 M. 13 Geo. 3, B. R. In that case 
 Lord Mansfield, C. J., said: "To be 
 sure, the evidence eases the creditor 
 from proving assets, and throws the 
 onus on the other side." 
 
SEC. 81.J GUAKANTIES. — PEOIUSE BY EXECUTORS. 139 
 
 assets. But that opinion was overruled in this court, on a 
 motion for a new trial, when it was thought highly un- 
 reasonable that because the executor, thinking the demand 
 just, had chosen to pay a part of a demand out of his own 
 pocket, he should be liable for the whole debt; or that, 
 because having enough to pay the interest, he should thereby 
 be concluded to dispute assets for the principal. In the 
 other case, it seems to me that the plea has nothing to do 
 with the case. That was an action of debt on a bond given 
 by the defendant, by which he bound himself, his heirs, etc., 
 for performance of the award, and therefore I said, in decid- 
 ing that case, that it was a personal engagement by the 
 defendant to perform the award. Another ground has also 
 been mentioned, that the administrator personally promised 
 to pay whatever should be awarded. But that would not 
 avail the plaintiff in this action ; for this action is brought 
 against the defendant, as administrator, and it is brought 
 against him to recover the plaintiff's demand out of the 
 intestate's effects ; and if there were no assets, the personal 
 promise by the administrator would be nudum pactum." 
 The giving of a bond by an administrator to the judge of 
 probate, to pay the debts and legacies of the testator, is held 
 to operate as an admission of assets.^ But an agreement to 
 arbitrate is not,^ unless the executor also binds himself to 
 
 1 Stebbius v. Smith, 4 Pick. (Mass.) istrator is desirous of ascertaining 
 97. whether or not there be any founda- 
 
 2 Pearson v. Henry, ante. In this tion for the demand which is made 
 case Lord Kenton, C. J., in delivering upon him, without disputing it in an 
 the opinion of the court and distin- action, and it is frequently adranta- 
 guishing the case from Barry v. Rush, geous to both parties that the matter 
 said : " With regard to the principal in dispute should be referred ; but if 
 question, in point of justice and con- the reference be attended with this 
 science, the plaintiffs' demand ought supposed consequence, it will in future 
 not to extend beyond the assets of the prevent every executor or administra- 
 intestate: here it is not pretended that tor from submitting to arbitration, 
 in fact there were assets to the extent The case of Barry v. Bush was very 
 of the plaintifis' demand, but it is said properly decided, but it does not affect 
 that the defendant precluded himself, the present. There the defendant 
 by sometliing which he did at the out- submitted in broad terms to pay wha1> 
 set of this business, from denying that ever should be awarded, and the ar- 
 he had assets, for that every submis- bitrator did award that he should pay 
 sion to arbitration by an administrar a certain sum; whereas, here, the 
 tor in that character is conclusive evi- arbitrator has only ascertained the 
 dence against him that he has assets, amount of the debt due from the in- 
 In many cases an executor . or admin- testate, but has not directed the de- 
 
140 STATUTE OP FRAUDS. [CHAP. EOT. 
 
 pay the award.^ In an Indiana case,^ an administrator orally- 
 agreed to submit a claim in favor of the estate, against the 
 plaintiff, to arbitration, with a proviso that, if the award 
 proved satisfactory, each party should pay one-half the costs ; 
 but if unsatisfactory, the one objecting should pay all the 
 costs. The submission was made, and the administrator 
 objected to the award, and in an action to recover the costs, 
 it was held that the promise was not within the statute, 
 because not a promise to answer for a debt created by the 
 decedent, but by himself. " It must be kept in mind," said 
 Elliott, J., "fAat the subject-matter of the contract declared 
 upon grows out of transactions which occurred after the dece- 
 dent's death. The administrator's promise was not to pay 
 some liahility his decedent had incurred, nor to fulfil some 
 engagement he had undertaken in his lifetime. In Mills v. 
 Kuykendall,^ it was said : " The whole case shows that the 
 object of the plaintiff was to charge the estate of the deceased 
 by obtaining judgment against the administrators de bonis 
 intestati. The promise of administrators, on a consideration 
 originating subsequently to their intestate's death, cannot 
 sustain such an action." * In such cases the statute does not 
 apply, because the undertaking is the promisor's original 
 contract.^ But in order to charge the executor or adminis- 
 trator de bonis propriis, it is not necessary to aver in the 
 ■ declaration that the defendant has assets, for if the promise 
 be in writing, and supported by a consideration, as forbear- 
 
 fendant to pay it. It is impossible ' Barry v. Bush, ante. 
 then to say that the arbitrator decided ^ Holderbaugh v. Turpin, 76 Ind. 
 that the defendant had assets; and 84; 39 Am. Kep. 124. 
 the submission to arbitration by an '2 Blackf. (Ind.) 47. 
 administrator is not of itself an admis- * Carter v. Thomas, 3 Ind. 213; 
 sion of assets. What was said by my Comthwaite v. First National Bank, 57 
 brother Ashhhrst in the case of id. 268. Anderson u. Spence, 72 id. 315. 
 Barry v. Rush, respecting the admis- ^ In Hackleman v. Miller, 4 
 sion of assets, must be taken to refer Blackf. (Ind.) a, person was induced 
 to the particular case then undef dis- to purchase a note due from an intes- 
 cussion, but ought not to be extended tate's estate upon the promise of the 
 further. And indeed he immediately administrator that it should be paid, 
 subjoined that the bond given by the and it was held that the promise was 
 defendant to abide by the award was not within the statute. But in Has- 
 an undertaking to pay whatever the sachusetts it is held that a promise by 
 arbitrator should award, without any an administrator to pay a debt of the 
 regard to assets ; and my brother Btjl- estate out of lands sold or to be sold, 
 LEE went expressly on that ground." is within the statute. Silsbee v. In- 
 See Long v. Rodman, 58 Ind. 58. galls, 10 Pick. (Mass.) 526. 
 
SBC. 81.J GTJABANTIES. — PEOMISE BY EXECUTOBS. 141 
 
 ance to prosecute at the request of the defendant,^ the plain- 
 tiff, by acquiescing in a possible detriment to himself, by his 
 
 1 In Wdlllam Banes' case, 9 Coke, 
 93 b, it was clearly held, that the 
 declaration was good enough, without 
 saying that the defendant had assets, 
 for it shall be intended prima facie 
 that she had assets. But Coke said, 
 that he conceived the truth to be, 
 that if there had not been any debt, 
 or if there had been a debt, and the 
 executrix had nothing in her hands at 
 the time, she might have given it in 
 evidence. But this last position seems 
 not to be law, according to the cases. 
 See 1 Roll. Abr. 24, pi. 33 ; 2 Lev. 3 ; 
 Davis V. Reyner, Yelv. 11 ; Goreing v. 
 Goreing, 1 Vent. 120 ; Davis d. Wright, 
 Cro. Eliz. 91 ; Trewinian v. Howell, 1 
 Vez. 126; Reech v. Kennegal. But 
 it seems clear enough that the execu- 
 tor must be liable, and that there 
 must be an existing debt, otherwise 
 there will be no consideration. An 
 executor so closely represents the per- 
 son of the testator, that if a man ex- 
 ecutes a bond, his executors are bound, 
 though they are not named ; therefore, 
 in a declaration against the executor 
 upon the bond of the testator, it is 
 not necessary to say that the obligor 
 boimd himself and his executory ; but 
 if the suit was against the heir, it 
 would be a material allegation to say 
 that the ancestor bound himself and 
 his heirs, and to prove that he did so 
 in fact ; for the heir is not bound by 
 his ancestor's bond, unless he be ex- 
 pressly named. If, therefore, the 
 declaration omits to state that the 
 heir was bound, it is substantially de- 
 fective ; and by the case of Barber v. 
 Fox, 2 Saund. 136, it appears that this 
 is such a defect as a verdict cannot 
 cure ; for unless it be shown upon the 
 pleadings, that the heir was bound, 
 there will appear to have been no con- 
 sideration for his promise, and so no 
 sufficient cause of action. Thus also, 
 if the heir promise to pay a simple 
 contract debt of the ancestor, no ac- 
 tion will lie upon this promise, inas- 
 much as it is without consideration, 
 
 for the heir is not chargeable upon 
 such debts of his ancestor. Fish 
 V. Richardson, Cro. Jac. 47. But if 
 an executor promises to pay, in con- 
 sideration of a consent only by an 
 assignee of a debt not to sue, the 
 promise stands upon a sufficient con- 
 sideration. 1 Roll. Abr. 20, pi. 11. 
 And so doubtless the heir, under the 
 same circumstances, will be liable, if 
 the debt is founded upon a specialty. 
 In Forth v. Stanton, 1 Saund. 210, 
 there was no allegation of any under- 
 taking to forbear on the part of the 
 assignees. In this case the plaintiff 
 declared that the defendant's testator 
 was indebted to A, who, after the tes- 
 tator's death, assigned the debt to the 
 plaintiff, and appointed him to receive 
 it to liis own use ; and that the defend- 
 ant, in consideration that the plaintiff 
 would accept the defendant for his 
 debtor, promised to pay the debt to 
 the plaintiff. And for want of alleg- 
 ing a sufficient consideration for the 
 promise, the declaration was judged 
 insufficient. Upon the principle of 
 the determination in Barber u. Fox, 
 cited above in this note, it seems that 
 a verdict for the plaintiff could not 
 have cured this radical defect ; but in 
 the case of Roe v. Haugh, 1 Salk. 20, 
 which was the converse of the last^ 
 mentioned case in its circumstances, 
 and the relative situation of the par- 
 ties, the verdict was held by four 
 judges against three to have cured 
 the omission to allege a sufficient con- 
 sideration in the declaration. There, 
 in consideration that the plaintiff 
 would accept C to be his debtor for 
 £20 due to him from A, in the place 
 of A, C promised and undertook to B 
 to pay to him the £20 ; and this was 
 adjudged good, after a verdict, with- 
 out express averment that A was dis- 
 charged; for the majority of the 
 judges in the Exchequer Chamber 
 held, that being after verdict, they 
 ought to do what they could to help 
 it, and that, therefore, they would not 
 
142 STATTJTB OF FEAUDS. [CHAP. HI. 
 
 relinquishmeiit of legal proceedings (for lie might at least 
 have obtained a judgment of assets quando acciderinf) has 
 purchased a title of action upon the undertaking of the 
 defendant. But without such special agreement, in which 
 the executor steps out of his representative character, an 
 action cannot be sustained against an esrecutor, otherwise 
 than as an executor ; and if the action is brought against him 
 in the character of executor, to recover a demand out of the 
 testator's estate, any special promise to pay the testator's 
 debt is a mere nudum pactum, if there are no assets ; and if 
 there are any, the extent of the promise is measured ly the 
 extent of the assets, or, in other words, the promise superin- 
 duces no obligation upon the original representative liability. 
 In many of the States by statute, and in others by the deci- 
 sion of the courts, not only must the promise be in writing, 
 but the writing, to be valid, should, in the case of such pro- 
 mise made by an executor, not only state the consideration, 
 whether it be forbearance of suit, or whatever else, in terms, 
 but that the undertaking on both sides should be comprised 
 in the agreement, so as to make it a subject of action to 
 either party; for it was intimated by the chief justice, in 
 this, that " the obligatory part of the transaction was indeed 
 the promise, which will account for the word ' promise ' being 
 used in the iirst part of the clause, but still, in order to 
 charge the party making it, the statute proceeds to require 
 that the agreement, by which must be understood the agree- 
 ment in respect of which the promise was made, must be 
 reduced into writing." 
 
 Sec. 82. Exceptions. — Under some circumstances, how- 
 ever, a mere parol agreement is binding, and specific perform- 
 ance may be decreed. Thus a verbal promise by a person to 
 whom letters of administration are afterwards granted may 
 be binding on him as administrator. Where A promised that 
 if the widow of an intestate would permit him to be joined 
 with her in the letters of administration, he would make 
 good any deficiency of assets to pay debts, it was held that 
 
 take it as a promise only on the part viz., that C promised B to pay the 
 
 of C, because, as such, it could not debt, and B promised in consideratione 
 
 bind unless A was discharged ; but inde to discharge A. 
 they construed it as a mutual promise, 
 
SEC. 84.] GUARANTIES. — PROMISE BY EXBCTJTOKS. 143 
 
 the promise was binding, and not -within the statute, because 
 at the time it was made A was not administrator, and it was 
 no answer to say that he was administrator afterwards.^ So 
 an administrator, de bonis non, verbally promising to pay an 
 annuity given by the testator's will, does, under certain cir- 
 cumstances, make himself personally liable.^ 
 
 Seo. 83. Requisites to Promise. — It is not necessary to 
 show the cause of the debt,^ but in order that a promise may 
 be binding, there must be some benefit to the party making it, 
 or some detriment to the party to whom it is made, otherwise 
 it will be nudum pactum, and cannot be enforced ; and there- 
 fore, if at the time the promise was made there was no 
 person whom the plaintiff could have sued, his forbearance 
 does not amount to a consideration.* So it has been held 
 that where a man who is neither executor nor administrator 
 gives a promissory note, payable at a future day, to a cred- 
 itor of a deceased person, for the debt, without any other 
 consideration for making it, the payment of the note cannot 
 be enforced by the payee, if at the time of the making thereof 
 there was no personal representative of the debtor.^ 
 
 Sec. 84. what is Sufficient Consideration. — A promise in 
 consideration that the plaintiff would forbear to require sure- 
 ties of the peace is a sufficient consideration.® Where the 
 plaintiff declared in assumpsit that the defendant's testator 
 was indebted to A, who, after the testator's death, assigned 
 the debt to the plaintiff, and appointed him to receive it to 
 his own use, and the defendant, in consideration that the 
 plaintiff would accept the defendant for his debtor, promised 
 to pay it to the plaintiff, it was held that this was not a suffi- 
 cient consideration to support the promise to charge the 
 defendant de bonis propriisJ A promise by an executor to 
 pay a debt of his testator in consideration that more goods 
 
 1 TomUnson v. Gill, Ambl. 330 ; ^ Nelson v. Serle, 4 M. & W. 795 
 and see Griffith v. Sheffield, 1 Eden, reversing Serle u. Waterworth, ib. 9 
 77; Gregory v. Williams, 3 Mer. 590. Hamilton v. Terry, 21 L. J. C. P. 132 
 
 2 Herbert v. Powis, 1 Bro. P. C. 355. and see Barber v. Pox, 2 Wms. Savmd. 
 8 Theme v. Puller, Cro. Jac. 396; 420, n. (a). 
 
 Austen v. Bewley, ib. 548. ^ Ripon v. Norton, Cro. Eliz. 881. 
 
 * Jones V. Ashbumham, 4 East, ' Porth v. Stanton, 1 Wms. Saund. 
 
 455; and see Marshall w. Burtinshaw, 210. 
 IB&P. (N. E.) 172. 
 
144 STATUTE OP FEATJDS. [CHAP. in. 
 
 are supplied by tlie creditor will make the executor liable, 
 de. bonis propriis, for both debts.^ ' 
 
 Where an attorney delivered up deeds to an executor, 
 which he was not bound to do till his bill was paid, the deeds 
 being of great use to the executor in several suits which he 
 was then carrying on, it was held that there was a sufficient 
 consideration to make the executor liable to the attorney's 
 whole demand, whether there were assets or not.^ And if 
 the creditor is induced to hand over a security, given to him 
 by the executor, to a third party, he will be entitled to re- 
 cover against the third party .^ 
 « 
 
 Sec. 85. Forbearance to sue by Creditor. — If a creditor for- 
 bears to sue at the request of an executor, that is considered 
 a sufficient consideration to charge the executor, whether he 
 had assets or not at the time of the promise.* In Hawes v. 
 Smith,^ Hale, C. J., said that though a bare accounting will 
 not oblige an executor to pay, de bonis propriis, yet a prom- 
 ise in consideration of forbearance will. Where the plain- 
 tiff having a debt owing to him from the testator on a simple 
 contract, the executor, in consideration the plaintiff would 
 forbear to sue him until such a time, promised to pay, and 
 the plaintiff averred that he did forbear accordingly, this was 
 held to be a good promise ; but it was said that if the heir 
 had promised, on forbearance of the suit, to pay this debt, 
 no assumpsit would have laid against him, because without 
 consideration, the heir is not chargeable to any debt without 
 specialty.^ If a man declares, on a promise towards an admin- 
 istrator, that the intestate was in debt to him in £20 by obli- 
 gation, and died, and the defendant being administrator in 
 consideration of the promise and that the plaintiff would 
 spare him till a certain time after, promised to pay him the 
 debt, and avers that he spared him till such time, and that 
 the defendant has not paid him, etc., although he did not say 
 that he would spare him the debt, or to sue him, yet it shall 
 
 1 Wheeler v. Collier, Cro. Eliz. * Barber v. Fox, 2 Wms. Saund. 
 406. 423 (n). 
 
 2 Hamilton v. Inoledon, 4 Bro. P. ^ 2 Lev. 122. 
 
 C. 4. « Fish V. Richardson, Yelv. 55; 56 
 
 = Walker v. Taylor, 6 C. & P. S. C. nom; Fisher k. Richardson, Oro. 
 752. Jac. 47. 
 
SEC. 86.] GTTAKANTIES. — PROMISE BY EXECUTORS. 145 
 
 be SO intended, and for that it is a good consider ation.^ So 
 if A (to whom the testator was indebted) comes to the exec- 
 utor and says that he intends to sue for the debt, on which 
 the executor promises, in consideration that the plaintiff will 
 forbear for a reasonable time, he will pay him, and A for- 
 bears for a reasonable time to sue him, that is a good consid- 
 eration to charge the defendant in an action on the case out 
 of his goods without assets, for by this promise it is intended 
 as well to forbear to sue the executor, as to forbear the debt, 
 and forbearance of suit is a good consideration, without 
 assets at the time of the promise.^ If a surety pays the debt 
 for the principal, who dies, and his executor promise the sur- 
 ety that if he wiU forbear to sue him for a certain time, that 
 he will pay, that is a sufficient consideration to support the 
 promise.^ Forbearance to sue by the assignee of a debt is a 
 sufficient consideration to support a promise by an executor 
 to pay.* For it is sufficient in the case of any other debtor 
 whom the assignee of the debtor forbears, at his request, to 
 
 Sec. 86. Must be Cause of Action when Promise made. — 
 But forbearance to sue is not a consideration where there 
 was no cause of action before the promise was made. Thus, 
 where a married woman gave a promissory note as femme 
 sole, and after her husband's death, and, in consideration of 
 forbearance, promised to pay it, it was insisted in an action 
 against her that she, being under coverture at the time of 
 giving the note, it was voidable for that reason ; yet, by her 
 subsequent promise, when she was of ability to make a prom- 
 ise, she had made herself liable, and the forbearance was a 
 Txeyf consideration ; but Pratt, C. J., held the contrary, and 
 that the note was not barely voidable, but absolutely void, 
 and that forbearance, where originally there was no cause of 
 action, was no consideration to raise an assumpsit. But he 
 
 1 Gardener v. Tenner, 1 Roll. Abr. pi. 11 ; Hardr. 74; Eussel v. Haddock, 
 15, pi. 3 ; Chambers v. Leversage, Cro. 1 Lev. 188. 
 
 Eliz. 644. 5 1 Wms. Exors. 7th ed. 782, citing 
 
 2 Johnson v. Whitchott, 1 Roll. Reynolds v. Prosser, Hadr. 71 ; Oble 
 Abr. 24, pi. 33. v. Dittlesfleld, 1 Ventr. 153; and see 
 
 3 Scott V. Stevens, Sid. 89. also Forth v. Stanton, 1 Wms. Saiuad. 
 
 Pitt V. Bridgewater, Roll. Abr. 20, 209 n. ( 1 ) 
 
146 STATUTE OF FRAUDS. [CHAP. in. 
 
 said it might be otherwise where the consideration was but 
 voidable.! 
 
 Sec. 87. Moral Obligation. — A moral obligation may be a 
 good consideration for a promise. Where a femme covert, 
 having an estate settled to her separate use, gave a bond for 
 repayment by her executors of money advanced at her re- 
 quest on security of that bond, to her son-in-law, and after 
 her husband's death wrote, promising that her executors 
 should settle the bond, it was held that assumpsit lay against 
 the executors on their promise,® and it was pointed out that 
 Loyd V. Lee^ and Barber v. Fox* proceeded on the ground 
 that no good cause of action was shown on the pleadings. 
 
 Sec. 88. Time of Forbearance. — Forbearance for a reason- 
 able time,^ or for a certain time,^ is a sufficient consideration. 
 But forbearance for some time,^ or for a little time,^ is not. 
 
 Sec. 89. Promise to pay at a Future Time. — If an executor 
 is indebted to J S in £1G0, and J S comes to demand the 
 money, in this case the executor is chargeable only in respect 
 of the assets ; but if he expressly promise to pay the debt at 
 a day to come, it is made his own debt, and it will have to 
 be satisfied out of his own goods.^ Thus, where B having 
 died indebted to G for work and labor done, his executors 
 signed the following memorandum on the back^ of G's 
 account : " Mr. G having consented to wait for the payment 
 of the within account, we, as the executors of B, engage to 
 pay Mr. G interest for the same at .£5 per cent, until the 
 same is settled ; " it was held that they were personally liable 
 to pay the debt and interest.^" 
 
 Sec. 90. when Wot Necessary to Prove Assets of Testator. — 
 
 Where the executors, by a promissory note given " as execu- 
 tors," jointly and severally promised to pay the same, "on 
 
 1 Loyd V. Lee, 1 Str. 94; and see ^ Pitti'. Bridgewater, ib. 20, pi. 11; 
 Barber v. Fox, 2 Wms. Saund. 427 Hardr. 74 ; Semple v. Pink, 1 Ex. 74. 
 (n.) ; Davis v. Keyner, 2 Keb. 758. ' Tilston u. Clarke, 1 Roll. Abr. 23, 
 
 2 Lee V. Muggeridge, 5 Taunt. 36. pi. 26. 
 
 s 1 Str. 94. 8 Brian v. Salter, ib. 23, pi. 25. 
 
 * 2 Wms. Saund. 427. » Goring v. Goring, Yelv. 11; Tre- 
 
 5 Johnson v. Whitchcott, Boll. Abr. winian v. Howell, Cro. Eliz. 91 ; Reech 
 24, pi. 33. V. Kennegal, 1 Ves. S. 126. 
 
 10 Bradley v Heath, 3 Sim. 543. 
 
SEC. 90.] GtTAKANTIBS. — PROMISE BY EXECUTORS. 147 
 
 demand with lawful interest " ; it was held that they were per- 
 sonally liable, Dallas, C. J., saying: "The promise must 
 depend, not on the words ' as executors,' but on the words of 
 the "whole instrument taken together. Take the words ' on 
 demand.' Suppose a demand had been made immediately, do 
 not the executors, by subjecting themselves to such a demand, 
 admit they have assets to satisfy it ? If they meant to limit 
 their liabiUty, why did they not add to the words ' as execu- 
 tors ' the words 'out of the estate of? But they promise 
 absolutely, and further add an engagement to pay interest. 
 When, therefore, by the engagement to pay interest, they 
 have induced the plaintiff to suspend his clear and admitted 
 demand, by so doing they make the promise personal and 
 individual." ^ In Rideout v. Bristow,^ a widow gave a prom- 
 issory note "for value received by my late husband," and it 
 was held that the note was valid on the face of it. Bayley, 
 B., said: "If an administratrix take upon herself to give a 
 security which may have the effect of inducing forbearance 
 and which purports to bind her individually, is it competent 
 for her to say, ' You must prove assets ' ? To my mind, the 
 act of giving such a security supersedes the necessity of an 
 investigation as to there being assets. It seems to me that 
 the words ' value received by my late husband ' do not make 
 the proof of assets necessary ; and I go still further, and say 
 that it was not competent for her to show that there were 
 no assets." 
 
 An executor giving such a promissory note will be liable 
 out of his own estate, although the testator's estate was 
 insolvent at the time the note was given, of which fact he 
 was ignorant.* Where, however, an executrix gave an accep- 
 tance for a debt, due from her testator, taking an engage- 
 ment from the drawer to renew the bill from time to time, 
 until sufficient effects were received from the estate of the 
 testator, it was held that this meant sufficient effects in the 
 ordinary course of administration, and that she had not pre- 
 
 1 Child V. Monins, 2 Brod. & Bing. thwaite v. Eirst National Bank, ante, 
 460 ; 5 Moo. 282 ; Barnard v. Pumfrett, where a similar doctrine was held as 
 
 5 My. & Cr. 71 ; I*orton v. EUam, 2 M. to the renewal of a note of the intes- 
 
 6 W. 461 ; Serle v. Waterworth, 4 M. tate by the executor. 
 
 & W. 9. ^ Lucas V. Williams, 3 GifiE. 150. 
 
 2 1 Cr. & J. 231. See also Com- 
 
148 STATUTE OP FRAUDS. [CHAP. in. 
 
 eluded herself from first applying assets to pay £3,000 to 
 trustees for her own use, in discharge of a bond given by her 
 husband before marriage to that effect, before she paid the 
 acceptance.^ 
 
 If executors endorse a bill, it is immaterial whether they 
 endorse it as executors or not. If they endorse it at all, they 
 are liable personally, and not as executors, for their endorse- 
 ment would not give them a cause of action against the 
 effects of the testator.^ 
 
 Sec. 91. Action lies to Recover Specific Chattel ; or on 
 Promise in Consideration of Assets. — An action lies against 
 an executor to recover a specific chattel bequeathed after his 
 assent to the bequest.^ So an action lies upon an express 
 promise by an executor to pay a legacy in consideration of 
 assets,* and an action for money had and received will lie 
 upon admission by the executor that he had assets.^ 
 
 Sec. 92. Not Necessary to Allege Assets. — Where it is 
 sought to charge the executor, de bonis propriis, on a promise 
 made on good consideration, it is not necessary to allege in 
 pleading that he had assets.^ In Bane's case^ it was said 
 that if there be no assets, it shall be given in evidence. But 
 this opinion has since been overruled.^ Where it is sought 
 to charge the defendant in his character of executor, and the 
 nature of the debt is such as necessarily makes him personally 
 liable, the judgment will, nevertheless, be de bonis propriis.^ 
 
 Sec. 93. Executor, etc., not Bound to Plead Statute. — Neither 
 an executor or administrator is bound to plead the statute of 
 frauds, at the requirement or for the benefit of another, in 
 an action against himself, upon a claim, the obligation or 
 justice of which he admits to be founded in right and good 
 faith.10 
 
 1 Bowerbank !). Monteiro, 4 Taunt. Graham, 7 Taunt. 580; 1 Moo. 305; 
 844. Dowse v. Coxe, 3 Bing. 20 ; 10 Moo. 
 
 2 King V. Thorn, 1 T. E. 489, per 272. 
 BuLLEK, J. '9 Co. 94. 
 
 8 Doe V. Guy, 3 Bast, 120. « See 1 Wms. Saund. n. (1) ; 2 
 
 4 Atkins t). Hill, Cowp. 284 ;Hawkes Wms. Exors. 7th ed. 1778, n. (c). 
 
 0. Saunders, lb. 289. ^ Powell v. Graham, 7 Taunt. 585; 
 
 6 Gorton v. Dyson, 1 Brod. & B. Wigley v. Ashton, 8 B. & Aid. 101 ; 
 
 219 ; and see Barnard v. Pumfrett, 5 Corner v. Shew, 3 M. & W. 350. 
 
 My. & Cr. 63. w Ames v. Jackson, 115 Mass. 508; 
 
 6 Bane's Case, 9 Co. 94 ; Pqwell v. Cahill v. Bigelow, 18 Pick. (Mass.) 369. 
 
CHAPTER IV. 
 
 GtTAEANTIES. 
 
 SECTION. 
 
 94. Application of the Statute. 
 
 95. Eule as to Pleading. Masters v. Marriott. 
 
 96. Rule in Harris v. Huntback. 
 
 97. Rule in Buckmyr v. Darnall. 
 
 98. Form of Promise not Decisive of its Character. 
 
 99. Attendant Circumstances to be Regarded. Eule in Anderson v. Hayman. 
 
 100. Eule in Keate v. Temple. 
 
 101. Statute does not Apply to Guaranty of Specialty Debts. 
 
 102. Must be Consideration for the Promise, Instances of. 
 
 103. Consideration need not More directly between the Parties. 
 
 104. Consideration must be New. 
 
 105. Consideration need not Appear in the Guaranty. 
 
 106. Special Consideration not Necessary. 
 
 107. Parol Evidence Admissible to Identify Subject-matter of Promise. 
 
 108. Bad Promise not Helped by Statute. 
 
 109. Statement of Consideration. 
 
 110. Amount of Consideration. 
 
 111. Construction of Guaranty. 
 
 112. Rules for Construing. 
 
 113. Instances of Considerations. 
 
 114. Meaning of the Words " Debt," " Default," " Miscarriage." 
 
 115. Promise Partly Within and Partly Without Statute. 
 
 116. Eule in Couch v. Meeker. 
 
 117. Promise to Guarantee, not Binding Until. 
 
 118. OfEer to Guarantee does not Bind till Accepted. 
 
 119. Offer may be Withdrawn. 
 
 120. Implied Acceptance. 
 
 121. Express Acceptance. 
 
 122. Waiver of Eeferences. 
 
 123. Original Debtor's Liability must Continue. 
 
 124. Tests for Determining Whether Promise is Collateral or Not. 
 
 125. Promise Must be to the Person Guaranteed. 
 
 126. If the Person Promised for is Liable at all, Promise must be in Writing. 
 
 127. Guarantor must not be Liable. 
 
 128. When Credit is Given to Guarantor. 
 
 129. Eule when Original Debtor is Discharged. 
 
 130. Question to Whom Credit was Given, for Jury. 
 
 131. Evidence as to Whom Credit is Given. 
 
 132. Must be Principal Debtor. 
 
 133. Must be Debt to Guarantee. 
 
 134. Rule when there is New and Independent Consideration. 
 
 135. Promise to Pay Broker. 
 
 136. Promise to Pay a Debt to be Transferred. 
 
 137. Promise by Execution Creditor. 
 
 138. Promise in Consideration of Percentage. 
 
150 STATUTE OP rBAITDS. [CHAP. IV. 
 
 139. Promise to Pay out of Funds of Another. 
 
 140. Property Deposited with Promisor Charged with a Payment of the Debt. 
 
 141. Promise to the Debtor. 
 
 142. Promise of Grantee to Pay Mortgage Debt. 
 
 143. Promisor Estopped from Denying that He had Funds. 
 
 144. When Debt has become Debt of the Promisor. 
 
 145. When Promise Cannot be Revoked. 
 
 146. Ground upon which Doctrine Rests. 
 
 147. Parting with Security or Giving up Lien. 
 
 148. Rule in Maine. Stewart v. Campbell. 
 
 149. General Rule. 
 
 150. Promisor must Derive Benefit from Promise. 
 
 151. Forbearance to Sue, etc., not Enough, Unless. 
 
 152. Purchase of Debt. 
 
 153. Refraining from Distress. 
 
 154. Promise, when Original. Instances. 
 
 155. Statute Applies to Promises to Answer for Tortious Acts. 
 166. Bail in Criminal Cases. 
 
 157. When Liability Guaranteed is Extinguished. 
 
 158. Novation. 
 
 159. Indemnities, Whether Within Statute. 
 
 160. Promise to Indemnify Against Costs of Suit. 
 IGl. Parol Guaranty of Note Turned out to Pay Debt. 
 
 162. Contract for Del Credere Agency. 
 
 163. Goods Furnished to an Infant. 
 
 164. Rights under Parol Guaranty. 
 
 165. Dissolution or Alteration of Contract. 
 
 166. Application of Statute to Foreign Contract. 
 187. False Representations as to Solvency. 
 
 168. Statute Applies to Corporations. 
 
 Section 94. Application of the Statute. — This section does 
 not declare that contracts mentioned in it, if made by parol, 
 shall be void,^ but simply precludes the bringing of an action 
 thereon to enforce them.^ So far as the subdivision of the 
 section which relates to the topic treated in this section is 
 concerned, it wiU be observed that it applies only to collat- 
 eral undertakings, that is, to promises to pay a debt which 
 exists against another person, or to answer for that other's 
 default or miscarriage, and has no application where the prom- 
 
 ^ But in Alabama, California, Da- ceived unless in writing, while in all 
 
 kota, Michigan, Montana, Nebraska, the others the provisions of the Eng- 
 
 Nevada, New York, Oregon, Utah, lish statute prevail. 
 Wisconsin, West Virginia, and Wyo- ^ Banks v. Crossland, L. R. 10 Q. 
 
 ming, the statute provides that such B. 99 ; Crosby v. Wadsworth, 6 East, 
 
 contracts shall be void unless in writ- 602 ; Bankworth v. Young, 4 Drew, 1 ; 
 
 ing, and in Iowa, that no evidence to Leroux v. Brown, 12 C. B. 801. 
 establish such contracts shall be re- 
 
SEC. 94.] 
 
 GUAEANTIES. 
 
 151 
 
 isor is himself the debtor, although he becomes so for the 
 sole benefit of another person. The distinction is obvious. 
 Thus, if A requests B to perform certain services for C, and 
 promises to pay him therefor, A is the debtor, and conse- 
 quently his promise is original and not collateral, even 
 though C has the entire benefit of B's services.^ Thus, 
 
 ' Brown v. George, 17 N. H. 128 ; 
 Axbuckle v. Hawks, 20 Vt. 538; 
 Backus V. Clark, 1 Kan. 303. Pren- 
 tice V. Wilkinson, 5 Abb. Pr. (N. Y.) 
 N. s. 49; Kand o. Mather, 11 Cush. 
 (Mass.) 1; Warnick v. Groshalz, 3 
 Grant's Cas. (Penn.) 234; Deylin v. 
 "Woodgate, 34 Barb. (N. Y. ) 252 ; Eowe 
 V. Whittier, 21 Me. 545 ; Benedict v. 
 Dunning, 1 Daly-(N. Y.C. P.) 241. And 
 the same rule applies to a promise to 
 pay for services out of funds which the 
 promisor lias in his hands belonging to 
 the debtor left with him for that pur- 
 pose. Thus A agreed with a railroad 
 company to build a portion of their 
 road; he also agreed to pay the labor- 
 ers he employed, and save the company 
 harmless from their demands, by allow- 
 ing the company to retain enough in 
 their hands for this purpose. A let out 
 a portion of this work to B, a sub-con- 
 tractor, and he made the same agree- 
 ment with A, as A had made with the 
 company. B proceeded with the work, 
 but at length stopped, leaving his 
 laborers unpaid, who then took meas- 
 ures under the statute to enforce their 
 claims against the company; and 
 thereupon, A requested B to obtain 
 from C his bills against the laborers 
 for supplies furnished to them, which 
 he did. A then paid the laborers 
 what B owed them, retaining in his 
 hands what they owed C, which debts 
 he agreed to pay C, the arrangement 
 being assented to both by B and C, 
 and the laborers being discharged 
 from any liability to C. It was held 
 that this was a valid and binding 
 agreement, and did not come within 
 the statute of frauds, and that C 
 might maintain an action against A 
 thereon, for money had and received 
 to C's use, even although A was not 
 originally liable to the laborers. 
 
 Beach v. Ilungerford, 19 Barb. (N. Y.) 
 258. 
 
 The rule may be said to be that if the 
 promise springs fromanewtransaction, 
 or moves to the party promising upon 
 some fresh and substantive ground, 
 of a personal concern to the promi- 
 sor, the statute does not attach upon 
 such promise, if the consideration is 
 sufficient, though existmg in parol 
 only. In other words, promises made 
 on a new consideration, having no im- 
 mediate relation to the liability of 
 the person on whose account they are 
 made, are not within the provisions of 
 the statute. Gold v. Phillips, 10 
 Johns. (N. Y.) 412; Myers v. Morse, 
 15 id. 425 ; Stocking v. Sage, 1 Conn. 
 519 ; Colt V. Root, 17 Mass. 229. 
 
 Thus, unless the liability of the 
 person to whom, in the case of Buck- 
 myr v. Darnall, the horse had been 
 lent, had arisen upon an implied con- 
 tract to re-deliver him, for which 
 detinue might be brought (which is 
 a, species of mixed remedy, resting 
 partly on contract, and partly on tort) 
 the promise of the defendant would 
 have wanted that correspondence 
 with the original liability of the party 
 answered for, which was necessary to 
 bring it within the statute ; for it was 
 remarked by Powell, J., with his usu- 
 al discrimination, that there must not 
 only be a remedy against the other, 
 but a remedy upon the same contract; 
 and, as the council for the plaintiff 
 put it, the question upon the statute 
 is not only whether an action does or 
 does not lie against the party himself 
 upon the contract, but also whether 
 it does or does not lie against him 
 upon collateral respects. If, there- 
 fore, the promise is founded upon a new 
 distinct consideration, moving to the 
 party promising, it seems a perfectly 
 
152 
 
 STATUTE OF PEAUDS. 
 
 [chap. IV. 
 
 where a father requested an attorney to take charge of cer- 
 tain suits in which his son was interested, and said that if he 
 
 established doctrine, upon all the 
 cases, that the statute will not ex- 
 tend to it. In the case of Castling v. 
 Aubert, there was a "distinct and new 
 consideration, to wit, the giving up 
 of the securities, which were in the 
 hands of the plaintiff. The argu- 
 ment seems, therefore, to have taken 
 much too narrow a ground, when it 
 was contended, it the report states 
 accurately the words of the counsel, 
 that the statute was no bar to the 
 plaintiff's recovery in that case, as it 
 only applied to cases where there was 
 no consideration for the promise ; for 
 if that had been the only object of the 
 statute, it would have been nugatory 
 in respect to this branch of its provi- 
 sions, because the promise would have 
 been a nudum pactum by the common 
 law, without a sufficient consideration. 
 But the true hne of argument was 
 that there was a new and engrafted 
 consideration, moving to the party 
 himself, who made the promise, and 
 not to the party in respect to whose 
 liability the promise was made. 
 The authorities adduced to prove 
 that the existence of a consideration 
 took a case out of the statute, did 
 not prove what is certainly not law, 
 but they proved that this was the 
 consequence of there being a (dis- 
 tinct consideration superadded. As in 
 Meredith u. Short, 1 Salk. 25, where 
 the promise was in consideration of a 
 delivery of a note, under J S's hand, 
 for £60, and so again in Love's Case, 
 1 Salk. 28, where the promise was by 
 a stranger to a sheriff's officer, in con- 
 sideration that he would restore goods 
 taken on a, fieri facias, to pay the debt 
 of the defendant. Sustaining the doc- 
 trine of Castling v. Aubert, ante, see 
 Wolff!;. Koppel, 5 Hill (N. Y.) 458; 
 Gardiner v. Hopkins, 5 Wend. (N. T.) 
 23; Olmstead v. Greenly, 18 John. 
 (N. Y.) 12; Hindman v. Langford, 3 
 Strobh. (S. C.) L. 207 ; Allen v. Thomp- 
 son, 10 N. H. 32 ; French v. Thompson, 
 6 Vt. 54. 
 
 It appears, from the case of Tom- 
 linson v. Gill, Amb. 330, to have 
 been clearly Lord Hakdwioke's 
 opinion, that if the consideration of the 
 promise takes its root in a transaction 
 distinct from the original liability, the 
 case is out of the statute. There the 
 defendant. Gill, promised the widow 
 and administratrix of an intestate, 
 that if she would permit him to be 
 joined with her in the letters of ad- 
 ministration, he would make good any 
 deficiency of assets, to discharge the 
 intestate's debts. Thus, also, in Read 
 V. Nash, 1 Wils. 305, the consideration 
 of the promise was perfectly distinct 
 from any liability of the original de- 
 fendant: Tuack, the plaintiff's testa- 
 tor, brought an action of assault and 
 battery against one Johnson; the 
 cause being at issue, the record en- 
 tered, and first coming on to be tried, 
 the defendant Nash, being then present 
 in court, in consideration that Tuack 
 would not proceed to trial, lout would 
 withdraw his record, undertook and 
 promised to pay Tuack i50, and the 
 costs in that suit to be taxed up to the 
 time of withdrawing the record; the 
 statute was pleaded, and the plaintiff 
 demurred, and Lee, C. J., declared 
 the opinion of the court to be, that 
 this promise was an original promise, 
 sufficient to found an assumpsit upon 
 against Nash; Johnson was not a 
 debtor; the cause was not tried; he 
 did not appear to be guilty of any 
 default or miscarriage; there might 
 have been a verdict for him, if the 
 cause had been tried, for anything 
 the court could tell ; he never was lia- 
 ble to the particular debt, damages, or 
 costs. But in all cases the considera- 
 tion must be sufficient to support the 
 promise, and must enure to the bene- 
 fit of the promisor, and it is not 
 enough that the promise gives up 
 some benefit or advantage because of 
 it, and mere forbearance is insufficient. 
 Curtis V. Brown, 5 Cush. (Mass.) 491 ; 
 rish V. Thomas, 5 Grey (Mass.) 45; 
 
SEC. 94.] 
 
 GUAEANTIES. 
 
 153 
 
 would do the business for his son, he would pay him, his 
 promise was held to be an original undertaking, and not 
 
 Brightman v. Hicks, 108 Mass. 240; 
 Hilton V. Dinsmore, 21 Me. 410 ; Long 
 V. Henry, 54 N. H. 57 ; Myers v. 
 Morse, 15 John. (N. Y.) 425; Meech 
 V. Smitli, 7 Wend. (N. Y.) 315; Tay- 
 lor D.Drake, 4 Strobh. (S. C.) L. ^31; 
 Ragland v. Wynn, 1 Lit. Cas. (Ala.) 
 270; Tompkins v. Smith, 3 S. & P. 
 (Ala.) 34 ; Thomas w. Delphy, 33 Md. 
 373 ; Musick a. Musick, 7 Mo. 495 ; 
 Brown !>. Barnes, 6 Ala. 694 ; Harring- 
 ton t>. Eich, 6 Vt. 660 ; Cooper v. Cham- 
 bers,4 Dey. (N. C.) 261 ; Carton v. Moss, 
 1 Bailey (S. C.)L.14; Creel ti.Ball, 2 
 J. J. Mar. (Ky.) 309; Templeton v. 
 Bascom, 33 Vt. 132. 
 
 But the case most illustrative of 
 tliis distinction between a promise, 
 the only moving consideration for 
 which is the liability of another per- 
 son, and that which is grounded upon 
 a superadded inducement, is that of 
 "Williams v. Leper, 3 Burr, 1886. 
 Taylor, a tenant of the plaintiff, be- 
 ing in arrear for rent to the amount 
 of i£45, for three-quarters of a year, 
 conveyed all his effects for the bene- 
 fit of his creditors. They employed 
 Leper, the plaintiff, as a broker, to 
 sell the effects ; who, accordingly, ad- 
 vertised a sale. On the morning ad- 
 vertised for the sale, "Williams, the 
 landlord, came to distrain the goods 
 in the house. Leper, having notice 
 of the plaintiff's intention to distrain, 
 promised to pay the arrear of rent, 
 if he would desist from distraining ; 
 and "Williams, on the faith of this 
 promise, desisted accordingly. At the 
 trial a verdict was found for the plain- 
 tiff, for i45, and on a case reserved, 
 it was contended on behalf of the 
 plaintifi, that this was not such a 
 special promise for the debt of an- 
 other, as was within the statute of 
 frauds, which only meant to defeat 
 parol promises, where there was no 
 new consideration moving from the 
 party making the promise to the party 
 to whom it was made, and that the 
 legislature did not mean to prevent 
 
 direct undertakings, but only collat- 
 eral ones, for the debt, default, or 
 miscarriage of others. It was also in- 
 sisted that in this case there was a new 
 consideration ; for the reason that the 
 goods of Leper were, at the time of 
 the promise, liable to the landlord's 
 distress. It was, therefore, a direct 
 undertaldng for himself, and not for 
 another. The plaintiff had a legal 
 interest in these goods, prior to the 
 bill of sale, and was deprived by the 
 defendant of an advantage which he 
 could never have again. The prop- 
 erty of the goods was in Leper as a 
 trustee for the creditors, at the time 
 ■vjhen he made this promise; it was, 
 therefore, an original undertaking, 
 moving upon consideration personal 
 to himself. 
 
 It was answered by the counsel 
 for the defendant, that upon this 
 declaration, coupled with the facts 
 given in evidence, the plaintiff had u 
 right to recover this £45 because the 
 declaration expressly charged " that 
 Taylor was indebted to the plaintiff, 
 in £45 for three-quarters of a year's 
 rent ; and that the defendant under- 
 took to pay it ; " which was directly 
 within the words of the statute of 
 frauds, " a special promise to answer 
 for the debt of another person. " That 
 Leper was in possession of the goods 
 of the tenant, who owed the plaintiff 
 three-quarters' rent, and being about 
 to sell them, the landlord came to dis- 
 train for this rent in arrear, and Leper 
 promised to pay it, if he would desist 
 from distraining. He promised abso- 
 lutely to pay it, and not to pay it out 
 of the goods, or with any other restric- 
 tion. But Lord Mansfield said 
 that the case had nothing to do with 
 the statute of frauds. The res gestae 
 would entitle the plaintiff to his action 
 against the defendant. The landlord 
 had a legal pledge. He entered to 
 distrain ; he had the pledge in his cus- 
 tody. 'The defendant agreed that the 
 goods should be sold, and the plaintiff 
 
154 
 
 STATUTE OP FEATTDS. 
 
 [chap. IV. 
 
 within the statute.^ But a promise by A to B that if he will 
 perform certaia services for C, he will pay him if C does not, 
 
 1 Hodges u. Hall, 29 Vt. 209. 
 
 paid in the first place. The goods 
 were the fund ; the question was not 
 between Taylor the tenant, and the 
 plaintiff the landlord. The plaintiff 
 had a, lien upon the goods. Leper 
 was a trustee for all the creditors, and 
 was obliged to pay the landlord, who 
 had the prior lien; this has nothing 
 to do with the statute of frauds. Wil- 
 MOT and Yates, JJ., were of the 
 opinion that this was an original 
 promise; and Aston, J., said, he 
 looked upon the goods to be the debt- 
 or, and that Leper was not bound to 
 pay to the landlord more than the 
 goods sold for. — The goods were, a 
 fund between both, and on that ground 
 he concurred. Clark v. Hall, 10 N. J. 
 Eq. 78 ; Woodward v. Wilcox, 27 Ind. 
 78; Alger v. Scoville, 1 Gray (Mass.) 
 391; Stoudts v. Hiue, 45 Penn. St. 30; 
 Slingerland v. Morse, 7 John. (N. Y.) 
 463 ; Rogers v. Collier, 2 Bailey (S. C.) 
 581 ; McCrary v. Madden, 1 McCord 
 (S. C.) L. 436. A case quite similar 
 to Williams v. Leper, ante, Is Edwards 
 V. Kelly, 6 M. & S. 208, and the same 
 rule was adopted. See, also, Bampton 
 V. Paulin, 4 Bing. 264. The rule is 
 well established in this country that 
 the relinquishment of a lien or advan- 
 tage which inures to the benefit of the 
 promisor, makes the undertaking 
 original. Arnold v. Stedman, 45 Penn. 
 St. 186 ; King v. Despard, 5 Wend. 
 (N. Y.) 277; Corldns v. Collins, 16 
 Mich. 478; Burr v. Wilcox, 13 Allen 
 (Mass.) 269; Richardson v. Robbins, 
 124 Mass. 105 ; Krutz v. Stewart, 54 
 Lid. 178 ; Boyce v. Owens, 2 McCord 
 (S. C.) L. 208; Crawford v. King, 54 
 Ind. 6 ; Luark v.. Malore, 34 id. 444 ; 
 Spooner v. Drum, 7 id. 81 ; Conradt 
 V. Sullivan, 45 id. 180; Scott v. 
 Thomas, 2 III. 58; Stewart v. Camp- 
 bell, 53 Me. 439. 
 
 The case of Fish u. Hutchinson, 2 
 Wils. 94, is plainly distinguishable 
 from the case of Williams v. Leper, 
 and Read v. Nash, ante. In that case 
 
 the facts were that Vickars was in- 
 debted to Fish in a sum of money, 
 and Fish had commenced an action 
 for it. The defendant promised, 
 that in consideration the plaintifE 
 would stay his action against Vickars, 
 he would pay the money which was 
 owing. There was a debt subsist- 
 ing at the time of the promise, so 
 that the liability of him, on whose 
 behalf it was made, was the moving 
 consideration to the promisor. The 
 liability of the party was so immedi- 
 ately the ground of the promise, that 
 the action could not have been sus- 
 tained against the promisor, without 
 showing such liability to have been in 
 existence when the promise was made. 
 In Williams v. Leper, it was the prom- 
 isor's oivn liability, which was the im- 
 mediate ground of the promise, and 
 however that liability might be shown 
 to have originated in the tenant's lia- 
 bility primarily to pay the rent, yet 
 the promise, being immediately moved 
 by the defendant's own liability, by 
 reason of his having possession of the 
 goods, whereon the plaintiff's lieu had 
 attached, might in that respect be 
 said to be original. The tenant's lia- 
 bility was in fact removed by the 
 distress upon the goods, and the ob- 
 ject of the promisor, in procuring 
 the fund to be released from the 
 plaintiff's claim, was not for the 
 benefit of the tenant, or intended 
 in any way to uphold or sustain his 
 credit. The tenant's liability was 
 sunk in the subsequent proceeding. 
 In Read v. Nash, the defendant in 
 the first action had not yet become 
 liable ; the period had not arrived, at 
 which any debt, default, or miscar- 
 riage could be imputed to him. If 
 judgment had been given in the first 
 action, ascertaining the damages, a 
 promise by a third person to pay these 
 damages would doubtless have been 
 within the statute ; for then a specific 
 liability would have arisen. Tomlin- 
 
SEC. 94.J 
 
 GUAEANTIES. 
 
 155 
 
 is collateral, and within the statute unless in writing ; ^ so if 
 A says to B, "you go on and do the work, and I will see you 
 paid ; " or, " if C employs you, I will see you are paid ; " ^ or, 
 "I will be responsible for the pay,"^ are sl\ prima facie, col- 
 lateral undertakings, because they are contingent upon the 
 failure of the person promised for, to pay. But where the 
 sole credit is rightfully given to the person promising, the 
 undertaldng is original, and not within the statute ; but if 
 any credit is given to the person promised for, such liability 
 is conclusive that the promise is collateral.* K the credit is 
 jointly given to the promisor and the person promised for, 
 the promise is within the statute.^ But if the credit is given 
 solely to the promisor, it is an original undertaldng.^ In 
 
 son V. Gell, 6 Ad. & El. 571. If a 
 benefit or advantage is given up by 
 the promisee, which enures directly to 
 the advantage of the promisor, the 
 promise is original. Laung v. Erench, 
 35 "Wis. Ill ; Scott v. White, 71 HI. 
 287 ; Lampson v. Hobart, 28 Vt. 697 ; 
 Curtis V. Brown, 5 Cush. (Mass.) 491; 
 Nelson v. Boynton, 3 Met. (Mass.) 396 ; 
 Cross V. Richardson, 30 Vt. 641 ; Ames 
 V. Foster, 106 Mass. 400 ; Hodgkins v. 
 Kearney, 15 Minn. 185. 
 
 1 Aldrich v. Jewell, 12 Vt. 125. 
 
 2 Skinner v. Conant, 2 Vt. 453; 
 Brown k. .Webber, 24 How. Pr. (N. Y.) 
 306; s. c. 38 N. Y. 187. So where a 
 person says to another, whom B is 
 about to employ, "B is good; if 
 not,. I am," Steele v. Towne, 28 Vt. 
 771. 
 
 ' Larson v. Wyman, 14 Wend. 
 (N. Y.) 246. But in all cases the 
 question, irrespective of the form of 
 expression used, is for the jury, to say 
 from all the circumstances whether 
 the promisee gave credit to the prom- 
 isor solely, and had a right to do so. 
 Thus A, under a contract with B, was 
 building a house on lands of C, and 
 said to C, " I want you to agree to pay 
 me for building the house, or I can do 
 no more to it," and C replied, " You 
 go on and finish the house, and I will 
 pay you," and it was held to be a 
 question for the jury whether this new 
 contract was collateral or original. 
 Sinclair y. Richardson, 12 Vt. 33; 
 
 Stone V. Walker, 13 Gray (Mass.) 
 613 ; Billingsley v. DcmpewoU, 11 Ind. 
 414 ; Hall v. Wood, 4 Chand. (Wis.) 
 36. A promise by one to be respon- 
 sible and stand good for the pay by 
 an employer of the wages of an em- 
 ployee, is a collateral undertaking. 
 Miller v. Niehaus, 51 Ind. 401. 
 
 * Ware it. Stephenson, 10 Leigh. 
 (Va.) 155; Read v. Ladd, 1 Edm. 
 (N. Y.) Sel. Cas. 100; Cutter v. Hin- 
 ton, 6 Rand. (Va.) 509; Kurtz .,. 
 Adams, 12 Ark. 174 ; Kinloch v. Brown, 
 1 Rich. (S. C.) 223 ; Cropper v. Pitman, 
 13 Md. 190 ; Taylor v. Drake, 4 Strobh. 
 (S. C.) 431; Cahill v. Bigelow, 18 
 Pick. (Mass.) 369; Hill v. Raymond, 
 3 Allen (Mass.) 540; Swift v. Pierce, 
 13 id. 136; Knox v. Nutt, 1 Daly, 
 (If. Y. C. P.) 213 ; Brown v. Bradshaw, 
 1 Duer (N. Y.) 199; Walker v. Rich- 
 ards, 39 N. H. 259 ; s. c. 41 id. 388 ; 
 Dixon V. Frazer, 1 E. D. S. (N. Y. C. 
 P.) 32; Allen v. ScarfE, 1 Hilt. (N. Y. 
 C. P.) 209; Hetfield v. Dow, 27 N. J. 
 L. 440 ; Brady v. Sackrider, 1 Sandf. 
 (N. Y.) 514; Carville v. Crane, 5 Hill 
 (N. Y.) 483 ; McDonnell v. Dodge, 10 
 Wis. 106 ; Cowdin v. Gottgetreau, 55 
 N. Y. 650. 
 
 s Matthews u. Milton, 4 Yerg. 
 (Tenn.) 576. 
 
 « Williams v. Corbett, 28 Rl. 262 ; 
 Porter v. Langhorn, 2 Bibb. (Ky.) 63 ; 
 Nelson v. Hardy, 7 Ind. 364; Briggs 
 V. Evans, 1 E. D. S. (N. Y. C. P.) 192; 
 Weyland v. Crichfield, 3 Grant's Cas. 
 
156 
 
 STATUTE OF FEATJDS. 
 
 [chap. IV. 
 
 order to make a promise collateral and within tlie statute, 
 there must he, 1. A liability in the original party to pay the 
 debt, or to perform some act existing and ascertained at the 
 time when the promise was made.^ 2. The consideration of 
 the promise must he immediately connected with the liability,^ and 
 3. TJie promise must be made to the party to whom the original 
 debt is owing, and to do the same thing which the original debtor 
 was liable to do, because, if there was no liability on the part 
 of the person promised for, or if the promise was made upon 
 a new and independent consideration of benefit or power 
 moving between the promisor or promisee, or if it was 
 made to the debtor himself, or if the original debtor was 
 discharged from the debt, or by virtue of the promise the 
 promisor becomes in fact or in law the purchaser of the 
 debt, the undertaking is original and not within the statute.^ 
 
 (Penn.) 113; Dunning v. Roberts, 35 
 Barb. (N. Y.) 463. 
 
 1 Prentice v. Wilkinson, 5 Abb. Pr. 
 (N. Y.) N. S. 49; Mease v. "Wagner, 1 
 McCord (S. C.) 395; Chapin v. Lap- 
 ham, 20 Pick. (Mass.) 467; Miller v. 
 Long, 45 Penn. St. 350 ; Connerat v. 
 Goldsmith, 9 Ga. 14 ; ICimbaU v. New- 
 ell, 7 Hill (N. Y.) 116; Maggs ^. 
 Ames, 4 Bing. 470; Thompson a. 
 Blanchard, 3 N. Y. 335; Griffin v. 
 Derby, 5 Me. 476 ; Johnson ;-. Noonan, 
 16 Wis. 687; Lampson v. Swift, 11 
 Vt. 315; Walker v. Norton, 29 Vt. 
 226; Peck v. Thompson, 15 id. 637; 
 Merrill v. Englesby, 28 id. 150 ; Roche 
 V. Chaplin, 1 Bailey (S. C.) L. 419; 
 Douglass V. Jones, 3 E. D. S. (N. Y. 
 C. P.) 551; Mountstephen v. Lake- 
 man, L. R. 7 H. L. 24; Dexter v. 
 Blanchard, 11 Allen (Mass.) 365; 
 Clark V. Levi, 10 N. Y. Leg. Obs. 184 ; 
 Dovmey v. Hinchman, 25 Ind. 453; 
 Duffy V. Wunsch, 42 N. Y. 243. 
 
 2 Simons v. Steele, 36 N. H. 73; 
 Leonard v. Vredenburgh, 8 John. 
 (N. Y.) 9; Richard v. DeWolf, 1 
 Paine (U. S. C. C.) 580; Nelson v. 
 Boynton, 3 Met. (Mass.) 396; Town- 
 ley V. Sumrall, 2 Pet. (N. S.) 170; 
 Larson v. Wyman, 14 Wend. (N. Y.) 
 246. There must be some consid- 
 eration valid in law to support the 
 promise. Crane v. Bullock, E. M. 
 
 Charlt. (Ga.) 318; Sears v. Brink, 3 
 John. (N. Y.) 210; Ware v. Adams, 
 24 Me. 177 ; Gillighan v. Boardman, 
 29 id. 79 ; Himtress v. Patten, 20 id. 
 28; ElUottK. Giese, 7 H. & J. (Md.) 
 457. 
 
 8 Booth V. Eighme, 60 N. Y. 238 ; 
 Stone V. Symmes, 18 Pick. (Mass.) 
 467; Watson c. Jacobs, 29 Vt. 1G9; 
 White V. Solomonsky, 30 Md. 585; 
 AUhouse V. Ramsey, 6 Whart. (Penn.) 
 331; Armstrong v. Elora, 3 T. B. 
 Mon. (Ky.) 43; Watson v. Randall, 
 20 Wend. (N. Y.) 201; Draughan o. 
 Bunting, 9 Lred. (N. C.) 10; Robinson 
 V. Lane, 22 Miss. 101; Clisk u. Mc- 
 Affee, 7 Port. (Ala.) 72; Moseley v. 
 Taylor, 4 Dana (Ky.) 542; Yale v. 
 Edgerton, 14 Minn. 194 ; Haggerty v. 
 Johnson, 48 Ind. 41 ; Corbett u. 
 Cochran, 3 Hill (S. C.) 41; Dawes 
 V. Young, 40 Ga. 65; Bxmting v. 
 Darbyshire, 75 HI. 408; Cooper v. 
 Chambers; McCaffie v. Eadcliffe, 
 3 Rob. (N. Y.) 445; Rhodes v. Leeds, 
 3 S. & P. (Ala.) 212 ; Doyle v. White, 
 26 Me. 341; Brown v. Curtis, 2 N. Y. 
 225; Antonio v. Clissy, 3 Rich. (S. C.) 
 L. 201; Arbuckle v. Hawks, 20 Vt. 
 538 ; Whitman v. Bryant, 49 id. 511 ; 
 Aldrich v. Jewell, 12 id. 125 ; Bushel 
 V. Allen, 31 id. 613; Darlington v. 
 McCann, 2 E. D. S. (N. Y. C. P.) 411 ; 
 Norris t,. Graham, 33 Md. 56 ; Gibbs 
 
SEC. 95.] GUARANTIES. 157 
 
 But where the undertaking is collateral, by reason of the 
 existing liability, a special declaration on such promise 
 becomes necessary .; and if the undertaking was to pay upon 
 request, the declaration must state formally and explicitly that 
 a request was made ; nor will the usual allegation in the com- 
 mon counts, that the defendant did not pay, although often 
 requested, in such case, be suificient.^ 
 
 Sec. 95. Rule as to Pleading. Masters v. Marriott. — 
 Whether such special mode of declaring is necessary or 
 not will depend upon the question, whether the promise was 
 original or collateral; the point has, therefore, sometimes 
 come under adjudication, not on the statute of frauds, but on 
 the rules of pleading ; as in the case of Masters v. Marriott,^ 
 where the plaintiff declared in an action of assumpsit, that 
 the defendant had sold to him a bay gelding for eight guineas, 
 and that lie agreed on the sale, that in consideration the 
 plaintiff had paid to the defendant the eight guineas, he, the 
 defendant, promised to the plaintiff, that if he disapproved of 
 the gelding, and delivered it to Barham for the defendant's 
 ^lse, that Barham should repay the said eight guineas, and if 
 Barham did not pay it, that defendant would repay it on 
 request. The declaration then averred that the plaintiff did 
 disapprove of the gelding, and delivered it to Barham, and 
 requested him to pay the eight guineas, which he refused to 
 do upon request. The plaintiff also declared in another 
 count upon an indebitatus assumpsit for another eight guineas, 
 had and received to his use, and concluded that the defend- 
 ant, not regarding his said several promises, had not, although 
 often requested, repaid the said sums, to the damage of the 
 plaintiff. On nan assumpsit pleaded, a verdict was giA'^en for 
 the plaintiff, with entire damages ; and it was moved in arrest 
 of the judgment, and argued several times, that the promise 
 to repay the eight guineas, if Barham did not do it, was a 
 collateral promise to pay in default of another, and that the 
 defendant was not a debtor, but only a surety in default of 
 Barham, and that, consequently, a special request to the 
 
 V. Blanchard, 15 Mich. 292 ; ex parte ^ 3 Lev. 363 ; and see 1 Roll. Abr. 
 
 "Williams, 4 Yerg.(Tenn.) 579; Walker 27, 30, 32; 1 EoU. Rep. 275-6; Cro. 
 
 V. Richards,' 39 N. H. 259; Ruggles v. Jac. 386, 500; 3 Bulst. 94; 1 Danv. 
 
 Gatton, 50 111. 412. Abr. 68 ; 1 Vent. 43, 268, 293, 311 ; 2 
 
 1 Roberts on Frauds, 215-223. Vent. 36; 1 Salk. 23; 2 Saund. 136. 
 
158 STATUTE OP PEAT7DS. [CHAP. IV. 
 
 defendant ought to have been laid, and that saepius requisitus 
 fuit was insufficient ; that there should have been a notice 
 that Barham had not paid, and a special request to the 
 defendant ; for the promise of the defendant was that he 
 would pay it, if Barham did not; and the damages being 
 entire on the promises in both counts, it was contended that 
 the plaintiff could not have judgment. But it was held 
 by the court that it was not a collateral promise to pay 
 a debt for another, but that the whole was one entire con- 
 tract upon 'the sale, and was in effect, that the plaintiff 
 bought the gelding upon the condition that if he did not 
 like him, he should receive back his money, and the defend- 
 ant received the money upon the same condition ; and that 
 when the condition was performed by the disapproval of the 
 gelding, and the returning of it to Barham, the contract was 
 void and at an end, and the money was in the hands of the 
 defendant as a debtor to the plaintiff as for money re- 
 ceived to the plaintiff's use, and Barham was no more than 
 a servant to receive the gelding, and to repay the money, 
 and that by his not paying it, the plaintiff, as master, was the 
 debtor, and upon this ground judgment was given for the 
 plaintiff upon the whole declaration, the count upon the in- 
 debitatus assumpsit being considered good, and the judgment 
 was afterwards affirmed in error. The statute of frauds was 
 not in question in tliis case, the undertaking probably hav- 
 ing been in writing ; but the precise point could not have 
 been more directly raised upon the statute, than it was in 
 this instance upon the principles of pleading. 
 
 Sec. 96. Rule in Harris v. Huntback. — The necessity for the 
 actual liability of the person undertaken for, was the point 
 decided in Harris v. Huntback,^ where the promise appeared 
 
 1 1 Burr, 371. But it cannot be 508; Chicago Dock Co. o. Kenzie, 49 
 
 assumed in an action between third 111. 289; Aicarde v. Craig, 42 Ala. 
 
 parties that the promisor would set 311; Beal v. Brown, 13 Allen (Mass.) 
 
 up the statute to defeat his liability. 114 ; Crawford v. Woods, 6 Bush 
 
 Downey v. Hinchman, 25 Ind. 453; (Ky.)200; Sneed v. Bradley, 4 Sneed 
 
 Dexterv.Blanchard, 11 Allen (Mass.) (Tenn.) 301; Hall «. Soule, 11 Mich. 
 
 365. The protection afiEorded by the 494; Houser u. Lamont, 55 Penn. St. 
 
 statute may be waived, and the privi- 311 ; Dung v. Parker, 52 N. Y. 494 ; 
 
 lege afforded by it being personal, it Baltzen v. Nicolay, 53 id. 467 ; Garrett 
 
 cannot be set up by a person not privy v. Garrett, 27 Ala. 687 ; Gadden v. 
 
 to the contract. Fowler v. Burget, 16 Pierson, 42 id. 370 ; Caliill v. Bigelow, 
 
 Ind. 841 ; Ames !). Jackson, 115 Mass. 18 Pick. (Mass.) 869; HufEman v. 
 
SEC. 96.] GUARANTIES. 159 
 
 to be in writing, but upon the same rule in pleading of showing 
 specially the collateral promise, and not relying upon the com- 
 mon indebitatus assumpsit, a similar doctrine was established. 
 The cause came before the court upon a case reserved for 
 their opinion in an action upon a general indebitatus assumpsit, 
 in which the plaintiff declared upon two counts : the first for 
 money lent and advanced by the plaintiff at the defendant's 
 request ; and the second for money laid out and expended by 
 the plaintiff at the defendant's request; and the question 
 upon the case stated was, whether the evidence supported the 
 declaration. On the first count, the evidence produced was 
 a note of the defendant's, in the following words : " 3d Decem- 
 ber, 1751, Then received of Mr. Harris the sum of £19, on 
 behalf of my grandson, which I promise to be accountable 
 for on demand. Witness my hand, S. Huntback." 
 
 On the second count, the evidence was that one Davidson, 
 coming to the plaintiff by the defendant's order, for money 
 to pay workmen, the plaintiff refused to pay the money 
 unless the defendant would sign a receipt. Whereupon the 
 defendant wrote the following note: "Mr. Harris, at the 
 earnest request of the gardener, the workmen wanting money 
 greatly for the work at the woodhouses, this is to certify, 
 that at my request you pay to Mr. Davidson, on the account 
 of Master Hillier, for the workmen's use, the sum of <£15, as 
 witness my hand, S. Huntback." And a receipt was given 
 by the said Davidson the gardener, to the plaintiff, on the 
 plaintiff's paying him this £15. 
 
 It was contended, on behalf of the defendant, that inde- 
 bitatus assumpsit would not lie upon a collateral undertak- 
 ing ; but it was clearly determined by the court, that as there 
 was no remedy against the infant, it was an original and not 
 a collateral undertaking ; and Buckmyr v. Darnall ^ was 
 cited, in which it was held, that where no action will lie against 
 the party, undertaJcen for, it is an original promise.^ Accord- 
 
 Ackley, 34 Mo. 277 ; Kratz v. Stocke, bins from performing the contract. 
 
 42 id. .351, In Eice v. Manley, 2 Hun In an action against him therefor, it 
 
 (N. Y.) 492, the plaintiff and one was held that, unless there was a con- 
 
 Stebbins • entered into a verbal con- tract between the parties which could 
 
 tract for the sale of cheese. The de- have been enforced, no action would 
 
 f endant by false representations, and lie against the defendant for his fraud, 
 
 by sending a false telegram in the i 2 Lord Eaym. 1085 ; 6 Mod. 248. 
 
 name of the plaintiS, prevented Steb- ^ In such cases the debt is treated 
 
160 STATUTE OF FEATJDS. [CHAP. IV. 
 
 ing to this ease, it seems not only necessary that the party for 
 whom the promise is made should be liable, but that he should 
 be or become liable at the time of the promise being made. And 
 by the opinions of the court in the same case, it also appears 
 that the liability and the promise ought to grow out of the same 
 contract.^ 
 
 Sec. 97. Rule in Buckmyr v. Darnall. — In Buckmyr v. 
 Darnall, ante, which was an action of assumpsit, the plaintiff 
 declared that the defendant, in consideration that the plain- 
 tiff, at his request, would let to hire, and deliver to -one 
 Joseph English, a gelding of the plaintiff's, to ride to Read- 
 ing, in- the county of Berks, undertook and promised the 
 plaintiff, that the said Joseph would deliver the said gelding 
 to the plaintiff. Upon non assumpsit pleaded, the case 
 came to trial before Holt, C. J., at Westminster Hall ; and 
 the counsel for the defendant insisting that the plaintiff 
 ought to produce a note in writing of the promise within 
 the statute of frauds, and the Chief Justice doubting, a 
 case was made and ordered to be moved in court, to have 
 the opinion of the other judges. And it was argued and 
 insisted for the defendant, that the case was within the 
 
 as the debt of the promisor. Walker 260; Headrick v. Wiseheart, 57 Ind. 
 
 V. Norton, 29 Vt. 226; Chicago &e. 128; Tarhell y. Stevens,- 7 Iowa, 163; 
 
 Canal Co. v. Liddell, 69 111. 639 ; San- Rice v. Barry, 2 Cr. (XT. S. C. C.) 447 ; 
 
 'bom ... Merrill, 41 Me. 467; Whit- Files «. McLeod, 14 Ala. 611. 
 comb V. Kephart, 50 Penn. St. 85 ; i But where the promise arises from 
 
 Walker v. Hill, 119 Mass. 249 ; Duffy a new consideration, moving either 
 
 V. Wunsch, 42 N. Y. 243; Hull v. from the promisee, Arnold v. Sted- 
 
 Brown, 35 Wis. 652 ; Allaire v. Craw- man, 45 Penn. St. 186 ; Burr v. Wil- 
 
 ford, 2 John. (N. Y.) Cas. 52; Adams cox, 13 Allen (Mass.) 369; Russell ^. 
 
 V. Densey, 6 Bing. 506; Dorwin v. Babcock, 14 Me. 138, or the person 
 
 Smith, 35 Vt. 69 ; Goodspeed v. Fuller, for whose benefit the promise is made, 
 
 46 Me. 141 ; Stocking v. Sage, 1 Conn, it is not, as we shall hereafter see, 
 
 518 ; Chapman v. Ross, 12 Leigh, -within the statute. Presbyterian &c. 
 
 (Va.) 565; Tarr v. Northey, 17 Me. Soc. «. Staples, 23 Conn. 544; Colt «. 
 
 113; Evans v. Mason, 1 Lea (Tenn.) Root, 12 Mass. 229; Helms w..Kearns, 
 
 26; Conkey v. Hopkins, 17 John. 40 Ind. 124; Balliet «. Scott, 32 Wis. 
 
 (N. Y.) 113; Flemm v. Whitmore, 23 174; Welch v. Kenney, 49 Cal. 49; 
 
 Mo. 430 ; Apgar v. Hiler, 24 N. J. L. Taylor v. Preston, 79 Penn. St. 436 ; 
 
 812; Barry v. Ransom, 12 N. Y. 462; Besshears v. Rowe, 46 Mo. 501 ; John- 
 
 Ferrell v. Maxwell, 28 Ohio St. 383 ; son v. Knapp, 36 Iowa, 616 ; Seaman 
 
 Comstock V. Morton, 36 Mich. 277; v. Hasbrouck, 35 Barb. (N. Y.) 151; 
 
 Beamon v. Russell, 20 Vt. 205 ; Baker Runde v. Runde, 58 111. 232 ; Urquhart 
 
 V. Dillman, 12 Abb. Pr. (N. Y.) 313; v. Brayton, 12 R. I. 169; Mitchell v. 
 
 Kingsley w. Balcom, 4 Barb. (N. Y.) Griffin, 58 Ind. 159; Maxwell w.Haynes, 
 
 131; Wildes v. Dudlow, L. R. 19 Eq. 41 Me. 559. 
 Cas. 198; Hopldns v. Carr, 31 Ind. 
 
SEC. 97.] 
 
 GXTAEANTIES. 
 
 161 
 
 statute, for it was the promise to answer for the default and 
 miscarriage of the person the horse was lent to. That the 
 very letting out and delivery of the horse to English implied 
 a contract by English to redeliver him, and he was bound 
 by law so to do, and consequently the defendant's promise 
 was to answer for the default of another. And the counsel 
 for the defendant reminded his Lordship of his own ruling, 
 that where an action will lie against the party himself, there, 
 an undertaking by a third person is within the statute ; but 
 that where no action will lie against the party himself, it is 
 otherwise.^ And he said he agreed, that if a man should say 
 to another, do you build a house for J S and I will pay you ; 
 that case is not within the statute, because there J S is not 
 liable. But the case is not more than this, if a man should 
 
 1 This is still the rule, and the de- 
 cisive test as to whether the under- 
 taking is collateral or original, and 
 the statute does not require the prom- 
 ise of a defendant to he in writing 
 where it is in effect to pay his own 
 debt, though that of a third person 
 be incidentally guaranteed ; it ap- 
 plies to a mere promise to become 
 responsible, but not to actual obliga- 
 tions. Malone v. Keener, 44 Penn, 
 St. 107 ; Creel v. Bell, 2 J. J. Marsh 
 (Ky.) 309 ; Alcalda v. Morales, 3 Nev. 
 132 ; Gold v. Phillips, 10 John. (N. Y.) 
 412; Wolff V. Koppel, 2 Den. (N. Y.) 
 368 ; Therasaon v. McSpedon, 2 Hilt. 
 (N. Y. C. P.) 1; Stoddard v. Graham, 
 23 How. (N. Y.) Pr. 518; PhilUps v. 
 Gray, 3 E. D. S. (N. Y. C. P.) 69; 
 Clymer v. De Young, 54 Penn. St. 
 118; Romson v. Hope, 18 Tex. 446; 
 Barringer v. Warden, 12 Cal. 311; 
 Williams i. Little, 36 Vt. 323 ; Story 
 V. Menzies, 4 Chand. (Wis.) 61; Cot- 
 terill V. Stevens, 10 Wis. 422 ; Cook v. 
 Barrett, 15 Wis. 596. A promise by 
 a company, or its agent, to pay an ac- 
 count due from the company, which 
 has been assigned to a third person, is 
 not within the statute of frauds, and 
 need not be in writing. Mt. Olivet 
 Cemetery v. Shubert, 2 Head (Tenn.) 
 116. The rule being that if the peiv 
 son on whose account the promise is 
 made is not liable at all, the under- 
 
 taking is original, and is valid, al- 
 though by parol. Wallace v.Wortham, 
 25 Miss. 119 ; Mease v. Wagner, 1 Mc- 
 Cord (S. C.) 395; but if any liability 
 for the debt remains against the party 
 for whose benefit the promise was 
 made, it is a collateral undertaking. 
 Wainwright v. Straw, 16 Vt. 215; 
 Perkins v. Goodman, 21 Barb. (N. Y.) 
 218; Blank ^. Dreher, 25 111. 331; 
 Eddy V. Roberts, 17 id. 505 ; Bronson 
 ti.Stroud,2 McMuU. (S. C.) 372; Clay 
 V. Walton, 9 Cal. 328; Dugan v. 
 Cowzleman, 31 Mo. 424. Thus, in the 
 last case, it was held that where M and 
 S had put to livery a horse which was 
 entrusted to them by C for the pur- 
 pose of trial before purchasing, and 
 the credit was given to M and S, a 
 subsequent verbal promise of C to 
 pay for the keeping to the liveryman 
 Trill be within the statute and void. 
 So where A had taken a contract to 
 do a piece of work for B, but not 
 being paid abandoned the work, and 
 afterwards resumed it, and did certain 
 extra work upon the promise of C to 
 pay him, and the evidence showed that 
 he still looked to B for his pay, and 
 not to C, except as guarantor, it was 
 held that such promise was void un- 
 der the statute of frauds, as not being 
 in writing, both as to the extra work 
 and that done under the contract with 
 B. Bresler v. Pendell, 12 Mich. 224. 
 
162 STATUTE OF PEATJDS. [CHAP. IV. 
 
 say, do you let J S have goods, and if he does not pay you, 
 I will : this is within the statute, because an action will lie 
 against J S for the money for the goods ; or, if a man shall 
 say, take J S into your service, and if he does not serve you 
 faithfully, or if he wrongs you, I wUl be responsible, that is 
 also within the statute.^ 
 
 Upon the first motion and argument upon the case, the 
 three judges against Powys, seemed to be of opinion, that 
 the case was not within the statute, because English was not 
 liable under the contract ; but if any action could be main- 
 tained against him, it must be for a subsequent wrong in 
 detaining the horse, or actually converting it to his own use. 
 And Powell, J., said that the rule, of what things shall 
 not be within the statute, is not confined to these cases 
 only, where there is no remedy at all against the other, but 
 where there is no remedy against him on the same contract. 
 This case is just like that wherein a man says, send goods 
 to such a one, and I will pay you ; that is not within the 
 statute, for the seller does not trust the person he sends the 
 goods to. So here, the stable-keeper only trusted the defend- 
 ant, and an action on the contract will not lie against English, 
 but for a tort subsequent ; he may be charged in detinue, or 
 trover and conversion, which are collateral actions. 
 
 PoWYS, J., said, that there was a trust to English, for the 
 very lending of the horse necessarily implied a trust to the 
 person he was lent to, and consequently the defendant in this 
 case was to answer for the default of another, and was within 
 the statute. Powell, J., agreed, that if a man should say, 
 lend J S a horse, and I will imdertake he shall pay the hire 
 
 ^ A naked parol promise to pay the Johnson,2 N. J. L. 5 ; South v. Toomey, 
 
 debt of, or to be responsible for the acts id. 98; Ayres «. Herbert, 3 N. J. L. 
 
 of another in whatever form itis made, (2 Pen.) 662 ; Caston v. Moss, 1 Bailey 
 
 is within the statute. The question (S. C.) 14; Hoppock u. Wilson, 4 N. J. 
 
 always is whether the promise is col- L. 149 ; Dilts v. Parke, id. 219 ; Youngs 
 
 lateral or original. If the former, it v. Shough, 15 N. J. L. (3 Green) 27 ; 
 
 is not enforceable. Murphy v. Merry, 8 Mundy v. Eoss, id. 466 ; Jackson v. 
 
 Blackf. (Ind.) 295 ; Smith f. Stephens, Eayner, 12 Johns. (N. Y.) 291 ; Clarke 
 
 3 Ind. 832; Johnson v. Morris, 21 Ga. v. Eussel, 3 Dall. (Penu.) 415 ; Boyce 
 
 238; Bumford v. Purcell, 4 Greene v. Owens, 2 McCord '(S. C.) -208; 
 
 (Iowa) 488 ; Helm v. Logan, 4 Bibb Eichardson o. Eichardson, 1 McMull. 
 
 (Ky.) 78; Smith u. Fah, 15 B. Mon. (S. C.) 280; Campbell v. Kndley, 3 
 
 (Ky.) 443; Elder t). Warfield, 7 H. & Humph. (Tenn.) 330; Caperton v. 
 
 J. (Md.) 391; Wymau v. Gray, id. Gray, 4 Terg. (Tenn.) 563. 
 409; Elliott v. Giese, id. 457; Eose v. 
 
SEC. 97.] GUAKANTIES. 163 
 
 of it ; or send J S goods, and I will undertake he shall pay 
 you ; that these cases would be within the statute ; and agreed 
 with PowYS, that if any trust were given to English, then 
 the ease would be within the statute. But a majority of the 
 court held, that there was no credit given to English ; and 
 Holt, C. J., agreed with them, that if there had been, this 
 promise would have been an additional security, and within the 
 statute. And Holt, C. J., said, that if a man should say, "let 
 J S ride your horse to Reading, and I will pay you the hire," 
 that is not within the statute, any more than if a man should 
 say, " deliver clothes to J S, and I will pay you." He said 
 also that a bailee of a horse for hire is not bound to redeliver 
 him at all events, but if hsj be robbed of him without fraud 
 in him, he is excused, and that so it was ruled in the case of 
 Coggs V. Bernard.^ 
 
 The last day of the term, Holt, C. J., delivered the opin- 
 ion of the court. He said that the question had been pro- 
 posed at a meeting of judges, and that there had been a great 
 variety of opinions between them, because the horse was lent 
 wholly upon the credit of the defendant, but that the judges 
 of this court were all of opinion, that the case was within the 
 statute. The objection that was made was, that if English 
 did not deliver the horse, he was not chargeable in an action 
 upon the promise, but in trover or detinue, which are founded 
 upon the tort, and are for a matter subsequent to the agree- 
 ment. But I answered that English may be charged on the 
 bailment in detinue on the original delivery, and detinue is 
 the adequate remedy, and consequently, this promise by the 
 defendant is collateral, and is within the reason and the very 
 words of the statute ; and is as much so as where a man is 
 indebted, and J S in consideration that the debtee would for- 
 bear the man, promises to pay him the debt ; such a promise 
 
 1 Lord Eaym. 216. It hardly needs the circumstances warrant it, and the 
 
 the weight of supporting cases to sus- credit is jointly giren to both as prin- 
 
 tain the rule that, where any credit is cipals, the undertaking is original as 
 
 given to the person for whose benefit to both, as in such a case neither can 
 
 the promise is made, the undertaking be surety for the other. Swift v. 
 
 is collateral, as the proposition is self- Pierce, 12 Allen (Mass.) 136; Wain- 
 
 eyident. Whitman v. Bryant, 49 Vt. wright v. Straw, 15 Vt. 215 ; Gibbs v. 
 
 512; Norris v. Graham, 33 Md. 56; Blanchard, 15 Mich. 292; Eddy v. 
 
 Welch V. Marvin, 36 Mich. 59 ; Walker Davidson, 42 Vt. 56 ; Hetfield v. Dow, 
 
 V. Kichards, 39 N. H. 259 ; Jack v. 27 N. J. L. 440 ; ex parte Williams, 
 
 Morrison, 48 Penn. St. 113. But where 4 Yerg. (Tenn.) 579. 
 
164 STATUTE OF FEATJDS. [CHAP. IV. 
 
 is void, unless it be in writing. Suppose a man comfes with 
 another to a shop to bily goods, and the shopkeeper should 
 say, " I will not sell him the goods^ unless you will undertake 
 he shall pay me for them," such promise is within the stat- 
 ute ; otherwise, if the promisor had been the person to pay 
 for the goods originally. So here, detinue lies against Eng- 
 lish, the principal; and the plaintiif, having this remedy 
 against English, cannot have an action against the defend- 
 ant, the undertaker, unless there had been a note in writing. 
 This case mainly depended on the question, whether, at the 
 instant of making the promise, there was or was not an existing 
 liability/ in the party undertaken for. And it was the opinion 
 of all the judges upon the first argument, except PoWYS, that 
 the mere delivery of the horse to English generated no right 
 of action, nor could be regarded as any contract made with 
 him ; but that the right of action would arise, if it arose at 
 all, against the deliveree, by some matter subsequent to the 
 agreement, as a demand of the horse and a refusal, affording 
 a ground for the remedy by trover, which would depend upon 
 some act of detainment or conversion. But although this 
 could not have been denied if trover had been the only rem- 
 edy, yet, as detinue also lay, the gist of which was the origi- 
 nal delivery, implying a contract for the redelivery, and this 
 implied contract, and the act of delivery, and also the prom- 
 ise by the defendant, were all coincident in time, there was 
 every circumstance to support the construction of a collateral 
 promise. 
 
 Sec. 98. Form of Promise not Decisive of its Character. — 
 The form of expression used in making the promise does 
 not in all cases necessarily determine the question as to 
 whether the promise is an original or collateral undertaking,^ 
 
 ' Skinner v. Conant, 2 Vt. 453; agreed to pay for them, if delivered 
 
 Barrett v. McHugh, 128 Mass. 165. to B, in case B did not, it was held 
 
 If a promise is collateral to the agree- that the engagement of C was col- 
 
 ■ ment of another, it is immaterial lateral and void under the statute of 
 
 whether it was made before or after frauds, unless in writing, and that 
 
 the original contract was entered into, there was no joint liability of B and 
 
 as in either event it is within the C. Connolly v. Kettlewell, 1 Gill 
 
 statute unless in writirig. Glenn v. (Md.) 260. A promise to make or 
 
 Lehnen, 54 Mo. 45. Where B selected indorse a note with others to pay a 
 
 goods of A, and A refused to deliver debt of a third person is within the 
 
 them to B until he saw C, and C statute : State v. Shinn, 42 N. J. L. 138. 
 
SEC. 98.J 
 
 GUABANTIES. 
 
 165 
 
 nor does tlie circumstance that tlie promisee charges the debt 
 to the promisor on his books,^ determine the question, but 
 the circumstances attending the transaction at the time when 
 the promise was made are to be looked to, and from them in 
 connection with the language employed by the promisor, the 
 question as to whether the promisee gave credit solely to the 
 promisor, and had a right to do so, is to'^ be determined, and 
 in determining this question the intention of the promisee 
 to give credit solely to the promisee, is not material, and he 
 cannot be asked to whom credit was given ; but must state 
 the promise and the circumstances attending the making of 
 it, and from these the real intention of the parties are to be 
 found.2 It is for the jury to find what the real substance 
 and spirit of the undertaking between the party was, and if 
 there is any evidence to sustain their finding, it will be svis- 
 
 148. A promise, in consideration 
 that the promisee incurs & liability to 
 a third person, is an original promise 
 and not within the statute of frauds. 
 Underhill v. Gibson, 2 N. H. 352; 
 Doane v. Newman, 10 Mo. 69. 
 
 ' Barrett t>. McHugh, ante. In 
 Green v. Disbrow, 56 N. Y. 334, the 
 goods for which recovery was sought 
 were delivered and charged to the 
 defendant's son, on the books of the 
 plaintiff, and it was claimed that this 
 was conclusive evidence that they 
 were sold on his credit, but the plain- 
 tiff claimed that they were furnished 
 at the special instance and request of 
 the defendant and were charged to 
 the defendant's son for convenience, 
 and the court held, 7 Lans. (N. Y.) 
 389, that, while the fact that the 
 goods were so charged prima facie 
 established the fact that the sole credit 
 was not given to the defendant, yet 
 that it was not conclusive and might 
 be explained by showing that, while 
 the sole credit was given to the de- 
 fendant, yet they were charged to the 
 son to distinguish the article sold 
 from those sold to the defendant 
 personally. " It is always competent," 
 says Mjllek, P. J., " to explain acts 
 of this character, and where satis- 
 factorily done, there is no reason why 
 they should bear a different interpre- 
 
 tation from what is authorized by the 
 evidence." 
 
 2 Allen V. Scarff, 1 HUt. (N. Y. C. 
 P.) 209. In Hazen v. Bearden, 4 
 Sneed (Tenn.) 48, the defendant 
 authorized goods to be sold and de- 
 livered to a third person, and agreed 
 to be responsible therefor. The goods 
 were in fact charged to the third 
 person, and the account presented to 
 him for payment. It was held that 
 these facts were not conclusive to 
 discharge the defendant from liability 
 under the statute of frauds, but that 
 the plaintiff might satisfy the jury, if 
 he could, that the credit was nevei^ 
 theless given to the defendant; and a 
 verdict for the plaintiff was sustained. 
 The construction which the parties 
 themselves place upon an agreement 
 to be responsible for goods delivered 
 to a third person, is important and 
 often conclusive of its true character. 
 -If the credit is not given to the 
 person making such agreement, his 
 undertaking is collateral, and must be 
 in writing. Dixon v. Frazee, 1 E.D.S. 
 (N. Y. C. P.) 32. An agreement by 
 one partner that goods purchased of 
 the firm may be applied upon the 
 debt of one of the partners is not 
 within the statute. Bhodes v. Mc- 
 Kean, 55 Iowa, 647. 
 
166 STATUTE OF PBATJDS. [CHAP. IV. 
 
 tained.i The efPect of the form of expression, in deterinining 
 ■whether a promise is collateral or original, is illustrated in an 
 early English case.^ In that case. Holt, C. J., said : " If A 
 promises B, who is a surgeon, that if he wUl cure C of a 
 wound, he ' will see him paid,' ^ this is only a promise to pay 
 if C does not, and therefore it ought to be in writing. But 
 if A promise in such a case that he will b.e B's pay-master, 
 whatever he shall deserve, it is immediately the debt of A, 
 and he is liable without writing. In the case first put it is 
 clear that B will have a double remedy ; in the other case 
 the credit is considered as being giveh solely to A, and even 
 though C, by subsequent circumstances should render himself 
 liable for the debt, yet such liability not having existed at the 
 time of the promise would have no effect upon A's liability 
 upon his promise.* So if A promises B, that if he will do a 
 certain act, C shall pay him a certain sum, or that, if G does 
 not pay him, he (A) will, this is not a collateral promise, 
 unless C was privy to the contract, and recognized himself as 
 debtor also, because A, being the, sole debtor, his promise is 
 merely to pay his own debt." It is not possible to lay down 
 any rule in the abstract for the construction of these expres- 
 sions, but they must go to the jury, together with the attend- 
 ant circumstances, for them to find to whom the credit was 
 really given. And in determining the intention of the par- 
 ties, the situation, circumstances, and general responsibility 
 of the party promising will be regarded. But as bearing 
 upon the question to whom credit was given, it is not compe- 
 tent for the plaintiff to show the pecuniary inability of the 
 person in whose behalf the promise was made, as tending to 
 show the improbability of his having given any credit to him, 
 nor that the defendant had paid debts of such person under 
 similar circumstances.^ 
 
 Sec. 99. Attendant Circumstances to be Regarded. Rule in 
 Anderson v. Hayman. — The doctrine stated supra that the at- 
 tendant circumstances, the situation and general responsibility 
 
 ' Heywood v. Styles, 124 Mass. 275. * Green v. Disbrow, ante. 
 
 2 Watkins v. Perkins, Lord Eaym. ^ Anderson v. Hayman, 1 H. Bl. 
 224. 120 ; also by Keate v. Temple, 1 B. 
 
 3 Green v. Disbrow, 56 N. Y. 334; & P. 158. 
 reversing the ruling on tliis point, in 
 
 the General Term, 7 Lans. 389. 
 
SEC. 99.] GUAEANTIBS. 167 
 
 of the promisor will be looked at, is well illustrated and fully 
 supported by an English case.^ In that case the plaintiff was 
 a woollen draper in London, and employed one Biffin as a rider 
 (commercial agent) to receive orders from his customers in the 
 country. The defendant requested Biffin to write the plaintiff, 
 to request him to supply the defendant's son, who traded in 
 the West Indies, with whatever goods he might want, on his, 
 the defendant's credit, saying at the same time, "use my son 
 well, charge him as low as possible, and I will be bound for 
 the payment of the money, as far as £800 or £1000." Biffin 
 accordingly wrote to the plaintiff the following letter : " Mr. 
 Hayman of this town says, his son wiQ call on you, and leave 
 orders ; and he has promised me to see you paid, if it amounts 
 to £1000. N. B. If deal for twelve months' credit, and pay in 
 6 or 8 months, expects discount in proportion." Soon after- 
 wards the son received the goods from the plaintiff to the 
 amount of £800, which were delivered to him in conse- 
 quence of the engagement of the father above mentioned. 
 The son was debited in the plaintiff's books, and being ap- 
 plied to for payment, wrote an answer to the plaintiff, as fol- 
 lows : " Your favor of the 27th past has been forwarded to 
 me from Ostend, in answer to which I can only say, that I 
 understand your credit for the goods was twelve months, 
 which was also mentioned by your rider to my father. I 
 shall at this rate make you remittances for the different par- 
 cels, as they become due." 
 
 The son afterwards became a bankrupt, and this action 
 was brought against the father to recover the value of the 
 goods. — Heath, J., who tried the cause, directed the jury 
 to consider whether the plaintiff gave credit to the defendant 
 alone, or to him toff ether with his son; that in the latter case, 
 they should find a verdict for the defendant ; in the former, 
 for the plaintiff ; being of opinion, that if any credit was given 
 to the son, the promise of the defendant, not being in writ- 
 ing, was void by the statute of frauds. \ A verdict was found 
 for the defendant, and a rule nisi was obtained to set it 
 aside ; but the court were clearly of opinion that this prom- 
 ise was within the statute, as it appeared by the letter of 
 Hayman the younger, that credit was given to him, as well 
 
 I Anderson v. HaTman, 1 H. Bl. 120. 
 
168 STATUTE OP FRAUDS. [CHAP. TV. 
 
 as to the defendant his father, and the rule was accordingly 
 discharged. i 
 
 Sec. 100. Rule in Keate V. Temple. — In a subsequent 
 case ^ it appears that, in collecting the true state of the 
 transaction, and ascertaining the fact, whether the party- 
 promising intended only to come in aid ^f the liability 
 of the person on whose account he promised, or to become 
 himself immediately responsible, the court will not only 
 consider the expressions used, but will also regard the par- 
 ticular situation of the defendant at the time of his under- 
 taking ; and will compare the amount ^ the sum in question 
 with the circumstances of the party. 7*his action was brought 
 for goods sold and delivered, and wptk and labor, with the 
 common money counts, to which me general issue of non-- 
 assumpsit was pleaded. The cause was tried before Law- 
 EENCE, J. It appeared that the plaintiff was a tailor and 
 slopseller at Portsmouth, and th© defendant the first lieuten- 
 ant of his majesty's ship, the Boyne. When the ship came 
 into port, the defendant applied to a third person to recom- 
 mend a slopseller who might supply the crew with new clothes, 
 sajdng, " he wUl run no risk. Twill see him paid " ; the plain- 
 tiff being accordingly recommended, the defendant called 
 upon him, and used these words, " I will see you paid at the 
 pay-table ; are you satisfied ? " The plaintiff answered, "per- 
 fectly so." The clothes were delivered on the quarter-deck 
 of the Boyne; slops are usually sold on the main-deck; the 
 plaintiff produced samples to ascertain whether his direc- 
 tions had been followed; some of the men said that they 
 were not in want of any clothes, but were told by the defend- 
 ant that if they did not take them he would punish them ; 
 and others, who stated that they were only in want of part 
 of a suit, were obliged to take a whole one, with anchor but- 
 tons to the jacket, such as are usually worn by petty officers. 
 The clothing of the crew in general was light and adapted to 
 the climate of the West Indies, where the ship had been last 
 stationed. Soon after the delivery the Boyne was burnt, and 
 the crew dispersed into different ships on that occasion. The 
 plaiutiff having e?:pressed some apprehensions for himself, 
 the defendant saidj to him, " Captain Grey (the captain of the 
 ' Keate v. Temple, 1 B. & P. 158. 
 
SEC. 100.] GTTAJIANTIES. 169 
 
 Boyne) and I will see you paid ; you need not make yourself 
 uneasy." After this the commissioner came on board the 
 Commerce de Marseilles, in order to pay the crew of the 
 Boyne, at which time the defendant stood at the pay-table, 
 and having taken some money out of the hat of the first 
 man who was paid, gave it to the plaintiff; the next man 
 refused to part with his pay, and was immediately put in 
 irons. The defendant then asked the commissioners to stop 
 the pay of the crew, who answered that it could not be done. 
 
 The judge in his directions to the juty said, that if they 
 were satisfied on the evidence, that the goods in question 
 were advanced on the credit of the defendant, as immediately 
 responsible, the plaintiff was entitled to a verdict ; but if they 
 believed that at the time when the goods were furnished, the 
 plaintiff relied on being cMe, through the assistance of the 
 defendant, to get his money from the crew, they ought to 
 find for the defendant.^ The jury returned a verdict for the 
 plaintiff for £576 7s. Bd., the whole amount of his claim. 
 A rule for a new trial having been obtained, on the ground 
 of the defendant's undertaking being within the statute of 
 frauds, the counsel for the plaintiff contended that the only 
 question in the case had been left to the jury, and decided 
 by them, viz., whether the sailors were liable in the first in- 
 stance, and the defendant only came in aid of their liability ; 
 or whether the defendant was immediately responsible. They 
 said that if the Boyne had been burnt before the delivery of 
 the goods, the plaintiff would have had no communication 
 with the crew, and of course no ground of action against 
 them : if, therefore, they were not liable on the original con- 
 tract, the subsequent delivery would not shift the credit 
 upon them. 
 
 Eyre, C. J., said : " There is one consideration independent 
 of every thing else, which weighs so strongly with me, that 
 I should wish the evidence to be once more submitted to a 
 jury. The sum recovered is ^£576 7s. %d., and this against a 
 lieutenant in the navy : a sum so large, that it goes a great 
 
 1 The question to whom the credit 76 Penn. St. 97 ; Dean v. Tallman, 105 
 
 was giren is for the jury. Pettit v. Mass. 443. But this case shows that 
 
 Braden, 55 Ind. 201 ; Bloom v. Mc- in determining the question they must 
 
 Grath, 53 Miss. 249; Moshier v. Kit- regard the circumstances attending 
 
 chell, 87 111. 18; Castlemanv. Harnish, the transaction. 
 
170 STATUTE OF PEAUDS. [CHAP. IV. 
 
 way towards satisfying my mind, that it never could have 
 been in the contemplation of the defendant to make himself 
 liable, or of the slopseller to furnish the goods on his credit, 
 to so large an amount. I can hardly think that, had the 
 Bojrne not been burnt, and the plaintiff been asked whether 
 he would have the lieutenant or the crew for his pay-master, 
 but that he would have given the preference to the latter. 
 The circumstances of this case create some prejudices against 
 the defendant, but which I think capable of explanation. 
 There is some appearance of harshness in making the men 
 purchase these clothes against their inclination. But it was 
 in evidence, that though they were pretty well clothed, yet 
 their clothes were adapted to a warm climate, rather than to 
 the service in which they were to be engaged. It was there- 
 fore the bounden duty of the officer to take some course to 
 oblige the crew to purchase proper necessaries. "We all know 
 that a sailor is so singular a creature, so careless of himself, 
 that he cannot, though his life depend upon it, be prevailed 
 upon, without force, even to bring up his hammock upon 
 deck to be aired. We know that he will risk any danger, in 
 order to employ his money in a way that he likes, rather than 
 let it out in that provident method which his situation may 
 require. The whole of the imputation then on the defen- 
 dant and Captain Grey amounts to this, that when the men 
 were to be clothed, they wished them to be somewhat well- 
 dressed. I do not know but that this circumstance may have 
 had some influence with the jury. But I do not feel the 
 force of it, when opposed to the weight of the evidence on 
 the other side, so as to make the officer liable for so large a 
 sum. From the nature of the case it is apparent, that the 
 men were to pay in the first instance ; the defendant's words 
 were, ' I will see you paid at the pay-table ; are you satis- 
 fied ? ' and the answer then was, ' perfectly so.' The mean- 
 ing of which was, that however unwilling the men might be 
 to pay themselves, the officer would take care that they should 
 pay. The question is, whether the slopman did not in fact 
 rely on the power of the officer over the fund out of which 
 the men's wages were to be paid, and did not prefer giving 
 credit to that fund to giving credit to the lieutenant, -who, if 
 we are to judge of him by others in the same situation, was 
 
SEC. 102.] GT7ABANTIES. 171 
 
 not likely to be able to raise so large a sum. Considering 
 the whole bearing of the evidence, and that the learned judge 
 who tried the cause has not expressed himself satisfied with 
 the verdict, I think this a proper case to be sent to a new 
 trial." 
 
 Sec. 101. Statute does not Apply to Ouaremty of Specialty 
 Debts. — The statute applies only to promises, and does not 
 apply to instruments under seal.^ Therefore it has been held 
 that a promise by the vendor of railroad bonds, that if a per- 
 son will buy them he will guarantee them, is an original under- 
 taking, and not within the statute,^ and that a guaranty by 
 one railroad company of the bonds of another is not within 
 the statute, and is enforceable, although it is claimed that 
 such guaranty is ultra vires, and that the consideration does 
 not appear.* 
 
 Sec. 102. Must be Consideration for the Promise, Instances of. 
 — There must be a sufficient consideration for a promise to pay 
 the debt of another as well as for any other promise, otherwise 
 it will not be binding though reduced into writing. A guaranty 
 must have a consideration to support it. If it is made at the 
 time of the contract to which it relates so as to constitute a 
 part of the consideration of the contract, it is sufficient ; but 
 if the guaranty is subsequent to the contract, there must be a 
 distinct consideration to support it,* otherwise it is void. 
 
 1 Williams v. Springs, 7 Ired. raneous with the making of the con- 
 (N. C.) L. 384 ; Ward u. Ely, 1 Dev. tract, the consideration of the contract 
 (N. C.) L. 372 ; Livingston ti. Tremper, supports the promise; but where the 
 4 John. (N. Y.) 416. promise is made subsequently thereto, 
 
 2 Allen V. Eighme, 21 N. Y. S. C. it is distinct therefrom, and requires a 
 559. distinct consideration. Thus, a surety 
 
 8 Amot V. Erie E. B. Co., 67 N. Y. for the payment of rent signed an 
 
 315. agreement indorsed upon the back of 
 
 * Bason v. Hughart, 2 Tex. 476 ; the lease as follows : " I guarantee the 
 
 Beebe t>. Moore, 3 McLean (XJ. S.) 387 ; payment of the rent, as stipulated by 
 
 How V. Kimball, 2 id. 103 ; Leonard v. said F, in case of non-payment by 
 
 Vredenburgh, 8 John. (N. Y.) 29; Col- him." In an action by the lessor, 
 
 bum V. Tolles, 14 Conn. 341 ; Cook v. against the lessee and surety, for the 
 
 Elliott, 34 Mo. 586 ; Lines v. Smith, 4 rent, it was held that the undertaking 
 
 Flo. 47; Tennay v. Prince, 4 Pick, of the guarantor was distinct from 
 
 (Mass.) 383; Joslyn v. CoUinson, 26 that of the principal, and collateral 
 
 111. 61 ; Ware •». Adams, 24 Me. 177 ; thereto, and that the parties were 
 
 Gilligan v. Boardman, 29 id. 79 ; Mc- improperly joined : Virden v. Ells- 
 
 Kinney v. Guilter, 4 McCord (S. C.) worth, 15 Ind. 144. In such a case, 
 
 409. Where the promise is contempo- if there is no distinct consideration, 
 
172 
 
 STATUTE OF PEAUDS. 
 
 [chap. 
 
 IT. 
 
 Thus, when A has sold and delivered goods to B, and after- 
 wards C promises A in writing to pay for them, this promise 
 
 the promise is within the statute. 
 Furbish v. Goodnow, 98 Mass. 296; 
 Fowler v. Moller, 4 Bos. (N. Y.) 149. 
 It was held that a promise by the as- 
 signee of a lease to the landlord, that 
 if the latter will permit him to remain 
 in possession of the premises, he will 
 pay the arrears of rent due from the 
 lessee, is a collateral promise, and if 
 not in writing, is void by the statute 
 of frauds. In Leonard v. Vreden- 
 burgh, 8 John. (N. T.) 29, where A 
 applied to B for goods on credit; and 
 B refused to let him have them with- 
 out security, on which A drew a note 
 for the amount, under which C wrote 
 "I guarantee the above," and the 
 goods were then delivered, it was held 
 that this was a collateral undertaking 
 of C ; but that, as the transaction was 
 one and entire, the consideration pass- 
 ing between A and B was sufficient to 
 support as well the promise of C as 
 that of A, and no distinct considerar 
 tion passing between B and C was 
 necessary. In Bailey v. Freeman, 11 
 id. 221, B, by a written agreement, 
 promised to deliver to A a certain 
 quantity of goods, and also to pay the 
 costs on an execution issued by A 
 against B, which B was to have re- 
 turned nulla bona ; and F, at the bot- 
 tom thereof, signed a written guaranty 
 as follows : " I guarantee the perform- 
 ance of the above agreement," it was 
 held : 1. That the guaranty of F was an 
 original collateral agreement, and not 
 a promise to pay a previously subsist- 
 ing debt of B. 2. That the agreement 
 and the guaranty formed an entire 
 contract, including the consideration 
 stated in the agreement to which the 
 guaranty referred ; and that, if no con- 
 sideration had been expressed in the 
 principal agreement, it might be shown 
 by parol. In "Wakefield v. Greenhood, 
 29 Cal. 597, it was held that a promise 
 by a forwarder of goods to a common 
 carrier to pay any draft on himself by 
 the consignee for the transportation 
 of the goods, was a collateral under- 
 
 taking, and within the statute. In 
 Crane v. Bullock, K. M. Charlt (Ga.) 
 818, a married woman drew a bill on 
 A, who accepted the same, payable 
 " when in funds." Afterwards B, who 
 was trustee of the separate property 
 of the drawer under a marriage settle- 
 ment, wrote upon the bill, " I will have 
 this paid out of the next crop/' and 
 signed his name as trustee. In an ac- 
 tion by the payee against B, it was 
 held that there was no consideration 
 for the promise, and that it was within 
 the statute of frauds. A writing in this 
 form : " Mr. J S will apply to you for 
 the rent and disposal of your building 
 now in charge of D M ; any arrange- 
 ment he can make with you as regards 
 renting the same I will be responsible 
 for," signed " J D S," is a direct and 
 original promise to pay, if such ar- 
 rangement should be made, and not 
 collateral : Bates v. Starr, 6 Ala. 697. 
 And, generally, a parol agreement of 
 a grantee to pay a debt of the grantor, 
 made as part of the consideration, is 
 not an undertaking to "answer for 
 debt or default of another " : Jen- 
 nings V. Crider, 2 Bush (Ky.) 322; 
 McLaren u. Hutchinson, 22 Cal. 187; 
 Euhling V. Hackett, 1 Nev. 360 ; Berry 
 V. DoremuB, 30 N. J. L. 399 ; Seaman 
 V. Hasbrouck, 35 Barb. (N. T.) 151 ; 
 but if made after the debt is con- 
 tracted, it is collateral. Thus, while 
 the mother of the defendants resided 
 in the plaintiffs house at a stipulated 
 annual rent, the defendants promised, 
 verbally, to pay the rent while she 
 continued to occupy it, it was held 
 that this promise was collateral, and 
 consequently void, because the con- 
 tract had already been made, and its 
 performance entered upon by the 
 mother and the plaintiff, so that it 
 could not be said that the defendants' 
 promise was based upon the original 
 consideration, or that credit was given 
 solely to him; Moses v. Norton, 36 
 Me. 113. 
 
SBC. 102.] GUARANTIES. 173 
 
 is a mere nudiim pactum and void, because it was so at the 
 common law, hnd the statute makes no alteration.i But if C 
 had requested A to forbear to sue B for the debt, and A had 
 forborne accordingly, that was a good consideration at the com- 
 mon law to support such promise,^ and is good since the statute 
 if the promise be in writing,^ but not otherwise. Where the con- 
 tract is in writing, any consideration in the nature of forbear- 
 ance,* as the continuance of an action ^ or any postponement 
 of the promisee's remedy is sufficient.® But this does not seem 
 to be the case where the promise is made to secure delay in 
 the enforcement of a final process, as an execution,^ although 
 there seems to be no good reason for this distinction. In 
 order that a forbearance of suit may be a good consideration, 
 it must appear that the promisee had an immediate cause of 
 action at the time when the promise was made^ and it must also 
 be shown that the promisee agreed to forbear, and the mere 
 circumstance that he did so does not suffice,^ although actual 
 forbearance is prima facie proof of an agreement to do so,^" 
 and the burden is upon the promisor to show that no such 
 agreement was in fact made.^^ Where the promisor is to 
 
 > Sadler v. Hawkes, 1 EoU. Abr. ^ Stewart ». McGuin, 1 Cow. (N.Y.) 
 
 27 PI. 49; Forth v. Stanton, 1 Wms. 99; Thomas v. Croft, 2 Rich. (S. C.) 
 
 Saund. 227 ; Barrell v. Trussell, 4 L. 113 ; Etting v. Vanderlyn, 4 John. 
 
 Taunt. 117; French U.French, 2 Man. (N. Y.) 237; Mapes v. Stanley, Cro. 
 
 &Gr.644; Boydt). Moyle,2C.B.844; Jac. 183. But see, holding that a 
 
 Saunders k. Wakefield, 4 B. & Aid. promise to pay if the creditor would 
 
 595; Pillans v. Van Mierop, 3 Burr, discontinue an action he had brought 
 
 1663 ; Westhead v. Sproson, 30 L. J. against the principal debtor is not 
 
 Ex. 265. sufficient. Nelson v. Boynton, 3 Met. 
 
 2 Sadler v. Hawkes, 1 Roll. Abr. 27. (Mass.) 396; Lieber v. Levy, 3 Met. 
 
 » ICing V. "Wilson, Str. 873; Fish v. (Ky.) 292. 
 
 Hutchinson, Bull. N. P. 281 ; 2 Wils. « Templeton v. Bascom, 33 Vt. 132 ; 
 
 94. Bunting v. Darbyshu-e, 75 III. 408. 
 
 * Harrington v. Uioh, 6 Vt. 666 ; ' McKinney v. Guilter, 4 McCord 
 
 Pratt ... Humphrey, 22 Conn. 317; (S. C.) 409. 
 
 Smith f. Finch, 3 111. 321 ; Taliaferro 8 Martin v. Black, 20 Ala. 309. 
 
 V. RofE, 2 Call. (Va.) 258; Rann v. » Sage v. Wilcox, 6 Conn. 81; 
 
 Hughes, 7 T. R. 350 ; Thomas u. Croft, Breed v. Hillhouse, 7 id. 523; Mc- 
 
 2 Rich. (S. C.) 113 ; Barber v. Fox, 2 Comey v. Stanley, 8 Cush. (Mass.) 85 ; 
 
 Saund. 136; Martin v. Black, 20 Ala. Walker v. Sherman, 11 Met. (Mass.) 
 
 309 ; Parish v. Wilson, Peake, 73 ; 170 ; Crolts v. Beale, 11 C. B. 172. 
 
 Killian v. Ashley, 24 Ark. 511 ; Phil- w Breed v. Hillhouse, ante. 
 
 pot V. Briant, 4.Bing. 717; Kean v. n Watson v. McLaren, 19 Wend. 
 
 McKinsey, 2 Penn. St. 30; McAlvey (N. Y.)557; Jones w. Palmer, 1 Dougl. 
 
 V. Noble, 13 Rich. (S. C.) 330; Sage (Mich.) 379; Miller v. Cook, 23 N. Y. 
 
 V. Wilcox, 6 Conn. 81 ; Kershaw v. 495 ; Connecticut &c. Ins. Co. v. Cleve- 
 
 Whittaker, 1 Brev. (S. C.) 9. land &c. E. R. Co., 41 Barb. (N. Y.) 
 
174 STATUTE OF FRAUDS. [CHAP. IV. 
 
 derive a direct benefit from the forbearance of a person to 
 enforce his claim, it affords a good consideration for the prom- 
 ise. Thus it has been held that a promise made by one 
 creditor to pay the claim of another against their mutual 
 debtor, if the latter would forbear testing the validity of a 
 judgment which the former had obtained against the debtor, 
 is an original undertaking, and not within the statute.^ So 
 where A, having shipped goods on a vessel which were dam- 
 aged on the passage, was about to call the port-warden to view 
 the goods in order to charge the ship-owners with the loss, 
 and the agent of the ship-owners promised to pay him the 
 amount of the loss if he would sell the goods at auction with- 
 out such view, it was held that the promise was not within 
 the statute.^ But where the indorser of a note, who had been 
 discharged from his liability thereon by the laches of the 
 holder, promised him to pay the note if he would forbear to 
 sue the maker, it was held that there was no such inde- 
 pendent consideration as would take the promise out of the 
 statute.^ A promise in consideration that the creditor will 
 forbear attaching the property of the debtor,* or will stay 
 proceedings on an execution he was about to levy on the 
 debtor's property, is within the statute.^ But it has been 
 held that a promise to pay any deficiency, etc., in considera- 
 tion that a mortgagee would stay the execution of a fore- 
 closure judgment is not within the statute where the party 
 making the promise has an interest to be subserved.® A parol 
 promise of a husband to pay a debt of his wife,'^ or of a wife 
 to pay a joint bond of herself and her husband, the bond 
 
 9; Caldwell v. McKain, 2 N. & M. Huntington v. Harvey, 4 id. 124; El- 
 
 (S. C.) 555; Woodward u. Pickett, lison u. Wisehart, 29 Ind. 32; Jones 
 
 Dudley (S. C.) 30; Brown v. Bussey, v. "Walker, 13 B. Men. (Ky.) 356; 
 
 7 Humph. (Tenn.) 573; Hall v. Rod- Turner v. Hubbell, 2 Day (Conn.) 
 
 gers, id. 536 ; Cooper v. Dedrick, 22 457. 
 
 Barb. (N. Y.) 516; Day v. Elmore, 4 * Waldo v. Simonson, 18 Mich. 
 
 Wis. 100; Cheney v. Cook, 7 Wis. 345. 
 
 413. 6 Van Slyok v. Pulver, H. & D. 
 
 ' Smith V. Eogers, 35 Vt. 140 
 
 Ferris v. Barlow, 1 Aik. (Yt.) 100 
 
 Templeton v. Bascom, 33 Vt. 132 
 
 Pratt V. Humphrey, 22 Conn. 317 
 
 Supp. (N. Y.) 47 ; Stem v. Drinker, 2 
 E. & G. (N. Y. C. P.) 401 ; Durham 
 V. Arledge, 1 Strobh. (S. C.) 5. 
 
 ^ Johnson v. Noonan, 16 Wis. 687. 
 
 Fish V. Thomas, 5 Gray (Mass.) 45. ' Bagley v. Sasser, 2 Jones (N. C.) 
 
 2 Travis v. Allen, 1 S. & P. (Ala.) Eq. 350 ; Miller u. Long, 45 Peun. St. 
 
 192. 350; Cole v. Shurtliff, 41 Vt. 311. 
 8 Peabody v. Harvey, 4 Conn. 119 ; 
 
SEC. 104.] GUABANTIBS. 175 
 
 being void as to herself,^ is within the statute, and the rela- 
 tion of the parties affords no consideration therefor. 
 
 Sec. 103. Consideration KTeed not Move Directly Between 
 Parties. — It is not necessary, if the promise is a parol or in 
 writing, that there should be a consideration directly moving 
 between the persons giving and receiving the guaranty. It 
 is enough if the person for tvhom the guarantor becomes surety 
 has benefit, or the person to whom the guar'anty is given suffers 
 inconvenience as an inducement to the surety to become guar- 
 antee for the principal debtor.^ If the promise was made 
 upon a consideration which was good at the time the prom- 
 ise was made, the fact that it subsequently fails does not 
 impair the validity of the promise or bring it within the 
 statute. 
 
 Sec. 104. Consideration must be New. — The promise must 
 be made on a new consideration; a past or executed con- 
 sideration is bad.^ But a promise on a future or executory 
 consideration is good, although an existing debt is guaran- 
 teed against. Thus, where the defendant gave the following 
 note to the plaintiff which he dated and signed: "I hereby 
 guarantee the present account of Miss H M due to R T S 
 ' and Co. (the plaintiffs), of £112 4s. 4(i., and what she 
 may contract from this date to the 30th September next ; " it 
 was held that there was a sufficient consideration.* So also 
 
 1 Guishaber v. Hairman, 2 Bibb len v. Thompson, 10 N. H. 82 ; Spann 
 (Ky.) 320; Thwaits i>. Curl, 6 B. Men. v. Baltzell, 1 Ma. 301; Lemmon v. 
 (Ky.) 472. Box, 20 Tex. 329; Huber v. Ely, 45 
 
 2 Morley u. Boothby, 3 Bing. 113, Barb. (N. Y.) 169; Small t>. Schaeffer, 
 per Best, C. J. ; and see ex parte 24 Md. 143 ; Smith v. Finch, 3 111. 321 ; 
 Minet, 14 Ves. 189; Pillans v. Van Hindmanu.Langford.SStrobh. (S.C.) 
 Mierop, 3 Burr. 1663. The rule, as 207; Todd v. Tobey, 29 Me. 219; 
 enunciated by Kent, Oh., in Leonard Oldershaw v. King, 2 H. & N. 399, 
 V. Vredenburg, 8 John. (N. Y.) 29, is 517 ; Wynne v. Hughes, 21 W. K. 628. 
 that a parol agreement to pay the ' Hunt v. Hughes, Dyer, 272 a; 
 debt of another is not within the Payne o. "Wilson, 7 B. & C. 423; 
 statute, if the promise arises from some Thomas v. Williams, 10 B. & C. 664; 
 new consideration of benefit or harm Tomlinson v. Gell, 6 A. & E. 564; 1 
 moving between the parties thereto, and N. & P. 588; Eastwood v. Kenyon, 11 
 this seems to be the generally recog- Ad. & El. 438 ; 3 P. & D. 276 ; Erench 
 nized rule. Meeck v. Smith, 7 Wend. v. French, 2 Man. & Gr. 644 ; Johns- 
 (N. Y.) 315; Cross v. Eichardson, 30 ton v. NichoUs, 1 C. B. 251 ; Broom v. 
 Vt. 641 ; Reed v. Holcomb, 31 Conn. Batchelor, 1 H. & N. 255. 
 
 360; Dauber v. Blackney, 38 Barb. * Russell w. Moseley, 6 Moo. 521; 
 
 (N. Y.) 432; Dyer v. Gibson, 16 Wis. 6 Brod. & B. 211. 
 557; Mason v. Hall, 30 Ala. 599; Al- 
 
176 STATUTE OF FEATIDS. [CHAP. IV. 
 
 the consideration was held to be .sufficient on the following 
 guaranty: "In consideration of your agreeing to supply S 
 with goods upon credit, in the way of your trade (the amount 
 to be in your own discretion), I hereby guarantee you the. 
 due and regular payment of such sum or sums as he may 
 now, or at any time, and from time to time hereafter, owe to 
 you; my liability under this guaranty is to be limited to 
 principal sum in running account of & 100.^ The distinction 
 between the effect of a promise made hefor& a debt is con- 
 tracted and one made afterwards is illustrated by a Massachu- 
 setts case,^ in which it was held that a promise made by one 
 person to pay for a dinner furnished to others, made while 
 they are in the act of eating it, was within the statute, and 
 that the circumstance that relying upon such promise the 
 plaintiff forbore to collect the pay for the dinner from the 
 persons who were eating it, gave no additional force to the 
 promise. But a verbal promise made by A before a meal is 
 furnished to B, that he wiH pay for it, is an original under- 
 taking and valid.^ The employment of a third person is a 
 sufficient consideration to support a promise to answer for 
 his default. The party indemnified is not bound to employ 
 the person designated by the guaranty ; but if he does em- 
 ploy him, then the guaranty attaches, and becomes binding 
 on the party who gave it.* 
 
 Sec. 105. Consideration Need not Appear in the Guaranty. — 
 
 Formerly it was necessary that the consideration for the 
 promise, as well as the promise itself, should appear on the 
 face of a guaranty .^ This rule was doubted in several cases,^ 
 but was finally settled in Saunders v. Wakefield.'^ It proved, 
 however, to be a grievance to the mercantile community ; * 
 and now it is provided in England and several of the States 
 in this country that the consideration need not be stated. 
 
 1 White !). 'Woodward, 5 C. B. 810; Armstrong, 6 Bing. 201; Lysaght v. 
 and see Stead v. Liddard, 1 Bing. 196 ; Walker, 6 Bligh (N. E.) 1 ; Offlord v. 
 Coe V. Duffield, 7 Moo. 252 ; Chapman Davies, 12 C. B. (N. S.) 748. 
 
 V. Sutton, 2 C. B. 644 ; Boyd v. Moyle, ^ "Wain v. Warlters, 5 East, 10. 
 
 2 C. B. 644. 6 Ex parte Minet, 14 Ves. 189; ex 
 
 2 Tilcston V. Nettleton, 6 Pick, parte Gardom, 15 Ves. 286; Phillips 
 (Mass.) 509. v. Bateman, 16 East, 356 ; Goodman 
 
 ' Porter v. Langhom, 2 Bibb (Ky.) v. Chase, 1 B. & Aid. 300. 
 63. ' 4 B. & Aid. 595. 
 
 * Kennaway v. Treleavan, 5 M. & s i Wms. Saund. 227. 
 W. 498, per Pakke, B. ; Newbury v. 
 
SBC. 106.] GTJAEANTLES. 177 
 
 This is the case in Illinois, Indiana, Massachusetts, Michi- 
 gan, Kentucky, Nebraska, New Jersey, and Virginia, while 
 in Minnesota, Montana, Nevada, New York, Oregon, Utah, 
 and Wisconsin the statute expressly provides that the consid- 
 eration must be expressed in the writing, while in the others 
 no provision in this respect is made, and the matter rests upon 
 the construction of the courts. 
 
 These statutes are not retrospective, ^ nor do they exempt 
 guaranties from the application to them of the ordinary rule 
 of evidence with reference to written instruments, except in 
 so far as they allow the terms constituting the consideration 
 to be added by parol. By the ordinary rules of evidence 
 proof of the actual consideration is admissible in cases of 
 patent ambiguity, where the language of the instrument 
 renders it uncertain as to which of two or more matters 
 severally mentioned therein was the consideration upon which 
 it was given.2 But, though parol evidence may supply the 
 consideration for a guaranty, it cannot be admitted to explain 
 the promise, which must still be in writing,^ because opposed 
 to the rule that parol evidence cannot be admitted to change 
 the terms of a written contract. 
 
 Sec. 106. Special Consideration not KTecesBary. — In the 
 case of guaranties, while a consideration is required to sup- 
 port them, yet they do not necessarily require a special or 
 separate one, Chancellor Kent, in a New York case,* 
 divides the consideration of guaranties into three classes : — 
 
 1. Where the promise is made at the same time that the debt is 
 created. 
 
 2. Where the promise is made subsequent to the creation of the 
 debt; and 
 
 3. Wliere the promise arises out of some new and original consid- 
 eration of benefit or harm, moving between the promisor and prom- 
 isee. 
 
 It will not be necessary to consider these matters extend- 
 edly here, as they are considered elsewhere in this chapter 
 quite fully, but it may be said as to the first class that the 
 same consideration which supports the principal debt supports, 
 the promise. As to the second, a valid consideration beyond. 
 
 > Taylor on Evid. 6th ed. 905. 361 ; 28 L. J. C. P. 301. 
 
 a 1 Sm. L. C. 7th ed. 816. * Leonard v. Vredenburgh, 8 John. 
 
 8 Holmes «. Mitchell, 7 C.B. (N. S.) (N. Y.) 29. 
 
178 STATUTE OF PKAUDS. [CHAP. IT. 
 
 that upon which the original debt was created must appear 
 or be showii,^ while as to the third, the contract being origi- 
 nal does not come within the statute at all. 
 
 Sec. 107. Parol Evidence Admissible to Identify Subject- 
 matter of Promise. — Parol evidence is admissible to identify 
 the subject-matter in respect o£ which the promise is made ; 
 as, for instance, to explain what is meant by " the promissory 
 note,"' there not being evidence of any other note to which 
 the words could apply .^ Where the defendant wrote to the 
 plaintiff's attorney, who was about to sue one David WiUiams 
 for a debt due to the plaintiff : " Sir, — The bearer, David 
 Williams, has a sum of money to receive from a client of 
 mine some day next week, and I trust you will give him 
 indulgence till that day, when I undertake to see you paid," 
 — it was held that parol evidence was admissible to identify 
 the amount of the debt.* Although the guaranty is binding, 
 notwithstanding that the consideration does not appear on 
 the face of it, yet the consideration must be proved.* 
 
 Sec. 108. Bad Promise not Helped by Statute.— The statute 
 does not make a promise good which was not good before,® 
 nor place the promisor's liability on any different basis than 
 that of the person promised for, and if the consideration 
 stated is bad, the guaranty will not be helped by the statute.^ 
 A promise to answer for the debt of another, even though 
 not within the statute, does not impose any greater liability 
 upon the promisor than existed against the person for whom 
 the promise is made ; consequently where the promise is to 
 answer for another upon a contract, no action lies against the 
 promisor while the contract remains unperformed.^ This 
 rule is well illustrated by a Vermont case,^ in which the 
 defendant while the plaintiff, a physician, was attending his 
 
 1 Ware v. Adams, 24 Me. 177 ; explain a written instrument, post. 
 Crane v. Bulloch, R. M. Charlt (Ga.) chapter on the Memorandum or note 
 318 ; Gillighan v. Boardman, 29 Me. in writing. 
 
 79; Huntress v. Patten, 20 id. 28; ^ Glover u. Halkett, 2 H. & N. 489. 
 
 DeWolfti.Robsand, IPet. (N.S.)466; 5 Holmes «. Mitchell, 7 C. B. 
 
 ElHott V. Gresse, 7 H. & J. (Md.) 457. (N. S.) 361 ; 28 L. J. C. P. 30, per 
 
 2 Shortrede v. Cheek, 1 Ad. & El. Btles, J. 
 
 57; 3 N. & M. 866. ^ Wood v. Priestner, L. E. 2 Ex. 
 
 8 Bateman v. Phillips, 15 East, 272 ; 71, per Bramwall, B. 
 
 add see Brunton v. DuUens, 1 P. & F. ' Baker v. IngersoU, 39 Mich. 158. 
 
 450. See further as to the admis- ^ Smith u. Hyde,. 19 Vt. 54. 
 sibUity of parol evidence to vary or 
 
SEC. 110.] GUARANTIES. 179 
 
 father and mother under a contract with the father that 
 "if there was no cure, there should be no pay," executed to 
 the plaintiff a writing by which he agreed to be " holden " to 
 him "for the payment of his bill for medicine and attend- 
 ance " upon his father and mother, and it was held that the 
 undertaking of the defendant was collateral merely to the 
 contract beween his father and the plaintiff, and could not 
 be enforced against him, unless it could also be enforced 
 against the father under the contract. 
 
 Sec. 109. statement of Consideration. — If there is a good 
 consideration, it is not necessary that it should appear in 
 express terms ; it will he sufficient in any case, if the memoran- 
 dum is so framed that any person of ordinary capacity must 
 infer from the perusal of it that such and no other was the 
 consideration upon which the undertaking was given} Where 
 the plaintiff, having shipped goods to R S, refused to deliver 
 the bill of lading to him without a guaranty, upon which the 
 defendant enclosed a bill — accepted by R S — in a letter to 
 the defendant, in which he stated that R S having accepted 
 the biU, he gave his guaranty for the due payment of it, in 
 case it should be dishonored, it was held that the considera- 
 tion was suflSciently expressed upon the guaranty.^ 
 
 Sec. 110. Amount of Consideration. — The adequacy of the 
 consideration will not he taken into account, so long as there 
 is any consideration at all? The courts refuse to enforce a 
 contract only where it is nudum pactum, that is to say, where 
 there is an absence of consideration, not where the considera- 
 tion is inadequate merely, for the law has nothing to do with 
 the prudence or imprudence of the bargain.* The following 
 memorandum, signed by the defendant, was held to be suffi- 
 cient to charge him within the statute : "I hereby guarantee 
 
 ' Hawes v. Armstrong, 1 Bing. 679; 3 Moo. 15; and see Pace u- 
 
 (N. C.) 761 ; 1 Scott, 661, per Tindal, Marsh, 1 Bing. 216 ; Oldershaw v. 
 
 C. J. ; see also Shortrede v. Cheek, King, 2 H. & N. 517 ; 27 L. J. Ex. 
 
 1 Ad. & EI. 57; Bentham v. Cooper, 5 120. 
 
 M. & W. 621 ; Emmott v. Keams, 5 » Roll. Abr. 23, pi. 29 ; Edwards v. 
 
 Bing. (N. C.) 559; Haigh w. Brooks, Baugh, 11 M. & W. 641; Semple v. 
 
 10 Ad. & EI. 309; James v. Williams, Pink, 1 Ex. 74. 
 
 5 B. & Aid. 1109; 3 Nev. & Man. 196 ; * Johnston v. NichoUs, 1 C. B. 272, 
 
 Powers V. Fowler, 4 E. & B. 511. per Erle, J. 
 
 2 Boehm v. Campbell, 8 Taunt. 
 
180 STATUTE OF FRAUDS. [CHAP. IV. 
 
 to you the payment of the proceeds of the goods you have 
 consigned to my brother, J P, of Sydney, and also any future 
 shipments you may make to him, in consideration of the sum 
 of 2s. Qd. paid to me, which I hereby acknowledge to have 
 received," it being a necessary intendment that the considera- 
 tion was paid by the plaintiff.^ 
 
 Sec. 111. Construction of Guaranty : Admissibility of Parol 
 Evidence. — If a guaranty is ambiguous, or primarily imports 
 a past consideration, parol evidence may be admitted to show 
 that the parties intended it to refer to a future transaction.^ 
 In an action on the following guaranty : " In consideration 
 of your having this day advanced to our client, Mr. S D, 
 £150, secured by his warrant of attorney, payable on the 
 22nd of August next, we hereby jointly and severally under- 
 take to pay the same on default, etc.," it was held that the 
 instrument was sufficiently ambiguous to admit of evidence 
 to show that the advance was not a past one, but was made 
 simultaneously with the execution of guaranty.^ Where 
 the defendant gave a guaranty in the following terms : 
 "Gentlemen, as Mr. D informs me you require some per- 
 son as guaranty for goods supplied to him by you in his 
 business, I have no objection to act as such for payment of 
 your account," it was held that the guaranty was not on 
 its face a guaranty in respect of a past supply, but was to be , 
 read as if it were for goods to be supplied.* 
 
 Sec. 112. Rules for Construing Guaranties. — In construing 
 guaranties, the surrounding circumstances should be taken 
 into consideration.^ And in certain cases the principle of 
 construction, ut res magis valeat quam pereat, may be ap- 
 plied.^ But the maxim in question does not apply in 
 cases where there are extrinsic circumstances, in relation 
 
 1 Dutchman v. Tooth, 7 So. 710; v. Ames, 23 L. T. (N. S.) 729; "Way v. 
 and see Edwards v. Baugh, 11 M. & Hearn, 13 C. B. (N. S.) 305. 
 W. 641. 6 Newell v. Kadford, L. R. 3 C. P. 
 
 2 Haighti.BrookSjlOAd. &E1.309 
 aff'd. nom. Brooks v. Haigh, ib. 334 
 Butcher V. Stewart, 11 M. & W. 873 
 
 52 ; Heffield o. Meadows, L. R. 4 C. 
 P. 595 ; Laurie v. Schofleld, L. R. 4 
 C. P. 622; Coles v. Pack, L. R. 5 
 
 King V. Cole, 2 Exch. 632. C. P. 65. 
 
 8 Goldshede v. Swan, 1 Exch. 154. ^ Broom v. Batchelor, 1 H. & N. 
 
 * Hoad V. Grace, 7 H. & N. 494; 255; 25 L. J. Ex. 299; Steele ». Hoe, 
 31 L. J. (Ex.) 98; and see Mockett 14 Q. B. 431 ; 19 L. J. Q. B. 89 ; Newell 
 
 V. Radford, L. R. 3 C. P. 52. 
 
SEC. 113.] GUARANTIES. 181 
 
 to which the words used are, in their primary sense, intel- 
 ligible.^ A guaranty indorsed on an agreement may be read 
 with the agreement for the purpose of making out a consider- 
 ation.^ If the words of a guaranty, in their ordinary accep- 
 tation, are capable of expressing either a past or a concurrent 
 consideration, that construction will be adopted which makes 
 the instrument valid.^ Where the defendant gave the follow- 
 ing guaranty : " In consideration of E R & Co. giving credit 
 to D J, I hereby engage to be responsible, and to pay any sum, 
 r.ot exceeding £120, due to the said E R & Co. by the said 
 D J," it was held that the guaranty was good and binding, 
 the words " giving credit " being equally applicable to future 
 as to past advances.* If the guaranty does not import that it 
 is to attach upon future advances, and refers, in fact, to past 
 transactions only, without showing a future consideration, it 
 is void.^ Where the defendant gave the following guaranty : 
 "I hereby guarantee Mr J J's account with you for wines 
 and spirits to the amount of £100," it was held that the 
 guaranty was for an existing account, and not for a future 
 supply.^ 
 
 Sec. 113. instances of Considerations. — Although it is no 
 longer necessary that the consideration should appear on the 
 face of the guaranty in a majority of the States,'^ yet, as a 
 consideration must exist, it will be convenient to refer to 
 some of the older cases, which turned upon the suflSciency 
 of the consideration. Guaranties for the payment of any 
 goods which the plaintifP should deliver to A,^ for the pay- 
 ment of a debt owing by A, if the plaintiff would withdraw 
 a promissory note,^ give up a security ,1" or stay an action,^^ 
 
 1 Broom a. Batchelor, 1 H. & N. ^ AUnutt w. Ashenden,6 Sc. (N. R.) 
 255; 25 L. J. Ex. 299, per Beam- 127; and see Boyd i,. Moyle, 2 C. B. 
 WELL, B. 644. . 
 
 2 Coldham v. Showier, 3 C. B. 312. ' See Chapter on " I^emorandum." 
 8 Steele v. Hoe, 14 Q. B. 431; 19 « Stadt v. Lill, 9 East, 848, S. 0. 
 
 I/. J. Q. B. 89. nom. ; Stapp v. Lill, 1 Camp. 242 ; see 
 
 * Edwards v. Jevons, 8 C. B. 436; also ex parte Gardom, 15 Ves. 286; 
 
 19 1/. J. C. P. 50 ; and see Bainbridge Price v. Richardson, 15 M. & W. 539. 
 
 V. "Wade, 16 Q. B. 89; Brooks v. 9 ghortrede i;. Cheek, 1 Ad. & El. 57. 
 
 Haigh, 10 A. & E. 334; Colbourn v. i" Peate v. Dicken, 5 Tyr. 116; 1 
 
 Dawson, 10 C. B. 765. C. M. & B. 422 ; Goodwin «. Bond, 69 
 
 E Bell V. "Welch, 9 C. B. 154; 19 N. H. 
 
 L. J. C. P. 184; "Westhead v. Sproson, " Tanner v. Moore, 9 Q. B. 1. 
 
 6 H. & N. 728 ; 30 L. J. Ex. 265. 
 
182 STATUTE OF FRAUDS. [CHAP. IV. 
 
 have been held to be sufficient. So undertakings to see rent 
 paid,i to pay goods ordered by A,^ and a promise conditional 
 on the plaintiff's accepting a certain offer ,^ have been held to 
 be sufficient. 
 
 The following memorandums : " To the amount of £100 
 be pleased to consider me as a security on J C's account," * 
 and, " I undertake to secure to you the payment of any sums 
 you have advanced, or may hereafter advance, to D on his 
 account with you, commencing 1st November, 1831," ^ have 
 been held not to express a sufficient consideration ; and where 
 the defendant wrote as follows : " As you have a claim on 
 my brother for £5 17s. 9c?. for boots and shoes, I hereby 
 undertake to pay the amount within six weeks from this 
 date," it was held that the consideration, viz., forbearance for 
 six weeks, did not appear, and that the guaranty was bad.^ 
 The fact that goods were brought by a third person but for 
 and used by the promisor, does not afford such a moral 
 obligation as will support his parol promise to pay for them, 
 if he was under no legal obligation to do so when they were 
 purchased, and a promise to pay for the goods after they were 
 purchased and delivered upon the credit of a third person, is 
 within the statute, unless the original debtor by the agree- 
 ment of the parties is discharged from the debt.^ But where, 
 by the terms of a parol promise, the original debtor is dis- 
 charged and the promisor is substituted in his place as 
 debtor, the promise is not within the statute, although there 
 is no other consideration therefor than the original debtor's 
 discharge.* 
 
 Sec. 114. Meaning of the ■Words "Debt," "Default," "Mis- 
 carriage." — The words "debt," "default," or "miscarriage" 
 apply (1) to guaranties for an existing debt, (2) to guar- 
 anties for future debts, or for future losses, which may be 
 incurred by the acts of a third party, (3) to some past or 
 
 1 Caballero v. Slater, 14 C. B. 300. « James v. 'WiUiams, 3 Nev. & 
 
 2 Jarvia v. Willdns, 7 M. & W. 410. Man. 196 ; and see Ellis v. Levy, 1 
 8 Powers V. Fowler, 4 E. & B. 511. Sc. 669 n. (a). 
 
 * Jenkins v. Eeynolds, 6 Moo. 86; ' Hendricks v. Hobinson, 5 Miss. 
 
 3 Brod. & B. 14. 694. 
 
 » Eaikes v. Todd, 8 A. & E. 846; ^ Underwood v. Lovelace, 61 Ala. 
 
 and see Cole v. Dyer, 1 Tyr. 304. 155. 
 
SEC. lis.] GTTAEANTIES. 183 
 
 future default in duty by a third party.^ The adjective 
 " special " describing the kind of promise has no other effect 
 than to distinguish express from implied promises, and by 
 necessary inference to except the latter from the operation 
 of the statute.^ In the case last cited, Hosmer, C. J., in a 
 very able opinion, defined the form of this phrase. He said : 
 " The first expression in the statute is ' that no suit in law or 
 equity shall be brought on any contract or agreement.' The 
 words * contract ' and ' agreement ' are used synonymously, 
 and are followed by this phraseology 'whereby to charge tlie 
 defendant on any special promise.' The expression ' special 
 promise ' most obviously is applied to the same subject, and 
 with the same extent as the preceding words 'contract or 
 agreement.' The word ' special ' has no other effect than to 
 show that promises in fact were referred to, and not promises 
 implied by law, for every actual promise is particular or special. 
 The statute, then, comprising the same ideas it now does, 
 might have been thus expressed, ' whereby to charge the defendant 
 on any promise, except a promise in law.' " ^ 
 
 Sec. 115. Promise Partly "Within and Partly 'Without Statute. 
 — Where a promise is entire, and is void from the commencement 
 as to part, for not being in writing, the parts being indivisible, no 
 a,ction can be brought on that part of the promise which is not within 
 the statute, but the whole promise is void. Thus, where the 
 defendant, in consideration that the plaintiif would not dis- 
 train for rent in arrear, verbally promised to pay him, not 
 only the rent due, but the rent due at the ensuing quarter- 
 day, it was held that the promise to pay the accruing rent 
 was a promise founded on a new consideration, distinct from 
 the demand which the plaintiff had against the tenant, and, 
 therefore, void under the statute ; and that the promise being 
 entire, and in the commencement void in part, was void 
 altogether, and that the plaintiff, therefore, could not recover 
 from the defendant the rent due at the ensuing quarter-day.* 
 
 1 See De Colyar on Guaranties, 305; Pike v. Brown, 7 Cush. (Mass.) 
 pp. 45-49; and Kirkham v. Marter, 313. 
 
 2 B. & Aid. 613; Mountstephen v. * A servant was injured by the 
 
 Lakeman, L. R. 7 Q. B. 197. wrongful act of B. A physician 
 
 2 Sage V. "Wilcox, 6 Conn. 81. called in by B came to A's house and 
 ' Goodnow V. Gilbert, 9 Mass. 510 ; attended the servant, immediately 
 
 Allen V. Pryor, 3 A. K. Mar. (Ky.) after which, A told the physician 
 
184 STATUTE OP FEAUDS. [CHAP. IV. 
 
 Where, however, the promise is divisible, an action may be brought 
 upon that part which is not within the statute. Thus, where a 
 guaranty as follows was given : " I, the undersigned, do 
 hereby engage to pay the directors of the Manchester Gas 
 Works, or their collector, for all the gas which may be con- 
 sumed in the Minor Theatre, and by the lamps outside the 
 theatre, during the time it is occupied by my brother-in-law 
 Mr. Neville; and I do also engage to pay for all arrears 
 which may be now due." It was held that the agreement 
 was void as to the arrears, but that the amount of the gas 
 supplied might be recovered.^ 
 
 In Loomis v. Newhall,^ where the defendant's son had 
 already become Uable to the plaintiff for supplies, the plaintiff, 
 at the request of the defendant, continued to furnish the son 
 with supplies, upon the defendant's promise that " for what 
 you have done and for what you may do for my son, I wiU 
 see you paid," and it was held that the defendant was not 
 liable under this promise for that part of the claim accruing 
 after the promise was made because there could be no recovery 
 on that part of the debt which accrued before by reason of 
 
 about the accident and that B was hie contract a third person tells him 
 responsible for it, and then added, to " go on and finish the work, and I 
 " but, doctor, you need not be alarmed will see you paid," upon the faith of 
 about your bill. I will see that you which he does complete it, the prom- 
 are paid." The physician continued ise is without consideration and with- 
 his treatment until the patient was in the statute, even though the prom- 
 . cured, but it was held that no recov- isor has sufficient funds in his hands 
 ery could be had of A, as his promise belonging to the debtor to pay the 
 was within the statute. Rose v. claim. Birchell v. Neaster, 36 Ohio 
 O'Linn, 10 Neb. 364. In a similar St. 831 ; Thomas u. Williams, 10 B. 
 case in Illinois, King v. Edmunston, & C. 664 ; and see Lexington v. 
 88 m. 267, it was held that while the Clarke, 2 Vent. 223 ; Chater v. Beck- 
 physician could not recover upon the ett, 7 T. R. 201 ; Mechelen v. Wal- 
 promise for past visits, he could re- lace, 7 Ad. & El. 49 ; 2 N. & P. 224 ; 
 cover for those made after the prom- Head v. Ealdrey, 6 Ad. & El. 469 ; 2 N. 
 ise was made. And a similar rule & P. 217 ; Hodgson v. Johnson, E. B. 
 was adopted in Illinois as to a prom- & E. 685 ; 28 L. J. Q. B. 88 ; Vaughan 
 ise to pay for goods sold to another, v. Hancock, 3 C. B. 766; Harman v. 
 Hartley v. Varner, 88 id. 661. Where Reeve, 18 C. B. 687 ; Cooke v. Tombs, 
 a person is performing labor under Ans. 420 ; Lea v. Barber, ib. 425, n. ; 
 an entire contract, as, to erect a house Corder v. Drakeford, 3 Taunt. 382.; 
 and furnish materials, he is under a Neal «. Viney, 1 Camp. 471. 
 legal obligation to complete it ; and i Wood v. Benson, 2 Cr. & J. 94 ; 
 if, before its completion, he refuses to 2 Tyr. 93 ; see also Earl of Falmouth 
 go on upon the security of the person v. Thomas, 1 Cr. & M. 101. 
 for whom he is performing the ser- ^ 15 pjck. (Mass.) 159. But see 
 vice, and to induce him to perform Bobson v. Harwell, 6 6a. 689. 
 
SEC. 115.] GUARANTIES. 185 
 
 it being within the statute, the court proceeding upon the 
 ground that the promise being void in part was void in toto. 
 But the doctrine of this case has been overruled,^ and in a 
 recent case in that State ^ it was held that an oral promise to 
 pay for past and future board of the child of another at a 
 certain weekly rate, is severable, and that a recovery might 
 be had for the board of the child after the promise was made. 
 In Rand v. Mather, ante, the rule which generally prevails was 
 announced, that if a part of a contract is valid, and the part 
 which is valid can be separated from that which is invalid, 
 it will be given effect to pro tanto. In that case the plaintiff 
 contracted to do certain work for B, but quit work because 
 B failed to pay him according to the contract. Thereupon, 
 the defendant told him to finish the work and he would pay 
 him in full. It was held that, while no recovery could be 
 had for the work done before the promise was made, yet a 
 recovery might be had for that done after it was made.^ But 
 where the contract is entire, and not divisible, if a part is 
 invalid because within the statute, the whole is invalid. 
 Thus in Irvine v. Stone, ante, it was held that a contract for 
 the purchase of coal in Philadelphia, and to pay the freight 
 on the same to Boston, was not divisible so that a recovery 
 could be had for the freights. A deed void in part and 
 good in part is void in toto. It cannot be held good for part 
 and void as to the remainder.* In Dowling v. McKinney,^ A 
 orally agreed to convey lands to B and to take in exchange, 
 or payment, a monument, to be of a certain value when finished, 
 and the balance in money. B completed the monument and 
 tendered it to A together with the balance of the money, 
 which he refused to accept. B also performed certain labor 
 in preparing the foundation for the monument. A refused to 
 convey the land, and in an action to recover for the value of 
 
 J Band v. Mather, 11 Cush. (Mass.) promise to pay the antecedent debt of 
 
 1. See also Irvine v. Stone, 6 id. 508, a third person. 
 
 where, while the case was not referred * See also Allen v. Leonard, 16 
 
 to, yet a doctrine wholly inconsistent Gray (Mass.) 202, where the same 
 
 therewith was held. rule was adopted under a similar state 
 
 2 Haynes u. Nice, 100 Mass. 327. of facts. 
 
 In Pfeiffer v. Adler, 37 N. Y. 164, it ^ Smith v. Kenny, 1 Mackey (D. 
 
 was held that a verbal promise to sell C.) 12. 
 
 goods to a responsible party for full ' Dowling v, McKinney, 124 Mass. 
 
 value and on the usual terms, forms 478. 
 no consideration for an independent 
 
186 STATUTE OP PBATTDS. [CHAP. IV. 
 
 the monument, it was held that, the contract being entire and 
 within the statute, no recovery could be had therefor, but 
 that, if the foundation was laid on A's land, and was to his 
 benefit, a recovery might be had for the labor so expended. 
 The rule is that, if some of the stipulations of a contract 
 are within the statute and others are not, and those within 
 it have been performed, an action lies upon the other stipula- 
 tions if they are separate ; ^ but if they are not separate, no 
 recovery can be had for either.^ In Vermont^ an agree- 
 ment to convey lands, coupled with a guaranty that a certain 
 piece of it contains a certain number of acres, has been held 
 to be entire, and the • same has been held as to a contract to 
 convey lands and pay off the incumbrances,* or to take an 
 assignment of a lease of lands and buy the stock,^ or to sell 
 an interest in a mill and all the timbers and irons belonging 
 thereto,^ or to let a house and the furniture therefor ; '' but 
 this rule does not apply when the lease of the house has 
 been actually delivered,^ although it is held that even where 
 a valid lease is delivered, legal vitality is not thereby given to 
 a parol agreement to pay a bonus.® The rule in reference 
 to the severability of contracts may be said to be that, if the 
 part to be performed by one party consists of several distinct 
 and separate items, and the 'price to be paid by the other is 
 apportioned to each item to be performed, or is left to be 
 
 1 Page V. Monks, 5 Gray (Mass.) Lamb w. Crafts, 12 Met. (Mass.) 353; 
 492; Tunbridge v. Wetherbee, 11 Dack t. Hart, 7 "W. & S. (Penn.) 172; 
 Allen (Mass.) 361 ; Hand v. Mather, Duncan v. Blair, 5 Den. (N. Y.) 196; 
 11 Cush. (Mass.) 1; Pierce v. Wood- Noyes v. Humphries, 11 Gratt. (Va.) 
 ard, 6 Pick. (Mass.) 206; Mobile &c. 636; Alexander v. Guiselin, 5 Gill. 
 Ins. Co. V. McMillan, 31 Ala. 711; (Md.) 138; Henderson v. Hudson, 1 
 Wood V. Benson, 2 C. & J. 94 ; Little- Munf. ( Va.) 510 ; Crawford v. Morrell, 
 John, ex parte, 3 M. D. & DeG. 182; 8 John. (N. Y.)253; Woodw. Benson, 
 Mayfield v. Wadsley, 3 B. & C. 357. 2 C. & J. 94. 
 
 2 McMullen v. Riley, 6 Gray » Dyer v. Graves, 37 Vt. 369. 
 (Mass.) 50; Lexington v. Clark, 2 * Duncan u. Blair, ante; Dack v. 
 Vent. 223 ; Reinbalt v. East, 56 Ind. Hart, ante. 
 
 538; Thomas v. Williams, 10 B. & C. ^ Lea v. Barber, 2 Anst. 425, n. 
 
 664 ; Chater v. Beckett, 7 T. R. 201. " Thayer v. Rock, 13 Wend. (N. Y.) 
 
 In Biddell v. Leeder, where the de- 53. 
 
 fendant agreed to purchase the plain- ' Mechelen v. Wallace, 7 Ad & El. 
 
 tiff's share in a ship, and to indemnify 49; Vaughan v. Hancock, 3 C. B. 766. 
 
 him from .all liability on account of ^ Angell v. Duke, L. R. 10 Q. B. 
 
 his share, it was held that the contract 174. 
 
 was entire, and that no recovery ' Sanderson v. Graves, L. R. 10 
 
 could be had upon either branch of it. Exchg^. 234. 
 
SEC. 116.] GtrAEANTIES. 187 
 
 implied by law, the contract will generally be held severa- 
 ble ; and the same rule holds where the price to be paid is 
 clearly and distinctly apportioned to different parts of what 
 is to be performed, although the latter is in its nature single 
 and entire. In Rand v. Mather,^ the court lay down the 
 rule as follows: "On principle and according to numerous 
 modern adjudications, the true doctrine is this : If any part 
 of an agreement is valid, it will avail pro tanto, though 
 another part of it may be prohibited by statute, provided 
 the statute does not, either expressly or by necessary impli- 
 cation, render the whole void; and provided, furthermore, 
 that the sound part can be separated from, the unsound, and be 
 enforced without injustice to the defendant. ... In the applica- 
 tion of this doctrine, Chakcblloe Kent says : 'if the part 
 which is good depends upon that which is bad, the whole is void; 
 and so I take the rule to be, if any part of the consideration 
 be malum in se, or the good and the void consideration be so 
 mixed, or the contract sO entire that there can be no appor- 
 tionment.' " ^ 
 
 Sec. 116. Rule in Couch v. Meeker. — In a Connecticut 
 case,^ where a note was given by A to B for five hundred 
 dollars, upon which there was endorsed a condition as fol- 
 lows: "The condition of this note is such that the said 
 Meeker hath this day bargained his Starr farm (so called) 
 to the said Couch ; now, if the said Meeker stands to 
 the bargain, the within note is to be void; if. not, then the 
 within note is to stand in full force." In an action upon 
 the note it was held that the statute of frauds did not 
 preclude the plaintiff from proving by parol evidence that 
 the note was delivered as an escrow, whatever the conditions 
 on which it was to take effect, and that they were performed, 
 although the conditions respected a parol contract for the 
 sale of lands; the object of the testimony being, not to 
 support an action upon such parol contract for the sale of 
 lands, but to show that a written contract to pay money had 
 taken effect. Swift, C. J., in the course of his opinion, 
 in giving the reason for the decision, said : " The statute only 
 requires that the agreement on which the action is brought 
 
 1 Eand v. Mather, 11 Cu8h.(Mass.) 1. ^ Couch v. Meeker, 2 Conn. 302. 
 
 2 2 Kent's Com. 6th ed. 467. 
 
188 STATUTE OF PBATJDS. [CHAP. IV. 
 
 should be in -writing. This action is brought on a written 
 obligation, complete in itself; and is warranted by a literal 
 construction of the statute. Though it was delivered as an 
 escrow, to take effect on the performance of certain condi- 
 tions, which amounted to a contract for the sale of lands, 
 yet such conditions are not required by the terms of the 
 statute, or any construction ever given it to be in writing. 
 These conditions are not part of the written contract, but 
 only the terms upon which it was to take effect, or not ; the 
 proof of them, then, is necessary only to prove the execu- 
 tion of a written contract. The proof of the execution of 
 a written contract must be by parol ; and it might as well 
 be said, that parol proof is not admissible respecting the 
 delivery of a deed conveying lands, as to say it cannot be 
 admitted respecting the performance of the conditions on 
 which such deed is to operate; for in both cases, it is no 
 more than proving the execution of the contract ; and it has 
 often occurred, that deeds conveying lands have been de- 
 livered as escrows upon parol conditions, and they have 
 never been considered as void by the statute of frauds and 
 perjuries. 
 
 It has been argued, that this is in substance an action to 
 recover damages for the breach of a parol contract for the 
 sale of lands, though it is in form an action on a written 
 contract. Admitting this to be trite, there was, in substance, a 
 written contract to pay a certain liquidated sum in damages, in case 
 a parol contract for the sale of lands should not be performed. It 
 is on this written contract that this action is founded; and is, of 
 course, strictly conformable to the requirements of the, statute. 
 
 It has been insisted, that a court of equity could not have 
 decreed a specific performance of the parol contract for the 
 sale of the land in question ; and that, of course, a court of 
 law cannot give damages for the non-performance of it. It 
 will be conceded that equity could not have interposed, and 
 compelled a specific performance of the bargain for the sale 
 of the farm, for this rested in parol, and the note did not 
 specify the terms of it. But there is no rule that a court 
 of law will not give damages for the breach of a contract 
 respecting the sale of land, which equity cannot enforce. 
 ... It is said that written conditions were annexed to the 
 note, different from the parol conditions, and that proof 
 
SEC. 117.] GUARAKTIES. 189 
 
 could not be admitted respecting such parol conditions. 
 But the efficacy of the note depended on the parol conditions on 
 which it was delivei'ed in escrow; of course it operated when 
 these were performed, and the written conditions were imma- 
 terial. And though it was not formally delivered over by 
 the depository to the plaintiff, yet it took effect in his hands 
 the instant the conditions were performed, without any formal 
 act of delivery on his part." The doctrine of this case cannot 
 be successfully questioned, nor is it aU obnoxious to the rule 
 that, where part of an entire contract is void by the statute, 
 the whole is void.^ In a Texas case ^ an action was brought 
 upon a note, as follows : " Thirty days after date I promise 
 to pay J. A. Donathan, or bearer, two hundred and fifty 
 dollars, with five per cent interest per month until paid, for 
 value received. The consideration of the above note is one- 
 half of a certain town lot in the town of Jacksboro, in lot 
 four, in block number three, L. L. Crutchfield." The note 
 was given under a parol agreement for the sale of lands, and 
 the land had not been conveyed at the time when the action 
 was brought; but the plaintiff alleged that he was ready 
 and willing to convey. The court held that, although such 
 a note given under such circumstances may not be such a 
 a memorandum as satisfies the statute, the maker cannot 
 avoid the note because he has omitted to bind the vendor.' 
 In an Illinois case,* in an action upon a note, the defendant 
 alleged the delivery and acceptance of real estate in fuU 
 satisfaction. The court held that an instruction that a 
 verbal agreement for the sale and delivery of real estate 
 would be void within the statute and could not be set up in 
 defence, was erroneous, as the statute has no application to 
 such case, as, if the plea is sustained, the contract is exe- 
 cuted, and, if not sustained, the defence fails. 
 
 Sec. 117. Promise to give Guaranty. — A promise to give 
 a guaranty is required to be in writing as much as a guaran- 
 
 ' Van Alstine w. Wimple, 5 Cow. ^ Crutchfield v. Donathon, 49 Tex. 
 
 (N. Y.) 162; Goodrich u. Nickols, 2 691. 
 
 Root (Conn.) 498; Patterson v. Cim- ^ Rhodes v. Starr, 7 Ala. 347; 
 ningham, 12 Me. 506; Rice v. Peet, 15 McGowen v. West, 7 Mo. 569. 
 John. (N. Y.) 503. * Thayer v. McEwen, 4 111. App. 
 
 416. 
 
190 STATUTE OF FEATTDS. [CHAP. IV. 
 
 ty itself.^ But a promise to procure a guaranty from a third 
 person is not within the statute. This was decided in the case 
 of Bushel V. Beavan.^ There the plaintiffs, the owners of a 
 ship hired on a charter-party by H. Semphill, refused to let her 
 saD. till certain disputes about the freight between them and 
 H. Semphill were settled by H. Semphill's giving security, 
 whereupon the defendant, in consideration that plaintiffs 
 would let H. Semphill sail without giving security, under- 
 took to get P. Macqueen to sign the following guaranty: 
 " Whereas H. Semphill has hired your ship for six months 
 from the 12th July, 1830, and such longer time as his 
 intended voyage may require, and has paid or secured the 
 freight for six months from the 20th August, 1830, and is 
 about to leave England, I guarantee the payment of freight 
 which shall accrue for any portion of the voyage after the 
 said six months." It was held that the guaranty was 
 within the statute, but that the undertaking to procure 
 P. Macqueen's signature was not. 
 
 Sec. 118. Offer to Guarantee does not Bind till Accepted. — ' 
 A mere offer to guarantee is not sufficient to bind the person 
 making it, until he has notice that it is regarded as a 
 guaranty and is accepted, or until he has consented to its 
 being considered as conclusive. Thus, where the defendant 
 gave the following letter to A (to whose house the plaintiffs 
 had declined to furnish goods on their credit alone) : " I 
 understand A & Co. have given you an order for rigging, 
 etc., which wUl amount to about X4,000. I can assure you 
 from what I know of D A's honor and probity, you wlLL be 
 perfectly safe in crediting them to that amount, indeed I 
 have no objection to guarantee you against any loss from 
 giving them this credit ; " and this letter was handed over 
 by A to the plaintiffs, with a guaranty from another house 
 which they required in addition, and the goods were there- 
 upon furnished ; the letter was considered not to amount to 
 a guaranty, there being no notice given by the plaintiffs to 
 the defendant that they accepted it as such, or any consent 
 of the defendant that it should be a conclusive guaranty.^ 
 
 1 Mallett V. Bateman, L. R. 1 C. P. » Mclver v. Eiohardson, 1 M. & 
 170. Sel. 557 ; and see Coleman v. Upcot, 
 
 2 1 Bing. (N. C.) 103; 4 Moo. & S. 5 Tin. 527; Bird v. Blosse, 2 Vent. 
 622. 361; Hodgson v. Hutchinson, 5 Tin. 
 
SEC. 122.] GUABANTIES. 191 
 
 Sec. 119. Offer may be Withdrawn. — Until an. offer tO 
 guarantee lias 'been accepted, it may be revoked by the 
 person -who has made it. In Offord v. Davies,i it was held 
 that a guaranty to secure moneys to be advanced to a third 
 party on discount to a certain extent "for the space of twelve 
 calendar months," might be countermanded within that time. 
 
 Sec. 120. implied Aooeptanoe. — Acceptance of an offer to 
 guarantee may be implied from the action of the parties. 
 Where a guaranty was given in the following terms : " I 
 hereby guarantee to you the sum of £250 in case Mr. P 
 should make default in the capacity of agent and traveller 
 to you ; " it was held that the person indemnified was not 
 bound to employ the person designated by the guaranty, 
 but that, if he did employ him, the guaranty attached and 
 became binding on the person who gave it.^ 
 
 Sec. 121. I!:spress Acceptance. — The terms of the offer 
 may, however, show that an express acceptance is expected, 
 and then the guaranty is not conclusive unless it has been 
 expressly accepted. Thus, where the defendant wrote as 
 follows: "F informs me that you are about publishing an 
 arithmetic for him. I have no objection to being answerable 
 as far as £50. For my reference apply to B of this place ; " 
 the memorandum was witnessed by B, and forwarded by him 
 to the plaintiffs, who never communicated their acceptance 
 to the defendant ; the court decided that the plaintiffs, not 
 proving any notice of acceptance to the defendant, were not 
 entitled to recover, as the transaction " could not be tortured 
 into a consummate and perfect contract." * 
 
 Sec. 122. Waiver of References. — Where a surety is re- 
 quired to give, and gives, references, the creditor may dis- 
 pense with them, as the condition is for his benefit, but he 
 
 522 ; Gaunt v. Hill, 1 Stark, 10 ; Sym- ^ Kennaway v. Treleavan, 5 M. & 
 
 mons V. Want, 2 Stark, 371 ; Mozley ' W. 498, per Parke, B. ; and see Offord 
 
 V. Tinkler, 1 C. M. & K. 692 , 5 Tyr. v. Davies, 12 C. B. (N. S.) 748, and the 
 
 416; Newport w. Spivey, 7 L.T. (N. S.) judgment of Colekidge, J., in Pope 
 
 328. V. Andrews, 9 C. & P. 564. 
 
 1 12 C. B. (N. S.) 748; and see » Mozley v. Tinkler, 1 C. M. & E. 
 
 Grant v. Campbell, 6 Dow. H. L. C. 692 ; 5 Tyr. 416. 
 239. 
 
192 STATUTE OF FEAUDS. [CHAP. IV. 
 
 cannot enforce the guaranty against the surety until he has 
 given him notice of the intended waiver.^ 
 
 Sec. 123. Original Debtor's Liability must Continue. — The 
 question whether each particular case comes within this 
 clause of the statute or not, depends, not on the considera- 
 tion for the promise, but on the fact of the original party 
 remaining liable, coupled with the absence of any liability 
 on the part of the defendant or his property, except such as 
 arises from his express promise.^ In Green v. Cresswell,' 
 Denman, C. J., said that there did not appear to be any 
 objection to the above test, and it was also approved of by 
 CocKBUEN, C. J., in Fitzgerald v. Dresler.* There the plain- 
 tiffs through D & Co., who were brokers, sold 682 bags of 
 linseed at a certain price per quarter to H, and H afterwards, 
 through the same brokers, sold the linseed at an increased 
 price to the defendant. The time for the defendant's pay- 
 ment of the purchase-money was to arrive before the time 
 fixed for H's payment. The defendant being in want of the 
 linseed to complete a contract he had made, sent one of his 
 clerks to D & Co. for the delivery order, with instructions 
 to follow up the matter and get the order. The clerk was 
 taken by D & Co. to the plaintiffs, from whom he obtained 
 the order only on his promising that the defendant would 
 pay the plaintiffs for the seed, as the plaintiffs required to be 
 paid before they parted with the order. On the following 
 day the defendant sent a check to D & Co. for £900, on 
 account of the seed, which had not been measured at that 
 time, so that the precise quantity of it was not then known. 
 Upon its being measured it was found that the plaintiffs were 
 entitled under their contract with H to receive £971 15s. 6d. 
 In an action by them against the defendant to recover the 
 difference between this amount and £900, the amount of 
 the check, it was ruled that the contract made by the de- 
 fendant's clerk was not a contract to pay the debt of a third 
 person within the statute, as the linseed, the giving up of 
 which by the plaintiffs was the consideration for such promise, 
 was the property of the defendant subject to the plaintiff's 
 lien for the purchase-money. 
 
 ' Morten v. Marshall, 2 H. & C. » 10 Ad. & El. 453, 2 P. & D. 430. 
 305. 4 7 C. B. (N. S.) 392 ; 29 L. J. C. P. 
 
 a 1 Wms, Saund, 233, 118. 
 
SEC. 124.] GUARANTIES. 193 
 
 Sec. 124. Tests for Determining whether Promise is Collat- 
 eral or Not. — An important inquiry in determining whether 
 a promise is collateral or not is whether there is any debt 
 or duty to which it can be collateral. The fact that there 
 is, is not decisive of the question, lut the fact that there is not, 
 clearly is. Thus in an Ohio case,^ the defendant, who was a 
 stockholder, and also president of a corporation, being desirous 
 to have the stock of the corporation taken, verbally promised 
 the plaintiff that if he would subscribe and pay $500 into the 
 capital stock of the corporation, he should receive fifteen per 
 cent on that amount in one year. It was held that this was 
 not a contract to answer for the debt, default, or miscarriage 
 of another, but an original undertaking, and no dividend having 
 been declared or earned within a year, the defendant was held 
 liable upon his promise, Johnsoit, J., saying : " Was there any 
 debt, obligation, or legal duty, express or implied, owing by 
 the corporation to the plaintiff as a stockholder, for which the 
 defendant undertook to answer upon default of the corpora- 
 tion ? The obligations legally imposed upon the corporation, 
 and upon those charged with the duties of managing the cor- 
 porate business, in favor of the plaintiff as a stockholder, were 
 only such as were common to all stockholders. These corporate 
 authorities were bound to good faith, and to reasonable care, 
 skUl, and diligence, with a view to profit in the prosecution of 
 the business of the corporation. If profits thereby accrue, it 
 becomes the duty of these authorities to declare such divi- 
 dends out of the same, from time to time, as the nature and 
 condition of the business should warrant. The defendant 
 did not undertake to answer for any debt, default, or miscar- 
 riage by the corporation, growing out of a failure to perform 
 any of these duties. Indeed, so far as the record discloses, all 
 these obligations in favor of the plaintiff have been faithfully 
 performed by the corporate authorities. Most clearly, there- 
 fore, it appears that there was no corporate contract, express 
 or implied, for which defendant made himself responsible. 
 His contract was entirely distinct and independent of the 
 obligation of the corporation to the plaintiff. The corpora- 
 tion had no power to obligate itself in advance to pay to 
 plaintiff as a dividend, or otherwise, the sum which defendant 
 
 1 Moorehouse v. Crangle, 36 Ohio St. 130 ; 38 Am. Eep. 564. 
 
194 STATUTE OF FRAUDS. [CHAP. IV. 
 
 agreed he should receive on his investment. There was 
 then no corporate debt or obligation, express or implied, to 
 pay to plaintiff any amount or his investment. Defendant's 
 contract was, in legal effect, essentially different from the 
 obligations of the corporation^ in favor of plaintiff as a stock- 
 holder, and the liability created was wholly independent of 
 any default by the corporation. It was not an undertaking 
 to answer for the default of the corporation." If the debt 
 and the promise are cotemporaneous, then the inquiry is, to 
 whom was the credit given ? If given solely to the promisor, 
 then he is the original debtor, the debt is his debt, and the 
 undertaking is original.^ But if any credit was given to the 
 person in whose behalf the promise is made, then the under- 
 taking is collateral, and within the statute,^ and in all 
 cases the question as to whether there is a debt or duty to 
 which the promise can be collateral, or as to whether the 
 promise was collateral in fact, is for the jury.^ Another 
 important inquiry is whether, although the promise is to pay 
 the debt of another, it was made upon consideration of the dis- 
 charge of the original debtor from the debt, and if so, whether he 
 was in fact discharged therefrom ; and if such was the consid- 
 eration, and the debtor was discharged because of the promise, 
 then the undertaking is not collateral, because the promisor was 
 
 1 McCaffli V. Kadcliffe, 3 Bob. Newhall v. Ingraham, 15 id. 422; 
 
 (N. Y.) 445. In Proprietors of the Steel v. Towne, 28 id. 771; Busliel v. 
 
 Upper Locks v. Abbott, 14 N. H. 157, Allen, 31 id. 613 ; Caperton v. Gray, 
 
 S haying agreed to transport lumber 4 Yerg. (Tenn.) 563; Cahill w. Bigelow, 
 
 down the Connecticut River, caused 18 Pick. (Mass.) 369; Head v. Ladd, 
 
 it to enter the head of a canal, on Edm. Sel. Cas. (N. Y.) 100 ; Tilleston 
 
 which were the plaintiif's locks. At v. Nettleton, 6 Pick. (Mass.) 509; 
 
 this place it was the custom to exact Hall v. Wood, 4 Chand. (Wis.) 36 ; 
 
 the tolls. The plaintiff's agent re- Puckett v. Bates, 4 Ala. 396 ; Taylor 
 
 fused to permit the lumber to pass v. Drake, 4 Strobh. (S. C.) L. 431; 
 
 through the locks on the credit of S ; Peabody v. Harvey, 4 Conn. 124 ; 
 
 and the defendant thereupon promised, Bresler v. Pendell, 15 Mich. 224; 
 
 that if the agent would permit it to Chase v. Day, 17 John. (N. Y.) 114 ; 
 
 pass through the locks, he would be Walker u. Eichards, 39 N. H. 259; 
 
 responsible for the tolls, and would Leland v. Creyon, 1 McCord (S. C.) 
 
 see tliem paid, and the lumber was L. 100 ; Boykin v. Dohlonde, 1 Sel. 
 
 permitted to pass. It was held that Cas. (Ala.) 502; Conually v. Kettle- 
 
 the defendant's promise was an origi- well, 1 Gill. (Md.) 260; Norris v. 
 
 nal and not a collateral undertaking, Graham, 33 Md. 56 ; Blake v. Perlin, 
 
 and was not within the statute of 22 Me. 395; Moses v. Norton, 36 id. 
 
 frauds. 113. 
 
 ^ Jack V. Morrison, 48 Penn. St. ^ Moorehouse v. Crangle, ante ; An- 
 
 113; Whitman v. Bryant, 49 Vt. 512; derson v. Hayman, 1 H. Bl. 120. 
 
SEC. 124.] 
 
 GUAKANTIES. 
 
 195 
 
 substituted as debtor, and the debt became his own} If the prom- 
 isor was jointly liable with another, his promise is not collat- 
 eral, because before the promise he was liable for the whole 
 debt, as in case of a promise by one partner to pay the firm 
 debt,''' or indeed a promise made by a person in any capacity 
 who was, before the promise was made, liable for the debt ^ 
 where the promisor promises to pay out of the debtor's funds, 
 or the proceeds of the debtor's property in his hands for that 
 purpose, the promise is original.* So when there is some 
 
 1 White y.Solomonsky, 30 Md. 585; 
 Booth V. Eighmie, 60 N. Y. 238; 
 Gleason v. Briggs, 28 Vt. 135 ; Watson 
 V. Jacobs, 29 id. 169 ; Curtis v. Brown, 
 5 Cush. (Mass.) 492; AUhouse v. 
 Eamsay, 6 Whart. (Penn.) 331; Hag- 
 gerty v. Johnson, 48 Ind. 41 ; Parker 
 V. Heaton, 55 id. 1 ; Moseley v. Taylor, 
 4 Dana (Ky.) 542; CUck ■;. McAffee, 
 7 Port. (Ala.) 62. The statute has no 
 application where the promise is to 
 pay a debt of another, if the debtor is 
 discharged therefrom, becauGe upon 
 the debtor's discharge the promisor 
 becomes the debtor, and the discharge 
 of the original debt affords a sufficient 
 consideration. Andre u. Badman, 13 
 Md. 241. Thus, in Mead v. Keyes, 4 
 E. D. S. (N. Y. C. P.) 510, the holder of 
 certain notes overdue, having sent 
 them to his agent for collection, took 
 in satisfaction thereof the notes of his 
 debtor's brother, giving a receipt for 
 his claims against the debtor, and an 
 order on his agent for the original 
 notes. It was held that the transaction 
 was a transfer of the original debt, 
 and that the notes were not within the 
 statute. See also Cooper v. Chambers, 
 4Dev. (jST. C.) L. 261. So, where a 
 chattel was purchased by one of a 
 firm which was about to be formed, 
 for the use of the firm, and was used 
 by the firm, and the firm agreed to 
 take it from the purchasing partner 
 when he retired from the firm, and 
 the note originally given for the 
 chattel was surrendered to the pur- 
 chasing partner, it was held not to 
 be a contract within the statute of 
 frauds, but that the old contract was 
 ended by the surrender of the note. 
 
 and that a new one was made by the 
 other members of the firm, on which 
 they were liable. Shaver v. Adams, 
 10 Ired. (N. C.) L. 13. But a promise 
 to pay the debt of another, the origi- 
 nal debt not being released, is within 
 the statute of frauds, and will not 
 sustain an action. Britain v. Thrail- 
 kill, 5 Jones (N. C.) L. 329. S.P. 
 Stone V. Symmes, 18 Pick. (Mass.) 
 467 ; Brown u. Hazen, 11 Mich. 219 ; 
 Shoemaker v. King, 40 Penn. St. 107 ; 
 Gunnels v. Stewart, 3 Brev. (S. C.) 52 ; 
 Newell V. Ingraham, 15 Vt. 422 ; 
 Waggoner v. Gray, 2 Hen. & M. (Va ) 
 603; Noyes o. Humphries, 11 Gratt. 
 (Ta.) 636. Thus, where a father 
 promised the creditor of his son that, 
 if he would go to a distant place and 
 become the bail of his son, so as to 
 release him from imprisonment, he 
 would pay the debt which the son 
 owed him. It was held that, notwith- 
 standing the performance of the ser- 
 vice, yet, as the debt againstfhe son was 
 still in force, it was a contract within 
 the statute, and therefore void. Rog- 
 ers V. Rogers, 6" Jones (N. C.) L. 300. 
 
 2 Hopkins v. Carr, 31 Ind. 260; 
 Durham v. Manrow, 2 N. Y. 541; 
 Pilies V. McLeod, 14 Ala. 61 ; Eice v. 
 Barry, 2 Cr. (U. S. C. C.) 447; Aikin 
 V. Duren, 2 N. & McC. (S. C.) 370; 
 Stephens v. Squire, 5 Mod. 205 ; 
 Hawes v. Martin, 1 Esp. 162. 
 
 ' Hendricks v. Wiseheart, 57 Ind. 
 129; Fish v. Thomas, 5 Gray (Mass.) 
 45; Orrell v. Coppock, 26 L. J. Ch. 
 269. 
 
 * Welch </. Kenney, 49 Cal. 49; 
 Berry v. Doremus, 30 N. J. L. 399; 
 Crosby v. Joralemon, 37 Ind. 264; 
 
196 STATUTE OF FEATJDS. [CHAP. IV. 
 
 liability of the promisor's property independent of his express 
 promise, and Tie derives a direct and immediate henejit there- 
 from, the promise is original, as a promise made by the part 
 owner of a vessel to pay a debt for labor and materials 
 furnished for her construction, if the creditor will forbear 
 enforcing his lien upon the vessel therefor,^ or where the 
 creditor has, by reason of the promise, relinquished some lien, 
 benefit, or advantage for securing or recovering his debt, and 
 by means of such relinquishment the same interest or advantage has 
 enured to the promisor^ the promise is original ; and this is the 
 rule in all cases where the promise is made upon a new and inde- 
 pendent consideration, of benefit or harm, moving between the parties,^ 
 or where the promisor may be treated as the purchaser of the debt,* or 
 where the promise is made to the debtor himself upon a sufficient 
 consideration,^ or where there is no liability on the part of the person 
 promised for. ^ These rules cover the general exceptions to 
 the statute, but as they are treated fully under each separate 
 head elsewhere in this chapter, it is not necessary to say more 
 in reference to them in this place. 
 
 In California and Dakota, by an express provision of the 
 statute, a promise to pay the debt of another is deemed original : 
 
 1. Where the promise is made by one who has received 
 property of another upon an undertaking to apply it pursuant 
 to such promise, or by one who has received a discharge from 
 an obligation, in whole or in part, in consideration of such 
 promise. 
 
 2. Where the creditor parts with value or enters into an 
 obligation, in consideration of the obligation in respect to 
 which the promise is made, in terms or under circumstances 
 such as to render the party making the promise the principal 
 
 Crim u. Eitcli, 53 id. 214; Ernide v. « Farley v. Cleaveland, 4 Cow. 
 
 Eunde, 58 111. 232; Balliet v. Scott, (N. Y.) 432; Young i-. French, 32 
 
 32 Wis. 174; Buchanan k. Paddleford, Wis. Ill; Burr v. Wilcox, 13 Allen 
 
 43Vt. 64. (Mass.) 269; Wills v. Brown, 118 
 
 1 Fish u. Thomas, 5 Gray (Mass.) Mass. 137. 
 
 45. 1 Anstey v. Marden, 1 B. & P. 133 ; 
 
 2 Curtis V. Brown, 5 Cush. (Mass.) Castling v. Aubert, 2 East, 325. 
 
 488; Ames"!>. Foster, 106 Mass. 400. ^ Spadam v. Reed, 7 Bush. (Ky.) 
 
 But both must concur. The mere 450; Colt v. Eoot, 17 Mass. 220; 
 
 fact that the creditor relinquished his Soule v. Alhee, 31 Vt. 142 ; Eastwood 
 
 lien is not sufficient, hut such relin- u. Kenyon, 11 Ad. & El. 438. 
 quishment must also inure to the « Drake v. Fleurellen, 33 Ala. 106 ; 
 
 direct and immediate advantage of Harris v. Huntbaeh, 1 Burr, 373; 
 
 the promisor. Dunscomb v. Liokridge, Aleyn, 94. 
 
SEC. 12S.] GUABAOTIES. 197 
 
 debtor, and the person in whose behalf it is made his 
 surety. 
 
 3. Where the promise, being for an antecedent obligation 
 of another, is made upon the consideration, accepting the new 
 promise as a substitute therefor ; or upon the consideration 
 that the party receiving it releases the property of another 
 from a levy, or his person from imprisonment under an execu- 
 tion on a judgment obtained upon the antecedent obligation ; 
 or upon a consideration beneficial to the promisor, whether 
 moving from . either party to the antecedent obligation, or 
 from another person. 
 
 4. "Where a factor undertakes for a commission to sell 
 merchandise and guarantee the sale. 
 
 5. Where the holder of an instrument for the payment of 
 money, upon which a tliird person is or may become Uable 
 to him, transfers it in payment of a precedent debt of his own 
 or for a new consideration, and in connection with such 
 transfer enters into a promise respecting such instrument. 
 
 The wisdom of incorporating these exceptions into the 
 statute is not doubtful, as they are mainly such as have been 
 adopted by the courts, and the result of incorporating them 
 into the statute is to give permanency to those doctrines which 
 have been held by the better class of courts under the statute 
 when no such exceptions exist. Of course, under the rule for 
 the construction of statute, where certain exceptions are 
 expressly made, no other exception can be made by the courts, 
 and thus the law is definitely settled so that parties with 
 certainty can know and understand what their rights and 
 habilities are under this head of the statute. 
 
 Sec. 125. Promise Must be to the Person Guaranteed. — 
 
 The statute only contemplates a promise made to the person 
 to whom another is already, or is to become liable : therefore 
 a promise hy the defendant to the plaintiff to pay A B a debt 
 due from the plaintiff to A B, is not within the statute?- It 
 must he a promise to he answerable for a debt of or a default in 
 some duty by that other person towards the promisee? The 
 
 1 Eastwood V. Kenyon, 11 Ad. & El. ^ Hargreaves v. Parsons, 13 M. & 
 
 438 ; 2 P. & D. 370 ; see observations W. 561, per Paeke, B. ; Eastwood v. 
 
 on this case, Sni. Merch. Law, 8th ed. Kenyon, 11 Ad. & EI. 438 ; Thomas v. 
 
 457; and see also Gregory D. Williams, Cook, 8 B. & G. 728. In Hargreaves 
 
 3 Mer. 682. v. Parker, ante, Paeke, B., said ; 
 
198 
 
 STATUTE OF FEAXnDS. 
 
 [chap. IV. 
 
 rule adopted in this class of cases is that an agreement to pay 
 and discharge the debt of another made with the debtor or some 
 person on Ms behalf, if founded upon a new and valid consideration, 
 is an independent undertaking, and does not come within the 
 letter or spirit of the statute.^ But in Kentucky it is held 
 
 " The statute applies only to promises 
 made to the persons to whom another 
 is already, or is to become, answer- 
 able. It must be a promise to be 
 answerable for a debt of, or a default 
 in some duty by, that other person 
 towards the promisee. This was de- 
 cided, and no doubt rightly, by the 
 Court of Queen's Bench, in Eastwood 
 V. Kenyon, 11 Ad. & El. 438; 3 P. & 
 D. 276; and in Thomas v. Cook, 8 B. 
 & C. 728 ; 3 Man. & E. 444. In this 
 case Parker had not contracted with 
 the plaintiff, nor was it intended ' that 
 he should; there was no privity be- 
 tween them; the non-performance of 
 Parker's contract with the defendant 
 would be no default towards the 
 plaintifi, and, consequently, the under- 
 taking by the defendant was no 
 promise to answer for the default or 
 miscarriage of Parker in any debt or 
 duty towards the plaintiff. It was an 
 original promise that a certain thing 
 should be done by a third person." 
 
 1 Brown v. Brown, 47 Mo. 130; 
 Britton o. Angler, 48 N. H. 420; 
 Hubon V. Park, 116 Mass. 541; Gaetz 
 V. Poos, 17 Minn. 265. The rule 
 generally adopted is that the promise 
 must be made to the creditor to be 
 within the statute ; and that a prom- 
 ise to the debtor to pay his debt to 
 the creditor, or to a. surety to indem- 
 nify him for becoming surety for a 
 third person to a fourth, is an original 
 and not a collateral undertaking when 
 the promisee acts solely on the prom- 
 ise of the promisor. Tibbetts v. 
 Planders, 18 N. H. 284; Cailleux v. 
 Hall, 1 E. D. S. (N. Y. C. P.) 5; Jones 
 V. Hardestry, 10 G. & J. (Md.) 404 ; 
 Barker v. Bucklin, 2 Den. (N. Y.) 45; 
 Jennings v. Webster, 7 Cow. (N. Y.) 
 256 ; Maxwell v. Haynes, 41 Me. 559 ; 
 Kutzmeyer v. Ennis, 27 K J. L. 371 ; 
 Decker v. Sehaffer, 3 Ind. 187 ; Plemm 
 u. Whitmore, 23 Mo. 430; Perkins v. 
 
 Littlefield, 5 Allen (Mass.) 370; How- 
 ard V. Coshaw, 33 Mo. 118; Hubon v. 
 Parks, 116 Mass. 541 ; 'Wild v. Nichols, 
 17 Pick. (Mass.) 538; Preble v. Bald- 
 win, 6 Cush. (Mass.) 549; Piske u. 
 McGregory, 34 N. H. 414; Soule a. 
 Albee, 31 Vt. 142 ; North v. Eobinson, 
 1 Duv. (Ky.) 71; Morin ». Murtz, 13 
 Minn. 191 ; Vogel o. Melms, 31 "Wis. 
 306 ; Aldrich v. Ames, 9 Gray (Mass) 
 76; Alger B. ScOville, 1 id. 391, 395; 
 Pike V. Br,own, 7 Cush. (Mass.) 133, 
 130; Chapin v. Lapham, 20 Pick. 
 (Mass.) 467; Blake v. Cole, 22 id. 97 ; 
 Beaman «. Eussell, 20 Vt. 205, 210; 
 Harrison v. Sawtel, 10 Johns. (N. Y.) 
 242 ; Chapin o. MerriU, 4 Wend. (N. 
 Y.) 657; Staats u. Howlett, 4 Den. 
 (N. Y.) 559; Barry v. Eansom, 12 N. 
 Y. 462, 467; Conkey v. Hopkins, 17 
 Johns. (N. Y.) 113; Eeed w. Holcomb, 
 31 Conn. 360; Johnson v. Gilbert, 4 
 Hill (N. Y.) 178. In such a case the 
 debt becomes the debt of the promis- 
 or. Eobinson v. Gilman, 43 IT. II. 
 435; Smith v. Sayward, 5 Me. 504, 
 507; Tarr v. Northey, 17 Me. 113; 
 Dunn V. West, 5 B. Mon. (Ky.) 370 ; 
 Thomas v Cook, 8 B. & C. 728; East- 
 wood V. Kenyon, 11 Ad. & El. 438; 
 Hargreaves v. Parsons, 13 M. & W. 
 560, 580; Eeader v. Kingham, 13 C. 
 B. (N. S.) 344; Cripps v. Hartnall, 4 
 B. & L. 414; Wilson v. Bevans, 58 111. 
 233; Ellenwood v. Fults, 03 Barb. 
 (N. Y.) 321. The statute does not 
 apply where, although the promise is 
 in form to pay the debt of another if 
 the promisor's intent be not' merely 
 to pay such debt, but also to subserve 
 a purpose of his own, so as to bring it 
 under the head of an original under- 
 taking. McCreary v. Van Hook, 35 
 Tex. 631; Dickinson v. Coulter, 45 
 Ind. 445; Cross v. Ballard, 46 Vt. 
 415; Armstrong v. Baldwin, 3 T. & C. 
 (N. Y.) 443; Eunde v. Eunde, 59 111. 
 98; Johnson w. Krupp, 86 Iowa, 616; 
 
SEC. 125] GUAKANTIES. 199 
 
 that such agreements are only enforceable by the creditor in 
 equity,! ^nd in Vermont it is held that a debtor cannot rely 
 upon a parol agreement of another to pay his debt, such 
 agreement being within the statute of frauds; hut he must 
 show in addition an actual substitution of the third person for 
 himself by an agreement of all the parties, or an actual com- 
 pliance with the terms of the agreement. Willingness to pay 
 as agreed by the third person, and to receive payment from 
 him by the creditor, is not sufficient.^ In most of the States 
 the creditor may sue upon such a promise as well as where funds 
 or property have been by the debtor placed in the hands of 
 the promisor with which to pay his debts, upon the ground 
 that, as the promise is made for his benefit, and upon a valid 
 consideration, the law Avill imply the necessary privity.^ But 
 in England,* as well as in several of the States of this country, 
 this rule does not prevail, and it is held that no one can sue 
 upon a contract to the consideration of which he is a stranger.^ 
 As to the right of the debtor himself to sue for the breach of 
 such a contract made by him upon a good consideration, there 
 can be no question. 
 
 Where A, at the request of B, entered into a bond with 
 him and C to indemnify D against certain debts due from C 
 to D, and B promised to save A harmless from all loss by 
 reason of the bond, it was held that the promise was binding, 
 although not in writing. " If the plaintiff," said Pakke, J., 
 " at the request of the defendant had paid money to a third 
 person, a promise to repay it need not have been in writing, 
 and this case is in substance the same." ® 
 
 Again, in a case where the defendant and one Parker agreed 
 for the sale by Parker to the defendant of the "put " or "call" 
 
 Conradt v. Sullivan, 45 Ind. 180 ; 2 Buchanan v. Paddlef ord, 43 Vt. 64 
 
 Darst V. Bates, 95 111. 493. In Mathers » Lawrence v. 'Fox, 20 N. Y. 268 : 
 
 V. Carter, 7 111. App. 225, A surren- Urquhart v. Brayton, 12 R. I. 6 Re- 
 
 dered to B a bond for a deed which porter, 601. 
 
 he held against him, in consideration ^ Tweddle' v. Atkinson, 1 B. & S 
 
 of B's verbal promise that he would 393 ; Jones v. Robinson, 1 Exchq. 456 
 
 pay to C the amount of a note which ^ Clapp u. Lawton, 31 Conn. 95 : 
 
 C held against him, and it was held Halstead v. Erancis, 31 Mich. 113: 
 
 that the statute did not apply and Exchange Bank v. Rice, 107 Mass. 37 : 
 
 that it was a new and independent Brice v. King, 1 Head. (Tenn.) 152 
 
 contract upon which C might main- Campbell v. Eindley, 3 Humph, 
 
 tain an action in his own name. (Tenn.) 330; Rice u. Carter, 11 Ired 
 
 ' Hodgkins v. Jackson, 7 Bush. (N. C.) 298. 
 
 (Ky.) 324. 5 Thomas v. Cook, 8 B & C. 728. 
 
200 STATUTE OF FEATJDS. [CHAP. IV. 
 
 of fifty foreign railway shares, at a certain price per share 
 premium, at any time on or before the 18th of February, 1844, 
 and before that day the defendant agreed to resell the option 
 to the plaintiff, and to guarantee the performance of the agree- 
 ment by Parker, and on the 16th of February the plaintiff 
 " called " the shares (z.e. required the delivery of them pursu- 
 ant to the agreement), but it was at the same time yerbally 
 agreed between him and the defendant and Parker, that they 
 should be delivered to the plaintiff not on the 18th of Febru- 
 ary, but on the 2d of March, at Paris ; it was held that this 
 was not an agreement by the defendant to be answerable for 
 the default of Parker, but an original promise by him for the 
 delivery of the shares by Parker, for which a note in writing 
 was not required by the statute, Pabkb, B., saying: "In this 
 case Parker had not contracted with the plaintiff, nor was it 
 intended that he should ; there was no privity between them ; 
 the non-performance of Parker's contract with the defendant 
 would be no default towards the plaintiff, and consequently 
 the undertaking by the defendant was no promise to answer 
 for the default or miscarriage of Parker in any debt or duty 
 towards the plaintiff. It was an original promise that a 
 certain thing should be done by a third person."^ In a 
 Missouri case ^ the defendants were creditors of the husband 
 of Laura S. Brown, and being in failing circumstances, he 
 proposed to execute to their use a trust deed of valuable 
 real estate belonging to him. Mrs. Brown declined to release 
 her dower, and claims to have consented to do so only upon 
 the agreement by defendants to pay a certain debt from her 
 husband to said Clardy, which had not been otherwise 
 provided for. The defendants, having bid in the property at 
 trustees' sale, refused to pay the Clardy debt, and tliis suit 
 was brought to enforce their agreement to do so. The de- 
 fendants denied the agreement, but judgment was obtained 
 against them for the amount of the debt, which was affirmed 
 by the Supreme Court. Upon the trial the defendants 
 insisted that, as a matter of law, the contract could not be 
 enforced because it was a verbal agreement to pay the debt 
 of another, and witliin the statute of frauds. Bliss, J., said : 
 
 1 Hargreaves v. Parsons, 13 M. & ^ Brown v. Brown, 47 Mo. 130 ; 4 
 W. 561. Am. Eep. 330. 
 
SEC. 125.] GUABANTIES. 201 
 
 " The provision that no action shall be brought to charge any 
 person upon a promise to answer for the debt of another, 
 unless it is made in writing, is construed to apply to promises 
 made to the creditor, and hence it is always held that while the 
 creditor cannot recover upon a collateral parol agreement 
 made with him to pay his debtor's obligation, yet if such 
 agreement be net made with the creditor, it can be enforced 
 if otherwise good, though not evidenced by any note or 
 memorandum in writing.^ It is held that a parol contract 
 with the creditor to pay the debt of another can in general 
 only be enforced when the original debt is cancelled, and the 
 third person is alone looked to for the debt. It then becomes 
 an independent agreement to assume the debt. It is not a 
 collateral promise, for the original debt is discharged. It 
 becomes the debt of the promisor alone, and is no longer the 
 debt of another, and hence it is not within the statute. So, 
 also, an agreement to pay and discharge the debt, made with 
 the debtor or some person interested for him, if founded upon 
 a new and valid consideration, is an independent undertaking, 
 and does not come within the letter or object of the statute. 
 It is neither uncommon nor is it unreasonable for a debtor to 
 make provision by contract for the payment of his obligations ; 
 and if a purchaser of property, instead of paying the whole 
 consideration, should assume to pay certain liabilities of his 
 vendor, and be able to escape his obligation and retain the 
 property, the statute would be one of frauds in a new sense. 
 No such construction has ever been given it, and the courts 
 of New York go so far as to hold that, though not a party to 
 this independent agreement, the creditor may avail laimself of 
 it and sue in his own name." ^ 
 
 So where the plaintiff, the bailiff of a county court, being 
 about to arrest one H under a warrant of contempt for non- 
 payment of a. judgment debt, the defendant, in consideration 
 that he would forbear to execute the warrant, promised to 
 pay the plaintiff £11 on a given day or surrender H, it was 
 held that this was not an agreement by the defendant to be 
 
 1 Howard v. Coshaw, 33 Mo. 118; 45; Pratt v. Humphrey, 22 Conn. 317; 
 
 Hargreaves v. Parsons, 13 M. & W. Alger v. ScovUle, 1 Gray, 391 ; Per- 
 
 561; Eastwood v. Kenyon, 11 Ad. & kins u. Littlefield, 5 Allen (Mass.) 370. 
 El. 438 ; Westf all v. Parsons, 16 Barb. ^ Barker v. Bucklin, supra. 
 645; Barker u. Bucklin, 2 Den. (N. Y.) 
 
202 
 
 STATUTE OF PKATTDS. 
 
 [chap. IV. 
 
 answerable for the debt or default of H, but an original 
 promise by him to pay the money or surrender ^.^ 
 
 Sec. 126. if the Person Promised for Liable at all, Promise 
 must be in "Writing. — Formerly a distinction was made between 
 promises to pay for goods sold, made before delivery of the 
 goods, and promises made after the goods were delivered. In 
 the former case the undertaking was considered original, and 
 not within the .statute ; in the latter, collateral, and within the 
 statute.^ But this distinction has been overruled,^ and the 
 
 1 Reader v. Kingham, 13 C. B. (N. 
 S.) 344; and see Hodson v. Anderson, 
 3 B. & C. 842 ; 6 D. & R. 735. 
 
 ^ Mowbray v. Cunningham, cited 2 
 T. R. 80; Jones v. Cooper, Cowp. 227 ; 
 LofEt. 769. 
 
 8 In Matson v. "Wharam, 2 T. R. 
 80, BuLLER, J., said: "I argued the 
 case in Cowper (Jones v. Cooper, 
 Cowp. 227) the facts of which were, 
 that a person who was going abroad, 
 wished to malce some provision for 
 his mother-in-law, in his absence, and 
 said to a baker, you must supply my 
 mother-in-law with bread, and I will 
 see you paid; that case was tried 
 before Nares, J., at Bristol. I was 
 for the plaintiff, and cited the case of 
 Mawbray v. Cunningham, in which 
 Lord Mansfield said : ' This is a 
 promise made before the debt accrues ; 
 and what is the reason of the trades- 
 man's requiring that promise? It is 
 because he will not trust the person 
 for whose use the goods are intended ; ' 
 and tlie plaintiff obtained a verdict. 
 But Nares, J., overruled tliis determi- 
 nation, and non-suited the plaintiff, 
 and this court afterwards refused to 
 grant a new trial." 
 
 But notwithstanding what was said 
 by BuLLEE, J., it does not appear that 
 the case of Jones ;;. Cooper overruled 
 the determination in Mawbray v. Cun- 
 ningham, for although in botli cases 
 the promise was made before the deliv- 
 ery of the goods, yet in the case de- 
 termined by Lord Mansfield, the 
 promise was simply to see the goods 
 paid for ; whereas, in Jones v. Cooper, 
 the promise was expressly conditional, 
 
 thus, " I will pay you if Smith will 
 not ; " and Smith was entered the debtor 
 in the plaintiff's books. And upon this 
 distinction, the new trial was refused , 
 and Lord Mansfield observed that 
 the general distinction was a clear 
 one : meaning, as he afterwards made 
 it appear, the distinction between an 
 undertaliing before tlie delivery of the 
 goods, and afterwards ; but he said, 
 "there may be a nicety where the un- 
 dertaking is before delivery, and yet 
 conditional; and upon this sub-distinc- 
 tion between promises conditional and 
 promises unqualified, made before de- 
 livery, it appears that the case of 
 Jones a. Cooper was in reality decided. 
 But the distinction upon which Maw- 
 bray V. Cunningham was decided by 
 Lord Mansfield, was directly over- 
 ruled by the case of Matson v. 
 Wharam, which was an action for 
 goods sold and delivered, and tried 
 before Wilson, J., when a verdict was 
 found for the plaintiffs, subject to the 
 opinion of the court on the following 
 case ; the defendant, Wharam, applied 
 to Matson, one of the plaintiffs, and 
 asked him if he was willing to serve 
 one R C of Pontefract, with gro- 
 ceries; he answered, that he dealt 
 with nobody in that part of the 
 country, and did not know R C ; to 
 whicli the defendant, Wharam, replied, 
 "if you don't know him, you know me, 
 and I will see you paid." Matson then 
 said, he would serve him ; and Wharam 
 answered, he is a good chap, but I will 
 see you paid. A letter was afterwards 
 received by the plaintiffs from R C 
 containing an order for goods, to the 
 
SEC. 126.] GUAKANTIES. 203 
 
 rule now is, that if the person to whom the goods are supplied 
 is liable at all, the promise must be in writing.^ This rule 
 was well illustrated in a Tennessee case,^ in which it appeared 
 that the defendant and another person were in a store together, 
 and the defendant told the plaintiff that he would pay for all 
 the goods which the other person might buy, and thereupon, 
 and in reliance upon such promise, the plaintiff sold such 
 person several articles, and charged them to him and the defend- 
 ant jointly; and the court held that the defendant's prom- 
 ise was collateral and within the statute. In an Indiana 
 case,* the defendant verbally agreed with the plaintiff that if 
 he wojild sell C a certain horse, he would make good any 
 agreement about it. In an action to recover the price of the 
 horse, the judge left it for the jury to say whether the plain- 
 tiff primarily gave credit to C for the horse, and they having 
 so found, it was held that the promise was collateral and 
 within the statute. In all cases where the question is whether 
 a promise by the defendant is collateral or original, the 
 question is for the jury, whether the sole credit was given to 
 the promisor,* and if the jury finds that any credit was given 
 to the third person in whose behalf the promise was made, so 
 that there is any liability on his part to pay the debt, the 
 promise is collateral, and the verdict must be for the defend- 
 ant.^ Thus, a promise to pay the debt of another, if it is 
 
 amount of £7, and the goods were the promise is made, is an essential 
 
 sent according to the order. The point of inquiry, and must be gath- 
 
 plaintiffs made R C the debtor for ered from the circumstances of the 
 
 these goods in their books. They case. 
 
 afterwards applied to K C by letter, > Matson v. Wharam, 2 T. R. 80 ; 
 
 for the payment of the debt, and re- Colman v. Eyles, 2 Stark. 62 ; Peck- 
 
 ceiving no answer, they then applied ham v. Paria, 3 Doug. 13; Parsons v. 
 
 to the defendant, Wharam, who re- Walter, ib. 14, n. (c). 
 
 fused to pay, and there having been 2 Matthews v. Milton, 4 Yerg. 
 
 no promise in writing, according to the (Tenn.) 576. 
 
 statute of frauds, judgment was given ' Billingsby v. Dempewolf, 11 Ind. 
 
 for the defendant. In this case, 414. Where the evidence shows that 
 
 although the promise was not condi- sales were made wholly upon the credit 
 
 tional in expression, yet the circum- of a promisor upon either a written or 
 
 stances sufficiently imported an un- verbal promise, the statute is not ap- 
 
 derstanding" among all the parties, plicable. McLenden v. Frost, 57 Ga. 
 
 that both the party for whose use the 448. 
 
 goods were delivered, and the party * Doyle v. White, 26 Me. 341 ; 
 
 expressly promising to pay, were to Homans v. Lombard, 21 id. 341. 
 
 become liable. Such liability, there- ^ Read v. Ladd, 1 Edm. (N. Y.) 
 
 fore, of the person on whose account Sel, Cas. 100 ; Hill v, Raymond, 3 
 
204 
 
 STATUTE OF FRAUDS. 
 
 [chap. IV. 
 
 not paid by him,^ or " to be responsible and stand good " for 
 another's debt,^ or to indemnify a surety against loss or liabil- 
 ity,3 or to " see that the debt is paid," * unless when the lat- 
 ter form of expression is used, it is shown that credit was 
 given solely to the promisor,^ or to accept an order for anoth- 
 er's debt,® or of a member of a corporation to pay its debts,^ 
 and generally any promise which is conditional upon the 
 debtor himself not paying,* or which shows an intent that the 
 promisor should merely occupy the position of a surety for 
 the debt, is collateral and within the statute. Indeed, in all 
 cases where the undertaking of a party is to further secure 
 an existing debt between the regular parties to a i;ote or 
 other obligation, it is a collateral contract within the, statute; 
 and in New Jersey it is held that a simple indorsement of a 
 note hi blank, before the name of the payee, is not such a 
 writing as wUl satisfy the statute.^ Where A, having com- 
 
 AUen (Mass.) 540; First National 
 Bank v. Bennett, 33 Mich. 520; Wood 
 V. Patch, 11 E. I. 445. 
 
 1 Gllfillan V. Snow, 51 Ind. 305. 
 
 2 Miller v. Nehaus, 51 Ind. 401. 
 
 ' First National Bank v. Bennett, 
 33 Mich. 520. 
 
 * Petit i).Braden,55Ind. 201; Bloom 
 V. McGrath, 53 Miss. 249. A promise 
 made by A to B that if C employs 
 him, A " will see him paid " is a col- 
 lateral undertaking and within the 
 statute. Skinner v. Conant, 2 Vt. 
 453 ; In Chase v. Day, 17 John. (N. Y.) 
 114, A inquired of B the terms on 
 which he would let C have newspapers 
 to sell ; and, on being told the terras, 
 said : " If C calls for the papers, I will 
 be responsible for the papers he shall 
 take," and it was held that this was an 
 original and absolute contract on the 
 part of A, and not within the statute 
 of frauds. 
 
 6 Wagner v. Hallock, 8 Col. 176. 
 But in Petit v. Braden, ante, it was 
 held that those words import u col- 
 lateral undertaking, and that the cir- 
 cumstance that the creditor relied 
 solely upon tlie promisor's liability 
 does not change the rule. But the 
 court may have placed stress upon the 
 circumstance that the goods had al- 
 
 ready been sold to the vendee, but de- 
 livery was withlield until he obtained 
 security for the price. 
 
 ' Benson v. Walker, 5 Harr. (Del.) 
 110. In Morrison v. Baker, 81 N. C. 
 76, it was held by the court that an 
 unconditional promise to pay for goods 
 to be furnished to another is not within 
 the statute. Evidence to change a 
 contract relation between a plaintifE 
 and a third party and to prove a 
 promise to pay the debt of another as 
 a new and original undertaking and 
 not as a contract of suretyship must 
 be clear and satisfactory, or it will fall 
 witliin the statute. Haverly v. Merian, ' 
 78 Penn. St. 257 ; Palmer v. Haggard, 
 78 111. 607. 
 
 ' Quin V. Hanford, 1 Hill (N. Y.) 
 82; Trustees v. Flint, 13 Met. (Mass.) 
 539. 
 
 8 Dufalt V. Gorman, 1 Minn. 301. 
 A promise to pay the debt if he does 
 not, in reliance upon which the prom- 
 isee permitted the debtor to leave the 
 state, taking his property with him, is 
 within the statute. Gillfillan v. Snow, 
 61 Ind. 305. A parol contract to 
 answer in part for another's debt is 
 within the statute. Luer v. Zeile, 53 
 Cal. 54. 
 
 ' Hay den v. Weldon,43 N. J. L. 128. 
 
SEC. 127.] GUARANTIES. 205 
 
 menced certain business for B, which he had undertaken, 
 refused to proceed without a promise from C to pay the 
 further expenses, it was held that C was not liable on such 
 a promise without a note in writing.^ So, where the de- 
 fendant verbally promised the plaintiff that if he would 
 supply goods to A, drawing upon him at one month, and 
 would allow him (the defendant) three per cent upon the 
 amount of the invoice, he would pay the plaintiff cash to 
 take A's bill " without recourse," in other words, buy the bill 
 of him, it was held that there was a contract to answer for 
 the debt or default of another which, not being in writing, 
 could not be enforced.^ 
 
 SkC. 127. Guarantor must not be Liable. — The statute does 
 not apply to a case where the party giving the guaranty 
 is himself liable to the demand which he is purporting to 
 guarantee, it must he exclusively the debt, default, or miscar- 
 riage of another person. In Arden v. Rowney,^ a check for 
 £100 was drawn upon the defendant, and the plaintiff, who 
 was asked to cash it, sent to the defendant to know whether 
 it was good. The defendant replied that it would be honored, 
 as he was indebted to the drawer of it in £200. The check 
 was void, as being post-dated ; but it was held, nevertheless, 
 that the plaintiff could recover, on the ground of the sum 
 due to the drawer being appropriated. Lord Ellenbokough 
 said : " If this had been an agreement to pay an amount of 
 any money which the plaintiff might advance to Alder (the 
 drawer), and no specific sum of money had been mentioned, 
 
 An unwritten agreement of suretyship was applied where a seller of goods 
 
 is Toid under the statute. Ingersoll v. had refused to deliver them to the 
 
 Baker, 41 Mich. 48 ; Bonlne v. Dennis- purchaser without security therefor, 
 
 ton, 41 id. 292, and so is any agree- and the defendant orally promised that 
 
 ment merely collateral to answer for if he would deliver the goods he would 
 
 the deht of another. Thatcher v. " see that he got his pay." The court 
 
 Rockwell, 4 Cal. 375 ; Anderson v. held that the promise was collateral 
 
 Hayman, 1 H. Bl. 120. In Bugbee and within the statute because the 
 
 V. Kendrickson, 130 Mass. 437, it vendee still remained liable for the 
 
 was held that in the ^ale of goods, goods. Smith v. Montgomery, 3 Tex. 
 
 if any credit at all is given to the 199. 
 
 person to whom the goods are de- i Barker v. Tox, 1 Stark, 270. 
 livered, the promise is collateral and ^ Mallett v. Bateman, L. R. 1 C. P. 
 
 within the statute. See also Bloom 103, affg. S. C. 16 C. B. (N. S.) 530. 
 V. McGrath, 53 Miss. 249. In Petit = 5 Esp. 254. 
 u. Braden, 55 Ind. 201, this rule 
 
206 
 
 STATUTE OF FKAT7DS. 
 
 [chap. IV. 
 
 ■which was to be so advanced, I should have thought this a 
 case within the statute of frauds ; but it appears to me that 
 this is an appropriation of £100, part of the money which 
 the defendant said he owed to Alder, amounting to .£200, 
 and that the plaintiff may recover." 
 
 Where the testator appointed his son, Alfred Orrell, and 
 three other persons his executors and trustees, and Alfred 
 Orrell disclaimed and renounced probate, and afterwards 
 purchased a portion of the testator's estate, the other lega- 
 tees raised a claim for losses incurred by the trustees, and 
 Alfred Orrell's solicitor wrote, on his behalf, to the claimants, 
 agreeing to pay £3,000 in satisfaction of the alleged losses, 
 it was held that this letter was not within the statute, as an 
 agreement to answer for the debt, default, or miscarriage of 
 another, as Alfred Orrell was himself liable for the debt.^ 
 
 1 Orrell v. Coppock, 26 L. J. Ch. 
 269 ; and see Coutourier v. Hastie, 22 
 L. J. Ex. 97 ; Hodgson v. Anderson, 5 
 D. & K. 735; 3 B. & C. 942; Batson 
 V. King, 4 H. & N. 739; Fitzgerald v. 
 Dressier, 7 C. B. (N. S.) 374. The 
 operation of the statute is not con- 
 fined to collateral undertakings to be 
 answerable for a subsisting liability, 
 debt, or duty, but extends as well to 
 undertakings made be/ore the debt 
 accrues or the duty arises, and a guar- 
 anty consequently, which a trades- 
 man requires from a third person be- 
 fore he sends out goods sold on credit, 
 because he does not like to trust the 
 person for whose use the goods are 
 intended, is within the statute if the 
 latter has been treated by the trades- 
 man as his debtor. Jackson v. Covert, 
 5 Wend. (N. Y.) 139; Crookshank v. 
 Burrell, 18 John. (N. Y.) 58; Peckham 
 V. Paria, 3 Doug. 13 ; Parsons v. Wal- 
 ter, 3 id. 14 n. (c). Thus where the 
 plaintiff having commenced business 
 for one Pox, refused to go on with it, 
 without a promise by the defendant 
 to pay the further expenses to be in- 
 curred, it was holden that this prom- 
 ise was within the statute. Barber v. 
 Fox, 1 Stark, 270. But the sale may 
 be to one man, although the goods are 
 to be delivered to another, and a per- 
 son may promise to pay for goods 
 
 supplied to, or for work done at his 
 request, or by his directions for a 
 third party, as the real debtor, and 
 not in the character of a surety, and 
 if he has been treated by the person 
 who has furnished the goods and done 
 the work, as the party liable, and 
 credit has been given to him, his 
 promise or undertaking to pay is not 
 a collateral promise to answer for the 
 debt of another, and the statute con- 
 sequently is out of the ease. Har- 
 greaves v. Parsons, 13 M. & W. 661, 
 570; Graham v. O'STeill, 2 Hall (N. Y.) 
 474; Hilton v. Dinsmore, 20 Me. 410; 
 Colt V. Root, 17 Mass. 229; Perley v. 
 Spring, 12 Mass. 297 ; Corbett v. Coch- 
 ran, 3 Hill (S. C.) 41; McKenzie v. 
 Jackson, 4 Ala. 230 ; Durham v. Ar- 
 ledge, 1 Strobh. (S. C.) 5; Hall v. 
 Rogers, 7 Humph. (Tenn.) 536; Ar- 
 buckle I'. Hawks, 20 Vt. 538; Proprie- 
 tors V. Abbott, 14 N. H. 157 ; Blount 
 V. Hawkins, 19 Ala. 100. If two 
 come to a shop, and one buys, and 
 the other to gain him credit promises 
 the seller " it he does not pay you, 
 / will," this is a collateral undertak- 
 ing, void without writing, by the stat- 
 ute. But if he says, "let him have 
 the goods, I will be your paymaster," 
 or " I will see you paid," this is an 
 undertaking as for himself, and he is 
 regarded as the buyer. Birkmyr c;. 
 
SEC. 127.] 
 
 GTJAHANTIES. 
 
 20T 
 
 Of course, if the promisor was before the making of the 
 promise liable to pay the debt, his promise is not within the 
 
 Darnell, 1 Salk. 27 ; 6 Mod. 250 ; Wat- 
 kins V, Perkins, Raym. 224 ; Seaman 
 V. Price, 1 C. & P. 586; 10 Moore, 34; 
 2 Bing. 437. Where the defendant, 
 in consideration that the plaintiff, at 
 the request of the defendant, would 
 provide a workman with materials for 
 his work, promised the plaintifl to 
 pay him a reasonable sum for such 
 materials, out of such moneys re- 
 ceived by him, as sliould become due 
 to the workman in respect of the 
 work, it was held that this was not a, 
 promise by a surety to answer for the 
 debt or default of another, witliin the 
 meaning of the statute, but an origi- 
 nal independent contract. Andrews 
 u. Smith, 2 C. M. & R. 627 ; Sweeting 
 V. AspUn, 7 M. & W. 173 ; Gerish v. 
 Chartier, 1 C. B. 13. Whether the 
 contract of one who engages to be 
 responsible for another is to be re- 
 garded as original and joint, or col- 
 lateral, must depend upon the inten- 
 tion of the parties, to be ascertained 
 from the nature of it, and the lan- 
 guage used. Norris v. Spencer, 18 
 Me. 324 ; Homans i'. Lombard, 20 Me. 
 303; Sinclair v. Richardson, 12 Vt. 
 33; Doyle .;. White, 26 Tenn. 341. 
 If goods are furnished to an infant at 
 the request of the defendant, the de- 
 fendant's undertaking or promise to 
 pay for them is not a collateral prom- 
 ise to answer for the debt of another, 
 because the infant is not liable to pay 
 for them and cannot be indebted by 
 reason of his minority. Harris v. 
 Himtback, 1 Bur. 373 ; Duncombe v. 
 Tickeridge, Aleyn, 94 ; 1 Wms. Saund. 
 211 d. And if the original debt is 
 discharged and extinguished by the 
 substitution in lieu thereof of a new 
 contract to pay the amount of that 
 debt, such new contract is not a col- 
 lateral promise to answer for the debt 
 or default of another. Hodgson v. 
 Anderson, 5 D. & R. 746, 747 ; 3 B. & 
 C. 855, 866; Lacy v. McNeile, 4 D. & 
 R. 7 ; Taylor v. HUary, 1 C. M. & R. 
 743 ; 3 Dowl. 461. Tlie contract of a 
 
 factor binding him in the term im- 
 plied by a del credere commission is 
 not within the statute of frauds. The 
 contract is the factor's own contract, 
 and the debt of another comes in in- 
 cidentally only as a measure of dam- 
 ages. Wolf V. Koppel, 6 Hill, N. Y. 
 R. 458 ; Coutourier v. Hastie, 8 Exch. 
 56. Where a debtor being taken in 
 execution by the plaintiff, the defend- 
 ant, in consideration that the plain- 
 tiff would discharge his debtor out of 
 custody, promised the plaintiff to pay 
 him the debt, it was held that this 
 was not a collateral promise to an- 
 swer for the debt of another, the debt 
 being extinguished by the discliarge 
 of the debtor. Goodman v. Chase, 1 
 B. & Aid. 297 ; Butcher v. Steuart, 11 
 M. & W. 857 ; 12 Law J. Exch. 391 
 Lane u. Burghart, 1 Q. B. 937; An 
 derson v. Davis, 9 Vt. 136 ; Cooper v 
 Chambers, 4 Dev. (S. C.) 261. So, 
 where the plaintiff had issued exeeu' 
 tion against one Lloyd, and after 
 wards, with the assent of all the par- 
 ties interested, Lloyd conveyed all 
 his property to the defendant, he un- 
 dertaking to satisfy Lloyd's creditors ; 
 and, thereupon, it was agreed between 
 the plaintifE Lloyd and the defendant, 
 that the plaintiff should relinquish 
 the execution against Lloyd (which 
 he did), and should look to the de- 
 fendant as his debtor instead of Lloyd ; 
 it was held, that the defendant's un- 
 dertaking to pay the plaintiff was not 
 a promise to answer for the debt of a 
 third person ; for that Lloyd was dis- 
 charged from the debt, and would 
 have had a good answer by plea, if 
 the plaintiff had sued him, or by 
 audita querela, if the plaintiff had 
 issued execution. Bird v. Gammon, 
 5 Sco. 213 ; 3 Bing. (N. C.) 883. And 
 where a purchaser of goods, being 
 unable to pay for them, transferred 
 and delivered them to the defendant, 
 and the latter promised the vendor to 
 pay for them, it was held, that this 
 was a substitution of a new contract 
 
208 
 
 STATUTE 03r FUAUDS. 
 
 [chap. IV. 
 
 statute, although other persons were equally liable with him, 
 as in that case the promise is merely to pay his own debt, 
 and therefore a promise by one partner to pay a firm debt is 
 Talid ; ^ but not if the promise is to pay the individual debt 
 of another partner,^ nor is a verbal promise made by a 
 
 of sale and a new purchaser, in lieu 
 of the original contract of sale, that 
 the original purchaser was discharged 
 from all liability in respect of the 
 goods, and his debt being extinguished, 
 the promise was not a promise to be 
 answerable for the debt of another. 
 Browning v. Stallard, 5 Taunt. 450. 
 The agreement of a factor to account 
 for the amount of sales made by him, 
 under a del credere commission, is not 
 within the statute a promise to an- 
 swer for the debt of another. Wolf 
 V. Koppel, 2 Den. (¥. Y.) 368. 
 
 And a contract or promise, al- 
 though made concerning the debt or 
 default of a third party, may yet be 
 an original contract not within the 
 statute. If the plaintiff, for example, 
 has a lien upon the goods and chattels 
 of his debtor in his possession, or if 
 he holds securities for the payment of 
 his debt, and is induced either to give 
 up his lien upon the goods, or to part 
 with his securities upon the faith of 
 a promise, made by the defendant, to 
 pay the amount of the plaintiff's 
 claim thereon, the promise so made is 
 not within the mischief intended to 
 be provided against by the statute of 
 frauds, although the amount prom- 
 ised to be paid, as the consideration 
 or inducement for the abandonment 
 of the lien or the surrender of the 
 securities, may be the subsisting debt 
 of a third party, due to the plaintiff, 
 and the performance of the promise 
 may have the effect of discharging 
 that debt. Barker v. Birt, 10 M. &, 
 W. 61 ; Baigg v. Brooks, 10 Ad. & El. 
 309; ib. 335; Barrel v. Trussell, 4 
 Taunt. 117 ; Meredith v. Short, Salk. 
 25 ; Castling v. Aubert, 2 East, 325 ; 
 Vfalker v. Taylor, 6 C. & P. 752. 
 Where the plaintiff had distrained 
 upon his tenant for rent in arrear, 
 and afterwards delivered up the goods 
 
 and chattels to the defendants, for 
 the use of the tenant upon the faith 
 of an undertaking signed by the de- 
 fendants in the following terms: 
 "We, the undersigned, hereby agree 
 and undertake to pay to Thomas 
 Edwards (the plaintiff) all such rent 
 as shall appear to be legally due to 
 him from Edward Kelly, tenant, etc., 
 up to the twenty-fifth day of Decem- 
 ber, 1815 ; " it was held that the un- 
 dertaking was not witliin the mischief 
 intended to be provided against by 
 the statute. Edwards v. Kelly, C M. 
 
 6 S. 204; Williams v. Leper, 3 Burr. 
 1887 ; Hampton v. Paulin, 12 Moore, 
 497; Houlditch v. Milne, 3 Esp. 80; 
 
 1 Wms. Sauud. 211 d, 211 e, ed. 1845. 
 The landlord, having distrained the 
 goods, held them in his hands as a 
 pledge for the rent; the debt in re- 
 spect of such rent was for the time 
 suspended, and the promise founded 
 upon the relinquishment by the land- 
 lord of his lien upon the goods, was 
 an original independent contract, and 
 not a mere promise to answer for the 
 debt of another. In these cases the 
 plaintiff must so shape his case, as 
 not to show or admit that there is a 
 principal debtor or that the defend- 
 ant's promise is a promise to pay the 
 debt of another. Clemay v. Piggott, 
 
 2 Ad. & El. 473 ; Slingerland v. Morse, 
 
 7 John. (N. Y.) 403. 
 
 1 Hopkins v. Carr, 31 Ind. 360; 
 Piles V. McLeod, 14 Ala. 611 ; Eice v. 
 Barry, 2 Cr. (U. S. C. C.) 447; Aiken 
 V. Duren, 2 N. & McCord (S. C.) 370; 
 Durham v. Munrow, 2 N. Y. 541; 
 Stephens o. Squires, 6 Mod. 205; 
 Homes v. Martin, 1 Esp. 162; Oli- 
 phant V. Patterson, 56 Penn. St. 368. 
 
 2 Wagnor u.Clay.l A.K.Mar.(Ky.) 
 257 ; Taylor v. Hillyer, 3 Blackf . (Ind.) 
 433; Georgia Co. v. Castleberry, 49 
 Ala. 104. 
 
SEC. 127.J GTTARANTIES. 209 
 
 member of a corporation to pay its debts, binding upon 
 him.i But where any liability for the debt existed against 
 the promisor when the promise was made, it is not within 
 the statute ; and under this rule it is held that a promise by 
 one of several owners of a ship to pay for materials, etc., for 
 which the ship was liable,^ or of one trustee to reimburse 
 a cestui que trust for the default of his co-trustees,^ are not 
 within the statute, because the promisor was liable before, 
 and when the promise was made ; and the rule is well estab- 
 lished that the statute has no application where the promise 
 is in effect to pay the promisor's own debt, although that of a 
 third person is thereby incidentally guaranteed.* It is under 
 this rule that the verbal acceptance of an order drawn by 
 one upon his debtor is held valid,^ or a promise by a debtor 
 to pay. the debt to a person to whom it has been assigned.^ 
 But it has been held that where, from any cause, a person's 
 liabiHty upon a promise to pay the debt of another has been 
 discharged, his promise to pay it made after such discharge is 
 within the statute, as the pre-existing liability does not afford 
 any consideration therefor;^ but in several States it has been 
 held that, as the indorser of a note has the power to waive 
 
 1 Quin V. Hanford, 1 Hill (N. Y.) Paddleford, 43 Vt. 64; Dearborn v. 
 
 62; Trustee (/.Flint, 13 Met. (Mass.) Parks, 6 Me. 81; Cram <;. Ktch, 53 
 
 539; Wyman v. Gray. 7 H. & J. (Md.) Ind. 214; Crosby v. Joralemon, 37 id. 
 
 409; Rogers v. Waters, 2 G. & J. 264; Helms v. Kearns, 40 id. 124; 
 
 (Md.) 64 ; Searight v. Payne, 2 Tenn. Seaman v. Hasbrouck, 35 Barb. (N. Y.) 
 
 Ch. 175. 151 ; Welch v. Kearney, 49 Cal. 49 ; 
 
 ^ Fish V. Thomas, 5 Gray (Mass.) Kowe v. Whittier, 21 Me. 545; Bear- 
 
 45 ; Headrick v. Wiseheart, 57 Ind. shears v. Eowe, 46 Mo. 501 ; Berry v. 
 
 129. Doremus, 30 N. J. L. 399 ; Johnson 
 
 3 Orrell v. Coppock, 26 L. J. Ch. v. Knapp, 36 Iowa, 316 ; Taylor v. 
 269; Fitzgerald «. Dressier, 7 C. B. Preston, 79 Penn. St. 436; Meyer v. 
 (N. S.) 374; Coutourier w. Hastie, 22 Hartman, 72 111. 442; Sweetman v. 
 ii. J. Exchq. 97. Parker, 49 Miss. 19 ; Robberman v. 
 
 4 Malone v. Keener, 44 Penn. St. Wyskamp, 54 111. 159 ; Tisdale v. Mor- 
 107; Cook V. Barrett, 15 "Wis. 596; gan, 7 Hun (N. Y.) 583; Mitchell o. 
 Creely. Bell, 2 J. J. Mar. (Ky.) 309; Griffin, 58 Md. 554; Maxwell v. 
 Barring v. Warden, 12 Cal. 311; Wil- Haynes, 41 Me. 559; Brown v. Strait, 
 liams V. Little, 35 Vt. 323 ; Alcalda 19 111. 88. 
 
 V. Morales, 3 Nev. 132 ; BalUet v. ^ Shields v. Middleton, 2 Cr. (U. S. 
 
 Scott, 32 Wis. 144; RoUison w. Hope, C. C.) 205; Mt. Olivet Cemetery v. 
 
 18 Tex. 446; Gold v. Phillips, 10 Shubert, 2 Head (Tenn.) 116. 
 
 John. (N. Y.) 412; Phillips v. Grey, » Presbyterian Society of Greene 
 
 3 E. D. S. (N. Y. C. P.) 69; Wolfe v. Farm v. Staples, 23 Conn. 544; Colt 
 
 Koppel, 2 Den. (N. Y.) 368; Barker v. Root, 17 Mass. 290. 
 
 V. Bucklin, 2 id. 61 ; Buchanan v. '' Peabody v. Harvey, 4 Conn. 119. 
 
210 STATUTE OF FRAUDS. [CHAP. IV. 
 
 the technical bar, which a neglect to protest the note 
 affords, a promise to pay after he is discharged of such 
 neglect amounts to a "waiver, and keeps the original liability 
 on foot.^ Where a guaranty is executed after the debt is 
 contracted; but in pursuance of an agreement to guarantee 
 the debt made before it was contracted, upon the faith of 
 which the creditor trusted the principal, the consideration 
 is sufficient.^ The leaving of a demand with an attorney 
 for collection, is a sufficient consideration for a guaranty of 
 the debt made by him at that time ; ^ but a guaranty made 
 subsequently is invalid, unless supported by a new and good 
 consideration. Thus, A became bound for the delivery of 
 goods to a constable, which were taken by him in execution 
 against B. C claimed the goods and prevented the delivery, 
 and after suit commenced against A by the constable, or ally, 
 promised A to indemnify him from all costs and damages in 
 consequence of not delivering the goods. It was held that 
 the promise of C was not binding, it being for the default of 
 another ; and that, admitting that the moral obligation of C 
 to protect and save B, who was the father of C, harmless 
 (which is denied), and was a sufficient consideration, yet 
 the cqnsideration of the promise, being past, is not valid.* 
 Where the consideration of a guaranty is sufficient when the 
 guaranty is made, the guaranty does not fail by the subse- 
 quent loss of value of the consideration.^ 
 
 Sec. 128. Credit given to Guarantor. Promise not within the 
 Statute. — If goods are supplied to, or work is done for, a third 
 person at the instance of the guarantor, and credit is given to Mm 
 and he is treated as the real debtor, then the promise is direct, and 
 not collateral, and the case is not within the statute. The rule is 
 that if the promise is of such a character as to make it an original 
 undertaking on the part of the promisor, it is not within the statute, 
 although it is for the exclusive benefit of another.^ Where the 
 
 1 Uhler V, Farmer's Ijfat. Bank, 64 ^ Mordecai v. Gadsden, 2 Spears 
 Penn. St. 406 ; Ashford v. Robinson, (S. C.) 566. 
 
 8 Ired. (N. C.) L. 114; United States » Cook v. Barrett, 15 Wis. 596 
 
 Bank v. Southard, 17 N. J. L. 473. Malone v. Keener, 44 Penn. St. 107 
 
 2 Standley v. Miles, 36 Miss. 434. Crul v. Bell, 2 J. J. Mar. (Ky.) 309 
 8 Gregory v. Gleed, 33 Vt. 405. Story v. Menzies, 4 Chand. (Wis.) 61 
 
 4 Nixon V. Vanhise, 5 N. J. L. 491. Alcalda v. Morales, 3 Nev. 132 ; Gold 
 See also Weed v. Clark, 4 Sandf. v. Phillips, 10 John. (N. Y.) 412; 
 (N. Y.) 31. Williams v. Little, 35 Vt. 323; Cot- 
 
SEC. 128.] 
 
 GUARANTIES. 
 
 211 
 
 promise was as follows : " If L S shall go through the pur- 
 chase, my brother will give you a handsome gratuity for the 
 trouble and pains you shall be at in transacting the affair, 
 which I promise and assure you shall not be less than X300. 
 My meaning is, you shall be paid when the conveyances shall 
 be executed ; " it was held that the defendant was personally 
 liable, and Lee, C. J., said that there was a difference be- 
 tween a conditional and an absolute undertaking, as if A- 
 promise to pay B such a sum if C does not : there A is but 
 a security for C. But if A promise that C will pay such a 
 sum, A is the principal debtor, for the act done was on his 
 credit, and no way on C.-' Where a mother took her son to 
 school, and saw the master, but no evidence was given of 
 what passed at the time, and afterwards a bill was delivered 
 to the boy's vmcle, who said it was quite right to deliver the 
 
 trell i\ Stevens, 10 Wis. 423 ; Clymer 
 V. Be Young, 54 Penn. St. 118; 'Wolf 
 v. Koppel, 2 Den. (N. Y.) 368; Bar- 
 ringer V. Warden, 12 Cal. 311 ; Theras- 
 son V. MeSpeedon, 2 Hilt. (N. Y. C. P.) 
 1; KolUnson v. Hope, 18 Tex. 446; 
 Stoddard v. Graham, 23 How. Pr. 
 (N. Y.) 518 ; Phillips v. Gray, 3 E. D. 
 S. (K Y. C. P.) 69; Mount Olivet 
 Cemetery v. Shubert, 2 Head (Tenn.) 
 116 ; Weyland v. Crichfield, 3 Grant's 
 (Penn.) Gas. 113; Rhodes c. Leeds, 3 
 S. & P. (Ala.) 212; Nelson v. Hardy, 
 7 Ind. 364 ; Briggs v. Evans, 1 E. D. 
 S. (N. Y. C. P.) 192; Porter v. Lang- 
 horn, 2 Bibb. (Ky.) 63; Brown v. 
 George, 17 N. H. 128; Arbuckle v. 
 Hawks, 20 Vt. 538; Backus v. Clark, 
 1 Kan. 303 ; Hodges v. Hall, 29 Vt. 
 209 ; Prentice u. Wilkinson, 5 Abb. 
 (N. Y.) Pr. 49; Tompkins v. Smith, 
 3 S. & P. (Ala.) 54 ; Brittain v. Thrai- 
 kill, 5 Jones (N: C.) L. 329; Noyes v. 
 Humphries,' 11 Gratt. (Va.) 636; 
 Waggoner b. Gray, 2 H. & M. (Va.) 
 603 ; Stone v. Symmes, 18 Pick. (Mass. ) 
 367; Gunnels v. Stewart, 3 Brev. 
 (S. C.) 52; Shoemaker v. King, 40 
 Penn. St. 107; Brown u. Hazen, 11 
 Mich. 219. In Rogers v. Rogers, 6 
 Jones (N. C.) L. 300, a father prom- 
 ised a creditor of his son that if he 
 would go to a distant place and go 
 bail for his son, he (the father) would 
 
 pay him the debt which his son owed 
 him. The creditor did so, but the 
 court held that this did not render 
 the father liable, because the debt against 
 the son was still in force, and therefore 
 the promise was merely collateral and 
 within the statute. White v. Solo- 
 monsky, 30 Md. 585. In Birchell i;. 
 Neaster, 36 Ohio St. 331, A let a con- 
 tract to B for furnishing materials and 
 building a house for a stipulated sum, 
 B employed C to furnish materials 
 and to perform the labor of plaster- 
 ing. When the building was com- 
 pleted, except a small part of the 
 plastering, C, in the absence of B, 
 informed A that he would not finish 
 the plastering unless A would agree 
 to pay him; and A replied, "Finish 
 the plastering and I will see you paid." 
 The obligation of B to complete the 
 house and pay C not being released, 
 it was held : — 
 
 1. That the verbal promise of A to 
 see C paid was within the statute, 
 and the fact that there was due from 
 A to B, at the time the promise was 
 made, a sum sufficient to pay the bal- 
 ance to C, did not take it out of the 
 statute. 
 
 2. That, in suit on such promise, A 
 might rely upon the statute, under 
 the general denial. 
 
 1 Gordon v. Martin, Fitzg. 302. 
 
212 STATUTE OP PEAUDS. [CHAP. IV. 
 
 bill to him, fqr he was answerable, it was held that the statute 
 of frauds did not apply, and that it was proper to leave it to 
 the jury to say under the circumstances whether the original 
 credit was given to the uncle or not.^ Where the defendant 
 gave the following guaranty : " I hereby undertake to Mr. 
 T. Edge to see him paid for the gas apparatus he has put up 
 and furnished for Mr. J. Brunton according to the work, to 
 be performed in a scientific manner, as shall be thought 
 necessary and approved by Mr. Evans, the superintendent 
 of the gas works in Peter Street," and the defendant had 
 given orders about the work before and after the guaranty 
 was given, Abbott, C. J., left it to the jury to determine 
 whether the defendant, although he had no interest in the 
 theatre in which the apparatus was to be put up at the 
 period in question, was not one of the persons who had 
 originally given orders for the gas apparatus ; for if he was, 
 a verdict might be recovered upon his own personal liability, 
 without regard to the guaranty.^ 
 
 Where the defendant employed a builder to erect some 
 houses, and gave a guaranty for a supply of materials to the 
 builder to a certain amount, and afterwards an order for a 
 further supply to a certain amount, and more materials were 
 supplied on the order of the builder, the defendant being 
 constantly on the premises, it Avas held that it was for the 
 jury to say whether he had so acted as to lead the plaintiff 
 to believe that the latter supply was to be on his credit.^ 
 
 In Simpson v. Penton,* one Simpson introduced Penton to 
 Ovenston, an upholsterer, and in Penton's presence asked 
 Ovenston if he had any objection to supply Penton with 
 some furniture, and that if he would, "he would be answera- 
 ble." Ovenston asked Simpson how long credit he wanted, 
 and Simpson replied " he would see it paid at the end of six 
 months." Ovenston agreed to this, and Simpson gave him 
 the order; and the goods were supplied accordingly. At 
 the end of six months, Penton not having paid the amount, 
 Ovenston applied to Simpson for payment, and he paid the 
 
 1 DarneU v. Trott, 2 C. & P. 82. » Smith ,;. Rudhall, 3 Fos. & Fin. 
 
 2 Edge V. Frost, 4 D. & R. 243 ; and 143 ; see also Taylor v. Hilary, 1 C. 
 see Scholes v. Hampson, cited De M. & R. 741. 
 
 Colyar on Guaranties, 94 ; Fell on * 2 C. & M. 430. 
 Guaranties, 2d ed. 27. 
 
SEC. 128.] GUAEANTIES. 213 
 
 money. The entry in Ovenston's books was: "Mr. Penton 
 per Mr. Simpson." It was held that the jury were warranted 
 in finding that the undertaking on the part of Simpson was 
 not a collateral undertaking.^ 
 
 In the recent case of Mountstephen v. Lakeman,^ the 
 question as to whether credit was given to the guarantor 
 personally was fully discussed. There the plaintiff had been 
 employed to constriict a main sewer by a local board of 
 health, of which the defendant was chairman. "When the 
 sewer was nearly completed the board gave notice, under 
 the statute, to the occupiers of the adjoining houses to con- 
 nect their drainage within twenty-one days, or the board 
 would do it at their expense. Before the twenty-one days 
 had expired the plaintiff, having completed the sewer, was 
 about to leave the place with his carts, etc., when the de- 
 fendant sent after him, and the following conversation took 
 place. The defendant said, "What objection have you to 
 making the connections?" • The plaintiff replied, "I have 
 none, if you or the board will order the work, or become 
 responsible for the payment." The defendant replied, " Go 
 on and do the work, and I will see you ijaid." The plaintiff 
 accordingly did the work under the superintendence of the 
 surveyor of the board, and sent in his account to the board, 
 debiting them with the amount. The board refused to pay, 
 on the ground that they had not authorized the order. The 
 Court of Queen's Bench held that the conversation did not 
 amount to an undertaking by the defendant to be primarily 
 liable for the work, but only to a promise that if the plaintiff 
 should do the work on the credit of the board, the defendant 
 would pay, if the board did not, and that this was a promise 
 to be answerable for the debt of another person, which, not 
 being in writing, could not be enforced. The Court of 
 Exchequer Chamber, however, held that there was evidence 
 on which the jury might have found that the defendant 
 agreed to be primarily liable, and this decision was affirmed 
 by the House of Lords.^ 
 
 1 And see Austen v. Baker, 12 2 Ad. & El. 473 ; Hargrcavcs ti. Par- 
 Mod. 250; Bateman ;;. Phillips, 15 sons, l^K. & W. 561. 
 East. 272; Dixon v. Hatfield, 2 Bing. " ^^B^ *^' ^' ^^' ^*'^' ^' ^' ^ 
 439 ; 10 Moo. 42 ; Clancy «. Piggott, H. L. ^^B^K 
 
 » L.MWl"24. 
 
214 
 
 STATUTE OP FRAUDS. 
 
 [chap. IV". 
 
 Sec. 129. Rule when Original Debtor is Discharged.-^ 
 When by the agreement of the parties the original debtor is dis- 
 charged, the promise is treated as original, and not within the 
 statute, and the promisor is substituted as debtor,^ and this 
 rule applies to an executor's promise to pay a debt of the 
 testator. If the estate is discharged, his promise is not within 
 the statute,^ nor is a promise to pay a debt, where a debtor 
 has been taken upon a ca sa, if the creditor will discharge 
 him, where such discharge operates as a discharge of the 
 debt,^ and the same is also held where the promise is made 
 in consideration that the creditor will discharge the debtor,* 
 
 ^ Stone V. Symmes, 18 Pick. 
 (Mass.) 467 ; Watson v. Jacobs, 29 
 Vt. 169 ; Booth v. Eighmie, 60 N. T. 
 238; Gleason „. Briggs, 28 Vt. 135; 
 Curtis V. Brown, 5 Gush. (Mass.) 492 ; 
 Anderson v. Davis, 9 "Vt. 136 ; "White 
 17. Solomonsky, 30 Md. 585; Andre 
 V. Badman, 13 id. 241 ; "V7atson v. 
 Randall, 20 "Wend. (N. Y.) 201 ; Cooper 
 V. Chambers, 4 Dct. (N. C.) 261 ; Yale 
 V. Edgerton, 14 Minn. 194; Griswold 
 .,. Griswold, 7 Lans. (N. Y.) 72; Mead 
 V. Nuges, 4 E. D. S. (N. Y. C. P.) 510; 
 Armstrong v. Flora, 3 T. B. Mon. 
 (Ky.) 43; AUhouse v. Eamsay, 6 
 "Whart. (Penn.) 331; Haggerty u. 
 Johnson, 48 Ind. 41 ; "Wood v. Corco- 
 ran, 1 Allen (Mass.) 406; Lord v. 
 Davison, 3 id. 131 ; Click v. McAffee, 
 7 Port. (Ala.) 63; Parker o. Heaton, 
 55 Ind. 1; Eddy v. Roberts, 17 III. 
 505; Quintard v. De"Wolf, 34 Barb. 
 (N. Y.) 97 ; "Watson v. Jacobs, 29 "Vt. 
 169; Gleason v. Briggs, 28 id. 135; 
 Day V. Cloe,4 Bush. (Ky.) 563; "War- 
 ren V. Smith, 24 Tex. 484; Corbett v. 
 Cochran, 3 Hill (S. C.) 41 ; Shaver v. 
 Adams, 10 Ired. (N. C.) L. 261. But 
 while the original debtor remains lia- 
 ble unless the promise is founded on 
 an independent consideration, the 
 promise is within the statute. Newell 
 V. Ingraham, 15 "Vt. 422 ; Britain v. 
 Thrackill, 5 Jones (N. C.) 329; Noyes 
 V. Humphries, 11 Gratt. (Va.) 636; 
 Brown v. Hazen, 11 Mich. 219 ; Shoe- 
 maker V. King, 40 Penn. St. 107 ; Gun- 
 nels V. Stewart, 3 Brev. (S. C.) 52; 
 Butcher v. Stuart, 11 M. & W. 557. 
 
 2 Harrington v. Rich, 6 Vt. 666; 
 Mosley t). Taylor, 4 Dana (Ky.) 542; 
 Robinson v. Lane, 17 Miss. IGl. 
 
 8 Lane v. Burghart, 1 Q. B. 033 ; 
 Goodman v. Chase, 1 B. & Aid. 297. 
 
 * Cooper V. Chambers, 4 Dcv. (S. 
 C.) 261 ; Butcher v. Stewart, 11 M. & 
 "W. 857. In Griswold v. Griswold, 7 
 Lans. (N. Y.) 72, the owner of a 
 mortgage made a verbal agreement 
 with the mortgagor to satisfy it if he 
 would discharge a disputed claim of 
 an estate of which the mortgagor was 
 the sole beneficiary by will, against 
 one Parley. The mortgagor, with the 
 approval of the executor of the es- 
 tate, gave a receipt for the claim and 
 released the executor from, and in- 
 demnified him against, all liabilities of 
 the estate. The court held that the 
 promise was not within the statute, 
 and that the mortgage was discharged. 
 MuLLiN, P. J., said : " The undertaking 
 of Manly was not to assume or pay 
 the debt of any person, but it was to 
 satisfy the mortgage held by himself 
 against the defendant upon a new and 
 sufficient consideration moving between 
 him and the defendant, upon the faith 
 of his promise to satisfy the mortgage. 
 The executor at the request of the 
 defendant discharged the claim wliieh 
 he and his wife owned as legatees 
 against Parley. It is true that the 
 executor never executed any technical 
 discharge, and the legatees entitled to 
 the debts, did, witli his assent and ap- 
 prpval, agree to release Parley and 
 Parley, and the other heirs released 
 
SEC. 129.] _ GUARANTIES. 215 
 
 or to convert a separate into a joint debt, because thereby a 
 new debt is created, and the former extinguished ; ^ and if the 
 original debtor is discharged, by an entry to that eifect upon 
 'the books of the creditor, or by giving up the evidence of 
 the debt, the promisor is substituted as debtor, and becomes 
 liable as such, notwithstanding the statute ; ® but a promise 
 made to pay the debt if the creditor will submit it to arbi- 
 tration is within the statute, as the agreement to arbitrate 
 does not extinguish the debt.^ Instances may exist where 
 the promise is not within the statute, even though the debtor 
 is not discharged ; but this condition can only arise when the 
 promise is based upon a new and independent consideration mov- 
 ing between the parties, and from which the promisor derives a 
 direct benefit, in which case the promisor becomes the debtor, 
 and there is no debt of another to which his promise can be 
 collateral.* The question whether each particular case comes 
 within the statute or not depends on the fact of the original 
 party remaining liable, coupled with the absence of any lia- 
 bility on the part of the defendant or his property, except 
 such as arises from his express promise.^ If no liability ex- 
 ists against the person promised for, when the promise is 
 made, and credit is given solely to the promisor, the under- 
 taking is not collateral, but original; but if another has 
 already become liable, although the liability is not com- 
 pleted, the undertaking is collateral.^ 
 
 the executor from any claim they or an undertaking is in no sense coUat- 
 
 either of them might have against eral. The substance and effect of tlie 
 
 him for the property of tlie estate, arrangement was, that Manly prom- 
 
 This was done because it ivas understood ised to cancel and discharge his hond 
 
 that Parley was released. This was an and mortgage in consideration that 
 
 accord and satisfaction. Palmerton the defendant would discharge the 
 
 u. Huxford, 4 Den. (N. Y.) 166 ; Parm- debt due Parley. This was a sufficient 
 
 er's Bank of Amsterdam v. Blair, 44 consideration in law to sustain the 
 
 Barb. (N. Y.) 641 ; Neary t;. Bostwick, proriiise." 
 
 2 Hilt. (N. Y. C. P.) 514. In view of i Z;x ;;arte Lane, 1 De Gex, 300. 
 these facts, no court would permit ^ Langdon v. Hughes, 107 Mass, 
 
 either the executor or legatee tore- 272; Corbettr. Cochran, 3 Hill (S. C.) 
 
 covei^ against Parley. This being so, 41 ; Harris v. Young, 40 Ga. 65. 
 there was no debt remaining due from * Harrington v. Rich, Vt. 666. 
 Parley to which the undertaking of * McCaffli v. Kadcliffe, 3 Eob. 
 
 Manly could be collateral. If the (N. Y.) 445. 
 
 plaintiff can be said to have anything ^ Porth v. Stanton, 1 \Vms. Saund. 
 
 to do with that debt, he assumed an 211 b. 
 
 amount of its equal to his bond and ° BQokerv.Tally,2 Humph.(Tenn.) 
 
 mortgage, and agreed to pay it. Such 308 ; Ehodes v. Leeds, 3 S. & P. (Ala.) 
 
216 STATTJTE OF FEATTDS. [CHAP. IT. 
 
 Sec. 130, Question to Whom Credit Given is for the Jury. '■ — 
 It is very often the subject of inquiry to whom the credit 
 was given, and such nice distinctions have been taken on the 
 wording of the promise, as to make it impossible to lay down 
 any precise rule of construction, but the jury must deter- 
 mine to whom the credit was given,i in view of all the cir- 
 cumstances of the case as the extent of the undertaking, the 
 expressions used, the situation of the parties, and all the cir- 
 cumstances of the transaction.^ The form in which the prom- 
 ise is given, as " I will see you paid," or " I will pay you," ^ 
 are of importance in determining the question; but, even 
 though the promise is absolute, the question after all recurs. 
 To whom was the credit given ? and if not given entirely to 
 the promisor, then he is not liable upon his promise.* The 
 circumstance that the goods were charged to the promisor or 
 the debtor upon the plaintiffs books is material in determining 
 the question, but by no means conclusive, as it may be shown 
 that they were so charged for convenience,^ or by mistake. 
 Nor is the fact that the bill was made out in the name of 
 the debtor,^ and presented to him for payment,^ conclusive 
 evidence that credit was given to him, although, if unex- 
 
 212 ; Antonio v. CUpey, 3 Eieh. (S. C.) » Bates v. Starr, 6 Ala. 697 ; Briggs 
 
 L. 201 ; Arbuckle v. Hawks, 20 Vt. v. Evans, 1 E. D. S. (N. Y. C. P.) 192; 
 
 538 ; Tileston v. Nettleton, 6 Pick. Thwaits v. Curl, 6 B. Mon. (Ky.) 172. 
 
 (Mass.) 509. * Blake v. Parlin, 22 Me. 395; 
 
 1 1 Wms. Saund. 230. See Ander- Moses v. Norton, 36 id. 113. 
 
 son V. Hayman, 1 H. El. 120. ^ Barrett v. McHugh, 128 Mass. 
 
 2 Elder v. Warfield, 7 H. & J. (Md.) 165 ; Swift v. Pierce, 13 Allen (Mass.) 
 397; Warwick v. Grashalz, 3 Grant's 136; Walker v. Hill, 119 Mass. 249; 
 Cas. (Penn.) 234; Blodgett v. Lowell, Burkhatter v. Farmer, 5 Kan. 477; 
 33 Vt. 174; Sinclair v. Richardson, 12 Ruggles v. Gatton, 50 111. 412; Myer 
 id. 33; Billingsley v. Dempewolf, 11 v. GriiSn, 31 Md. 350; Champion v. 
 Ind. 414 ; Hazen v. Bearden, 4 Sneed. Doty, 31 Wis. 190. 
 
 (Tenn.) 48 ; Turton v. Burky, 4 Wis. « Houlditch v. Milne, 3 Esp. 86. 
 
 119 ; Payne v. Baldwin, 14 Barb. (N. But see Leland v. Crayon, 1 McCord 
 
 Y.) 570; Chase v. Day, 17 John. (N. (S. C.) 100; Dixon v. Frazer, 1 E. D. 
 
 Y.) 114; Smith v. Hyde, 19 Vt. 54; S. (N. Y. C. P.) 32; Connally v. Ket- 
 
 Hetfleld v. Dow, 27 N. J. L. 119; Pros- tlewell, 1 Gill (Md.) 260 ; where the 
 
 ser V. Allen, Gow. 117; Simpson v. fact that the goods were charged to 
 
 Peuton, 2 C. & M. 436; Keate v. Tem- the debtor was held sufficient to show 
 
 pie, 1 B. & P. 158 ; GUI v. Herrick, the promise to be collateral. 
 
 Ill Mass. 501 ; Jefferson Co. v. Hogle, ' Pennell v. Pentz, 4 E. D. S. (N. 
 
 08 Penn. St. 202; Haverly v. Mercur, Y. C. P.) 639; Larson v. Wyman, 14 
 
 76 id. 97; CliflEord v. Luhring, 69 HI. Wend. (N. Y.) 246. 
 401 ; Eawson v. Springstein, 6 T. & C. 
 (N. Y.) 611. 
 
SEC. 130.] GUAEANTIBS. 217 
 
 plained, such facts are sufficient to make the promise col- 
 lateral. The fact that the plaintiff charged the goods to the 
 promisor, or presented the bill made out in his name to him 
 for payment, is not conclusive evidence that he gave credit 
 solely to him,^ and the jury, in spite of that circumstance, may, 
 where the circumstances warrant it, find that the whole credit 
 was given to the debtor.^ The fact that the goods were 
 bought for and used by the promisor, does not necessarily fix 
 his liability for the debt,^ but, as previously stated, the ques- 
 tion is for the jury in view of all the circumstances, and if 
 there is any evidence to sustain their finding, it is conclu- 
 sive.* Where the plaintiff, who carried on the trade of a 
 tailor, being applied to by one Foster to be supplied with 
 certain clothes made by the plaintiff, and still in his posses- 
 sion, was unwilling, and refused to deliver them to Foster 
 upon his credit, but delivered them at the special request of 
 the defendant, who undertook and promised to pay, it was 
 held that the case was not within the statute, that the whole 
 credit was given to the defendant, and that he was liable.^ 
 
 In Rains v. Story,® A applied to B for goods ; B asked for 
 a reference ; A referred him to C ; C on being applied to in- 
 quired the amount of the order, and on what terms the goods 
 were to be furnished, and, on being told, said : " You may send 
 them, and I'll take care they are paid for at the time." He 
 was afterwards written to to accept a bill for the amount, to 
 which he replied that he was not in the habit of accepting 
 bills, but that the money would be paid when due. After 
 this, B (the seller) wrote to C about the goods, and spoke of 
 them in his letter as goods which C had " guaranteed," and 
 the attorney of B's assignees (when he had become bank- 
 rupt) wrote to A for the money ; but this letter was a circu- 
 
 1 Hardraan v. Bradley, 85 III. 162 ; * Petitt v. Braden, 55 Ind. 201 
 Cutter !>. Hinton, Rand. (Va.) 509; Dean u. Tallman, 105 Mass. 443 
 Poultney v. Koes, 1 Dall. (Penn.) 238 ; Bloom u. McGrath, 53 Miss. 249 
 Walker v. Richards, 41 N. H. 383 ; Cowdin v. Gottgetreau, 55 N. Y. 656 
 Kinloch i/. Brown, 1 Rich. (S. C.) L. Glenn t-. Lehman, 54 Mo. 45 ; Moshier 
 223 ; Noyes- v. Humphrey, 11 Gratt. v. Kitchell, 87 111. 18 ; Eshleman v. 
 (Va.) 636; Eshleman v. Hamish, 76 Hamish, 76 Penn. St. 97. 
 
 Penn. St. 97. ^ Croft v. Smallwood, 1 Esp. 121 ; 
 
 2 Scudder v. Wade, 4 N. J. L. 249. and see Keate u. Temple, 1 B. & P. 
 
 3 Hendricks v. Robinson, 56 Miss. 158. 
 
 694. ■ 6 3 c. & P. 130. 
 
2l8 STATUTE OF TEATIDS. [CHAP. IV. 
 
 lar, written in pursuance of a list made out for him by B, 
 and without any knowledge of the circumstances under which 
 the debt was contracted. It was held that on this evidence 
 C was not primarily liable, but only as a guarantor of the 
 debt of A.i 
 
 Sec. 131. Evidence as to "Whom Credit Given. — Tlie 
 tradesmen's hooks should he produced, in order to show to whom 
 credit was given. In Austen v. Baker,^ Holt, C. J., said that 
 if B desires A to deliver goods to C, and promises to see him 
 paid, there assumpsit lies against B ; , though, in that case, he 
 said, at Guildhall he always required the tradesman to pro- 
 duce his books, to see whom credit was given to. But if, 
 after goods deliYered to C by A, B says to A, " You shall be 
 paid for the goods," it will be hard to saddle him with the 
 debt. And in Storr v. Scott,^ it was held that when a trades- 
 man makes out an account for goods in the name of a partic- 
 ular person, it must be taken that they were furnished on the 
 credit of such person, unless it can he shown by unequivocal evi- 
 dence that the credit was in fact given to another. 
 
 Sec. 132. Must be Principal Debtor. — In order to bring a 
 case within the statute, it must he shovm that the parties to the 
 transaction intended that there sho^dd he a principal debtor, either 
 at the time the promise was made, or at some future time. The 
 leading case upon this point is Birkmyr v. Darnall.* There 
 the declaration stated as follows : That iin consideration the 
 plaintiff would' deliver his gelding to A, the defendant prom- 
 ised that A should redeliver him safe, and evidence was given 
 that the defendant undertook that A should redeliver him 
 safe ; and this was held a collateral undertaking for another, 
 for where the undertaker comes in aid only to procure a 
 
 1 See also Darnall v. Tratt, 2 C. & Doty, 31 Wis. 190. But the fact 
 P. 82 ; Simpson o. Penton, 2 C. & M. that the creditor charged the goods 
 430 ; Andrews v. Smith, 2 C. M. & R. to the ' defendant is not conclusire 
 627 ; Cross v. Williams, 7 H. & N. 675. evidence that he gave credit to him 
 
 2 12 Mod. 250 ; Dixon v. Frazer, 1 alone : Scudder v. Wade, 4 N. J. L. 
 E. D. S. (N. Y. C. P.) 32; Leland o. 249; Poultneyu. Ross, 1 Dall.(Penn.) 
 Creyon, 1 McCord (S. C.) 100; Rug- 238; Walker u. Richards, 41 N. H. 388 ; 
 gles V. Gallon, 50 111. 412; Swift v. Noyes v. Humphrey, 11 Gratt. (Va.) 
 Pierce, 13 Allen ( Mass. ) 136 ; Conally 636 ; nor is the circumstance that he 
 v.Kettlewell, 1 Gill. (Md.) 260; Walker charged the goods to the debtor: 
 V. Hill, 119 Mass. 249; Burkhalter v. Swift v. Pierce, 13 Allen (Mass.) 136; 
 Farmer, 5 Kan. 477 ; Myer v. Griffin, Champion v. Doty, ante. 
 
 31 Md. 350 ; Larson u. Wyman, 14 s g q. & P. 241. 
 Wend. (N. Y.) 246; Champion v. « 1 Salt. 27. 
 
SEC. 132.] 
 
 GUARANTIES. 
 
 219 
 
 credit to the party, in that case there is a remedy against 
 both, and both are answerable according to their distinct 
 engagements; but where the whole credit is given to the 
 undertaker, so that the other party is but as his servant, and 
 there is no remedy against him, this is not a collateral under- 
 taking. But it is otherwise in the principal case, for the 
 plaintiff may maintain detinue upon the bailment against 
 the original hirer, as well as assumpsit upon the promise 
 against this defendant. M per cur. " If two come to a shop, 
 and one buys, and the other, to give him credit, promises the 
 seller, ' If he does not pay you, I will,' this is a collateral 
 undertaking, and void, without writing, by the statute. But 
 if he says, ' Let him have the goods, I will be your paymas- 
 ter,' or, ' I will see you paid,' this is an undertaking as for 
 himself, and he shall be intended to be the very buyer and 
 the other to act but as his servant." ^ The case of Watkuis 
 
 1 And see the judgment given at 
 greater length, Ld. Raym. 1087. Hall 
 B.Wood, 4 Chand. (Wis.) 36; Ware 
 V. Stephenson, 10 Leigh. (Va.) 155; 
 Doyle V. White, 26 Me. 341 ; Homans 
 V. Lombard, 21 id. 308; Williams v. 
 Corbett, 28 HI. 262 ; Kurtz v. Adams, 
 12 Ark. 174; Kinloch v. Brown, 1 
 Rich. (S. C.) 223; Taylor v. Drake, 
 4 Strobh. (S. C.) 431; Olmstead o. 
 Greenly, 18 John. (N. Y.) 12 ; Weyand 
 V. Critchett, 3 Grant's Gas. (Penn. 
 113; Nelson v. Hardy, 7 Ind. 364 
 Cahill v. Bigelow, 18 Pick. (Mass. 
 369; Flanders B.Crolius, 1 Duer (N. Y. 
 206 ; Cropper v. Pitman, 13 Md. 190 
 Cutter V. Hinton, 6 Rand. (Va.)'509 
 Hill V. Raymond, 3 Allen (Mass.) 540 
 Swift V. Pierce, 13 id. 138 ; Rhodes v. 
 Leeds, 3 S. & P. (Ala.) 212 ; Briggs v. 
 Evans, 1 E. D. S. (N. Y. C. P.) 192 
 Dunning v. Roberts, 35 Barb. (N. Y. 
 463 ; Carville v. Crane, 3 Hill (N. Y. 
 483; Walker v. Richards, 39 N. H. 
 259 ; Hetfield v. Dow, 27 N. J. L. 440 
 In Gardiner v. Hopkins, 5 Wend. (N. Y. 
 23, where a printer had printed a book 
 for a bookseller, and delivered all the 
 work, except a, few signatures (eight 
 sheets) when the bookseller having 
 failed, and the printer assigned the 
 book to the defendant, who promised 
 the printer that if he would deliver 
 
 the balance of the work to him he 
 would pay him the balance of his bill, 
 the promise was held to be original. ■ 
 But in Payne v. Baldwin, 14 Barb. 
 (N. Y.) 579, where the Star Insurance 
 Company had entered into a contract 
 with E S to do the mason work on 
 some houses which the company was 
 building, and E S made a contract 
 with the plaintiff to furnish plaster 
 and marble, but E S refusing to make 
 a payment when demanded, the plain- 
 tiffs declined to furnish such mate- 
 rials, and the president of the com- 
 pany told him to go on and furnish 
 the stuff and he would see him paid, 
 it was held that the promise was col- 
 lateral and within the statute. In 
 Pennell v. Pentz, 4 E. D. S. (N. Y. 
 C. P.) 639, the defendant agreed to 
 become surety, provided the principal 
 debtor would assign to him the con- 
 tract about which the materials to be 
 purchased were to be used. This 
 having been done, the defendant di- 
 rected the vendor to furnish the mate- 
 rials, and promised to pay him, " as 
 no other person could draw the money 
 on the contract but himself," assuring 
 him that a written agreement was not 
 necessary. It was held that the credit 
 was given to the defendant, and that 
 the contract was not within the stat- 
 
220 STATUTE OF PEAUDS. [CHAF. IV. 
 
 V. Vince ^ is to the same effect. There it was said that if A 
 promises B (being a surgeon) that if B will cure D of a 
 woimd, he will see him paid, this is only a promise to pay if 
 D does not, and it ought, therefore, to be in writing by the 
 statute. But if A promises in such case that he will be B's 
 paymaster, whatever he shall deserve, it is immediately the 
 debt of A, and he is liable without writing.^ 
 
 Unless there was, at the time when the promise was made, 
 a principal debtor, there is no debt to which the promise could 
 be collateral. " There could be no suretyship," says Loed 
 Selboene,^ "unless there be a principal debtor, who, of 
 course, may be constituted in the course of the transaction 
 by matters ex post facto, and need not be so at the time ; hut 
 until there is a principal debtor, there can be no suretyship. 
 
 Sec. 133. To Constitute Guaranty, must be Debt to Guar- 
 antee. — Nor can a person guarantee anj'^body else's debt, un- 
 less there is a debt of some other person to be guaranteed ; * 
 and this rule applies in all cases where the debt was created 
 upon the sole credit of the promisor. Thus, wherfe a land-owner, 
 whose land had been taken for the construction of a railroad, 
 and who had presented a petition to the county commissioners 
 for his damages therefor, had afterwards iixed by a written 
 agreement with the railroad company the sum to be assessed 
 on his petition, with a provision that, if satisfactory to the 
 comissioners,,this sum might be entered upon their records, 
 without a view, and other proceedings had thereon, as if 
 
 ute. See also Fallmer v. Dale, 9 Penn. lips, 1 KoU. Abr. 20, pi. 14 ; and the 
 St. 83, where a promise to pay for judgment of Willes, J., in Mount- 
 land if the grantor would convey it to Stephen v. Lakeman, L. E. 7 Q. B. 196. 
 another, which he did, was not within ' In Mountstopheu v. Lakeman, L. 
 the statute. So in Kelson v. Dubois, E. 7 H. L. 24. 
 
 13 John. (N. Y.) 175, where a horse * Thompson v. Blanchard, 2 N. Y. 
 
 was sold to another at the request of 335 ; Sanborn v. Merrill, 41 Me. 467 ; 
 
 the defendant, and on his promise to Peck v. Thompson, 15 Vt. 637 ; Chi- 
 
 guarantee the payment of such per- cago &c. Coal Co. u. Liddell, 69 111. 
 
 son's note therefor, the promise was 639 ; Griffin v. Derby, 5 Me. 476 ; Mer- 
 
 held not to be within the statute ; and rill v. Englesby, 28 Vt. 150 ; Samp- 
 
 the defendant having indorsed the son i. Swift, 11 id. 315 ; Walker v. 
 
 note in blank, it was held that the Norton, 29 id. 226 ; Douglass v. Jones, 
 
 plaintiff might write a guaranty over 3 E. D. S. (N. Y. C. P.) 551 ; Jepher- 
 
 it. son V. Hunt, 2 Allen (Mass.) 417 ; 
 
 1 Ld. Eaym. 224. Eead v. Nash, 1 Wils. 305 ; DuflEy v. 
 
 2 And see Seaman v. Price, 1 C. & "Wunsch, 42 N. Y. 243. 
 P. 586; 10 Moo. 34; Turner v. Phil- 
 
SEC. 133.] 
 
 GUAKANTIBS. 
 
 221 
 
 there had been a view, an oral promise, for a sufficient con- 
 sideration, by a third person, to pay to him the interest on 
 that sum until the circumstances of the railroad company 
 shall enable thein to pay the amount, was held not within the 
 statute, if in fact the sum so fixed had not been adopted or 
 acted on by the commissioners, and the promise is made with 
 knowledge of that fact, because there was no debt to wliich 
 the promise could be collateral.^ This is also the case where 
 the original debtor is discharged, and the promisor is substi- 
 tuted as debtor.^ Thus, where the defendant took his nephew 
 to the house of another, and requested him to provide clothing, 
 board, and other necessaries for the nephew, and promised to 
 pay for the same ; it was held an original undertaking upon 
 which a recovery could be had iipon the common counts 
 for goods furnished and services rendered.^ So where a per- 
 
 1 Jephersonu. Hunt,2 Allen(Mass.) 
 417. 
 
 2 In Jolley v. Walker. 26 Ala. 690, 
 the plaintiff having agreed with S and 
 P, who were mail contractors, to keep 
 their drivers and horses at a stipulated 
 sum per annum, payable quarterly, 
 and during the last quarter, on their 
 becoming insolvent, having refused to 
 keep their drivers and horses without 
 security, thereupon, defendant, at the 
 request of S and P, wrote to plaintiff, 
 saying : " I will see you paid for this 
 quarter, as their time then expires, 
 payable when due, in Alabama bank- 
 notes " ; plaintiff kept the drivers and 
 horses until the expiration of the 
 quarter, and the agent of S and P 
 afterwards closed their account by 
 giving the note of the surviving part- 
 ner, payable one day after date, which 
 was filed as a claim against the estate 
 of the deceased partner ; it was held 
 that defendant's promise was an orig- 
 inal undertaking, upon a new and 
 sufficient consideration, which, upon 
 its acceptance by plaintiff, discharged 
 the debt of S and P, and bound de- 
 fendant to pay, at the expiration of 
 the quarter, m Alabama bank-notes. 
 In Hill r. Wells, 17 HI. 88, the dec- 
 laration alleged that A had been in 
 the employment of B, and that money 
 was due him from B on that account ; 
 
 that B being in failing circumstances, 
 A refused to work longer for him, and 
 that C, thereupon, in consideration 
 that A would go on, promised to pay 
 A what was due him, by reason of 
 such employment, from B. The stat- 
 ute was held a good plea to this, be- 
 cause A was bound to perform his 
 contract, and there was no considera- 
 tion for C's promise. But where a 
 contractor is discharged from his con- 
 tract because of the failure of the other 
 party to perform a promise made by 
 & third person will not bo within the 
 statute. Thus, A contracted to do 
 certain work for B, but suspended la^ 
 bor because of B'b failure to pay accord- 
 ing to the contract. C told A to finish 
 the contract, and he would pay him 
 in full. A did so, relying upon C's 
 promise. Held that A could recover 
 of C for the work performed after 
 such promise, but not for that before. 
 Hand v. Mather, 11 Cush. (Mass.) 1. 
 But see Bresler u. Pendell, 12 Mich. 
 224, where a contrary doctrine was 
 held. A request to one to work for 
 the benefit of a third party, and u 
 promise to pay, form an original, not 
 a collateral promise. Brown v. George, 
 17 N. H. 128 ; Backus v. Clark, 1 Kan. 
 303 ; Arbuckle v. Hawks, 20 Vt. 538. 
 8 Ford V. Kockwell, 2 Gal. 73. 
 Where A sold goods to B on credit. 
 
222 STATUTE OF PUAXIDS. [CHAP. IV. 
 
 son promised to pay the debt of another, and requested the 
 creditor to charge the amount to him, it was held that the 
 debt thereby became his own.^ Where an indorser of a note 
 payable to a bank, who was discharged from payment by a 
 failure of the bank, to properly protest the note, promised 
 the bank that if they would continue to discount his paper 
 as before, he would pay the note, which the bank did, it was 
 held that this was not a promise to pay the debt of another, 
 and was not within the statute.^ A writing executed by A 
 to B, which, after reciting that B was about to appoint C his 
 agent for the purchase of grain, and to furnish him money 
 for that purpose, contained a provision as follows : " I hereby 
 become responsible to said B, and agree to pay him all money 
 that he may so advance to C, and that may be due him from 
 C from time to time, by reason of such advances," was held, 
 to create an absolute liability against A, and not collateral.^ 
 Where a contract was let to a contractor to erect a court- 
 house for a county, and the contractor being unable to obtain 
 brick therefor on Ids own credit, the commissioners of the 
 county told the plaintiff to furnish the brick and they would 
 see him paid, it was held that the undertaking was original 
 and not within the statute.* A land-owner, who had made 
 arrangements with a cropper upon his land to make him cer- 
 tain advances, promised a third person that if he would make 
 advances to the cropper, he (the defendant) would be respon- 
 sible for them, and it was held that his undertaking was orig- 
 inal and not within the statute.^ If a person who is bene- 
 fitted by the consideration of a note signed by other parties 
 promises them to join in the note, but does not, it is held 
 that his promise is an original undertaking, and not within 
 the statute.'' So is a promise made upon consideration that 
 if another will sign a note for another, the person promising 
 win pay it.'^ An agreement made before work is performed 
 
 and charged them to him, and after- ^ Graham v. O'Neil, 2 Hall (N. Y.) 
 
 wards C called upon A with B, and 474. 
 
 told A, in B's hearing, that he (C) ^ XJhler v. Farmers' Nat. Bank, 64 
 
 was in debt to B, and that if A -yould Peun. St. 400. 
 
 release B, and charge the amount to ^ Dickinson v. Colter, 45 Ind. 445. 
 
 him (C), he would pay it, which A * Jefferson County v. Slagle, 60 
 
 did, it was held that C's undertaking Penn. St. 202. 
 
 was original and not within the stat- ^ Neal v, Bellamy, 73 N. C. 384. 
 
 ute. Harris v. Young, 40 Ga. 65. ^ Doe v. Downs, 50 Iowa, 310. 
 
 ^ Godden v. Pierson, 42 Ala. 370. 
 
SEC. 133.] GUARANTIES. 223 
 
 for another, that if the person to whom the promise is made 
 will render the service, the promisor will see that he is paid 
 therefor, is not within the statute, being an original under- 
 taking.^ But a promise made to one who has performed cer- 
 tain work fdr another, that if he will complete it, the prom- 
 isor will pay him not only for the services which he shall 
 thereafter render, but also for those which he has rendered, 
 the statute applies as to the amount due for the services 
 which had been rendered hefore the promise was made, but 
 not to those to be thereafter rendered.^ But where a gross 
 sum is to be paid to a person for certain services at their com- 
 pletion, and the contract is not divisible, the rule has been 
 held to be otherwise ; and the promisor, if a beneficiary under 
 the contract, would be treated as the original debtor for the 
 entire sum accruing under the contract. Thus, where a 
 mechanic who had been employed by a contractor was about 
 to quit work, because he was afraid that he would not get 
 his pay, and the owner told him to go on and complete the 
 work, and he would see him paid, it was held that the debt 
 was thereby made his own, and the statute did not apply .^ 
 But whUe this was formerly the rule in New York,* it is now 
 held that such a promise is collateral, as to services already 
 rendered, unless the original debtor is discharged.^ Where, 
 in the usual course of business between banks, promissory 
 
 1 Sinclair v. Bradly, 52 Mo. 180 ; funds of B retained in H's hands to 
 Hodges- V. Hall, 29 Vt. 209 ; Prentice pay for llie work to he done by S, and 
 «. Wilkinson, 5 Abb. Pr. (N. Y.) N. L. also gave his verbal promise that if S 
 49. would go on and do the work, H him- 
 
 2 Hite V. Wells, 17 Dl. 88 ; Rand self would pay for it if B did not. S, 
 ti. Mather, 11 Cush. (Mass.) 1. thereupon, went on and did the plas- 
 
 ' Warwick v. Groshalz, 3 Grant's tering ; but when he called on H for 
 
 Cas. (Penn.) 234; Quintard v. De- the money, H denied that he had any 
 
 Wolf, 34 Barb. (N. Y.) 97; Devlin v. money of B under the contract. It 
 
 Woodgate, 34 id. 252 ; Benedict v. was held that H was estopped to deny 
 
 Dunning, 1 Daly (N. Y. C. P.) 241; that he had funds to pay for the work, 
 
 Stilwell V. Otis, 2 Hilt. (K Y. C. P.) and that the promise was an original 
 
 148 ; Darlington v. McCann, 2 E. D. S. contract with S, not void under the 
 
 (N. Y. C. P.) 414. Thus, B contracted statute of frauds, as a verbal promise 
 
 with H to build a house for the latter, to pay the debt of another. Hiltz v. 
 
 and employed S to do the plastering. Scully, 1 Cine. (Ohio) 555. 
 When the work was ready for the * King v. Depard, 5 Wend. (IS. Y.) 
 
 plastering, B had become of doubtful 277 ; Chesterman v. McCosttin, 6 N. Y. 
 
 credit, and S applied to H to know Leg. Obs. 212 ; Quintard c. DeWolf, 
 
 whether he had funds of B under the 34 Barb. (N. Y.) 97. 
 contract to pay for the plastering, and 6 Brown v. Weber, 38 N. Y. 187. 
 was assured by H that there would be 
 
224 sa?ATtrTE op peatjds. [chap. iv. 
 
 notes of customers -who are in funds on presentment, instead 
 of being actually paid, are certified as good and settled for 
 in the exchanges of the next day, such certificate is an origi- 
 nal promise, and not within the statute.^ So where a bank 
 guaranteed, to a trust company the final collection of certain 
 instalments, to become due upon a bond and mortgage as- 
 signed by a debtor of the bank to the trust company by him, 
 and upon which the trust company advanced money, to be 
 applied by the debtor in the payment of his debt to the bank, 
 and he did so apply it, it was held that the undertaking was 
 original, and that the bank was bound by its guaranty .^ 
 
 Sec. 134. Rule when there is a New and Independent Con- 
 sideration. — In California and Dakota a verbal promise to 
 pay the debt of another, predicated upon a new consideration, 
 is excepted from the operation of the statute,^ and in nearly 
 all the states, such promises are held not to be within the 
 statute, where there is a new, valuable, and independent consid- 
 eration moving between the creditor and the promisor, upon 
 which the promise is predicated, from which the promisor de- 
 rives any benefit or advantage, so that, instead of being a prom- 
 ise to be responsible for, it amounts to a purchase of, the debts 
 by the promisor.^ Where a surviving partner, holding a pol- 
 icy of insurance upon the life of the deceased partner, in 
 pledge for his partnership indebtedness to him, surrenders 
 such policy tipon the promise of the widow of the decedent 
 to pay the debt of her deceased husband, whereby she is 
 enabled to collect money to be applied upon her specific 
 allowance as widow, her promise, though not in writing, is 
 not within the statute of frauds, but is an original undertak- 
 ing.^ Where the plaintifP, in consideration of the promise, 
 has relinquished some lien, benefit, or advantage for securing 
 or recovering his debt, and where, hy means of such relinquishment, 
 
 1 Mead v. Merchants' Bank, 25 and from whicli the benefit accrues 
 N. T. 143. chiefly .to the new party, amounts to a 
 
 2 Talman v. Rochester City Bank, sale of the debt, and is not within the 
 18 Barb. (N. Y.) 123. statute. 
 
 * See Appendix "California, Dar ^ "Wilson v. Bevans, 58 111. 232; 
 kota." Meyer v. Hartman, 72 id. 442; Clif- 
 
 * In Sampson v. Hobart, 28 Vt. 697, ford v. Luhring, 69 id. 401 ; Emerson 
 it was held that an absolute contract, v. Slater, 22 How. (U. S.) 28. 
 
 in which the debtor is not interested, 
 
SEC. 134,] GXTAEANTIES. 225 
 
 the same interest or advantage has inured to the benefit of the defendant, 
 — in such cases, although the result is that the payment of the 
 debt of the third person is effected, it is so incidentally and 
 indirectly, and the s^ibstance of the contract is the purchase by the 
 defendant of the plaintiff, of the lien, right, or benefit in question. 
 But where the original debt still subsists, and where the plaintiff has 
 relinquished no interest or advantage which has inured to the benefit 
 of the defendant, it is not an original contract, but a contract 
 to pay another's debt, and must be in writing.^ In cases of 
 this character the debt is kept on foot after payment, by the 
 party promising, and is transferred to him as purchaser. In 
 other words, he becomes assignee of the debt. This doctrine 
 is ■well illastrated in an early English case,^ in which the 
 declaration alleged a breach of a promise in not replacing 
 certain stock which had been sold out by the plaintiff for the 
 defendant, and the produce whereof had been paid to the 
 defendant. The defendant pleaded the general issue, also 
 specially, that the plaintiff ought not recover more than 
 £525, because the defendant was on a certain day indebted 
 to the plaintiff, by virtue of the said several promises and 
 undertakings in the said declaration mentioned, in the sum 
 of £976 2s. 6d., and no more, and that the defendant after- 
 wards, and before the commencement of the suit, was also 
 indebted to several other persons, to wit, James Greenwood, 
 etc., in certain large sums respectively, and the defendant 
 being so indebted, the defendant was unable to pay his cred- 
 itors the full amount of the several debts, whereof the plain- 
 tiff and the several other creditors of the defendant then 
 and there had notice ; and that it was thereupon computed 
 and agreed, upon an investigation had by the plaintiff and 
 the several other creditors of the defendant, that the estate 
 and effects of the defendant would not extend to pay 10s. in 
 the pound, on the amount of the debts due and owing by the 
 defendant, whereupon it was then and there proposed and 
 agreed, between and amongst the plaintiff and the several 
 other creditors of the defendant, and also by Thomas Wes- 
 ton, by the procurement of the defendant, and at the request 
 of the plaintiff, that Thomas "Weston should and would pay 
 
 1 Curtis t). Brown, 6 Cu&h. (Mas&.) ^^ Anstey w. Marden, 1 B. & P. 
 497 ; Borchsensius v. Canutson, 100 130. 
 111. 82. 
 
226 STATUTE OF TEAUDS. ' [CHAP. IV. 
 
 out of Ms own moneys to the plaintiff, and the several other 
 creditors of the defendant, a sum of money equivalent to 
 10s. in the pound, on the amount of their respective debts, 
 in full satisfaction and discharge thereof ; which sum the plaintiff 
 and the several other creditors of the defendant would accept 
 and receive in full satisfaction and discharge of their respec- 
 tive debts. The plea then states the mutual promise to per- 
 form the agreement, and that Weston, before the commence- 
 ment of the suit, tendered and offered to pay, for and on the 
 behalf- of the defendant, to the plaintiff, the sum of £525 
 being so much as amounted to lOs. in the pound, upon the 
 sum of £976 2s. Qd., the amount of the debt, which sum 
 the plaintiff refused to accept. 
 
 On the trial of the cause, the Chief Justice expressed a 
 doubt whether that could be properly said to be a promise 
 within the statute, by the very terms of which the debt was 
 supposed to be discharged, and that he did not seem to 
 adhere to this doubt in the sequel. In the opinion of 
 Chambee, J., as delivered by him in the same case, great 
 stress was laid upon the circumstance, that the intent of the 
 contract was not to discharge the party indebted, hut to Iceep 
 the debts on foot; which, indeed, was the feature of the ease 
 which gave to it the character of a purchase. And he stated 
 that it appeared to him to be perfectly clear, that the trans- 
 action in substance was a contract to purchase the debts of 
 the several creditors, instead of being a contract to pay or 
 discharge the debts owing by Harden, and that if the con- 
 tract had been that which it was represented to have been, 
 on the special pleas, he should have it a case within the 
 statute of frauds. 
 
 Upon "tlie same principle of considering the transaction in 
 the light of a purchase, the case of Castling v. Aubert ^ was 
 determined by the Court of King's Bench to be entirely 
 clear of the statute. In that case the plaintiff, who was the 
 policy broker for one Grayson, had policies of insurance in 
 his hands, belonging to his principal, which were securities 
 on which he had a lien for the balance of his account, and on 
 the faith of those he agreed to accept bills for the accommoda- 
 tion of his principal. One of these bills became due, and 
 
 1 Castling v. Aubert, 2 East, 325. 
 
SEC. 134.] GUAKANTIES. 227 
 
 actions were brought against the plaintiff as acceptor, and 
 against Grayson as drawer. It was desirable that the 
 policies should be given up by the plaintiff to the defendant, 
 to whom Grayson had at that time transferred the manage- 
 ment of his insurance concerns, in order to enable him to 
 recover the money for the losses incurred from the under- 
 writers ; and the defendant undertook, upon condition that 
 the policies were made over to him, to settle the acceptances 
 due, and to lodge money in a banker's hands for the satisfac- 
 tion of the remainder, as they became due. This transaction 
 was considered in the light of a purchase by the defendant 
 of the plaintiffs interest in the policies. And not in that of 
 a m^ere promise to the creditor to pay the debt of another 
 due to him ; for it was in truth a promise by the defendant 
 to pay what the plaintiff would be liable to pay, on condition 
 of having the securities put into his, the defendant's, hands, 
 as the means of enabling him to indemnify the plaintiff ; or, 
 as Le Blanc, J., put the case : " One man having a fund in 
 his hands, which was adequate to the discharge of certain 
 incumbrances ; another person undertook that, if the fund 
 was delivered up to him, he would take it with the incum- 
 brances." 
 
 In the case of Casthng v. Aubert, ante, the Chief Justice 
 laid considerable stress upon the circumstance that the de- 
 fendant had not the discharge of Grayson principally in his 
 contemplation, but the discharge of himself. That was his 
 moving consideration, though the discharge of Grayson 
 would eventually follow; which is an illustration of Mr. 
 Justice Chambee's reasoning, in the case of Antsey v. Mar- 
 den, except that the contract there was not only not made 
 in contemplation of the discharge of the original debtor, but 
 with the direct purpose of keeping his debt on foot. In Antsey 
 V. Marden, the contract was a purchase of debts, or rather of 
 the right of recovering debts for the promisor's own benefit ; 
 in Castling v. Aubert, the promisor took upon himself to 
 answer for the payment of money, to which the promisee 
 was liable, in consideration of having the fund transferred to 
 him, out of which was to come his indemnity. The object of 
 the promise was in neither case the discharge of the original 
 debtor, though in the one case that discharge would follow 
 
228 
 
 STATUTE OF FRAUDS. 
 
 [chap. it. 
 
 eventually from the undertaking. The principle of the 
 transactions in both cases was the same, though the conse- 
 quences were dissimilar.^ Lord Ellenborough, in Castling 
 V. Aubert, ante, illustrated the distinction between a discharge 
 which arises collaterally, and eventually, and that which fol- 
 lows as the direct purpose of the undertaking, by the case of 
 a bill of exchange upon which several persons are liable. " In 
 such a case," said he, " if it be agreed to be taken up by one, 
 eventually others may be discharged; but the moving con- 
 sideration is the discharge of the party himself, and not of the 
 rest, although that also ensues." And he treated such an 
 undertaking Sy a party ■ already liable, as not being within 
 the statute.^ The statute does not apply to a promise to 
 
 1 See Allen v. Thompson, 10 N. H. 
 32 ; Doolittle v. Taylor, 2 Bos. (N. Y.) 
 306; French v. Thompson, 6 Vt. 54; 
 Hindman v. Langford, 3 Strobh. (S. 
 C.) L. 207; Gardner v. Hopkins, 5 
 "Wend.- (N. Y.) 23; Olmstead v. 
 Greenly, 18 John. (N. Y.) 12. In 
 Allen V. Thompson, supra, the plaintiff 
 had procm-ed the account hooks as a 
 pledge to secure a debt, and the' de- 
 fendant, in consideration that the 
 plaintiff would deliver the books to a 
 person designated by him for collec- 
 tion, promised to pay the plaintiff's 
 debt in case enough should not be col- 
 lected for that purpose. The court 
 held that the promise was not within 
 the statute as the delivery of the 
 books to the third person was the 
 same as a delivery to the defendant 
 himself. 
 
 ^ In Stephens v. Squire, 5 Mod. 205, 
 this rule was adopted. In that case 
 an action had been brought against 
 Squire, an attorney, and two others, 
 for appearing for the plaintiff without 
 a warrant; and that the defendant 
 promised, that in consideration the 
 plaintiff would not prosecute the ac- 
 tion, he would pay .£10 and the costs 
 of suit. An action was brought 
 against the defendant upon this prom- 
 ise; but the court were of opinion, 
 that it could not be said to be a prom- 
 ise for another person, but for his own 
 debt, and, therefore, not within the 
 
 statute. According to the report of 
 the same case in Comberbach, 362, 
 the Chief Justice observed, that it 
 was an original promise, and the party 
 himself liable. Upon which. Sir 
 Baktholomew Showek asked his 
 LoEDSHiP whether it wonld not have 
 been plainly within the statute, if the 
 promisor had not been a party. But 
 Holt desired him to put that case 
 when it came. Here, said he, he ap- 
 pears to be a party concerned in the 
 former action. It is to be observed, 
 that the defendant in the case just 
 mentioned was not only liable, but 
 had actually been sued, and that his 
 promise therefore had a direct view to 
 his own discharge, though it would 
 operate eventually in discharge of 
 third persons ; which brings it within 
 the doctrine so satisfactorily stated in 
 Castling v. Aubert, ante. "Watson v. 
 Turner, B. N. P. 281, seems to be 
 grounded on the same doctrine. 
 
 In this case the ilO undertaken for 
 was not the debt of any other person, 
 but offered by the defendant as a 
 compensation for damages.; therefore, 
 that part of his undertaking which re- 
 lated to the costs came more properly 
 into question upon the statute ; as to 
 which, upon the ground of his being 
 a party, and liable himself, according 
 to the doctrine just stated, the ease 
 seemed to be out of the statute. But 
 suppose the defendant had expressly 
 
SEC. 135.] 
 
 GUARANTIES . 
 
 229 
 
 pay the debt of a third person, where by the receipt of an 
 adequate consideration the debt has become also the party's 
 own debt,^ nor to a promise made in consideration that the 
 promisee incurs a liability to a third person.^ 
 
 ■ Sec. 135. Promise to Pay Broker. — A promise by a third 
 party to pay a broker put in possession of goods on which a 
 distress for rent has been levied, his charges must be in writ- 
 
 said to the plaintifi, Go to J S (being 
 one of the other persons concerned in 
 doing that which was the subject of 
 tlie action) and ask him to pay the 
 costs, and if he will not, I will be 
 personally and wholly responsible for 
 the amount; perhaps a promise ex- 
 pressed in these terms, though made 
 under those circumstances, would be 
 considered as falling within the stat- 
 ute. Such appears to be the doctrine 
 of Winckworth v. Mills, 2 Esp. 484, 
 in which it was held by Lord Kenyon, 
 at nisi prius, that a promise by the in- 
 dorser of an unpaid note, to indemnify 
 the holder, if he would proceed to en- 
 force payment against the other par- 
 ties to the note, must be in writing, or 
 it would be void under the statute of 
 frauds. In the case of Anstey v. Mar- 
 den, ante, the Chief Justice in his 
 opinion stated, that it had rather 
 struck him at the trial, that the prom- 
 ise being only to pay 10s. in the pound, 
 and not to pay the whole debt, it was 
 an original agreement, and, therefore, 
 not witliin the statute. But he after- 
 wards admitted, that Chater v. Beck- 
 ett 7 T. R. 201 (and see Lexington v. 
 Clark, 2 Vent. 223) was a decisive au- 
 thority the other way. 
 
 1 Robinson v. Gilraan, 43 N. H. 
 485. In Shook o. Vanmater, 22 Wis. 
 532, where the defendant in consider- 
 ation that C and S would surrender to 
 B certain securities wliich they held 
 to indemnify them as accommodation 
 makers of a note with B, gave his 
 written guaranty against such liability 
 " if they would permit B to manage the 
 matter himself," it was held that his 
 promise was an original undertaking 
 and not within the statute. In Win- 
 field V. Potter, 10 Bos. (IST. Y.) 226, 
 
 where persons holding a contract for 
 the supply of certain merchandise to 
 the government which was to be sub- 
 ject to inspection, delivered a part of 
 the goods, and pledged the govern- 
 ment receipts therefor, to the plaintiff, 
 as security for a debt due to him, and 
 subsequently assigned the contract to 
 the defendant, in consideration, among 
 other things, of his assuming to pay 
 all their debts, and the defendant, in 
 order to obtain the receipts pledged, 
 so that he might effect a settlement 
 with the government, gave to the 
 plaintiff a written promise that he 
 would pay the amount of the debt 
 whenever he received certificates from 
 thegovernment for the payment of so 
 much upon the contract, in considera- 
 tion that the plaintiff should aid in 
 procuring the inspection and accept- 
 ance of the goods, without charge, and 
 the plaintiff at the same time gave to 
 the defendant a written promise to 
 assist him accordingly without charge, 
 it was held that the promise to pay 
 the plaintiff was not void under tlie 
 statute of frauds. In Beatty v. Grim, 
 18 Ind. 131, it was held that a verbal 
 contemporaneous agreement made by 
 the sellers of a contract to deliver 
 hogs, to the effect that they will per- 
 form its stipulation if the original 
 contracting parties fail to do so, is not 
 within the statute. And in Hunting- 
 ton V. Wellington, 12 Mich. 10, it was 
 held that the statute did not apply to 
 a verbal warranty of certain notes and 
 a mortgage that the makers of the 
 notes were good, and that the land 
 was ample security for the debt, and 
 the title unencumbered. 
 
 2 Underbill v. Gibson, 2 N. H. 352; 
 Doane v. Newman, 10 Mo. 69. 
 
230 STATUTE OF . FEAUDS, [CHAP. IV. 
 
 ing, as the landlord who has authorized the distress is liable 
 for the necessary expenses.^ 
 
 Sec. 136. To Pay a Debt to be Transferred. — A promise in 
 writing to pay a debt to be transferred from the promisor's 
 account to that of a third party (his agent) is valid, as a 
 guaranty.^ 
 
 Sec. 137. Promise by Execution Creditor. — Where, in an 
 action against the sheriff for taking the plaintiff's goods in a 
 fieri facias against a third party, the sheriff failed on the trial, 
 and the execution creditor then employed an attorney to 
 apply for a new trial, and on obtaining a rule for a new trial, 
 to act as attorney on the second trial, it was held that the 
 attornej' might recoTer his bill against the execution creditor, 
 although there was no memorandum in writing, as the execu- 
 tion creditor was the person primarily liable to him ; but if 
 the attorney had in the first place been employed by the 
 sheriff, it would be otherwise.^ 
 
 Sec. 138. Promise in Consideration of Percentage. — A and 
 Co. bought certain wools of B and Co., payable by bearers, 
 acceptance at eight months; but before the sale was com- 
 pleted B and Co., requiring some security, in consideration 
 of £1 per cent, obtained the following instrument from C, 
 signed by him: "Gentlemen, — In consideration of £1 per 
 cent, I hereby guarantee the due and correct payment of 
 one-haK the amount of 186 bales of wool sold to Messrs. A 
 and Co., as per contract ; " — it was held that the instrument 
 was a guaranty.* 
 
 Sec. 139. Promise to Pay out of the Funds of Another. — 
 If the defendant contracts not to pay A's debt out of his own 
 funds, but only faithfully to apply A's funds for that purpose, 
 when they shall come to his hands, that contract will not be 
 within the operation of the statute. Thus, where the defend- 
 ant promised the plaintiff, in consideration that he would 
 
 1 Colman v. Eyles, 2 Stark, 62. But see Sharp v. Emmet, 5 Whart. 
 
 2 Brunton v. DuUens, 1 F. & F. fPenn.) 288, where it was held that 
 450. tlie receipt of such percentage does 
 
 8 Noel V. Hart, 8 C. & P. 230. not create u, guaranty of a bill pur- 
 
 * In re Willis, 4 Exch. 630 ; Row- chased bona fide in the usual course of 
 
 land V. Bull, 5 B. Mon. (Ky.) 146 business and remitted to the principal. 
 
SEC. 139.] GUARANTIES. 231 
 
 deliver such materials as Hill (a workman employed to do 
 certain work) should require, that he would pay him for 
 them out of such moneys received by him as should become 
 due to Hill ; the promise was considered to be original and 
 not within the statute.^ In Dixon v. Hatfield,^ W undertook 
 to complete the carpenter's work in H's house, and find all 
 the materials : W being delayed for want of credit or funds 
 to procure timber, it was supplied by M on H's signing the 
 following guaranty : " I agree to pay M for timber to house 
 in A C out of the money that I have to pay W, provided W's 
 work is completed ; " and it was held that this was not a guar- 
 anty to pay if W should fail, but a direct undertaking to pay 
 when the work should be completed. So where the defendants 
 promised the plaintiffs that, if they would deliver goods to a 
 value named to A, which goods were required for the building 
 of a church, and were to be paid for by a bill of exchange to be 
 drawn by the plaintiffs on- A, the said bill should be paid at 
 maturity out of money to be received from the church ; it 
 was held that the promise was within the statute.^ This 
 principle applies to the case of a verbal acceptance of a bill 
 of exchange or a verbal promise to accept, when the person 
 promising has funds of the drawer out of which to pay it.* 
 But in an English case ^ Loed Mansfield said : " The true 
 reason why the acceptance of a bill of exchange shall bind is 
 
 1 Andrews ... Smith, 2 C. M. & R. = Morley v. Boothby, 3 Bing. 107 ; 
 631. Where notes or other securities and see Sweeting v. Asplin, 7 M. & W. 
 are placed in the hands of ^ person 165 ; Gerish o. Chartier, 1 C. B. 13 ; 
 for collection and the person receiv- Walker v. Eostron, 9 M. & W. 411. 
 ing them prbmises the debtor to pay * Spaulding v. Andrews, 48 Penn. 
 the proceeds to the creditor of such St. 411 ; Nelson v. Krst National 
 person, the promise is not within the Bank of Chicago, 48 111. 36 ; Eaberg 
 statute, and the creditor may sue the v. Peyton, 2 Wheat. (U. S.) 385 ; Grant 
 promisor therefor in his own name. v. Shaw, 16 Mass. 341; Lawnsley v. 
 Clarku. Hall, llN.J.L.78;McCrary Sunwall, 2 Pet. (N. S.) 170; Shields 
 V. Madden, 1 McCord (S. C.) 486; v. Middleton, 2 Cr. (U. S. C. C.) 205; 
 Prather v. Vineyard, 9 111. 40 ; Parley Leonard v. Mason, 1 Wend. (N. Y.) 
 V. Cleaveland, 4 Cow. (N. Y.) 432. 522; Pike v. Irrin, 1 Sandf. (N. Y.) 
 In Antonio v. Clissey, 3 Rich. (S. C.) 14; Strabecker v. Cohen, 1 Speers 
 201, A being indebted to B, and B (S. C.) L. 349; O'Donnell v. Smith, 2 
 being indebted to C, by agreement E. D. S. fN. Y. Ci P.) 124; Wakefield 
 between the three A sold C a gig and v. Greenwood, 29 Cal. 597 ; Quin u. 
 B was to give a credit for the price Hanford, 1 Hill (N. Y.) 82; Morse v. 
 on his note. It was held that the National Bank, 1 Holmes (U.S. C. C.) 
 promise was not within the statute. 209. 
 
 2 2 Bing. 439; 10 Moo. 42. ^ puiows v. Microp, 3 Bunj 1672. 
 
232 STATUTE OP PBATJDS. [CHAP. IV. 
 
 not on account of the acceptors having or being supposed 
 to have effects in hand, but for the convenience of trade and 
 commerce. Fides est servanda. An acceptance for the honor 
 of the drawer shall bind the acceptor ; so shall a verbal accept- 
 ance. But upon a previous hearing of this case ^ that learned 
 judge expressed views quite inconsistent with those given 
 above, and in accordance with the statement in the text. 
 
 Sec. 140. Property Deposited with Promisor Charged ■with 
 the Payment of the Debt. — A parol promise to pay the debt 
 of another out of property placed by the debtor in the hands 
 of the promisor, who converts the same into money, is not 
 within the statute of frauds. It is an original and independ- 
 ent promise founded upon a new consideration, and the 
 property is treated, as a fund in the hands of the promisor 
 charged with the payment of the debt, and the promisor is 
 trustee for the creditor.^ In construing this statute it may 
 be laid down as a general rule that a promise to answer for the 
 debt, default, or miscarriage of another, for which that other 
 remains liable, must be in writing ; but the rule is otherwise 
 where the other does not remain liable. There are numerous 
 exceptions to this rule. In cases where the promise to pay 
 the debt of another arises out of some new and original con- 
 sideration of benefit or harm moving between the original 
 contracting parties, the statute does not apply .^ The reason 
 
 1 3 Burr. 1666. placing of this fund in M's hands 
 
 2 Exchange Bank v. Eice, 107 amounted to a new consideration, and 
 Mass. 45 ; Townsend v. Long, 77 was not within the statute. Gilbert, 
 Penn. St. 143 ; Fullam o. Adams, 37 J., said : " The defendant did not un- 
 Vt. 391 ; Urquhart «. Brayton, 12 dertake or promise for Stansbury, but 
 R. I. 169 ; Perry v. Swasey, 12 Cush. for himself. Nor was the promise 
 (^ass.) 36; Lawrence v. Pox, 20 N. one that Stansbury should pay out of 
 Y. 268 ; Warren u. Batchelder, 16 the money due to him from the de- 
 N. H. 580 ; Connor o. Williams, 2 f endant, but that the defendant would 
 Eob. (N. Y.) 46; Brewer v. Dyer, do so. Consequently Stansbury never 
 7 Cush. (Mass.) 337. had assumed, nor had he put himself 
 
 8 Leonard v. Vredenburgh, 6 John, in a position to become liable in the 
 (N. Y.) 29. In Cook u. Moore, 18 first instance to do that which the 
 Ilun (N. Y.) 31, S, after employing defendant undertook and promised to 
 C to work upon a liouse which S was do. Stansbury left in the defendant's 
 building for M, abandoned the work hands suflScient funds to pay the 
 with M's consent, leaving in M's plaintiff's claim, and directed the de- 
 hands sufficient money to pay C's fendant to make such application, 
 claim, which M promised both S and The defendant promised Stansbury 
 C to pay. It was held that the that he would do so. Subsequently 
 
SEC. 140.] 
 
 GT7AEANTIES. 
 
 233 
 
 is that the promise is made upon a new and independent 
 consideration, and it matters not whether the original debt 
 
 the same promise was made to the 
 plaintifE. The case, I think, is not 
 within tlie statute of frauds, hut 
 ratlier falls under the third class of 
 promises stated by Comstock, J., in 
 Mallory v. Gillett, 21 N. Y. 433, 
 namely, 'Where, although the debt 
 remains, the promise is founded on a, 
 new consideration which moves to the 
 promisor. This consideration may 
 come from the debtor, as where he 
 puts a fund in the hands of the 
 promisee, either by absolute transfer 
 or upon a trust to pay the debt,' etc. 
 Lippincott v. Ashfield, 4 Sand. (N. Y.) 
 611. From the facts proved in this 
 case the law would imply a liability 
 to apply the fund in the defendant's 
 hands in the manner Stansbury di- 
 rected him, and he undertook to do. 
 Barker v. Bucklin, 2 Den. (N. Y.) 45 ; 
 Lawrence u. Fox, 20 N. Y. 268; Bar- 
 low o. Myers, 64 id. 41. When the 
 law will imply a debt or duty against 
 any man, his express promise to pay 
 the same debt or perform the same 
 duty must in its nature be original." 
 Justin V. Tallman, 86 Penn. St. 147 ; 
 Xee V. Newman, 55 Miss. 365; Wil- 
 liams V. Rogers, 14 Bush. (Ky.) 776; 
 Beardslee v. Morgner, 4 Mo. App. 139 ; 
 Estabrook v. Gebhart, 32 Ohio St. 
 415; Thacher v. Rockwell, 4 Cal. 
 375. In Price v. Trusdale, 28 N. J. 
 Eq. 200, a promise to a debtor to 
 apply to the payment of a particu- 
 lar debt funds of the debtor received 
 or to be received by the promisor 
 amounts to a purchase of the debt, 
 and is not within the statute. In 
 Calkins v. Chandler, 36 Mich. 320, it 
 was held that the promise of an em- 
 ployer to pay the wages of an em- 
 ployee, earned and to be earned, to a 
 creditor of the employee is not within 
 the statute. In that case the plain- 
 tiffs having a chattel mortgage upon 
 a new mill owned by M, it was ver- 
 bally agreed between them and M 
 and the defendants, M being then 
 engaged in sawing lumber for the 
 
 defendants, that if the plaintiffs would 
 extend the time for the payment of 
 the mortgage, M should allow the de- 
 fendants to retain fifty cents per thou- 
 sand feet of all lumber sawed by M 
 for them, and that they would pay 
 such sums to them. It was held that 
 the promise was not within the stat- 
 ute, and that they were liable for such 
 sum whether they did or did not re- 
 tain it. Contractors to build a rail- 
 road agreed with merchants to pay 
 orders and time-checks issued by a 
 subcontractor to his employees. Upon 
 the faith of this agreement, and giv- 
 ing credit exclusively to the contrac- 
 tors, the merchants accepted and re- 
 ceived such orders and time-checks 
 in exchange for goods. It was held 
 that the promise of the contractors 
 was not within tlie statute of frauds. 
 Doyle V. White, 26 Me. 341 ; Walker 
 V. Penniman, 8 Gray (Mass.) 233; 
 Billingsley v. Dempewolf, 11 Ind. 414 ; 
 Hanford v. Higgins, 1 Bosw. (N. Y.) 
 441 ; Williams v. Corbett, 28 111. 202 ; 
 Chase v. Day, 17 Johns. (N. Y.) 114; 
 Brown v. George, 17 N. H. 128 ; Hall 
 V. Wood, 3 Pin. (Wis.) 308; Birchard 
 V. Booth, 4 Wis. 419 ; Thayer v. Gal- 
 lup, 13 id. 411 ; Champion ii. Doty, 
 31 id. 190 ; Vogel v. Melms, id. 306 ; 
 West V. O'Hara, Wis. S. C. In Laidlow 
 u. Hatch, 75 111. 11, it was held that a 
 promise by a person to pay to a sub- 
 contractor what might become due to 
 the contractor for work to be done 
 for him, is a promise to pay the debt 
 of another and within the statute. 
 Where A, who was indebted to B, 
 gave him an order oil C for certain 
 goods, and C having the goods in his 
 possession, and also a claim against A, 
 agreed with B by parol that he would 
 sell the goods and apply the proceeds 
 to the payment of their respective 
 claims, it was held that the promise 
 was not within the statute. Clark v. 
 Hall, 11 N. J. L. 78. In an action by 
 E against P, the complaint recited 
 substantially that E held a, mortgage 
 
234 
 
 STATUTE OP FEAUDS. 
 
 [CHAP. IV. 
 
 continues to subsist or not. But in such cases the promisor 
 must have authority to apply the proceeds of the property in 
 payment of the debt, or his promise is within the statute. 
 Thus, where the assignee of a note for collection promised, 
 without authority from the assignor to apply it in payment of 
 a debt due from such assignor to the plaintiff, it was held to be 
 within the statute.^ In an Illinois case ^ A bought lumber on 
 the credit of B, and 'paid B therefor, and B promised the cred- 
 itor that he would pay him for the lumber. It was held that 
 this was an original undertaking on the part of B, and that he 
 thereupon became the debtor. The same rule was adopted in 
 lowa,^ and it was held that neither an agreement by the 
 vendee of real estate to pay a note of the grantor as a part of 
 the consideration for the land, nor an agreement to pay a note 
 
 on E's leasehold of a coal-mine to 
 secure payment of certain notes, not 
 including one for $327 ; that F, desir- 
 ing security for R's indebtedness to 
 himself, promised to pay E this note, 
 and E consented to R's executing to 
 F a mortgage on the same leasehold, 
 to secure said indebtedness of R to F, 
 and in such mortgage said note was 
 included; that R became insolvent 
 and F took possession ; that by rea- 
 son of such promises E was induced 
 to, and did, release R. It was held 
 that F's promise was on a sufficient 
 consideration, not to be within the 
 statute of frauds ; and under the issue 
 made by the general denial, evidence 
 was admissible to determine whether 
 F's mortgage became a prior lien 
 over E's and also the extent of E's 
 loss of security. Fleming v. Easter, 
 60 Ind. 399. See Olmstead v. Greenly, 
 18 John. {N. Y.) 12; "Wait v. Wait, 28 
 Vt. 350 ; Draughan v. Bunting, 9 Ired. 
 10 ; Hall V. Robinson, 8 id. 56 ; Hicks 
 V. Critcher, Phil. 353; Threadgill v. 
 McLendon, 70 N. C. 24; Stanly v. 
 Hendricks, 13 Ired. 86; Mason v. Wil- 
 son, 84 N. C. 51. 
 
 1 France v. August, 88 111. 561; 
 Gower v. Stuart, 40 Mich. 747 ; Mur- 
 phy w.Renkert, 12 Heisk (Tenn.) 397. 
 
 2 Watkins v. Sands, 4 111. App. 
 207. 
 
 ' Morrison v. Hogue, 49 Iowa, 
 
 574. In Barker v. Bucklln, 2 Den. 
 (N. Y.) 61, the defendant's brother 
 owed the plaintiff, and delivered to 
 the defendant a pair of horses, worth 
 less than the debt, and the defendant 
 agreed to pay the price to the plain- 
 tiff on account of his demand against 
 his brother. The plaintiff declared 
 upon the promise as made to himself, 
 and upon that ground was non-suited, 
 but the opinion of Jewett, J., shows 
 that, had the declaration been prop- 
 erly framed, a recovery could have 
 been had. He said : " It was not a 
 promise to answer for the debt of 
 another, but merely to pay the debt of 
 the party making the promise, to a par- 
 ticular person designated by him to 
 whom the debt belonged, and who had 
 a right to make such payment a part of 
 the contract of sale." See also Meriden 
 Brittania Co. v. Zingsen, 48 N. Y. 247 ; 
 Barker v. Bradley, 42 id. 316; Ell- 
 wood V. Monk, 5 Wend. (N. Y.) 235; 
 Farley e^. Cleaveland, 4 Cow. (N. Y.) 
 432. In Skelton v. Brewster, 8 John. 
 (N. Y.) 376, a debtor who had been 
 taken in execution delivered to the 
 defendant all his household goods, 
 upon the promise of the latter to pay 
 the debt. The promise was held not 
 to be within the statute. Westfall v. 
 Parsons, 16 Barb. (N. Y.) 645; Gold 
 V. Phillips, 10 John. (N. Y.) 414. 
 
SEC. 141.] 
 
 GTJAEANTIES. 
 
 235 
 
 of tlie grantor in consideration of the release of an attach- 
 ment by a surety on the note, is within the statute.^ 
 
 Sec. 141. Promise made to the Debtor. — Where a promise 
 predicated upon, a good and sufficient consideration is made 
 hy a third person to a debtor to pay a debt owed by him to 
 another, the promise is not within the statute, and in many 
 of the States, under such circumstances, tlie creditor is treated 
 as standing in such a relation to the contract, — being the 
 person beneficially interested therein, — that he may maintain 
 an action thereon against the promisor in his own name.^ 
 
 But this is not in accordance with the rule as adopted 
 in Connecticut.^ In that case it appeared that William 
 
 1 In Green v. Randall, 51 Vt. 67, 523; Beaman v. Russell, 20 Vt. 205; 
 it was held that a parol agreement 
 hy the vendor of real estate, to remove 
 a mortgage thereon given to secure 
 the debt of another, is not within the 
 statute, it being an original undertak- 
 ing and a promise to pay his own 
 debt. In Prince v. Kochler, 77 N. Y. 
 91, it was held that a promise made 
 by the vendee of land to a mortgagee 
 who was about to foreclose for over- 
 due interest, that if he would not 
 foreclose, he would pay the arrears 
 when the next instalment fell due, 
 was an original undertaldng.^ Moore 
 V. Stovall, 2 Lea (Tenn.) 543, over- 
 ruling Campbell v. Findley, 3 Humph. 
 (Tenn.) 330. A mere promise, by a 
 mortgagee of goods engaged in selling 
 the mortgaged chattels for the pur- 
 pose of obtaining payment of the 
 mortgage debt, to a third person hold- 
 ing a note of the mortgagor, that, if 
 he should realize enough, after pay- 
 ing his own demand, he would pay 
 each note, cannot be enforced, for 
 want of consideration, even if evi- 
 denced by his indorsing his name on 
 the note. A mere naked promise to 
 pay an existing debt of another, with- 
 out a new consideration, is void. So 
 held, where, in fact, the mortgagee 
 did not realize more than enough to 
 pay his own demand. Starr v. Earle, 
 43 Ind. 478; Hayler v. Atwood, 26 
 N. J. L. 504. 
 
 2 Vogel V. Melms, 31 Wis. 306 ; 
 Harrison v. Sawtelle, 10 John. (N. Y.) 
 242; Dunn u. "West, 5 B. Mon. (Ky.) 
 376 ; De Merrett v. Biekf ord, 58 N. H. 
 
 Pike V. Brown, 7 Cush. (Mass.) 133; 
 Barry w. Ransom, 12 N. Y. 462 ; Smith 
 V. Sayward, 5 Me. 504 ; Eeed v. Hol- 
 comb, 31 Conn. 360. 
 
 ' Clapp V. Lawton, 31 Conn. 95. In 
 a recent case, Meech v. Ensign, 49 
 Conn. 191; 44 Am. Rep. 225, the 
 question as to the right of a creditor 
 to sue upon a promise made by a third 
 person to Ms debtor to pay the debt, 
 was before the court under the follow- 
 ing state of facts : The plaintiffs had 
 a mortgage on real estate, and the 
 defendant purchased the mortgagee's 
 equity of redemption, agreeing with him 
 to pay the mortgage debt to the plaintiffs. 
 Tliis he did not do, and the court held 
 that the plaintiffs could not maintain 
 an action against him upon tlie prom- 
 ise, upon the ground that although 
 the promise was incidentally made 
 for their benefit, it was not made to 
 them, nor were they privy thereto, 
 thus ignoring the doctrine of a large 
 class of cases in our courts, which 
 hold that where a promise is made 
 for the benefit of a third person, that 
 person may maintain an action there- 
 for. Lawrence v. Fox, 20 N. Y. 268 ; 
 Thorp V. Keokuk Coal Co., 48 id. 253 ; 
 Burr V. Beers, 24 id. 178 ; Davis v. 
 Calloway, 30 Ind. 112; Croswell v. 
 Currie, 27 N. J. Eq. 152; Blyer v. 
 Mulholland, 2 Sandf . Ch. (N. Y.) 478 ; 
 Urquliart v. Brayton, 12 R. I. 169; 
 Vroman ,;. Turner, 69 N. Y. 280; 25 
 Am. Rep. 195 ; Hendrick u. Lindsey, 
 93 U. S. 143 ; Exchange Bank v. Rice, 
 107 Mass. 39 ; 9 Am. Rep. 1 ; Merrit 
 
236 STATUTE OP PEAXJDS. [CHAP. IV. 
 
 Faulkner and Robert Wright were partners under the 
 name of Faulkner & Wright, and as such partners were 
 the owners of a newspaper called the New Haven Morn- 
 ing News, which they had been conducting for several 
 months previously. They had contracted debts in the 
 business to the amount of about |1,300, among which 
 were the notes of the plaintiffs described in the declaration, 
 amounting to the sum of $632.70. They had, besides their 
 press, type, engine, and fixtures belonging to their estab- 
 lishment, debts due them amounting to about $1,600. 
 On the 3d of September, 1859, Faulkner sold to Thomas 
 Lawton, the defendant, his interest in the establishment, 
 and conveyed the same to him by a written instrument. 
 At the time of this sale the parties had a schedule of the 
 balances due the firm of Faulkner & Wright, and the gross 
 amount of their indebtedness. The books of the firm were 
 also present and contained an accoT:ynt of the debts due the 
 plaintiffs, the notes of the plaintiffs being correctly described 
 in their account of bills payable. Faulkner & Wright dis- 
 solved their co-partnership on the same day. Lawton & 
 Wright entered into co-partnership for the purpose of con- 
 ducting the same newspaper under the name of Lawton & 
 Wright. The new firm of Lawton & Wright took possession 
 of all the material, presses, types, cases, forms, engine and 
 its fixtures, and all other property belonging to the firm of 
 Faulkner & Wright, and Lawton on the same day paid the 
 persons who had been the operatives in the establishment, 
 and who had claims against Faulkner & Wright. He subse- 
 quently paid a debt contracted by Faulkner & Wright for 
 paper, amounting to about $100; and also $83.37 for rent 
 due for the quarter ending on the 1st day of October. 
 
 The accounts due Faulkner & Wright, estimated at about 
 $1,600, and the books on which they were entered, went into 
 the hands of Lawton & Wright and were collected by them 
 
 V. Green, 55 N. Y. 270 ; Gumsey v. Connecticut court is most consistent 
 Rogers, 47 id. 233 ; 7 Am. Rep. 440 ; with principle, and that the courts 
 Simson v. Brown, 68 id. 361 ; Dean v, which have opened the door to this 
 "Walker (111. S. C); 44 Am. Rep. 232 n. ; new flood of litigation will ultimately 
 Campbell v. Smith, 71 N. Y. 26 ; 27 find it necessary to curtail and' cir- 
 Am. Rep. 5. Without attempting to cumscrihe the application of the doc- 
 point out the reasons, we are inclined trine if they do not recede from it 
 to believe that the doctrine of the altogether. 
 
SEC. 141.J GUARANTIES. 237 
 
 SO far as they could be collected. Lawton & Wright opened 
 new accounts with persons on their books in all new transac- 
 tions, but they did not open any account with Faulkner, nor 
 did they have any account in which they credited the firm 
 of Faulkner & Wright with the money they collected on the 
 accounts of Faulkner & Wright, but the money so collected 
 was used by them as their own. The amount collected by 
 thera was about $1,000. 
 
 The plaintiffs claimed that at the time of the sale of 
 Faulkner's interest in the establishment to Lawton, and as a 
 part of the same transaction, Faulkner & Wright assigned 
 their accounts to Lawton & Wright, and that Lawton & 
 Wright then promised to pay the debts due from Faulkner 
 & Wright, among which debts were the notes due the plain- 
 tiffs; and thereupon the plaintiffs offered in evidence the 
 deposition of Faulkner, and the testimony of Wright, to 
 prove that at the time of the disposition of Faulkner's 
 interest in the establishment to Lawton, Faulkner & Wright 
 assigned to Lawton & Wright their interest in the debts due 
 the firm of Faulkner & Wright, in consideration of the parol 
 agreement of Lawton & Wright with him, Faulkner, that 
 they would assume and pay all the liabilities outstanding 
 against the co-partnership of Faulkner & Wright, and that 
 Lawton & Wright received and accepted the claims so 
 assigned upon such promise to pay the liabilities of Faulkner 
 & Wright, and that Lawton had no interest in the claims so 
 assigned except by his promise to pay such outstanding 
 liabilities ; and that there was exhibited to Lawton & Wright 
 at the time a written schedule of the debts due to Faulkner 
 & Wright on the Ist of August, 1859, amounting on their 
 face to about $1,600, and a statement in gross of the liabilities 
 of the firm, amounting to about $1,300. To the admission 
 of this evidence the defendants objected, on the grounds 
 that the promise claimed, being a promise to pay the debt of 
 another, could not be proved" by parol, and the court held 
 that this objection was well taken. Dutton, J., in deliver- 
 ing the opinion of the court, says : " Many of the numerous 
 cases on this subject appear to treat this clause as if it read 
 'a special promise to pay,' instead of, 'to answer for the debt 
 of another.' ^ The term ' answer for ' clearly implies an 
 1 In Florida the words are " answer or pay.'' 
 
238 STATUTE OP FRAUDS. [CHAP. IV. 
 
 attempt to hold another as surety. The object of the statute 
 is expressed to be, 'for the prevention of many fraudulent 
 practices, which are commonly endeavored to be upheld by 
 perjury and subordination of perjury.' The danger is, that 
 creditors will endeavor by false parol testimony to save 
 debts which they will otherwise lose by the failure of the 
 original debtor to pay. Why are the present plaintiffs suing 
 Lawton & "Wright instead of Faulkner & Wright? In a 
 suit against the latter no objection could be raised to a 
 recovery. We can conceive of no reason except that they 
 are endeavoring to make Lawton & Wright answerable for a 
 debt which cannot be recovered from Faulkner & Wright. 
 It is therefore precisely the case which the legislature had in 
 view. We are far from supposing that these creditors would 
 resort to the fraudulent practices spoken of in the statute. 
 But we could not in another case refuse to dishonest credi- 
 tors a privilege which we have once granted to those who 
 are honest. 
 
 It cannot be denied, however, that in many of the cases 
 doctrines are sanctioned which would permit a recovery in 
 this case. In some of them the court seem to have been 
 influenced very much by the fear, that if the plaintiff was 
 not allowed to recover, the defendant would use the statute 
 as an instrument of fraud. They do not seem to have been 
 conscious of their inconsistency, in drawing inferences in a 
 case as proved, when the only question in the case is, whether 
 the law will permit it to be proved in the way attempted. 
 The statute is based upon the conviction of the legislature 
 that it is not safe to allow a contract to be proved in this 
 way. What propriety then can there be in drawing inferences 
 of fraud from facts which are not proved ? But the danger 
 of fraud has been overrated. It does not follow at all that a 
 defendant who denies the validity of an agreement on this 
 ground can retain the consideration. Frauds are not in fact 
 perpetrated by taking advantage of this statute, to near the 
 same extent to which they are by objections to evidence of a 
 parol contract made in connection with a written contract 
 but not included in it. Yet this has never been con- 
 sidered a sufficient reason for not applying the rule strictly. 
 Courts have also frequently been misled by not adverting 
 
SEC. 141.] GUARANTIES. 239 
 
 to the distinction between an attempt to hold a person as 
 surety for another, and merely compelling him to pay a sum 
 of money, which may happen to be the debt of another. If 
 A sells a house to B for one himdred dollars, it is clearly 
 immaterial to B whether he is to pay the money to A or to 
 one of A's creditors. As a contract between A and B, there 
 is no more danger that the fraud mentioned in the statute 
 will be perpetrated than in any other contract. But the 
 moment you allow the creditor of A to have an interest in 
 this contract, and to have the right, either expressly or by 
 implication, to sue upon it, as the plaintiffs claim to have in 
 this case, the agreement is brought directly within both the 
 letter and spirit of the statute. ^ Some of the cases seem to 
 turn upon the question whether the defendant has actually 
 received a full consideration or not. But it is obvious that 
 the statute has no reference to the consideration. It implies 
 that there is a sufficient consideration, otherwise the statute 
 would be unnecessary, as the agreement would be void of 
 itself. Some of the recoveries seem to have been allowed 
 on the ground that it appeared that some new and distinct 
 consideration passed from the plaintiff to the defendant. 
 Here again it is plain that unless there was a new considera- 
 tion, to which the defendant is in some way privy, the agree- 
 ment would be void without the statute. These cases have 
 grown out of, but in many instances are an extension of, the 
 doctrine contained in an English case,^ and which has been 
 very properly applied in many subsequent cases, that where 
 a creditor has in his hands or subject to his control, property 
 of his debtor which he has a right to apply to the payment 
 of his debt, he may transfer his right in that property to a 
 stranger and take his parol promise to pay the debt. In such 
 cases there is, in the language of Judge SwrFT,^ ' a pur- 
 chase of the property at a price equivalent to the debt for 
 which it was holden.' " But the doctrine expressed in this 
 case, as we have seen,* is not generally adopted, and it may be 
 said to be a general rule, that a promise made either to the 
 debtor or the creditor, to pay the debt of another, because of 
 
 1 See Meech v. Ensign, ante. See ^ 'WiUiams v. Leper, 3 Burr. 1886. 
 
 Parker v. Benton, 35 Conn. 343, where » Swift's Dig. 255. 
 
 a different rule was adopted where the * See ante, § 125. 
 creditor accepted the substitution. 
 
240 STATUTE OP FRAUDS. [CHAP. IV. 
 
 property deposited with him by the debtor, or of assets in his 
 hands, is founded upon a new and independent consideration, 
 and is not within the statute, and that the creditor may main- 
 tain an action thereon in his own name. In a recent case in 
 Pennsylvania,^ involving a similar state of facts with those 
 existing in Clapp v. Lawton, ante, it was held that the statute 
 did not apply, because the promise was not to pay the debt of 
 another, but rather to pay the promisor's own debt, and the 
 soundness of this doctrine cannot be questioned. 
 
 Sec. 142. Promise of G-rantee to pay Mortgage Debt. — In 
 Minnesota 2 it is held that a verbal promise made by the 
 grantee of lands, to pay the grantor's debts, is not within 
 the statute; and a similar doctrine is held in Nebraska,^ 
 Illinois,* North Carolina,* New Jersey,® Kentucky,'' Nevada,^ 
 California,^ Alabama,^" Maine," Ehode Island,i2 Vermont,!^ 
 New York,i* South Carolina,^^ and, indeed, in all the States 
 except Connecticut, this rule prevails without queStion.^® 
 
 Sec. 143. when Promisor Estopped from Denying that he 
 has Funds. — If the promise is made directly to the creditor, 
 
 1 Wynn v. Wood, 97 Penn. St. 216 ; 399 ; Clark v. Hall, 11 id. 78 ; Laing 
 Standt V. Hine, 45 id. 30. v. Lee, 19 id. 337. 
 
 2 Stariha u. Greenwood, 28 Minn. ^ Jennings v. Crider, 2 Bush. (Ky.) 
 521. But a Terbal promise to pay a 322. 
 
 mortgage debt made by the purchaser ^ Eushliug v. Hackett, 1 Nev. 360. 
 
 of the equity of redemption in land ' McLaren v. Hutchinson, 22 Cal. 
 
 ajler the purchase and not connected with 187 ; Lucas u. Payne, 7 id. 92. 
 
 the consideration to be paid therefor is l" McKenzie v. .Jackson, 4 Ala. 
 
 within the statute. Berkshire v. 230; Cameron v. Clark, 11 id. 209; 
 
 Young, 45 Ind. 461. Lee v. Fontaine, 10 id. 755. 
 
 8 Clopper V. Poland, 12 Neb. 63. " Hilton v. Dinsmoor, 21 Me. 410. 
 
 * Mathers v. Carter, 7 lU. App. i^ Thurston v. James, 6 R. 1. 103. 
 
 225. In this case the original debtor ^^ Merrill v. Englesby, 28 Vt. 150 ; 
 
 surrendered a bond for a deed which Wait v. Wait, 28 id. 350. 
 
 he held against A, in consideration ^^ Seaman v. Whitney, 24 Wend, 
 
 that A would pay to C the amount of (N. Y.) 360 ; Wyman v. Smith, 2 
 
 a note due from such debtor, and it Sandf . (N. Y.) 33 ; Budd v. Thurber, 
 was held that A's promise was an in- , 61 How. Pr. (N. Y.) 206; Winfield v. 
 
 dependent undertaking. Prather v. Potter, 10 Bos. (N. Y.) 226; Farley w. 
 
 Vineyard, 9 111. 40. Cleaveland, 9 Cow. (N. Y.) 639. 
 
 6 Mason u. Wilson, 84 N. C. 51 ; i^ McCrary v. Madden, 1 McCord 
 
 37 Am. Eep. 612; Threadgill v. Mc- (S. C.) 486; Antonio „. Clissey, 3 
 
 Lendon, 76 N. C. 24. Rich. (S. C.) 201. 
 
 8 Berry v. Doremus, 30 N. J. L. ^^ Stanley v. Hendricks, 13 Ired. 
 
 (N. C.) 86. 
 
SBC. 143.] 
 
 GTJAEANTIES. 
 
 241 
 
 the promisor representing to the creditor that he has property 
 or assets of the debtor in his hands, and the creditor there- 
 upon discharges the debtor, the promise is not within the stat- 
 ute, even though the promisor has no such property in his pos- 
 session belonging to the debtor, out of which to pay the debt. By 
 inducing the creditor to act upon such representations he is 
 estopped from denying their truth,^ and the same rule prevails, 
 even though the original debtor is not discharged, where the 
 representations and promise are made upon consideration that 
 the creditor will refrain from enforcing the collection of the 
 debt. Thus in the Pennsylvania case cited supra, the defend- 
 ant represented to the plaintiff that he was owing a person 
 who was indebted to the plaintiff, and promised to see him 
 
 ' In Dock V. Boyd, 93 Penn. St. 92, 
 the plaintiff having a claim against 
 M, which they were pressing, and had 
 threatened to institute legal proceed- 
 ings upon, D, a. third party, said to 
 them that if they would give time, he 
 would see the claim paid, as he had 
 property of M in his hands, and that 
 plaintiffs were secure. The plaintiffs 
 then agreed not to push M without 
 notifying D. M thereafterwards ab- 
 sconded, and plaintiff sued M and re- 
 covered judgment. In an action against 
 D to enforce the promise, it was held 
 that whether or not D had in his hands 
 means belonging to M, he was es- 
 topped by his own declaration, upon 
 the faith of which his verbal promise 
 to pay the debt was accepted. Such 
 being the case, it was clearly not with- 
 in the statute of frauds. When the 
 promise is to apply the funds or prop- 
 erty of the debtor in the hands of the 
 party, it is not necessary that the 
 creditor should give up his recourse 
 against the debtcw upon the original 
 claim. The promise is not a collateral, 
 but an original one, founded on suffi- 
 cient consideration. In McKenzie v. 
 Jackson, 4 Ala. 230, A agreed with B 
 to take his stock of goods and pay 
 his debts, and afterwards A verbally 
 promised one of B's creditors to pay 
 him. It was held that the promise 
 was not within the statute, and that 
 the creditor could recover thereon. 
 
 In Lucas v. Payne, 7 Cal. 92, A con- 
 veyed to B to be disposed of for his 
 benefit, and B accepted an order of A, 
 and this was held to be an original 
 undertaking. In Hite v. Wells, 17 
 111. 88, the declaration alleged that A 
 was indebted to B in $208.75 ; that C, 
 in consideration that B would procure 
 from A an order on C for the money 
 so due, promised to pay to B the money 
 due from A to B; that B procured 
 the order and presented it to C who 
 refused to pay it. To this the statute 
 was pleaded, and held to be a good 
 answer. See also, adopting tlie same 
 rule, Lippincott ti. Aspfield, 4 Sandf. 
 (N. Y.) 611; Edinfield v. Cunaday, 
 60 Ga. 456. In a South Carolina 
 case a doctrine inconsistent with this 
 was held, where A received from B 
 an assignment of his mills, to secure 
 him against his liabilities for B. Two 
 or three months after this assignment, 
 A called upon C to obtain his indorse- 
 ment to B's paper, to he discounted at 
 a bank, saying that he had in his hands 
 a quantity of lumber, and verbally 
 promising to indemnify C, on account 
 of such indorsement, as soon as he, 
 A, got a return from his factor: C 
 indorsed the note upon this represen- 
 tation, and having been compelled to 
 pay it, sued A upon his guaranty. It 
 was held that A's contract was within 
 statute. Simpson r. Nance, 1 Spears, 
 (S. C.) 4. 
 
242 STATUTE OF FKAXJDS. [CHAP. IV. 
 
 paid if he wpuld give such debtor time. The plaintiff, relying 
 upon this promise, refrained from enforcing the claim, but did 
 not surrender it, and afterwards prosecuted it to judgment. 
 It was held that the promise was an original undertaking not 
 within the statute, and that the defendant was estopped from 
 denying his obligation. In the New York case cited above, 
 the facts were quite similar, and the same doctrine was held 
 and its accuracy cannot be questioned. In a Wisconsin case 
 the defendant purchased of C a wagon, etc., and as part of 
 the contract of purchase, promised C to pay portions of the 
 purchase-money to F and G, C being indebted to those par- 
 ties respectively in the stipulated sums. Soon after the pur- 
 chase, and before the service of garnishee process upon him, 
 the defendant notified F and G of his promise to C to pay 
 them such sums, and they each accepted such promise. He 
 paid them according to promise, but not until after process 
 of garnishment was served upon him. It was held that such 
 promise was not within the statute. The ground upon which 
 this doctrine is pleaded is, that although it was collateral to 
 C's own liability or promise to pay, and may be said inciden- 
 tally to have guaranteed liis debts, yet it was a guaranty in 
 form only, and not in substance or effect within the meaning 
 of the statute of frauds. It was not a mere promise by the 
 defendant to be responsible for the debts of C and to pay 
 those debts, but a promise by him to pay his own debt in that 
 particular way. It was a promise founded upon a new and 
 sufficient consideration, moving to the promisor from the 
 debtor, at the time the promise was made. After notice to 
 them, and their assent, the liability of the defendant to F and 
 G was absolutely fixed, and they each could have maintained 
 an action against him to compel payment. After such notice 
 and assent, it was no longer in the power of C to forbid such 
 payment, or to withdraw his assent, or to require payment to 
 be made to himself, without the consent of F and G. The 
 defendant's liability being thus fixed, his voluntary payment 
 after service of process upon him, was not unlawful or un- 
 authorized. Indeed, it was immaterial whether he had paid 
 at all or not. He was not liable as the garnishee of C. He 
 was not C's debtor, but the ' debtor of F and G, at the time 
 
SBC. 143.] 
 
 GUARANTIES. 
 
 243 
 
 the proceedings were commenced.^ In a Michigan case,^ the 
 plaintiff having a mortgage against M on a mill owned by 
 
 ' Putney V. rarnhara, 27 "Wis. 187. 
 A doctrine inconsistent with this was 
 held in Emerick v. Sanders, 1 Wis. 77. 
 
 2 Calkins t>. Chandler, 36 Mich. 
 320 ; 24 Am. Eep. 593. Coolet, J., 
 in delivering the opinion of the court, 
 said : " Three principal objections are 
 taken to the recovery which has been 
 had in this case : First, that the agree- 
 ment proved was void for want of 
 consideration ; second, that it was void 
 under the statute of frauds, because 
 not reduced to writing; and third, 
 that, conceding the agreement to be 
 valid, defendants could only be re- 
 sponsible under it for such moneys 
 due the Medlar Brothers as they should 
 retain in their hands ; and in this case 
 they ofEered, but were not allowed, to 
 show that they retained nothing. 
 These objections will be considered 
 in their order. 
 
 The defect in the consideration is 
 supposed to be, that there was no 
 agreement to extend payment for any 
 definite time. In EoUe's Abridgment, 
 27, pi. 45, it is laid down that ' If A 
 be indebted to B in one hundred 
 pounds, and B is about to commence 
 a suit for the recovery thereof, but C, 
 a stranger, comes to him and says that 
 if he will forbear him, he himself will 
 pay it, this is a good consideration for 
 the promise ; B averring that he had 
 abstained and forebore to sue A,et ad 
 Jiunc did abstain and forbear ; though 
 no certain time be appointed for the 
 forbearance ; for it seems a perpetual 
 forbearance shall be intended, the 
 which he hath performed. So if he 
 will forbear paululum temporis, this is 
 good ; plaintiff averring a certain 
 time of forbearance.' In Payne v. 
 Wilson, 7 B. & C. 426, the agreement 
 counted upon was to suspend proceed- 
 ings in consideration that defendant 
 would pay a certain sum on account 
 of the debt on April 1, following ; and 
 after verdict for the plaintiff, objec- 
 tion being taken that no consideration 
 appeared, Tentekden, C. J., said: 
 
 ' The promise made by the defendant 
 was to pay .€30 on the first of April, 
 in consideration of the plaintiff's con- 
 senting to suspend proceedings. That 
 imports that the proceedings were at 
 all events to be suspended until that 
 period ; and I think that the averment 
 that the plaintiH did suspend the pro- 
 ceedings is sufficient after verdict; 
 because it must be taken that it was 
 proved at the trial that the plaintiff 
 had suspended the proceedings, either 
 for a time required by law, or for a 
 definite or reasonable time.' In Sid- 
 well I. Evans, 1 P. & W. (Penn.) 383, 
 the evidence showed an agreement in 
 consideration of a promise of the 
 creditor to 'wait a while and not 
 push' the debtor. The plaintiff had 
 counted on an agreement to forbear 
 to sue for a reasonable time ; and the 
 jury having found for the plaintiff on 
 this evidence, the verdict was upheld. 
 In King o. Upton, 4 Me. 387, the 
 promise counted on was to pay the 
 debt of another in consideration that 
 the creditor would ' forbear and give 
 further time for the payment of the 
 debt,' naming no time. The plaintiff 
 averred that he did thereupon forbear, 
 and the consideration was held suffi- 
 cient. Elting V. Vanderlyn, 4 Johns. 
 (N. Y.) 237, is to the same effect. 
 Reference is also made to Allen i;. 
 Prior, 3 A. K. Marsh (Ky.) 305; and 
 Hakes v. Hotchkiss, 23 Vt. 231. The 
 averments in the declaration in this 
 case are similar to those in King v. 
 Upton, and we think the court was 
 correct in holding them sufficient. 
 
 The second objection seems to be 
 more relied upon. Our statute of 
 frauds declares that 'in the following 
 cases, specified in this section, every 
 agreement, contract, or promise shall 
 be void, unless such agreement, con- 
 tract, or promise, or some note or 
 memorandum thereof, be in writing 
 and signed by the party to be charged 
 therewith, or by some person by him 
 thereunto lawfully authorized;' and 
 
244 
 
 STATUTE OP PEAXJDS. 
 
 [chap. IV. 
 
 him, who was then engaged in sawing lumber at such mill 
 under a contract with the defendants, the defendants, in con- 
 
 it enumerates among other cases, 
 ■ every special promise to answer for 
 the debt, default, or misdoings of an- 
 other person.' It is claimed that the 
 promise counted upon in this suit is 
 of this nature ; it being a, promise 
 by the defendants to answer for the 
 debt and default of Medlar Brothers 
 to the extent promised. It is true 
 that the promise of defendants was 
 to make payments on the debt of 
 Medlar Brothers, but it is also 
 true that every payment they prom- 
 ised was to apply on an indebted- 
 ness that was to accrue against them- 
 selves for the sawing that should 
 be done for them by the Medlar 
 Brothers from time to time. Their 
 promise was consequently a promise 
 to answer for their own debt, and they 
 took upon themselves no new oblige^ 
 tion whatever. It has already been 
 determined that the promise was made 
 on a sufficient consideration, namely, 
 the agreement to forbear foreclosure. 
 But while in most cases of similar 
 promises to be found in the books the 
 benefit of the forbearance was ex- 
 pected to accrue to the debtor himself, 
 in this case it is very evident the de- 
 fendants entered into the arrange- 
 ment for their own advantage, and 
 that they promised to pay nothing for 
 which they should not receive an 
 equivalent in services performed for 
 them. In other words, there was a 
 consideration moving to them, which 
 was the inducement to their making 
 the promise. In many cases the test 
 whether a promise is or is not within 
 the statute of frauds is to be found in 
 the fact that the original debtor does 
 or does not remain liable on his un- 
 dertaking; if he is discharged by a 
 new arrangement made on sufficient 
 consideration, with a third party, this 
 third party may be held on his prom- 
 ise though not in writing ; but if the 
 original debtor remains liable and the 
 promise of the third party is only col- 
 lateral to his, it will in strictness be 
 
 nothing more than a promise to answer 
 for the other's debt. But where the 
 third party is himself to receive the 
 benefit for which his promise is ex- 
 changed, it is not usually material 
 whether the original debtor remains 
 liable or not. This subject has been 
 so fully considered in the New York 
 courts that a reference to the leading 
 cases of Farley v. Cleveland, 4 Cow. 
 (N. Y.) 432; s. u. on appeal, 9 id. 
 639, and Mallory v. Gillett, 21 N. Y. 
 412, in which the other cases are col- 
 lected, will be all we shall make here. 
 In Nelson v. Boynton, 3 Met. (Mass.) 
 396, 402, Shaw, C. J., on an examina- 
 tion of the authorities, says : ' The 
 rule to be derived from the decisions 
 seems to be this : that cases are not 
 considered as coming within the stat- 
 ute when the party promising has for 
 his object a benefit wliich he did not 
 before enjoy, accruing immediately to 
 himself ; but where the object of the 
 promise is to obtain the release of the 
 person or property of the debtor, or 
 other forbearance or benefit to him, it 
 is within the statute.' There are 
 many cases in Maine to the same 
 effect, which are collected in Stewart 
 V. Campbell, 58 Me. 439. In Putney 
 V. Parnham, 27 "Wis. 187, 189, Dixon, 
 C. J., in c(insidering a promise by the 
 defendant to pay to the creditors of 
 one Corbett, debts owing by himself _ 
 to Corbett, says : ' The question is 
 whether such promise was within the 
 statute of frauds, and we believe it 
 to be well settled that it was not, al- 
 though it was collateral to Corbett's 
 own liability or promise to pay the 
 same debts, and may be said incident- 
 ally to have guaranteed such payment. 
 It was a guaranty in form, but not in 
 substance or effect, within the mean- 
 ing of the statute of frauds. It was 
 not a mere promise by the defendant 
 to be responsible for the debts of Cor- 
 bett to those parties, and to pay those 
 debts, but a promise by him to pay 
 his own debt in that particular way. 
 
SEC. 144.] 
 
 GUAEAKTIKS. 
 
 245 
 
 sideration that the plaintiff would give further time for the pay- 
 ment of the mortgage, promised to retain out of the money to 
 become due to M the sum of fifty cents for each thousand feet 
 of lumber sawed by him for them, and to pay the same to the 
 plaintiff. It was held that this promise was not within the 
 statute. But a promise made by a person who is indebted 
 to another, without any consideration therefor, or the assent 
 of the debtor, that he will retain the money due to enable a 
 creditor of such person to secure his debt, is within the 
 statute and void ;^ but a promise made to a debtor to pay his 
 debt to a third person, or based upon any good consideration, 
 is not within the statute.'^ 
 
 Sec. 144. when Debt has become Debt of the Promisor. 
 
 — The statute does not apply to a promise to pay the debt 
 of a third person, where by the receipt of an adequate con- 
 sideration, such debt has become also the party's own debt,^ 
 
 It was a promise founded upon a new 
 and sufficient consideration moving to 
 the promisor from the debtor at tlie 
 time the promise was made. Such a 
 promise or agreement is not within 
 the statute of frauds." In further 
 illustration of the same doctrine ref- 
 erence is made to Brown v. Weber, 38 
 N. T. 187; Clymer v. De Young, 54 
 Penn. St. 118 ; Eddy v. Roberts, 17 111. 
 505; Wilson v. Bevans, 58 id. 232; 
 Rimde v. Eunde, 59 id. 98; Ford v. 
 Finney, 35 Ga. 258 ; Davis v. Banks, 
 45 id. 138 ; EuUam v. Adams, 37 Vt. 
 391, 396; Andre v. Bodman, 13 Md. 
 241, 255 ; Britton v. Angler, 48 N. H. 
 420 ; Johnson v. Knapp, 36 Iowa, 616 ; 
 Besshears v. Rowe, 46 Mo. 501. 
 
 The exact point has not hitherto 
 been presented for adjudication in 
 this State. In Brown v. Hazen, 11 
 Mich. 219, a verbal promise by the 
 defendant to pay to the plaintiff a 
 debt owing to him from a third person 
 was held to be within the statute, 
 there being no consideration moving 
 from the plaintifE to the defendant. 
 There is some discussion of the gen- 
 eral subject in Gibbs v. Blanchard, 15 
 Mich. 292, but it has no very direct 
 bearing. We think the authorities 
 support the judgment. 
 
 The question which remains is, 
 whether if the defendants, before suit 
 was brought, had paid over to Medlar 
 Brothers all that was due for the saw- 
 ing, this would discharge them from 
 their promise to the plaintifEs. If it 
 would, it must be on the ground that 
 they were liable only while they were 
 the debtors of Medlar Brothers, and 
 because of their indebtedness, which 
 in connection with their promise would 
 in effect make them the custodians of 
 a fund set apart for application to the 
 plaintiff's demand. But we think it 
 became their duty under their promise 
 to observe it by withholding from 
 Medlar Brothers the proportion of 
 their bill which they had agreed to 
 pay to the plaintifEs ; and that they 
 could not discharge themselves by a 
 disregard of their promise. It is a 
 paradox to say that a promise is valid, 
 but that the promisor may relieve 
 himself from its obligations by violat- 
 ing it." 
 
 1 Milcote V. Kile, 47 111. 88. 
 
 2 Goetz V. Foss, 14 Minn. 265; 
 Brown v. Brown, 47 Mo. 130. 
 
 5 Robinson u. Gilman, 43 N. H. 
 485. 
 
246 STATUTE OF FEAIJDS. [CHAP. IV. 
 
 nor where the promisor derives a direct benefit therefrom. 
 Tlius, the plaintiff subscribed for $2,000 worth of stock iu a 
 railroad corporation payable in ten years, secured by bond 
 and mortgage. The company subsequently offered to allow 
 all such subscriptions to be reduced one-half, provided that 
 when so reduced, they should be payable in cash on call, as 
 other cash subscriptions. The defendant being largely 
 indebted to the company, and interested in raising funds for 
 its immediate use, to relieve himself as far as possible from 
 responsibility, agreed and promised that if the plaintiff would 
 accept this proposition, he would hold him harmless, and be 
 answerable to the corporation for all liability on his subscrip- 
 tion, and plaintiff accepted it in consequence of this promise, 
 it was held that the promise was founded on a sufficient con- 
 sideration, and was not within the statute of frauds.^ 
 
 Where the promisor has funds in his hands belonging ' to 
 the debtor, from which he has authority to pay a certain debt, 
 the promise is not within the statute, because it is a promise 
 merely to pay to the creditor what he would otherwise be 
 bound to pay to the debtor in satisfaction of his own debt ; 
 and the same is true where the promise is conditional, as, to 
 pay, if he receives funds of the debtor to the amount of the 
 debt. In such case, while there is no obligation to pay 
 unless the condition is fulfilled, yet if the condition is ful- 
 filled the promise is operative and not within the statute, 
 because the debtor's own funds are relied upon for payment.^ 
 
 1 North V. Eobinson 1 Duv. (Ky.) by applying the amount of their sub- 
 71. scriptions thereto ; and in case the 
 
 2 Clymer u. De Young, 54 Penn. amount so furnished should exceed 
 St. 118 ; May v. Nat. Bk. of Malone, their subscriptions, such excess should 
 9 Hun (N. T.) 108; Wyman v. Smith, be paid iu cash by the society, which 
 2 Sandf. (N. Y.) 331 ; Calkins u. cash and subscriptions cancelled were 
 Chandler, 35 Mich. 320 ; McKeenan to be charged by the society to such 
 V. Thissel, 33 Me. 368; McLaren v. contractor as payment upon such 
 Hutchinson, 22 Cal. 187 ; Nelson v. contract. The agreement was made 
 Hardy, 7 Ind. 364 ; Corbin v. McChes- known to the society, and assented to 
 ney, 26 111. 231. In the Consociated by the building committee ; aiid rely- 
 &c. Society v. Staples, 23 Conn. 543, a ing upon their promise, the parties 
 contractor for the erection of a meet- aforesaid furnished the material and 
 ing-house for an ecclesiastical society labor. The court held that the prom- 
 applied to C, D, and E for materials ise was not within the statute nor void 
 and labor, each of whom had pre- for want of a consideration. Hin- 
 viousbj subscribed certain sums towards man, J., said : " This was not a, prom- 
 the cost of said house, and agreed that ise to pay the debt of another; it was 
 the society might pay them therefor a promise by the society to paij their own 
 
SEC. 144.] 
 
 GUAEANTIES. 
 
 247 
 
 But a promise to pay out of funds of the debtor without his 
 assent is within the statute. Thus, A being, indebted to B, 
 C verbally promised to B to pay him the sum, and charged 
 
 debt to Hawley and Wheeler, or a por- 
 tion of it to the several claimants, and 
 it was made in consideration of the 
 extinguishment of the claimants' de- 
 mands against Hawley and Wheeler. 
 The agreement between Hawley and 
 Wheeler and the claimants, assented 
 to by the society, operated to extin- 
 guish the claimants' demands against 
 Hawley and Wheeler, and as an assign- 
 ment of them to the society." Standi 
 V. Hine, 45 Penn. St. 187 ; Ladd v. 
 Tobey, 29 Me. 219 ; Lucas v. Payne, 
 7 Cal. 92 ; Hitchcock v. Lukens, 8 
 Port. (Ala.) 333; Loomis v. Newhall, 
 15 Pick. (Mass.) 159; Andrews v. 
 Smith, Tr. & G. 173. A promise by 
 the purchaser of real estate or per- 
 sonal property to pay a part or the 
 whole of the price to certain cred- 
 itors of the vendor, is a promise to 
 pay his own debt, and not within the 
 statute. Blair &c. Land Co. v. Walker, 
 39 Iowa, 406 ; Lester v. Bowman, 39 
 id. 611 ; Chamberlain v. Ingalls, 38 
 id. 300. In Davis v. Banks, 45 Ga. 
 138, A, a merchant indebted to B and 
 C, sold his goods to B for more than 
 his indebtedness to him. While B 
 was removing them from the county, 
 C threatened to attach them, and, 
 thereupon, B orally promised C that 
 if he would not attach the goods, he 
 would pay to him the surplus arising 
 from the sale of the goods over and 
 above his debt. It was held that this 
 was an original undertaking, and not 
 within the statute. Where one as- 
 signee for the benefit of creditors, 
 having collected money for the estate, 
 in compliance with a previous agree- 
 ment with his co-assignee, conveys 
 property to a third person, upon the 
 condition that the latter shall pay 
 the co-assignee the sum collected, 
 and such person afterwards promises 
 the co-assignee to pay it to him, such 
 promise is founded upon a sufficient 
 consideration, and is not within the 
 statute of frauds. Perkins v. Hitch- 
 
 cock, 49 Me. 468. In McCartney v. 
 Hubbell, 54 Wis. 360, by the terms of 
 the contract, C was to sell chattels to 
 B, and B was to pay him therefor by 
 an order for goods on A, and a note 
 to be executed by A to C. It was 
 held that as the contract on its face 
 appeared to have been made for A's 
 benefit, his mere approval of it created 
 no liability on his part ; but the ques- 
 tion still was whether, before such con- 
 tract was made between B and C, he 
 promised to pay C, and whether the 
 contract was made and the property 
 delivered to B in reliance upon such 
 promise. But if A sells goods to C 
 in part payment of such claim, this 
 circumstance is evidence for the jury 
 upon the question whether he did not 
 originally promise to pay the debt. 
 An entire stranger to a contract can- 
 not make himself liable thereon by a 
 subsequent " ratification and adop- 
 tion," but only by some new contract 
 upon a new consideration, such as a. 
 a guaranty of performance upon con- 
 sideration or an assignment, and that 
 new contract is within the statute of 
 frauds. Ellison v. Jackson &c. Co., 12 
 Cal. 542. Where the owner of nego- 
 tiable paper sells it, and accompanies 
 the sale by a guaranty of collection 
 thereon, it is not necessary to the 
 validity of such guaranty that the 
 name of the guarantee should appear 
 in it. A guaranty so given is not 
 within the statute of frauds. Thomas 
 V. Dodge, 8 Mich. 51. A assigned a 
 bond against B to C, to enable him to 
 obtain goods on the credit of the as- 
 signment, and guaranteed the pay- 
 ment of the bond by an indorsement 
 on the back thereof signed by his 
 name, and goods were obtained on the 
 credit of the indorsement and guar- 
 anty. It was held that this was not 
 an undertaking for the debt of another 
 within the statute of frauds. Hopkins 
 V. Richardson, 9 Gratt. (Va.) 485. 
 
248 STATUTE OF FKAtTDS. [OHAP. IV. 
 
 it to A -without his consent. It was held that the promise 
 was within the statute, and must be in writing, to be binding.^ 
 
 Sec. 145. when Promise Cannot be Revoked. — Where a 
 valid promise is made by one having property in his 
 hands left with him by the debtor for that purpose to pay 
 his debt to another, the promisor is not relieved therefrom by 
 instructions subsequently given to him by the person prom- 
 ised for, not to pay the debt. Thus in May v. the National 
 Bank of'Malone^ it appeared that the firm of Townsend & 
 Hyde were indebted to the firm of May & Co. in the sum of 
 $2,738.78, for which the latter firm held the note of Town- 
 send & Hyde, payable at the defendant bank. Tliis note 
 became due Feb. 23, 1876, and on that day was presented 
 there by the National Hide and Leather Bank of Boston for 
 payment, which was refused ; whereupon the note was pro- 
 tested and returned to the Boston bank by George Hawkins, 
 the cashier of the defendant, by mail, with notice of protest 
 attached thereto. On the 6th of March, 1876, Townsend & 
 Hyde wrote to said George Hawkins as follows : . 
 
 " Dear Sm, — We send by this mail our note to Mr. A. 
 White, for him to indorse and hand to you, for f 2,879. 
 
 " We want you to discount it for us to pay the May & Co. 
 note, due February twenty-third, which amounts to $2,777.40, 
 and interest from the twenty-third day of February, and hand 
 Mr. White the notes we sent you, 1 3,000, for him to hold as 
 collateral ... It will be a very great accommodation to us 
 if you will discount this note, and send draft to May & Co. 
 for the note due them February 23, 1876. 
 
 " Very truly yours, 
 
 "Townsend & Hyde." 
 
 On the 8th of March, 1876, said White presented the note 
 at said National Bank of Malone, and after he had indorsed 
 it delivered it to Hawkins to be' discounted by said bank to 
 pay May & Co.'s note. Thereafter, on the 10th of March, 
 1876, a communication was forwarded by Hawkins to said 
 May & Co., at Boston, as follows : 
 
 1 Eichardson v. "Williams, 49 Me. = 9 H\m (N. Y.) 108. 
 568. 
 
SEO. 145.] GUARANTIES. 249 
 
 " Messrs. May & Co.: 
 
 " Forward to me the past due note of Townsend & Hyde, and I 
 will pay it. 
 
 "George Hawkins, 
 
 " Cashier." 
 
 On the same day a communication was forwarded by 
 Hawkins to Townsend & Hyde as follows : 
 
 ^^ Messrs. Townsend & Hyde : 
 
 " Dear Sirs, — Your favor of the is received. I have 
 
 written to May & Co. to return your note to me for payment, 
 we having done as requested in yours of the sixth. 
 
 " Yours, etc., 
 
 ".George Hawkins, 
 
 " Cashier." 
 
 In obedience to the directions contained in the communica- 
 tions of Hawkins, on the 13th day of March, 1876, at 1 o'clock 
 in the afternoon, that being the same day upon which the 
 communication from Hawkins was received by May & Co., 
 they returned the protested note of $2,743.78 of Townsend & 
 Hyde to the National Bank of Malone, by depositing the same 
 in the post-office at Boston, addressed to George Hawkins, 
 cashier of said National Bank of Malone, postage paid, with 
 the following letter of instructions : 
 
 "Boston, March 13, 1876. 
 " George Hawkins, Esq., Cashier National Bank of Malone: 
 
 " Dear Sir, — In obedience to your pc. of tenth March, 
 we inclose note Townsend & Hyde, $2,743.78, and interest 
 from 20th October, 1875. Protest fees $1.14, for which 
 please send us check on New York or Boston, and oblige, 
 
 " Yours truly, 
 
 "May & Co." 
 
 On the 13th day of March, 1876, at seven and a-half o'clock 
 in the evening, and after the closing of said National Bank 
 of Malone for that day, but before the protested note sent by 
 May & Co. had reached the bank in return, a telegram sent 
 by said Townsend & Hyde from Cortland, N. Y., at 5.16 
 o'clock of the afternoon of that day, was delivered to Hawkins, 
 addressed to him, which read as follows : 
 
250 STATUTE OF FRAUDS. [CHAP. IV. 
 
 "CoETLAND, N. Y., March 13, 1876. 
 " To Qeorge Hawkins, Cashier, Malone: 
 
 " Do not pay the May note. I will be at home to-morrow. 
 (Signed.) "W. H. Hyde." 
 
 On the 15th day of March, 18T6, Townsend & Hyde 
 personally instructed Hawkins not to pay the May & Co.'s 
 note, and on the 16th day of March, 1876, payment of the 
 note was again refused at the defendant bank, and the same 
 was returned to May & Co. unpaid. The note of |2,789, 
 made by Townsend & Hyde, and indorsed by Abram S. 
 White, and by him delivered to the defendant to pay the 
 May & Co.'s note of |2,743.78, remained in the possession of 
 the bank up to the tinje this action was brought, and no 
 entries in relation thereto were ever made in the books 
 thereof. Boardman, J., in delivering the opinion of the 
 court, said : " If the contract of defendant could be consid- 
 ered as governed by the statute of fraiids, it would still be 
 good and binding. It is in writing, and signed by the party 
 to be charged. The signature by the cashier of the defendant 
 is sufQcient under this statute.^ But the contract was not 
 within the statute of frauds. It was an original undertaking 
 by the defendant, founded upon an adequate consideration 
 moving from Townsend and Hyde to it, to pay the debt of 
 Townsend & Hyde to the plaintiffs. The proceeds of the 
 note discounted by defendant for Townsend & Hyde were 
 held for plaintiff — were put in defendant's hand to pay 
 plaintiff with, and defendant had assumed and promised to 
 pay such debt therewith. The discounting of the note is 
 admitted by defendant. This takes the case out of the statute 
 of frauds. The distinction between original and collateral 
 promises is fully considered and explained in the following 
 leading cases in this State : Leonard v. Vredenburg ^ and 
 Mallory v. Gillett.^ From the distinctions therein pointed 
 out, it is apparent that this is an original undertaking, and 
 can be enforced by the plaintiffs. Many of the cases cited and 
 commented upon by the learned judges in those cases are ap- 
 plicable here. I shall cite but one or two. In Barker v. Buck- 
 lin * it is held that an action may be maintained on promise 
 
 1 Dykers v. Townsend, 24 N. Y. 57. = 21 N. Y. 412. 
 
 2 8 Johns. 39. * 2 Den. (N. Y.) 45. 
 
SBC. 146.] GUAEANTIES. 251 
 
 made by the defendant to a third person for the benefit of the 
 plaintiff, upon a consideration moving from sucli tliird person 
 to tlie defendant, and without any consideration moving from 
 the plaintiff. So in Lawrence v. Fox ^ it is held that an action 
 lies on a promise made by the defendant upon valid consider- 
 ation, to a third person for the benefit of the plaintiff, although 
 the plaintiff was not privy to the consideration. Such prom- 
 ise is to be deemed made to the plaintiff if adopted by him, 
 though he was not a party nor cognizant of it when made.^ In 
 the present case Townsend & Hyde had put the defendant in 
 funds to pay plaintiff's debt, requesting it to pay the same. 
 The defendant acloiowledges to Townsend & Hyde that it 
 had done as requested, and had sent for the note to be returned 
 for payment. It had also, in consideration of such provisions 
 made, promised the plaintiffs to pay their debt upon the note 
 being returned to defendant ; but upon its return refused to 
 do so at the instance of Townsend & Hyde. I think the 
 means, derived by the bank from Townsend & Hyde's note 
 discounted by it, were put there for the payment of plaintiffs' 
 debt, and upon a mutual understanding between the bank 
 and Townsend & Hyde, to which each agreed, that plaintiffs' 
 debt should be paid therefrom. By such act the liability of 
 the defendant was fixed. The bank, however, is still in 
 possession of the note discounted, and of the funds derived 
 therefrom. It will not be the loser if compelled to pay. The 
 assets of Townsend & Hyde will pay the debt." 
 
 Sec. 146. Wlien Payable if no Time is Agreed Upon. — 
 The ground upon which this doctrine rests is that the prom- 
 ise in such a case is based upon a new and independent 
 consideration, distinct and apart from the original debt. The 
 rule, however, is modified by the promise. If the promise is 
 made in consequence of a debt due from the promisor to the 
 debtor, or of money placed in his hands by the debtor, and 
 nothing is said as to the time of payment, the promise is 
 enforceable instanter ; but if the promise is to pay the debt 
 out of the proceeds of property placed in the promisor's hands 
 for that purpose, and is to pay out of the avails of the prop- 
 erty, liability does not attach until the property has been sold, 
 
 1 20 N. Y. 268. 
 
 2 See also Barker v. Bradley, 42 N. Y. 316. 
 
252 
 
 STATUTE OP FEAUDS. 
 
 [chap. rv. 
 
 or the promisor by his conduct has made himself the pur- 
 chaser.i But if he promises to pay out of the property, and 
 guarantees that it will he sufficient to pay the debt, the promise 
 is not within the statute, even though the avails thereof prove 
 insufScient.2 The mere fact that the promisor has funds or 
 property in his hands belonging to the debtor is not sufficient 
 to take the case out of the statute, but it must also appear 
 that they were deposited with him for that purpose, or that he 
 had authority to so apply them^ and it must he an absolute 
 promise to pay the debt, and not merely to see it paid if the 
 debtor does not pay it, or to stand as security for its payment.* 
 
 1 Draughan v. Biinting, 9 Ired. 
 (N. C.) 10. Threadgill v. McLendon, 
 76 N. C. 24 ; Stanley v. Hendricks, 13 
 Ired. (N. C.) 86; Hall v. Robinson, 8 
 Ired. (N. C.) 56; Hicks v. Criteher, 
 PhilUps (N. C.) Eq. 353. 
 
 ' Lippincott v. Ashfield, 4 Sandl. 
 (N. Y.) 611. 
 
 » Dilts «. Parke, 4 N. J. L.219; 
 State Bank v. Mattler, 2 Bos. (N. Y.) 
 392. 
 
 * In Weyer v. Beach, 14 Hun 
 (N. Y.) 235, Bakkes, J., states the 
 facts of the case and the law applica- 
 ble thereto as follows : " It appears 
 that Beach, the owner, entered into a, 
 written agreement with the contrac- 
 tors, Stone & Bassett, by which the 
 latter agreed to erect a building for 
 the former on his premises, the con- 
 tractor to furnish the material there- 
 for. There was a clause in the agree- 
 ment which permitted Beach to re- 
 tain moneys due thereon to Stone and 
 Bassett for the purpose of paying for 
 material used by them, and he was 
 authorized to make such payments 
 and have them applied as payments 
 on the contract. Stone & Bassett 
 then contracted with the plaintiffs for 
 the brick necessary to erect the build- 
 ing at a stipulated price per thousand. 
 After the plaintiffs had made delivery 
 to Stone & Bassett of a small portion 
 of the brick they became distrustful 
 of the latter's responsibility and there- 
 upon, on meeting Beach, they en- 
 quired if he would retain moneys on 
 his contract with Stone & Bassett for 
 
 the building of the house, sufficient to 
 pay for such brick as they should 
 deliver to S. & B. and pay them there- 
 for, in case they would keep him in- 
 formed from time to time of the 
 amount remaining unpaid. Accord- 
 ing to the testimony of one of the 
 plaintiffs. Beach replied that he would 
 do so ; this, however. Beach flatly de- 
 nied. Now, in the first place, it be- 
 comes important to see precisely what 
 the arrangement was between the 
 parties, if any was in fact made ; and 
 in determining this fact we are not 
 concluded by the decision of the 
 referee, though there was a conflict 
 of evidence, but it becomes our duty 
 on the appeal to examine the case 
 de novo on the proof submitted. Such 
 seems now to be the rule laid down 
 by the Court of Appeals. Godfrey v. 
 Moser, 66 N. Y. 250. We must there- 
 fore examine the evidence and deter- 
 mine the nature and extent of the 
 alleged contract between the parties 
 for ourselves. 
 
 The plaintiff Weyer alone testified 
 to the arrangement on the part of the 
 plaintiffs. He gave the conversation 
 between himself and the defendant, 
 Beach, as follows : ' I asked him if I 
 should keep him posted as to what 
 they (S. & B.) owed me, whether he 
 would keep money enough back out 
 of his contract to pay me. Mr. Beach 
 said he would. I said I would com- 
 mence drawing, and he said all right.' 
 This occurred after some of the brick 
 had been delivered. On his cross- 
 
SEC. 146.] 
 
 GUARANTIES. 
 
 253 
 
 But in this class of cases it is immaterial whether the original 
 debtor is discharged or not, because the promise is based upon 
 
 examination, tlie witness gave tlie 
 conyersation as follows : ' I asked 
 him if he would retain money if I 
 would keep him posted, and he said 
 he would see me through. I think that 
 was it ; and I replied, then I can com- 
 mence delivering brick, and he said 
 all right ; this was all there was said. 
 ... I am sure that the remark of 
 Beach was, " I will see you through." 
 The witness also testified to various 
 facts, showing that the plaintiffs made 
 the delivery to Stone & Bassett on 
 their contract. He (Weyer) called 
 on them for payment, and obtained 
 payment of part from or through 
 them; and on one occasion he told 
 Beach that he 'would not have drawn 
 the brick if he (Beach) had not agreed 
 to be security.' Besides in the notice 
 which stands as a pleading, the plain- 
 tiffs state that the brick were fiirnished 
 to Stone & Bassett. Thus it is made 
 entirely certain that there was no 
 surrender or abandonment of the first 
 contract for the brick, made between 
 the plaintiffs and Stone & Bassett. This 
 contract was not terminated or super- 
 seded by the alleged agreement be- 
 tween the plaintiffs and Beach. It 
 continued in force, and the brick was 
 delivered under that contract. It must 
 follow then that the alleged arrange- 
 ment between the plaintiffs and Beach 
 was collateral to it, and was in the na- 
 ture of a guaranty of its performance 
 by Stone & Bassett as to payment. 
 And so the plaintiff, Weyer, who made 
 the arrangement understood it. He 
 testified that he told Beach that he 
 would not have drawn the brick if he 
 (Beach) had not agreed to be 'se- 
 curity.' Such is the plain import of 
 his evidence. He says, 'I asked him 
 if I should keep him posted as to 
 what they owed me' — (that is, as to 
 the amount Stone & Bassett should 
 become indebted on the brick con- 
 tract from time to time) ' whether he 
 would keep money enough back out 
 of his contract to pay me ; ' and when 
 
 afterwards he called the defendant's 
 attention to the conversation, he said 
 he should not have drawn the brick 
 had he (Beach) not agreed to be 
 ' security.' It is very manifest that 
 the plaintiff, Weyer, understood the 
 arrangement as one of security on the 
 part of Beach ; that is, that he (Beach) 
 would be responsible for whatever 
 amount Stone & Bassett should fail 
 or omit to pay. Tlierefore, accepting 
 the arrangement or promise to be as 
 proved by the plaintiffs, it was a 
 promise to answer for the debt or 
 default of Stone & Bassett; hence, 
 having been oral merely, it was void 
 by the statute of frauds. The statute 
 declares that every special promise to 
 answer for the debt, default, or mis- 
 carriage of another person shall be 
 void, unless such agreement, or some 
 note or memorandum thereof, be in 
 writing, and subscribed by the party 
 to be charged therewith. It is said 
 in Brown v. Weber, 38 N. Y. 187, that 
 the language employed in the statute 
 shows that the test to be applied to 
 every case is, whether the party 
 sought to be charged is the principal 
 debtor, primarily liable ; or whether 
 he is only liable in case of the default 
 of a third person. In Cowdin v. 
 Gottgetreau, 55 N. Y. 650, it is laid 
 down, that while a person may be- 
 come liable upon a parol promise for 
 goods purchased which are delivered 
 to and are intended for the use of 
 another, in order to make him so, the 
 debt must be his only; he must be 
 exclusively liable therefor. In Duffy 
 V. Wunsch, 42 N. Y. 243, A promised 
 to pay the debt of B, if C would dis- 
 continue a suit for its recovery, then 
 pending against B. The promise was 
 held to be within the statute of frauds 
 and void. Lott, J., in this case, re- 
 marked, that the promise was not 
 made or accepted in the place or as a 
 substitute of the original debt, or in 
 its extinguishment; on the contrary, 
 B continued liable for the amount or 
 
254 STATUTE OF PKATJDS. [CHAP. IV. 
 
 a consideration entirely independent of it.^ The distinction 
 between promises of this character and those having no 
 independent consideration is illustrated by Pearson, C. J.,^ 
 as follows : " The principle," says he, " is this, when in consid- 
 eration of the promise to pay the debt of another the promisor 
 receives property and realizes the proceeds, the promise is not 
 within the mischief provided against, and the promisee may 
 recover on the, promise or in an action for money had and 
 received. For although the promise is in words, to pay the 
 debt of another and the performance of it discharges the debt, 
 still the consideration was not for the benefit or ease of the original 
 debtor, but for a purpose entirely collateral, so as to create an origi- 
 nal and distinct cause of action." In Threadgill v. McLendon, 
 ante, the question as to whether liability upon a promise to 
 pay the debt of another attaches where property is placed in 
 the hands of the promisor for the purpose of paying a debt, 
 until the property is converted into money, was considered, 
 and a distinction was made in this respect between what is 
 denominated " a cash article " and one which is not. In that 
 case the plaintiff furnished supplies to a cropper of the 
 defendant upon a promise of the defendant to pay for the 
 
 balance thereof which the defendant for the default of Stone ^ Bassett 
 agreed to pay. So here the promise by in making payment as they had agreed. 
 Beach, as testified to by the witness, was Not haying been made in writing, it 
 not made or accepted in place of, or as a was void by the statute of frauds. 
 substitute for, the original contract be- Nor does the clause in the agreement 
 tween the plaintiffs and Stone ^ Bas- between Stone & Bassett and Beach, 
 sett, or in extinguishment thereof; on the by which the latter was at liberty to 
 contrary, Stone & Bassett continued retain money which should become 
 liable for the amount or balance due the former thereon, and apply it 
 which Beach agreed to pay. See also in payment for materials • used by 
 Mallory v. Gillett, 21 N. Y. 412 ; Loonie them in erecting the building, aid the 
 u. Hogan, 9 N. Y. 435 ; Larson v. Wy- plaintiffs' case. This was merely per- 
 man, 14 Wend. (N. Y.)246; Payne w. missive as to Beach, not obligatory 
 Baldwin, 14Barb. (N.Y.) 570. No new on him; and this clause in no way 
 terms of payment or conditions of de- validated his otherwise invalid prom- 
 livery were agreed upon, or even con- ise." 
 
 sidered, between the plaintiffs and de- i Fitzgerald v. Dressier, 7 C. B. 
 
 fendant. The contract with Stone & (N. S.) 374; "Wait ». Wait, 28 Vt. 350 ; 
 
 Bassett determined all that, and it was Olmstead v. Greenly, 18 John. (N. Y.) 
 
 to continue in force. Delivery of the 12; Mitchell v. Griffin, 58 Ind. 559; 
 
 brick and payment therefor was to be Burr v. Wilcox, 13 Allen (Mass.) 269 ; 
 
 made according to its terms, and the Young v. French, 35 Wis. Ill ; Fish 
 
 promise of the defendant, according v. Thomas, 5 Gray (Mass.) 45; Wells 
 
 to the proof, was this, in legal effect : v. Brown, 118 Mass. 137. 
 
 That he would answer to the plaintiffs ^ Stanley v. Hendricks, ante. 
 
SEC. 147.] GUARANTIES. 255 
 
 same. Afterwards the promisor took into his possession 
 cotton belonging to the cropper, and sufficient to pay the 
 plaintiff's account, and thereafter promised to pay the same. 
 In an action to recover the debt of the promisor it was held 
 that the promise was not within the statute, and that the 
 defendant was liable for the reason that the promise was not 
 made as surety for the cropper, but for himself, because the fund 
 out of which the debt was to be paid was in his hands. It was 
 insisted by the defendant's counsel that the case did not come 
 within the principle involved in the rule stated supra, because 
 the cotton had not been sold, but the court held that a distinc- 
 tion existed in this case because cotton was a cash article, and 
 could readily be converted into money, and had a fixed and 
 standard money value. But we cannot believe that the rule 
 adopted in this case can be sustained, except the jury find, 
 as a fact, that the promisor was a purchaser of the cotton, 
 or agreed to pay absolutely without reference to its sale, or 
 that he unreasonably delayed- making the sale. The court 
 must enforce the contract made by the parties, and has no 
 power to make one for them. 
 
 Sec. 147. Parting with Security or Giving up a Lien. — 
 
 In an English case ^ it was held that where a person parts 
 with securities or gives up a lien which he has for a debt, 
 upon the strength of a verbal promise by a third person, 
 the promise is not within the statute whether such prom- 
 ise inures to the benefit of the promisor or not. In that case 
 certain carriages belonging to one Copey were sent to the 
 plaintiffs by the defendant to be repaired, and the defendant 
 gave the orders respecting them. The bill for the repairs was 
 made out in the name of Copey. When the carriages were 
 repaired the defendant sent an order to pack them and send 
 them on board ship. The plaintiffs thereupon sent to him to 
 know who was to pay for them. The defendant said he had 
 sent them and would pay for them. In reliance upon this 
 promise the carriages were packed and sent on board ship, 
 and a bill made out and delivered to the defendant. After 
 having called for the pay several times without avail, this 
 action was brought, and Loed Eldon held that the defend- 
 
 1 Houlditch V. Milne, 3 Esp. 86. 
 
256 STATUTE OF FEAUDS. [CHAP. IV. 
 
 ant was liable irrespectiye of the question -whetlier credit was 
 given solely to the defendant or not. He said : " In general 
 cases, to make a person liable for goods delivered to another, 
 there must be either an original undertaking by him, so that 
 the credit was given solely to him, or there must be a note in 
 writing. There might, however, be cases where the rule does 
 not apply. If a person gets goods into his possession on 
 which the landlord had a right to distrain for rent, and he 
 promised to pay the rent though it was clearly the debt of 
 another, yet a note in writing was not necessary ; it appeared 
 to apply precisely to the present case. The plaintiffs had, to 
 a certain extent, a lien upon the carriages which they parted 
 with on the defendant's promise to pay. That, he thought, 
 took the case out of the statute, and made the defendant 
 liable for the bill." In this case it will be observed that the 
 defendant derived no advantage from the discharge of the 
 lien, and that Copey was not discharged from his liability for 
 the debt, and we believe that .the case does not express a 
 correct rule of law, and it never has been adopted in England, 
 and in but few of the courts of this country. The promise of 
 the defendant could not in any sense be said to be predicated 
 upon a new and independent consideration, unless, indeed, as 
 was intimated in the case, but not shown, Copey had placed 
 money in the hands of the defendant to pay the bill. It is 
 intimated in a note to Forth v. Stanton ^ that the doctrine of 
 this case may be reconciled with the other English cases, 
 
 ^ Forth V. Stanton, 1 Wm. Saund. lie would relinquish his right to col- 
 
 211 b. In Gull V. Lindsay, 4 Exchq. lect the freight, they would pay him 
 
 45, the plaintiff was a ship broker, his commission. Relying upon this 
 
 and was employed by the owners of promise, the plaintiff relinquished 
 
 the " Mathesis " to procure for them such right. The plaintiff had a rer- 
 
 a charter of the ship, upon the times diet, but was set aside. Pollock, C. 
 
 that he should be entitled to receive B., saying : " We think the def end- 
 
 the freight, and satisfy himself out of ants' counsels were right in saying 
 
 it for his commission. He procured that this contract was a contract made 
 
 a charter party, and the ship sailed to pay the debt of another within the 
 
 on her voyage, and returned to Eng- statute of frauds. It was not a case 
 
 land. Before her return, a change in of transfer of liability as if A had 
 
 the ovmership of some of the shares agreed to accept C, a debtor of B, 
 
 of the ship had transpired, and the as his debtor in lieu of him. It is 
 
 defendants, who were the brokers of plain that, although the defendants 
 
 the new owners, — the plaintiffs being agreed to pay the plaintiff, yet the 
 
 about to collect the freight, being debt to him still remained due from 
 
 anxious to gain possession of the the owners by whom he was retained." 
 ship, — promised the plaintiff that if 
 
SEC. 147.] GUARANTIES. 257 
 
 because it appears from all the circumstances that the sole 
 credit was given to the defendant, and that the real owner of 
 the carriages was not at all liable. But this statement is 
 forced and without support, as it appears that credit was 
 given to the owner of the carriages because the bill was made 
 out in his name, and the plaintiffs seem to have regarded him 
 as their debtor, and not until the order for the shipment was 
 given, and the defendant made the promise rehed upon, did 
 they ever regard or treat him as their debtor ; and the fact that 
 the bill was made out in the name of Copey shows that they 
 clearly understood that the work was being done . for him, 
 although performed upon the order of the defendant, and the 
 court makes no mention of any such grounds for its decision, 
 showing that it had no influence thereon, and while the result 
 reached may have been correct upon the ground that the 
 defendant, from what he said to the plaintiffs when asked' 
 who was to pay the bill, may have made himself chargeable 
 as original debtor. Yet this has no tendency to reconcile the 
 doctrine of the case with that of other English cases, because it 
 is not the ground upon which the court proceeded, and there 
 can be no question but that the real doctrine of the case is 
 that where a person discharges a lien upon property which he 
 holds as security for a debt, upon the promise of a third 
 person to pay the debt if he will do so, the promise is not 
 within the statute.^ 
 
 Upon what Lokd Eldon says in reference to the liability 
 of a person who gets goods into his possession on which the 
 landlord had a right to distrain for rent, who to prevent a 
 distress promises to pay the rent, it is'evident that he intended 
 to follow the doctrine laid down in Williams v. Leper,^ and 
 
 ' In Briggs v. Evans, 1 E. D. S. held that the defendant's promise was 
 
 (N. T. C. P.) 192, the doctrine of an original undertaking. 
 Houlditch u. Milne was followed. In ^ W'illiams v. Leper, 3 Burr. 1886;. 
 
 that case the plaintiff manufactured In Blackford «. Plainfield Gas- Co., 43; 
 
 some furniture for A; but before N. J. L. 438, the holder of an execu- 
 
 delivery, presented the bill to A ; and tion levied on personal property on 
 
 he being unable to pay it, the plaintiff which, by statute, the landlord had a 
 
 refused to deliver the furniture. But lien for rent, promised the landlord 
 
 at A's request, he went with him to that if he would waive his rights un- 
 
 see the defendant, who took the bill der the statute, and: allow the property 
 
 and promised to pay it, thereupon the to be sold', he would pay the rent; 
 
 plaintiff delivered the furniture, and and it was heM. that tlie promise was- 
 
 charged it to the defendant. It was not withini the- statute. In Coquard 
 
258 STATUTE OP FKAtTDS. [CHAP. IV. 
 
 that his ruling resulted from a misapprehension o£ the doctrine 
 of that case. But the points of distinction between the two 
 cases are marked. It will not be advisable to give that case 
 in full here, as the gist of it is given in another section ; and 
 from the facts as there stated, it will be seen that the defend- 
 ant Leper held the goods of the original debtor in his posses- 
 sion under a bill of sale from the debtor, who was a tenant 
 to the plaintifP, and largely in arrears for rent, to be sold for 
 the benefit of his creditors. While Leper so held the goods 
 the plaintiff was about to distrain them for the rent, where- 
 upon the defendant promised him that if he would not 
 distrain he would pay him the £45 due for rent, and upon 
 the faith of that promise the plaintiff did not make the 
 distress. Loed Mansfield, C. J., said : " The res gestae 
 would entitle the plaintiff to his action against the defendant. 
 The landlord had a legal pledge. He enters to distrain ; he has 
 the pledge in his custody. The defendant agrees that the 
 goods shall be sold and the plaintiff paid in the first place. 
 The goods were the funds. The question was not between 
 Taylor, the tenant, and the plaintiff, the landlord. The plain- 
 tiff had a lien on the goods, Leper was a trustee for all the creditors, 
 and was obliged to pay the landlord who had a prior lien. This has 
 nothing to do with the statute of frauds." Wilmot, J., said : 
 " Leper became the bailiff of the landlord, and when he had 
 sold the goods, the money was the landlord's (as far as £45) in his 
 own bailiffs hands. Therefore an action would have lain 
 against Leper for money had and received to the plaintiff's 
 use." It was not even intimated in this case that the sur- 
 render of the lien by the plaintiff gave validity to the defend- 
 ant's promise, or that a recovery could be had upon that 
 ground, but the defendant's liability was placed upon the 
 ground that the defendant, being a trustee for all the cred- 
 itors, was obliged to pay the plaintiff who had the prior lien, 
 and Aston, J., regarded the goods as the debtor, as a fund 
 between both, and thought that the defendant was not bound 
 
 V. Union Depot' Co., 10 Mo. App. 261, if it was sent to him C. O. X). The 
 
 the plaintiff's wife, while travelling, trunk was so sent, when, instead of 
 
 pledged her trunk to the conductor settling the claim, the plaintiff re- 
 
 f or the fare of a child travelling with plevied it. The court held that the 
 
 her; and the plaintiff — her husband promise to pay the claim was not 
 
 — afterwards agreed with the baggage- within the statute, and that he could 
 
 master to settle the claim for the trunk not recover in the action. 
 
SEC. 148.J GtJAEAOTIES. 259 
 
 to pay the landlord more than the goods sold for. In this 
 case the defendant had the custody of the goods, coupled with 
 an interest and a right to sell them, while in the case of 
 Houlditch V. Milne the defendant neither had an interest in, 
 or the possession of the goods, or the right to sell them. 
 
 Sec. 148. Rule in Maine. Stewart v. Campbell. — There 
 are several early American cases in which the doctrine of 
 Houlditch V. Milne was adopted,^ but that doctrine is not 
 generally held by our courts, and the relinquishment of a lien 
 upon the verbal promise of a third person to pay the debt, is 
 held not to be operative unless the person making the promise 
 has an interest therein, and derives some benefit and advan- 
 tage therefrom, and in some of the cases it is held that the 
 promise is collateral, notwithstanding the promisor derives an 
 advantage therefrom, unless the lien is extinguished, and the 
 original debtor is discharged from the debt. Thus in a Maine 
 case,^ in which the plaintiff had a debt against D, and a lien 
 therefor upon the defendant's vessel, S, being pressed for 
 money by the plaintiff, told him that he should have his lien- 
 claim on the vessel, to be enforced if D did not pay it. The 
 defendant hearing of this, and not desiring that his vessel 
 should be stopped, verbally promised the plaintiff that he 
 would pay S's claim if D did not. The plaintiff did not 
 discharge S, nor did S release D or his lien on the vessel, 
 although he did not enforce it as he would have done but for 
 the expectation raised by the defendant's promise that the 
 claim woidd be paid to the plaintiff. D afterward collected of 
 the defendant, but did not pay the plaintiff. It was held that 
 the promise was within the statute, and the ground upon 
 which the coiirt based the doctrine was that the plaintiff did 
 
 1 Tindal v. Touchberry, 3 Strobh. he had a lien for repairs, and upon 
 
 (S. C.) L. 177; Dunlap v. Thome, 1 B's oral promise to pay for the repairs, 
 
 Rich. (S. C.) L. 213; Adkinson w.Bar- delivered it to A, it was held that the 
 
 field, 1 McCord (S. C.) L. 575; Sian v. promise was within the statute. Mal- 
 
 Pigott,lN.&McCord(S.C.)124; Slin- lory v. Gillett, 21 N. Y. 412; over- 
 
 gerland v. Morse, 7 John. (N. T.) 463 ; ruling Watson v. Parker, 1 Hun CS. Y.) 
 
 Merceiu v. Andrus, 10 Wend. (If. Y.) 618 ; and Fay v. Bell, Lalor's Sup. 
 
 461; Stewart v. Hinkle, 1 Bond (U. (N..Y.)251. 
 
 S. C. C.) 506. But in New York this « Stewart v. Campbell, 58 Me. 439 ; 
 
 doctrine is now repudiated ; and where 4 Am. Kep. 296. See also Brightman 
 
 the plaintiff had in his possession a v. Hicks, 108 Mass. 246. 
 canal-boat belonging to A, upon which 
 
260 STATUTE OF FRAUDS. [CHAP. IV. 
 
 not release the lien or his claim against the principal debtor, so 
 that the promise of the defendant was merely collateral, and 
 not binding unless in writing.^ 
 
 Sec. 149. General Rule. — In Massachusetts a difFerent 
 rule is adopted, and when the owne? of a vessel, sub- 
 ject to a lien for a debt incurred, agreed verbally with 
 the holder of the lien that if he would forbear enforcing 
 it, he would pay the debt, the court held that the promise 
 was an original undertaking, and that whether the lien was 
 absolutely abandoned or not. "By permitting the vessel 
 to go to sea," said Soulb, J., "and forbearing to enforce 
 their lien, the plaintiffs abandoned /or the time being, at least, 
 the advantage which their lien gave them for securing their 
 Aehts, for the benefit of the defendant, who thereby gained the 
 opportunity to send his vessel to sea, and put her beyond the 
 jurisdiction of the courts of this Commonwealth, so that they 
 could not enforce their lien." ^ In this case,while the defendant 
 had a direct interest in having the lien discharged, yet it does 
 not appear that the lien was absolutely discharged, or that the 
 original debtor was released from the debt. Therefore the doc- 
 trine announced in it is directly opposed to that adopted in the 
 Maine case, ante, but comes clearly within the rule stated in the 
 text as well as in accord with the doctrine generally held in the 
 several- States of this country,^ and as announced by Shaw, 
 
 1 In Spooner v. Dunn, 7 Ind. 81, ^ Hodgkins v. Henney, 15 Minn, 
 it was held that where a creditor re- 185; Arnold v. Stedman, 45 Penn. St. 
 leases a specific lien which he has 186 ; Corkins v. Collins, 16 Mich. 478 ; 
 upon property upon the faith of a Smith v. Sayward, 6 Me. 504 ; King v. 
 third person to pay the debt, the Despard, 5 Wend. (N. Y.) 277 ; Whit- 
 promise is not within the statute, field v. Potter, 10 Bos. (N. Y.) 226; 
 See also, to same effect, Dunlap v. Young v. French, 35 Wis. Ill ; Cross 
 Thome, 1 Rich. (S. C.) L. 213 ; Plum- v. Richardson, 30 Vt. 641; Lampson 
 mer v. Lyman, 49 Me. 229 ; Arnold v. v. Heartt, 28 id. 697 ; Boyce v. Owens, 
 Stedman, 45 Penn. St. 186; Fay v. 2 McCord (S. C.) L. 208; Krutz v. 
 Bell, H. & D. Suppt. (N. Y.) 251. Stewart, 54 Ind. 178; Scott i'. Thomas, 
 
 2 Fears v. Story, 131 Mass. 47. But 2 111. 58 ; Crawford v. King, 54 Ind. 
 see Brightman v. Hicks, 108 id. 246, 6 ; Spooner v. Drum, 7 Ind. 81 ; Luark 
 where it was held that an oral promise v. Malone, 34 id. 444 ; Scott v. White, 
 made to a creditor by whom property 71 III. 287 ; Mallory v. Gillett, 23 
 subject to a lien for the debt is trans- Barb. (N. Y.) 610; Stem v. Drinker, 
 ferred by the iebtoT- without any re- 2 E. D. S. (N. Y. C. P.) 401; Fay u. 
 lease of the creditor's claim, either on Bell, H. & D. Suppt. (N. Y.) 251 ; Van 
 the debtor or the property, is within the Slyck v. Pulver, id. 47 ; Alger v. Sco- 
 statute. ville, 1 Gray (Mass.) 391; Burr v. 
 
SEC. 150.J GUARANTIES. 261 
 
 C. J.,^ that where the plaintiff, in consideration of the defend- 
 ant's promise, has relinquished some lien, benefit, or advan- 
 tage for securing or recovering his debt,- and where by means 
 of such relinquishment the same interest or advantage has 
 inured to Ihe benefit of the defendant, the defendant's promise 
 to pay the debt is an original undertaking and not within the 
 statute ; and in that case this rule was applied to uphold an 
 action against the owner of a building who, in consideration 
 that the builder would release him from the further perform- 
 ance of a building contract, and assign to him the materials 
 procured for the completion of the contract, verbally prom- 
 ised to pay the outstanding bills due from the builder for 
 labor and material. In another case ^ one of the owners of a 
 ship orally promised to pay a claim for labor and materials 
 furnished for her construction, and charged to the builder in 
 case a libel to enforce a lien upon a similar claim should be 
 enforced in admiralty, if the plaintiff would forbear to enforce 
 his claim, and it was held that the promise was not within 
 the statute whether the plaintiff actually had a lien or not.* 
 It is not enough that a benefit or advantage may incidentally 
 inure to the promisor from the release of a lien, but it must 
 appear that such advantage was the object or consideration 
 of the promise.* 
 
 Sec. 150. Promisor must Derive Benefit Therefrom. — In 
 
 cases of this character, in order to take a verbal promise 
 out of the statute, the person making the promise must not only 
 
 Wilcox, 13 Allen (Mass.) 269; Fish interest of the other part owners, was 
 
 V. Thomas, 5 Gray (Mass.) 45; Dexter within the statute. 
 V. Blanchard, 11 Allen (Mass.) 400; * Clapp v. Webb, 52 Wis. 638 In 
 
 FuUam v. Adams, 37 Vt. 391 ; Kelsey Mallory v. Gillett, 21 N. Y. 412, the 
 
 V. Hibbs, 13 Ohio St. 340 ; Maule v. plaintiff had a lien for repairs upon a 
 
 Bucknell, 60 Penn. St. 340 ; Small v. boat belonging to one A, which he 
 
 Schaefer, 24 Md. 143. would not release without payment of 
 
 ' In Curtis K.Brown, 5 Cush.(Mass.) the debt. The defendant verbally 
 
 491. promised, in consideration that the 
 
 2 Msh u. Thomas, 5 Gray (Mass.) lien should be released, to pay the 
 
 45. plaintiff the amount of the debt, part 
 
 ^ But see Ames v. Foster, 106 Mass. in hand, and the remainder in two 
 400, where it was held that an oral equal instalments. The lien was re- 
 promise made by the mortgagee of a leased, and the part stipulated for 
 vessel to persons who had furnished paid. But in an action to recover 
 her with supplies, for which they had the instalments, the court held that 
 no Uen, If they would not attach the no recovery could be had, as the con- 
 tract was clearly within the statute. 
 
262 
 
 STATUTE OF PEAUDS. 
 
 [chap. IV. 
 
 liave an interest in having the lien discharged, but the promisee must 
 release the lien, and accept the promisor as debtor in the place of the 
 original debtor.^ In. an Indiana case this rule was applied 
 where the plaintiffs had a statutory lien upon a house for an 
 amount due them by the defendant, who also had' a lien on 
 the house for work done on it. The owner of the house, to 
 prevent a mechanic's lien being filed against it, agreed to pay 
 
 1 In Conradt v. Sullivan, 45 Ind. 
 401, the mortgagee of a chattel verbally 
 promised the plaintifE — a mechanic 
 — to pay him for repairs which he 
 had made upon the chattel after the 
 mortgage was executed, in conse- 
 quence of which the plaintifE gave 
 up his lien upon the chattel, and it 
 was held that the statute did not ap- 
 ply. If there is any liability on the 
 part of the original debtor, it is con- 
 clusive that the promise is collateral. 
 Ware v. Stephenson, 10 Leigh. (Va.) 
 155; Read v. Ladd, 1 Edm. (N. Y.) 
 Sel. Cas. 100; Cutter v. Hinton, 6 
 Band. (Va.) 509; Kurtz v. Adams, 
 12 Ark. 174; Kinloch u. Brown, 
 1 Rich. (S. C.) 223; Taylor v. Dralce, 
 4 Strobh. (S. C.) 431; Cropper k. Pit- 
 man, 13 Md. 190; Knox v. Nutt, 1 
 Daly (N. Y. C. P.) 213; Walker v. 
 Eichardson, 39 N. H. 259; Dixon v. 
 Prazer, 1 E. D. S. (N. Y. C. P.) 32; 
 Cahill V. Bigelow, 18 Pick. (Mass.) 
 369 ; Hill v. Raymond, 3 Allen (Mass.) 
 540; Allen v. ScarfC, 1 Hilt. (N. Y. C. 
 P.) 209; Hetfield v. Dow, 29 N. J. L. 
 440 ; Swift v. Pierce, 13 Allen (Mass.) 
 136; Brown v. Bradshaw, 1 Duer 
 (N. Y.) 199; Carvilleo. Crane, 5 Hill 
 (N. Y.) 483; Brady <;. Stackrider, 1 
 Sandf. (N. Y.) 514. In Eichardson 
 V. Bobbins, 124 Mass. 105, the de- 
 fendant, to whom E was indebted, re- 
 quested a chattel mortgagee of E to 
 consent to a sale of the chattels to 
 S, subject to the mortgage, S agreeing 
 to pay the mortgage debt ; and the 
 defendant promised the plaintifE that if 
 he would consent to such sale, he would 
 pay such part of the debt as S did 
 not ; and it was held that the promise 
 was within the statute. In Goelet v. 
 Farley, 57 How. Pr. (N. Y.) 174, a 
 verbal agreement by the assignee of 
 
 a lease to pay a mortgage on the 
 premises, was held to be void. But 
 in Prime v. Koehler, 7 Daly (N. 
 Y. C. P.), where the defendant pur- 
 chased premises subject to a mort- 
 gage, without assuming its payment, 
 promised the plaintiffs, who were about 
 to foreclose the mortgage, that if they 
 would extend the time of payment, he 
 would pay the interest then due, and 
 thereafter to become due under the 
 mortgage, it was held that the prom- 
 ise was not within the statute. The 
 distinction bewecn this case and the 
 two former is that in this case the 
 defendant had a direct interest in the 
 subject-matter of the promise, and 
 derived an immediate benefit there- 
 from ; while in those cases the prom- 
 isors had no direct interest, and de- 
 rived no benefit from the promise. 
 In Waether v. Merrell, 6 Mo. App. 
 370, the defendant, who was president 
 of a bank, promised the plaintifE, who 
 had money deposited there, that if he 
 would not draw it out, but allow it to 
 remain there, he would pay him the 
 total deposit if the bank should fail. 
 The plaintiff did not draw out liis 
 money, and the bank did fail ; but the 
 court held that the defendant's prom- 
 ise was within the statute. The officers 
 of a bank agreed with the payee of a 
 check, on its presentment, — the bank 
 then having no funds on deposit to 
 pay the check, — that if he would de- 
 posit it in another bank, so tliat it 
 should be presented for payment 
 through the clearing house, the banlc 
 would pay it ; and it was held to be 
 a propiise to pay the debt of another, 
 and within the statute. Morse v. 
 Mass. Nat. Bank, 1 Holmes (U. S. 
 C. C.) 209. 
 
SEC. ISO.] 
 
 GUARANTIES. 
 
 263 
 
 the plaintiffs; and they, in reliance upon his promise, abandoned 
 their lien, and the court held that the owner of the house could 
 not avoid his promise on the ground that it was not in 
 writing because he derived a benefit and advantage from the 
 discharge of the lien.^ In a New Jersey case ^ a United States 
 commissioner, who had taken certain depositions for the son of 
 the promisor, sent them off upon the promise of the defendant 
 to pay his fees, and thus lost liis lien thereon ; but the court 
 held that the detriment from thus losing his security did not 
 take the case out of the statute, because the promisor derived 
 no benefit or advantage from the discharge of the lien, and 
 could not in any sense be said to be a purchaser of the debt. 
 The fact that there is a good consideration at common law 
 for the verbal promise, so that it could be enforced if in 
 writing, does not take the case out of the statute unless the 
 creditor accepts the promisor as debtor in place of the person on 
 whose belialf the promise is made,^ or the promise is predicated upon 
 
 1 Luark v. Malone, 34 Ind. 444. 
 
 2 Cowenhaven v. Howell, .36 N. J. 
 L. 323. In Hall v. Woodln, 35 Mich. 
 67, the defendant promised the plain- 
 tiff, in behalf of several lumbermen 
 whose logs required the aid of more 
 water, that if he would raise and let 
 go the floods, the lumbermen would 
 pay him, and that he would see him 
 paid ; and it was held to he a collateral 
 promise, and within the statute. In 
 Searight v. Payne, 2 Tenn. Ch. 175, it 
 was held that the promise of an officer 
 of a corporation who promised to see 
 that a bill for goods sold to the corpora- 
 tion is paid, is within the statute. See 
 also Whitman v. Bryant, 49 Vt. 512 ; 
 Gridley !>. Capen, 72 HI. 11. In Durant 
 V. Allen, 48 Vt. 58, the defendant ver- 
 bally promised the plaintiff that if he 
 would not present his bill for doctor- 
 ing her deceased husband in his last 
 sickness for allowance by the com- 
 missioners, she would pay it, to which 
 he agreed, and did not present the bill. 
 The deceased had no minor cliildren, 
 and his real estate was worth less than 
 $500, and his personal estate less than 
 $100, and the Probate Court assigned 
 the whole of the estate to her, she 
 being entitled thereto as widow under 
 
 the statute. It was held that the 
 promise was within the statute, and 
 not binding upon her. But such a 
 promise made by a widow to a cred- 
 itor of her husband's estate, where 
 there are assets with which to pay 
 his debts, is held to be valid, and 
 not within the statute. Crawford v. 
 King, 54 Ind. 6. A promise by the 
 payee of a note to the maker that if 
 he will delay issuing an execution he 
 has obtained against a third person, 
 he will pay the judgment by allow- 
 ing him credit for the amount on the 
 note, is within the statute unless in 
 writing. Krutz v. Stewart, 54 Ind. 
 178. But in Tennessee it has been 
 held that a written promise to pay 
 the debt of another, if the creditor 
 will for a time delay the issue of an 
 execution, is valid. Abel v. Wilder, 
 9 Lea (Tenn.) 453. In Haynes i;. 
 Burkam, 51 Ind. 130, it was held that 
 a promise by A to C to sign a bond 
 as surety for B for the return of cer- 
 tain United States bonds if C would 
 loan them to B, which C did, relying 
 upon such promise, is within the stat- 
 ute unless in writing. 
 
 8 Gill V. Herrick, 111 Mass. 501 ; 
 Purbush V. Goodnow, 98 id. 296. 
 
264 
 
 STATUTE OP FRAUDS. 
 
 [chap. rv. 
 
 a new and independent consideration moving between the original 
 contracting parties, so that the promisor can be said to be a 
 purchaser of the debt, because otherwise the promise is 
 merely collateral. Thus it has been held that a promise to 
 pay the debt of a third person against 'vsrhom an action is 
 pending, and whose property had been attached therein, in 
 consideration that the promisee will discontinue the suit, the 
 promisor not being shown to have derived any immediate 
 benefit therefrom, is within the statute, although the suit is 
 discontinued, and the creditor thereby loses the benefit of the 
 attachment.^ The rule in such cases is that when the party 
 promising has for his object a benefit or advantage which he did not 
 before enjoy, accruing immediately to himself, and assumes the 
 debtor' s place as to the payment of the debt, the promise is not 
 within the statute ; but where the object of the promise is solely for 
 the benefit or advantage of the person in whose behalf it was made, 
 as to secure the release of his person or property, or other 
 forbearance to him, the debtor still remaining liable, it is 
 within the statute, and void unless in writing.^ In a Ken- 
 
 ^ Nelsonr.Boynton, 3 Met. (Mass.) 
 396. 
 
 ^ Curtis V. Brown, 5 Cush. (Mass.) 
 488 ; Alger v. Scoville, 1 Gray (Mass.) 
 391 ; Nelson v. Boynton, ante ; Stone 
 V. Symmes, 18 Pick. (Mass.) 467; 
 Harrington u. Rich, 6 Vt. 666 ; Clop- 
 per V. Poland, 12 Neb. 69. In such 
 case the promisor assumes the debt 
 and makes it his own. The promise 
 is a direct undertaking on the part 
 of the person promising to pay, not 
 upon the failure of the debtor to pay, 
 but to pay the debt. Such a contract 
 rests upon the same grounds as a con- 
 tract for property sold and delivered, 
 andis not collateral. Pitzgeraldw.Mor- 
 rissey, Neb. S. C. 1883. In Reed v. Hol- 
 comb, 31 Conn. 330, the defendant, in 
 taking a note from a firm that was in- 
 debted to him, had it made payable to 
 the order of the plaintifE. This was 
 done for the purpose of getting the 
 plaintiff's indorsement, and that he 
 might get the paper discounted at a 
 bank, but was done without consulting 
 the plaintiff. lie then carried it to the 
 plaintiff, and requested him to indorse 
 
 it, which the plaintiff declined to do, 
 but did so eventually upon the verbal 
 promise of the defendant to see the 
 note paid, and save him harmless. In 
 making the indorsement the plaintiff 
 relied solely upon the defendant's 
 promise and responsibility, and for 
 his accommodation. The defendant 
 indorsed the note and took it to the 
 bank, and procured it to be discounted. 
 Before it became due, the makers 
 failed, and the plaintiff had to take 
 it up. In an action brought by him 
 to recover the amount of the defend- 
 ant upon his promise, the court held 
 that the defendant's promise was not 
 within the statute. Hinman, J., in 
 delivering the opinion of the court, 
 said : " It appears to us that the stat- 
 ute of frauds does not apply to this 
 case. We think the defendant never 
 intended to become the surety of 
 Prazier, Mills, & Co. in making the 
 promise that he did make, and that 
 the plaintiff never intended to accept 
 of his undertaking as. that of a surety, 
 or as at all collateral to their liability. 
 It is often diflBlcult from the mere words 
 
SEC. ISO.] 
 
 GTTAEANTIES. 
 
 265 
 
 tucky case ^ it was held that if the debtor is discharged from 
 the debt in consequence of the promise of a third person to 
 
 1 Jones V. Walker, IS B.Mon. (Ky.) 857. 
 
 in which a promise is made to deter- 
 mine whether any credit was given to 
 a third person, and the undertaking 
 therefore collateral to the engage- 
 ment or liability of such person, or 
 whether it was a wholly independent 
 and originally undertaking. In such 
 cases courts must rely upon the cir- 
 cumstances of each particular case, 
 and its general features, in order to 
 ascertain the intention of the parties, 
 and how they viewed it, where it is 
 doubtful whether it was a contract of 
 suretyship or guaranty, or an original 
 undertaking. Now in this case the 
 defendant wished to borrow money 
 which he could obtain upon the plain- 
 tiffs indorsement, but could not upon 
 the note of Frazier, Mills, & Co. with- 
 out such indorsement, and as he had 
 their note he preferred that the plain- 
 tiff should indorse it rather than to 
 make a new note of his own to be in- 
 dorsed. But on requesting the plain- 
 tiff to indorse their note he declined 
 to do it, on the ground of their want 
 of responsibility, until the defendant 
 promised that if he would do it, he, 
 the defendant, would pay it when due, 
 and, in case the plaintiff had any- 
 thing to pay by reason of his indorse- 
 ment, he would repay the same, and 
 fully indemnify and save the plaintifE 
 harmless. This in substance, we think, 
 was the same as if the plaintiff had 
 indorsed the defendant's own note to 
 enable him to raise money upon it. 
 Of course no one would doubt his 
 liability on such a transaction. The 
 plaintiff gave no credit whatever to 
 the name of Frazier, Mills, & Co., 
 but relied entirely upon the under- 
 taking of the defendant. In principle 
 it is very similar to the case of Brown 
 V. Curtiss, 2 N. Y. 226, which, though 
 in form a promise to answer for the 
 debt or default of another, was yet 
 held to be in substance an engage- 
 ment to pay the guarantor's own debt 
 in a particular way, and therefore not 
 
 within the statute. The section of the 
 statute, which is supposed to be ap- 
 plicable to the case, was not intended 
 to protect parties from any other con- 
 tracts than those of suretyship, or 
 guarantee for the payment of some 
 debt, or the performance of some 
 duty by a third person. But if no 
 credit is given to such third person, 
 and the consideration of the promise 
 does not move from him, and he is 
 not to be benefited by it, the statute 
 did not intend to make void the prom- 
 ise, because such third person migfat 
 also be primarily liable for the same 
 debtor duty. 'If,' says Judge Beon- 
 SON, in Jolmson v. Gilbert, 4 Hill. (N. 
 Y.) 178, 'A promise B, upon a suffi- 
 cient consideration moving wholly be- 
 tween them, that a stranger will pay 
 a sum of money, or do any other act, 
 this is an original undertaking, and 
 not within the statute ; and it makes 
 no difference whether the stranger is 
 under an obligation to do the act or 
 not' The same principle was stated 
 in Alger v. Scoville, 1 Gray (Mass.) 
 391, where it is laid down that ' a 
 promise, the leading object of which 
 is a benefit to the promisor, which he 
 did not before enjoy, is not within the 
 statute of frauds, although its effect 
 be to discharge another from an obli- 
 gation.' If the promise is on a suffi- 
 cient consideration, moving between 
 the immediate parties to it, and from 
 which the promisor is to derive a ben- 
 efit, in view of which the promise is 
 made, it then becomes a new and in- 
 dependent contract existing entirely 
 between the immediate parties to it. 
 The benefit which the original debtor 
 may derive from it is incidental, and 
 in no respect the object of the parties, 
 and ought not therefore to affect the 
 validity of their contract. Cross i/. 
 Richardson, 30 Vt. 641 ; Leonard v. 
 Vredenburgh, 8 Johns. (N. Y.) 23. But 
 in this case there was no benefit what- 
 ever to the original debtors arising 
 
266 
 
 STATUTE OP FRAUDS. 
 
 [chap. IV. 
 
 pay it, the promise is not within the statute, but when the 
 person in whose behalf it is made is not discharged, but the 
 habihty assumed is contingent upon the failure of the original 
 debtor to pay, the promise is collateral, and within the statute.^ 
 
 Sec. 151. Discharge of Attachment or Forbearance to Sue, 
 etc., not Enough, Unless. — A verbal promise to pay the debt of 
 another, if the creditor will forbear to sue,^ or discontinue a 
 suit already brought,^ or release an attachment,* or if he will 
 
 1 Waggoner v. Gray, 2 H. & M. 
 (Va.) 603; Noyes v. Humphries, 11 
 Gratt. (Va.) 643; Ware v. Stephenson, 
 19 Leigh (Va.) 155. 
 
 2 Forth!;. Stanton, 20 Wend. (N.Y.) 
 201 ; Thomas v. Delphy, 33 Md. 373 ; 
 Hilton V. Dinsmoor, 21 Me. 410. In 
 Peabody v. Harvey, 4 Conn. 119, a, 
 promise made by the indorser of a 
 note that if the payee would forbear 
 suing the maker he would pay the 
 debt, was held to be within the stat- 
 ute. " A promise on a new considera- 
 tion," said HosMEK, J., " rests on dif- 
 ferent principles, and has never been 
 sustained on the forbearance of a 
 debtor." Huntington v. Harvey, 4 
 id. 124; Turner t. Hubbell, 2 Day 
 (Conn.) 457; Jones v. Walker, 13 B. 
 Mon. (Ky.) 356; Ellison v. Wisehart, 
 29 Ind. 32. 
 
 ° Nelson v. Boynton, ante ; Duffy v. 
 Wunseh, 42 N. Y. 243 ; Thomas v. Del- 
 phy, 33 Md. 373. A mere oral promise 
 by a stranger to an action that he will 
 pay the debt and costs if the plaintiff 
 will cease to prosecute the action, is 
 not an original undertaking, and is 
 within the statute. Hearing v. Detti- 
 nan, 8 Phila. (Penn.) 307; AUwin v. 
 Garbenick, 8 id. 637. 
 
 from the plaintiff's indorsement of 
 their note. Their liability to pay it 
 was not altered except in respect to 
 the party to whom it was payable. 
 It was not discounted by the bank for 
 their benefit, but for the defendant, 
 and they obtained nothing in conse- 
 quence of it. In this respect it is 
 very distinguishable from the case of 
 Green v. Cresswell, 10 Ad. & El. 453, 
 which was principally relied upon by 
 
 " Nelson v. Boynton, ante ; Licher 
 V. Levy, 3 Met. (Ky.) 292. In Russell 
 V. Babcock, 14 Me. 139, it was held 
 that a promise to pay the debt of an 
 execution debtor if the creditor would 
 delay the collection of the execution, 
 was not within the statute. But this 
 doctrine was overruled in Hilton v. 
 Dinsmoor, 21 id. 410. Shepley, J., 
 saying in reference to that rule : " If 
 this was in reality the ground of deci- 
 sion in that case, and the abstract of 
 the reporter is to that effect, we are 
 constrained to say it is unsupported 
 by the authorities. And in a later 
 case, in the same State, Stewart v. 
 Campbell, 58 Me. 439, Appleton, J., 
 in referring to the doctrine adopted in 
 Russell u. Babcock, ante, said : " This 
 decision would repeal the statute, and 
 it has been overruled." In Ames v. Fos- 
 ter, 106 Mass. 400, it was held that an 
 oral promise made by a mortgagee of a 
 part of a vessel to persons who had fur- 
 nished her with supplies, that he would 
 pay tlie debt if they wodld not attach 
 theinterestof the other owners, was col- 
 lateral, and within the statute. A pro- 
 mise to pay a tax, if the collector will 
 not levy, is not within the statute. Al- 
 len, J., in Goodwin v. Bond, 59 N. H. 
 
 the defendant. In that case the bail- 
 bond, though given at the defendant's 
 request, was still given for the sole 
 benefit of the arrested debtor, and the 
 only object of it was to procure his 
 liberation from imprisonment. But 
 in this case the indorsement was for 
 the entire benefit of the defendant, to 
 enable him to obtain money upon the 
 note. The plaintiff had no dealings 
 with the makers of the note, and re- 
 
SEC. 151.] 
 
 GTJAEANTIES. 
 
 267 
 
 forbear making an attachment,^ unless the promisor derives 
 a benefit or advantage therefrom peculiar to himself, are 
 clearly collateral undertakings, and within the statute unless 
 in writing. A promise in writing to guarantee the debt of 
 another, in consideration that the creditor will forbear attach- 
 ing the debtor's property, will not support an action if, at the 
 time when it was made, the creditor had in fact no right to make 
 such attachment,^ and the same is true as to a guaranty given 
 to induce a creditor to forbear proceedings against the debtor 
 in bankruptcy, because in such cases the consideration fails.^ 
 Where the plaintiff, a broker, had a lien on certain policies of 
 insurance effected for his principal, for whom he had given 
 his acceptances, and the defendant promised that he would 
 provide for the payment of those acceptances as they became 
 due, upon the plaintiff's giving up to him such policies, in 
 order that he might collect the money due on them for the 
 principal ; it was held that this promise was not within the 
 statute.* 
 
 fused to rely on their responsibility at 
 all; and the sole consideration for the 
 indorsement being the defendant's prom- 
 ise to pay, or see that the note was paid 
 at maturity, it seems very ungracious 
 now, after he has obtained the money 
 upon the indorsement, which the plain- 
 tiff was under no obligation to maJce, to 
 attempt to protect himself, because 
 the promise was not in writing." See 
 also Dyer c. Gibson, 16 Wis. 557; 
 Meech v. Smith, 7 Wend. (N.Y.) 315; 
 Danver v. Blackney, 38 Barb. (N. Y.) 
 432; Mason v. Hall, 30 Ala. 599; 
 Cross t>. Richardson, 30 Vt. 641 ; 
 Spann v. Baltzell, 1 Fla. 301; Allen 
 V. Thompson, 10 N. H. 32 ; Scott v. 
 Thomas, 2 HI. 59; Lemmon v. Box, 
 20 Tex. 329; Huber v. Ely, 45 Barb. 
 (N. Y.) 169; Todd v. Tobey, 29 Me. 
 219; Small v. Shaeffer, 24 Md. 143; 
 Hindman u. Langf ord, 3 Strobh. (S. C.) 
 207. In Talman v. Eochester City 
 Bank, 18 Barb. (N. Y.) 123, where a 
 bank guaranteed to a trust company 
 the final collection of certain instal- 
 ments, to become due upon a bond 
 and mortgage assigned by a debtor of 
 the bank to the trust company, and 
 
 upon which the trust company ad- 
 vanced money to be applied by the 
 debtor to the payment of his debt to 
 the defendant bank, and which was 
 so applied, it was held that the de- 
 fendant was liable upon its guaranty. 
 
 1 Waldo V. Simonson, 18 Mich. 345. 
 
 2 Smith V. Easton, 54 Md. 138; 39 
 Am. Rep. 355. In Ecker v. Bohn, 45 
 Md. 278, it was held that while for- 
 bearance to proceed against a person 
 in bankruptcy is a good considera- 
 tion for the promise of a third per- 
 son to pay the debt, yet, if the cred- 
 itor had in fact no right to take such 
 proceedings, the consideration failed, 
 and no action could be maintained 
 upon the promise. 
 
 s Ecker v. Bohn, 45 Md. 278. A 
 parol promise by the payee of a note 
 to the payor that if the latter will for- 
 bear to attach property in the hands of 
 the former, and in which he is interested, 
 belonging to an absconding debtor, he 
 will credit the indebtedness of such 
 debtor to the maker of the note upon 
 the note, is not within the statute. 
 Mitchell V. GrifSn, 58 Ind. 559. 
 * Castling v. Aubert, 2 East, 325. 
 
268 STATUTE OF FRAUDS. [CHAP. IV. 
 
 Sec. 152. Purchase of Debt. — Where a person promises 
 to pay the debt of another in consideration of its assign- 
 ment to him, the promise is not within the statute, because 
 lie purchases the debt. Thus, where A being insolvent, 
 a verbal agreement was entered into between several of 
 his creditors, whereby B agreed to pay the creditors 10a. 
 in the pound, in satisfaction of their debts, which they 
 agreed to accept and to assign their debt to B ; it was 
 held that this agreement was not within the statute, as 
 it was not a collateral promise to pay the debt of another, 
 but an original contract to purchase the debts.^ But 
 where W D by indenture agreed to grant a certain composi- 
 tion deed to aU the creditors of J D who should before a 
 fixed day execute a release of their debts, and each creditor 
 on executing the release received the joint note of J D and 
 W D ; it was held the agreement was one which must be in 
 writing, and that any variation in its terms must have been 
 evidenced in writing.^ 
 
 So where a written agreement, signed by the defendants, 
 the plaintiffs, and the charterers, after reciting that the ship 
 had arrived in port, and a stop had been put on the freight by 
 the owners,' and that a difficulty had arisen as to the settle- 
 ment of the charterers' accounts, stated that the stop was to 
 be immediately taken off, and that the commission on the 
 charter-party, payable to the plaintiff, was to be paid by the 
 defendants, and that no person signing that agreement was 
 to put any stop on the freight ; it was held that this was an 
 agreement to be answerable for the debt of another.^ 
 
 Sec. 153. Refraining from Distress. — A parol promise made 
 by a third person to a landlord to pay rent in arrear, in con- 
 sideration of the landlord's refraining from making a distress 
 of goods in the promisor's possession, is held to be an origi- 
 nal and not a collateral promise, and valid whether the goods 
 have been actually distrained upon or not, because in such 
 a case the promisor derives an immediate advantage from 
 
 ^ Anstey v. Harden, 1 Bos. & P. ^ Emmet v. Dewhurst, 3 Mac. & G. 
 
 (N. R.) 124; Barrett v. Hyndman, 3 587. 
 
 Ir. L. R. 109; Macrory v. Scott, 5 Ex. " Gull v. Lindsay, 4 Ex. 45; 18 L. 
 
 907 ; Fitzgerald v. Dressier, 7 C. B. J. Ex. 354 ; and see Clancy v. Piggott, 
 
 (K S.) 395; 29 L: J. (C. P.) 119. 2 Ad. & El. 473. 
 
SEC. 153.J GUAEAiTTIES. 269 
 
 tlie retention of the property. The leading case upon 
 this point is "Williams v. Leper.^ There one Taylor was in- 
 debted to the plaintiff Williams in £45 for three-quarters 
 of a year's rent, and Taylor becoming insolvent, made a bill 
 of sale to the defendant Leper of all his goods in the house, 
 to be sold for the use of his creditors. While the defendant 
 was in possession of the goods upon the premises the plaintiff came 
 there to distrain for his rent, whereupon the defendant, in 
 consideration that he would not distrain, promised to pay the 
 £i5. It was held that this was not a promise to pay the 
 debt of another, that the goods were debtor,'^ and the defendant 
 was in the nature' of a bailiff for the landlord, and that if the 
 defendant had sold the goods and received money for them, 
 an action for money had and received for the plaintiff's use 
 would have been laid. And Aston, J., said that the defend- 
 ant was not bound to pay the landlord more than the goods 
 sold for, in case they had not sold for £45. 
 
 So where the plaintiff, having distrained for rent upon the 
 tenant's goods, agreed with the defendants to deliver up the 
 goods, and to permit them to be sold by one of the defendants for 
 the tenant, upon the defendants first undertaking to pay to the 
 plaintiff all such rent as should appear to be due to him from 
 the tenant, it was held that the undertaking was not within 
 the statute.^ Again, where an auctioneer employed to sell 
 goods on certain premises for which rent was in arrears, was 
 applied to by the landlord for the rent, the landlord saying 
 it was better to apply so than to distrain, and the auctioneer 
 answered, " you shall be paid ; my clerk shall bring you the 
 money ; " it was held that an action lay on this promise with- 
 out a note in writing.* 
 
 Where J A made a bill of sale of goods to the plaintiff in 
 consideration of a debt of £129 19s. due from him to the 
 plaintiff, and the plaintiff being about to sell the goods in 
 satisfaction of his debt, the defendant undertook to pay him 
 £129 19s. if he would forbear to sell, it was held that this 
 
 1 3 Burr. 1887 ; 2 Wils. 308. have been in writing. Forth v. Stan- 
 
 ^ It is submitted that this is the ton, 1 Wms. Saund. 211 d. 
 true ground of the decision, and that ^ Edwards v. Kelly, 6 M. & Sel. 
 if the defendant had not been the 204; Love's Case, Salk. 28; Slinger- 
 owner of the goods, the promise must land v. Morse, 7 John. (N. Y.) 403. 
 
 * Bampton v. Paulin, 4 Bing. 264. 
 
270 STATTJTK OP FKATJDS. [CHAP. IV. 
 
 promise was not -within the statute, and Mansfield, C. J., 
 said : " What is this but the case of a man who, having the 
 absolute, uncontrolled power of selling goods, refrains from 
 the request of another ? " ^ 
 
 In Thomas v. "Williams,^ Loift) Tenteeden, ' C. J., said: 
 " In Williams v. Leper there was no actual distress, but there 
 was a power of immediate distress, and an intention to enforce 
 it ; and I think the judges must be understood to have con- 
 sidered that power as equivalent to an actual distress." A 
 promise to pay the sum due for rent out of the proceeds of a 
 sale of the tenant's effects is a positive engagement to pay, if 
 the goods are sufficient, and is not within the statute.* 
 
 Sec. 154. Promise in Some Cases Original. Instances. — In cer- 
 tain cases the promise may, in fact, be original, although made 
 respecting the debt or default of another. Thus, where H, 
 who was the agent for the plaintiff, being desirous of retiring, 
 the defendant applied for the agency. H was indebted to the 
 plaintiff, and also claimed a commission for introducing cus- 
 tomers. It was agreed that the plaintiff should allow H £52 
 on that account, and that the defendant, on taking the agency, 
 should allow the plaintiff to retain six months' salary, which 
 amounted to £52. In an action by the plaintiff for money 
 had and received by the defendant as such agent, the defend- 
 ant pleaded a set-ofE for six months' salary; it was held that 
 this was not an undertaking to answer for the debt of another 
 within the statute.* In the case last cited. Pollock, C. B., 
 said : " The question is, whether an agreement of this kind is 
 required by the statute of frauds to be in writing, and I am 
 of opinion that it is not. If a person agrees that whatever 
 shall hereafter beteome due to him shall be disposed of in a 
 particular way, such an agreement need not be in writing. 
 It is true that, if a person agrees to serve another for nothing, 
 the latter cannot compel the former to serve, because the 
 agreement is without consideration ; but if he does serve, he 
 cannot claim any compensation in respect of the service 
 which he agreed to do for nothing. He could not say at 
 
 1 Barrel! v. Trussell, 4 Taunt. 117 
 and see Meredith v. Short, Salk. 25 
 Walker v. Taylor, 6 C. & P. 752 
 Barker v. Blrt, 10 M. & W. 61. 
 
 2 10 B. & C. 664. 
 
 » Stephens v. Pell, 2 Cr. & M. 710. 
 
 * Walker v. Hill, 5 H. & N. 419. 
 
SEC. 155.] GUABANTIES. 271 
 
 first, 'I -will serve for nothing,' and afterwards, 'I will have 
 a salary.' If a person has done work without a consideration, 
 it is a good answer to any claim in respect of it that he agreed 
 to do so ; but if he merely agrees to do something without 
 consideration, that agreement is void. So, if a person says 
 to another, ' I will give you X20,' the latter could not compel 
 payment of it because there is no consideration for the 
 promise ; but if the money were actually given, it could not 
 be recovered back. Such being the true principle, it follows 
 that if a person may, without writing, agree to serve for 
 nothing, so that when the work is done he cannot enforce 
 payment, it cannot be that an agreement in writing is required 
 that the money shall be applied in a particular way, as, for 
 instance, giving it to an hospital or the poor of a parish. I 
 therefore think that no writing was requisite in this case." 
 
 Chai^nel, B., said : " I am also of opinion that the rule ought 
 to be discharged. The case is the same as if the defendant 
 was suing the plaintiff for services rendered. If a person 
 enters into the service of another, and there is nothiug to 
 explain the terms of the employment, the former is entitled 
 to be paid the worth of his service. This fact should be 
 borne in mind, that there was but one agreement between 
 the parties. At the time the plaintiffs agreed to receive the 
 defendant into their service the defendant agreed that his 
 salary for twenty-six weeks should not be paid to him, but be 
 applied by the plaintiffs in a certain way. If, indeed, after 
 the service had been performed and the money earned, the 
 defendant had agreed that twenty-six weeks' salary should be 
 applied by the plaintiffs in satisfaction of the debt due from 
 Hulls to them, there might be some color for contending that 
 the statute of frauds applied; but whatever doubt might 
 have existed in that case, this must be regarded as one 
 entire contract. Upon these grounds I think the verdict 
 was right." 
 
 Sec. 155. statute Applies to FromiseB to Ans-wer for Tortious 
 Acts. — The statute, it is now clearly settled, applies to 
 guaranties against the tortious default or miscarriage of 
 another person, as well as to guaranties against breaches 
 of contract.^ It appears that at one time a distinction was 
 
 1 1 Wms. Saund. 231 ; Add. 151. 
 
272 STATUTE OP PEATJDS. [CECAP. IV. 
 
 made between cases where the debtor was chargeable in con- 
 tract, and where he was answerable to an action of tort, 
 where the guarantor would not have been liable. Thus, where 
 the declaration stated that in consideration that the plaintiff 
 would deliver his gelding to A, the defendant promised that 
 A should redeliver him safe, it was held that this was a col- 
 lateral undertaldng, and Powell, J., said : " The objection 
 that was made was, that if English did not redeliver the 
 horse, he was not chargeable in an action upon the promise, 
 but in trover or detinue, which are founded upon the tort, 
 and are for a matter subsequent to the agreement. But I 
 answered that English may be charged on the bailment in 
 detinue on the original bailment, and a detinue is the ade- 
 quate remedy, and upon the delivery English is liable in 
 detinue, and, consequently, this promise by the defendant is 
 collateral, and is within the reason and the very words of the 
 statute." 1 In Read v. Nash,^ it was held that a promise to 
 pay damages by a third person in case the plaintiff would 
 withdraw his record, in an action of assault and battery, was 
 not within the statute.^ 
 
 In Fish V. Hutchinson,* it was held that a promise to pay 
 the debt of a third party, in consideration that the plaintiff 
 would stay an action commenced, was within the statute. 
 The court said: "Here is the debt of another party still 
 subsisting, and a promise to pay it. It is not hke the case 
 
 ^ Birkmyr v. Darnell, Ld. Kaym. cited, where a judgment in rem was 
 
 1085. obtained by E against a steamboat, 
 
 2 1 Wils. 305. and while the action was pending, 
 
 " And see Stephens u. Squire, 5 and before judgment, the defendants 
 
 Mod. 205. bought the boat ; and where, after 
 
 * 2 Wils. 94. A parol promise to the judgment was recovered, the de- 
 an execution creditor to pay the debt fendants, in consideration that E 
 if he will stay proeeedings on the would forbear to sell said boat on 
 execution is within the statute, al- * said judgment, promised to pay said 
 though the creditor was about to pay judgment, when requested, within a 
 the same, and desisted in reliance reasonable time; and where E as- 
 upon the promise. Van Slyck v. Pul- signed the judgment and the claim 
 ver, H. & D. Supp. (N. Y.) 47; Dur- on which it was founded, in writing ; 
 ham «. Arledge, 1 Strobh. (S. C.) 5; and where the assignee brought an 
 Stern v. Drinker, 2 E. D. S. (N. Y. action in his own name, on the prom- 
 C. P.) 401. Unless the promisor de- ise of defendants, — it was held, that 
 rives an immediate benefit from the the promise was not one to answer 
 stay of the execution or the enforce- for the debt of another, and was not 
 ment of the right. Barker v. Guillard, within the statute of frauds. 
 6 Iowa, 510. Thus, in the case last 
 
SEC. 155.] GUARANTIES. 273 
 
 of Read v. Nash. In that case there was no debt in another, 
 it being an action of battery, and it could not be known 
 before trial whether the plaintiff would recover any damages or 
 not. But in the present case there is the debt of another still 
 subsisting, and a promise to pay it." ' In Kirkham v, Marter,^ 
 A had wrongfully, and without license of the owner, ridden 
 his horse, and thereby caused its death ; and it was held that 
 a promise by a third person to pay the damage thereby sus- 
 tained, in consideration that the owner would not bring any 
 action against A, was a collateral promise, and must be in 
 writing. " This case," said Holroyd, J., " is certainly within 
 the mischief contemplated by the legislature, and it appears 
 to me to be within the plain intelligible meaning of the words 
 of the Act of Parliament." And Abbott, 0. J., said: "The 
 wrongful riding the horse of another without his leave and 
 licensed, and thereby causing its death, is clearly an act for 
 which the party is responsible in damages, and therefore, in 
 my judgment, falls within the meaning of the word ' miscar- 
 riage.' " His lordship distinguished the case from Read v. 
 Nash,^ saying: "The promise there was to pay a sum of 
 money as an inducement to withdraw a record in an action of 
 assault brought against a third person. It did not appear 
 that the defendant in that action had even committed the 
 assault, or that he had ever been liable in damages ; and the 
 case was expressly decided on the ground that it was an orig- 
 inal and not a collateral promise. Here the son had rendered 
 himself liable by his wrongful act, and the promise was expressly 
 made in consideration of the plaintiff's forbearing to sue the 
 son." It is submitted that the effect of this decision is to over- 
 rule Read v. Nash. In that case the ground on which the 
 judgment was based was that as the original action had not 
 been tried, it was not proved that the defendant in it had ever 
 committed the assault — that is to say, that he might have 
 had a defence. The same argument, however, would apply 
 to the defendant in the original action for causing the death 
 of the horse : he, also, might have had a defence. In both 
 cases the original defendants practically admitted their 
 
 1 And see King v. Wilson, 2 Str. Cowp. 460 ; French v. Frenoli, 2 Man.. 
 
 873 ; Elkins v. Heart, Pitz. 202 ; Roth- & Gr. 644. 
 ery v. Curry, B. N. P. 281 ; Thompson ^ 2 B. & Aid. 613. 
 V. Bond, 1 Camp. 4; ex parte Adney, ' 1 Wils. 305. 
 
274 STATUTE OP FRAUDS. [CHAP. IV. 
 
 liability.! But the case has never been expressly overruled, 
 and the principle laid down in it was followed in Bird v. 
 Gammon.2 There, the plaintiff, having issued execution 
 against one Lloyd for debt, Lloyd, with the assent of the 
 plaintiff, conveyed all his property to the defendant, who 
 thereupon undertook to pay the plaintiff the debt due from 
 Lloyd, the plaintiff withdrawing the execution. It was held 
 that the defendant's undertaking was not an undertaking .to 
 pay the debt of a third person, within the meaning of the 
 statute, TiNDAL, C. J., saying : " This is not an agreement 
 to pay the debt of a third person, but an agreement that if 
 the plaintiff would forego his claim on Lloyd, the defendant 
 would pay the amount of the debt due on his own account. 
 The case, therefore, falls within the principle of Read v. 
 Nash." ^ In Jarmain v. Algar,* it was held that a promise 
 by the defendant to execute a bail bond in a suit to be com- 
 menced against A B, in consideration of the plaintiff forbear- 
 ing to arrest A B on a writ already issued, was not within 
 the statute. 
 
 Sec. 156. Bail in Criminal Proceedings. — Where a person, 
 at the request of another, enters into a recognizance of bail 
 for the appearance of a third person to answer a criminal 
 charge, this is not within the statute, for there is no contract 
 on the part of the person bailed to indemnify the person who 
 becomes bail for him.* It has been held in England, how- 
 ever, that where the plaintiff becomes bail for a stranger in 
 civil proceedings, in consideration of the defendant's request 
 and of the defendant promising to indemnify him against the 
 consequences, no action lies upon such promise unless it be 
 in writing.^ 
 
 Sec. 157. when Liability-Guaranteed is Extinguished. — Where 
 the debt or liability guaranteed against is extinguished by the prom- 
 ise, the undertaking is original, and not within the statute. Thus, 
 
 1 See 1 Wms. Saund. 231. « Green v. Cresswell, 10 Ad. & El. 
 
 2 3 Bing. (N. C.) 883 ; 5 Scott, 213. 453; 2 P. & D. 480. See the distinc- 
 ' 1 Wils. 805. And see also the tion between these cases pointed out 
 
 judgment of Lord Kenton in Chater by Williams, J., in Cripps o. Hart- 
 V. Beckett, 7 T. R. 201. noil, ubi supra; and see also Batson 
 
 4 2 C. & P. 249; Ey. & M. 348. v. King, 4 H. & N. 789. 
 
 6 Cripps V. HartnoU, 4 B. & S. 414 ; 
 32 L. J. Q. B. 381. 
 
SEC. 158.] GUARANTIES. 275 
 
 where the plaintiff had taken A into custody on a ca sa, and 
 released him in consideration of the defendant promising to 
 pay the debt, it was held that the discharge of A out of cus- 
 tody by the consent of the plaintifP extinguished the debt, 
 and that therefore the promise to pay the debt was an original 
 promise.^ And in Butcher v. Steuart,^ the facts of which 
 were similar, Paeke, B., said: "It appears to me that this 
 is an absolute promise, in consideration of the agreement of 
 the plaintiff to discharge the defendant from execution. It 
 is not a promise to answer for the debt, default, or miscar- 
 riage of another, but is a promise to pay a debt in the event 
 of the other contracting party doing a certain act. It is, 
 therefore, within the decision of Goodman v. Chase, and does 
 not require a memorandum in writing to satisfy the statute." 
 But where a suit in Chancery was pending between A and 
 B, which C conducted for A as his attorney, and an agree- 
 ment was made between B and C, with the consent of A, 
 purporting that in consideration of the suit being put an end 
 to, B promised to pay C the costs due to him from A, it was 
 held that this was an agreement by B to pay the debt of 
 another, and, therefore, ought to be in writing.^ 
 
 Sec. 158. Novation, Effect of. — There is a species of no- 
 vation, called delegation in the civil law, which is effected 
 by the intervention of another person, whom the debtor, in 
 order to be liberated from his creditor, gives to such cred- 
 itor, or to him whom the creditor appoints, and such per- 
 son so given becomes obliged to the creditor in place of the 
 original debtor. But it is necessary that there should be 
 the concurrence of the person delegating, that is, of the origi- 
 nal debtor, and of the person delegated, or the person whom 
 he appoints. The intention of the creditor to discharge the 
 first debtor and accept the second in his place must, in order 
 to give effect to the delegation, be perfectly evident. There 
 are authorities which show that the circumstances consti- 
 
 1 Goodman v. Chase, 1 B. & Aid. rich v. Ames, 9 Gray (Mass.) 76; 
 
 297 ; and see Browning v. Stallard, Holmes v. Knights, 10 N. H. 175. 
 
 5 Taunt. 450 ; Bird v. Gammon, 3 See note 1, ante, p. 262. 
 Bing. (N. C.) 883 ; 5 Scott, 213; Lane 2 11 M. & W. 873. 
 V. Burghart, 1 Q. B. 937; Maggs v. » Tomlinson v. Gell, 1 N. & P. 588; 
 
 Ames, 4 Bing. 470 ; 1 M. & P. 294; 6 Ad. & El. 564. 
 Anderson v. Spence, 72 Ind. 315 ; Aid- 
 
276 
 
 STATUTE OP PEAUDS. 
 
 [chap. IV. 
 
 tuting, under the Roman law, a delegation, sustain the 
 promise of a third person to pay a debt of another to his 
 creditor, when that debt has been extinguished, and the debt 
 of the person promising has been substituted upon sufficient 
 consideration therefor. But there must be the mutual assent 
 of all the parties to make the substitution effectual at common 
 law.i Therefore, when the transaction amounts to a novation, 
 
 1 Butterfield v. Hartshorn, 8 N. H. 
 348. In Tatlock v. Harris, 3 T. E. 
 180, BuLLEE, J., says : " Suppose A 
 owes B £100, and B owes C £100, 
 and they meet, and it is agreed be- 
 tween them that A shall pay C £100, 
 B's debt is extinguished, and C may 
 recover the same against A." "If," 
 says Clohdman, J., in Bird u. Gam- 
 mon, 3 Bing. (N. C.) 883, "a debtor, 
 creditor, and a third party agree that 
 the third party shall be substituted 
 for the debtor, the debtor is exoner- 
 ated. Fairlee v. Denton, 8 B. & C. 
 395, has decided that, establishing to 
 that extent an exception to the rule 
 that debts cannot be assigned." Such 
 promises are not within the statute. 
 It was held in Plumer i/. Lyman, 49 
 Me. 229, that a parol promise to ac- 
 cept an order from a debtor in favor 
 of his creditor, between wliom and the 
 maker of the promise there had been 
 no privity, was within the statute of 
 frauds as a promise to pay the debt 
 of another. Thus, where A had a 
 claim on a vessel for materials used 
 in building it, and B held the vessel 
 to secure him for advances made to 
 the builder, a promise by B to accept 
 the order of the builder in favor of 
 A, for the amount of his claim, can- 
 not be enforced unless it appears to 
 have been for some consideration, 
 such as a discharge of A's lien on the 
 vessel, or his promise to discharge it, 
 or release his claim upon the builder. 
 In the case at bar there was no dis- 
 charge of lien or promise to discharge 
 or release of the defendant of the 
 amount in controversy. In Eichard- 
 son V. Williams, 49 Me. 558, A being 
 indebted to B, C verbally promised B 
 to pay him the amount, and charged 
 it to A without the consent of the 
 
 latter. It was held that B, not hav- 
 ing released or assigned his debt, the 
 promise was without consideration, 
 and that such promise was within the 
 statute of frauds, and not binding. 
 In Furbish u. Goodenow, 98 Mass. 
 297, it was decided that an oral prom- 
 ise to pay the debt of another is with- 
 in the statute of frauds, if the original 
 promisor remains liable, and no con- 
 sideration moves from the creditor to 
 the new promisor, although there is a 
 valuable consideration moving from 
 the original debtor to the new prom- 
 isor. But here there is no considera- 
 tion moving from anybody to the 
 defendant. In Russell v. Babcock, 14 
 Me. 139, it was held, that an agree- 
 ment to delay the collection of an 
 execution was a sufficient promise by 
 a third person to pay the same, and 
 that such promise need not be in 
 writing. But this decision would re- 
 peal the statute, and it has since been 
 overruled. Eeferring to this decision 
 in Hilton v. Dinsmoor, 21 Me. 410, 
 Sheplet, J., uses the following lan- 
 guage : " If this was in reality the 
 ground of the decision in that case, 
 and the abstract of the reporter is to 
 that effect, we are constrained to say 
 it is unsupported by the authorities." 
 To the same effect was the case of 
 Doyle V. "White, 26 Me. 341. In Dear- 
 born V. Parks, 6 Me. 81, the debtor of 
 the plaintiff left funds in the hands 
 of the defendant, with which he was 
 to pay his (the debtor's) debt to the 
 plaintiff. The defendant receiving 
 these funds, or being allowed for 
 them in settlement, as if paid to the 
 plaintiff, promised to pay them to the 
 plaintiff. The plaintiff, therefore, had 
 funds in the defendant's hands, placed 
 there for his benefit, for which he 
 
SEC. 158.] 
 
 GUABANTIES. 
 
 277 
 
 the obligation becomes primary, and the statute does not 
 apply.i Thus, where the defendant had bought the interest 
 of a person in a contract for the purchase of certain lumber, 
 a part of which had been delivered to such person, in con- 
 
 might well maintain a suit. In Hil- 
 ton V. Dinsmoor, 21 Me. 210, the con- 
 sideration of the defendfint's promise 
 was forbearance to sue, and funds 
 placed by the debtor in the defend- 
 ant's hands with which lie was to pay 
 the debt. The court held the promise 
 in consideration of forbearance was 
 within the statute, but the funds hav- 
 ing been placed in the defendant's 
 hands by the plaintiffs debtor, the 
 promise of the defendant in considera- 
 tion thereof was not within the stat- 
 ute. In Rowe v. Whittier, 21 Me. 
 545, notice was taken of the fact that 
 the plaintiff had not discharged his 
 debt against his debtor, which he 
 sought to enforce against the defend- 
 ant. " If," says Whitman, C. J., " the 
 claim was a legal one against Patten 
 & Co. (the debtors of the plaintiff), 
 it does not appear that they were dis- 
 charged from it in consideration of 
 the promise made by the defendant, 
 and if it had so appeared, the defend- 
 ant not being otherwise liable, his 
 promise would not hare been obliga- 
 tory under the statute of frauds 
 without a memorandum in writing." 
 In Brown v. Atwood, 7 Me. 356, where 
 S sold a vessel to A, who promised in 
 consideration thereof to pay B a debt 
 due from S, upon which promise B 
 brought his action against A, it was 
 held that such promise was good, 
 though not in writing, for it was a 
 promise to pay his own debt, though in- 
 uring to the benefit of B. The plain- 
 tiff had funds in the defendant's 
 hands, left by his debtor, and might 
 well call them out. In Maxwell v. 
 Haynes, 41 Me. 559, the plaintiff's 
 debtor sold out to defendant, leaving 
 funds in his hands to pay his debt to 
 the plaintiff. In all these the defend- 
 ant held funds of the debtor in his 
 hands designated and set apart for 
 the payment of his debt, and held by 
 the defendant for that purpose. In 
 
 TuUam v. Adams, 37 Vt. 391, Poland, 
 C. J., referring to this class of cases, 
 says : " And we believe it will be 
 found that in all the cases now re- 
 garded as sound, where it has been 
 held that a parol promise to pay the 
 debt of another is binding, the prom- 
 isor held in his hands funds, securi- 
 ties, and property of the debtor de- 
 voted to the payment of the debt, and 
 his promise to pay attaches upon his 
 obligation or duty, growing out of the 
 receipt of the fund." There is a class 
 of cases, as in Alger o. Scoville, 1 
 Gray (Mass.) 391, in which it was 
 held, that the promise to a debtor to 
 pay his debt to a third person is not a 
 promise to answer for the debt of 
 another within the statute. So in 
 Pike V. Brown, 7 Cush. (Mass.) 136. 
 In Eastwood v. Kenyon, 11 Ad. & El. 
 446, it was held, that a promise by the 
 defendant to the plaintiff to pay A B 
 was not within the statute. "The 
 facts were," says Lord Denman, " that 
 the plaintiff was liable to a Mr. Black- 
 burn on a promissory note; the de- 
 fendant, for a consideration which 
 may, for the purpose of the argument, 
 be taken to have been sufficient, prom- 
 ised the plaintiff to pay and discharge 
 the note to Mr. Blackburn. If the 
 promise had been made to Mr. Black- 
 bum, doubtless the statute would have 
 been applied, and it would then have 
 been strictly a promise to answer for 
 the debt of another; and the argu- 
 ment on the part of the defendant is, 
 that it is not less the debt of another 
 because the promise is made to that 
 other, viz., the debtor and not the 
 creditor, the statute not having in 
 terms stated to whom the promise 
 contemplated by it is tb be made. 
 But upon consideration we are of 
 opinion that the statute only applies to 
 promises made to the person to whom 
 another is answerable." 
 
 1 Bowen v. Kurtz, 37 Iowa, 239. 
 
278 STATUTE OP FBAUDS. [CHAP. IV. 
 
 sideration thereof, verbally agreed to pay for that which had 
 been as well as that to he delivered, his undertaking was held 
 to be original and not within the statute.^ But, where A, 
 being indebted to B for sawing lumber at A's mill, conveyed 
 his property to C who hired B to continue the running of 
 the mill, telling him that he would pay him the same that A 
 had, and also that he had made arrangements with A to pay 
 him what A owed him, and that he would pay him the back 
 pay that was coming to him, it was held that C's promise 
 ■was collateral and within the statute.^ The distinction 
 between the two eases, and the reason for the difference in 
 the rules applicable thereto, is apparent, and arises from the 
 circumstance that in the first case, the defendant assumed 
 the debt and was substituted as debtor in the place of the 
 original debtor, while in the latter case, the ciriginal debtor 
 still remained liable for the debt, notwithstanding the defend- 
 ant's promise, so that no novation took place. This distinc- 
 tion is illustrated by some more recent cases. Thus in a 
 Michigan case,^ certain manufacturers contracted with lum- 
 ber dealers to convert certain standing timber into shingles 
 and siding. A logger contracted with the dealers to cut 
 and haul the timber. Subsequently, the logger refused to 
 go on with the contract unless he received some of the 
 money due him, and the manufacturers then orally promised 
 the logger to pay him on orders from the dealers, and several 
 payments were so made, and then payment being refused on 
 such, orders, an action was brought to enforce it. The court 
 held that the agreement was collateral and within the statute, 
 because the original debtors still remained liable to the plaintiff 
 for the debt. 
 
 To constitute a promise to answer for the debt, default, 
 or miscarriage of another person, within the meaning of the 
 
 ' Cox V. Weller, 6 T. & C. (N. Y.) those previously rendered. In Eddy v. 
 
 309; Lawrence v. Fox, 20 K Y. 268. Davenport, 42 Vt. 56, it was held that 
 
 ^ Belknap v. Bender, 4 Hun (N. Y.) a promise to pay a physician for pro- 
 
 414 ; 75 N. Y. 446 ; PfeifEer v. Adier, fessional services to he rendered in 
 
 37 N. Y. 164 ; Mallory v. Griffiths, 21 treating a third person, is an original 
 
 id. 412. Bat see Bagley i;. Moulton, undertaking, and not a promise to an- 
 
 42 Vt. 184, where it was held that a swer for the debt of another, which 
 
 continuance of professional services must be in writing, 
 
 as a physician might form a good con- ' Preston v. Young, 46 Mich. 146; 
 
 sideration for a promise to pay not 41 Am. Eep. 148. 
 only for those afierwards, but also for 
 
SEC. 158.] 
 
 GTJAEANTIES. 
 
 279 
 
 statute of frauds, the promise must be a collateral one ; there 
 must be in existence an original liability upon which the 
 collateral promise is founded, and where the debt which consti- 
 tutes the consideration of the agreement is entirely discharged, 
 the promise is a new and original one and not collateral.^ 
 
 1 In Belknap w. Bender, 75 N.Y. 446, 
 cited ante, it appeared that, in 1872, 
 the plaintiff was engaged with his men 
 and teams in managing a saw-mill for 
 the firm of Ward & McVicker, and 
 they were indebted to him, for labor 
 performed, in the sum of $1,500, and 
 were also largely indebted to the de- 
 fendant and other parties. The de- 
 fendant then for the purpose of secur- 
 ing his debt entered into the following 
 agreement with the firm : 
 
 "Agreement made 20th August, 
 1872. 
 
 "W. M. Bender hereby agrees 
 with Ward & McVicker to take their 
 mill, called Shed's mill, to run the 
 said mill, and to saw up their logs 
 now lying in their log yard, to ship 
 the lumber and to sell the same, and 
 to apply the proceeds thereof to the 
 payment of the current expenses of 
 sawing and shipping said lumber, and 
 also to the payment of the judgment 
 claims, amounting to $4,872.29, and the 
 claim of said Bender, say $7,000, and 
 the rent of mill, $1,000, now due, and 
 the back wages of their hands, say 
 $1,500, as stated in schedule annexed, 
 and the balance, if any, to pay over 
 to said Ward & McVicker, for the 
 consideration of ten per cent on the 
 amount of said sales; and the said 
 Bender agrees, in case of any sale of 
 said logs or lease of said mill, under 
 any judgment, to buy the same and 
 to hold them in order to carry out the 
 true intent of this agreement, it being 
 understood that said Bender is only 
 to pay said several claims as men- 
 tioned above from the proceeds of 
 said lumber as aforesaid. 
 
 "Bender, Son & Co. 
 " Ward & McVicker.'' 
 
 To this agreement was annexed a 
 schedule of the debts to be paid 
 under the agreement among which 
 was the debt due the plaintiff. • 
 
 In pursuance of this agreement 
 the defendant took possession of the 
 mill, and the stock of logs and lumber 
 on hand, and at the time of the com- 
 mencement of this action had disposed 
 of about half of the lumber. This 
 action was brought by the plaintiff, 
 not for an accounting under the agree- 
 ment and to recover his share of the 
 proceeds of the lumber, but to recover 
 the whole sum due him from Ward 
 & McVicker, upon the theory that 
 the defendant had absolutely prom- 
 ised to pay it to him. 
 
 Upon the trial the plaintiff testified 
 that the defendant came to him and 
 told him to keep on working at the 
 mill, and he would pay him for his 
 work at the same rate which Ward & 
 McVicker had been paying him, and 
 that he had bought the stock of 
 Ward & McVicker, and had made an 
 arrangement with them to pay him 
 what was due him from them, and if 
 he would keep on working for him, he 
 would pay him for his work, and in a 
 day or two would pay him §1,000 
 upon the amount due him from Ward 
 & McVicker ; and he testified that he 
 went on and worked for the defend- 
 ant, but that the defendant had failed 
 to pay him the amount due him from 
 Ward & McVicker. The plaintiff re- 
 covered $1,000 and interest. 
 
 Earl, J., said ; " The promise of 
 the plaintiff to work for the defend- 
 ant at what appeared to be a full 
 compensation did not furnish a con- 
 sideration for the defendant's promise 
 to pay Ward & McVicker's debt. 
 Pfeiffer v. Adler, 37 N. Y. 164. And 
 the trial judge so held. But from the 
 plaintiff's evidence standing alone, it 
 might have been inferred that the 
 defendant had purchased the saw-mill 
 stock of Ward & McVicker, and had 
 agreed with them to pay a portion of 
 the purchase-price to him in satisfac- 
 
280 
 
 STATUTE OF FEAUDS. 
 
 [chap. IV. 
 
 The rule is that, where a party who was not before liable under- 
 takes to pay the debt of a third person, and as a part of the 
 
 tion of the debt due him from them, 
 and in that case, under the rule laid 
 down in Lawrence v. Fox, 20 N. Y. 
 208, and other similar cases, the plain- 
 tiff could have recovered. But at a 
 later stage of the case, the written 
 agreement between the defendant and 
 Ward & McVicker was proved, and 
 that shows precisely what the de- 
 fendant agreed with them to do. 
 Under that agreement, he did not 
 become personally liable to pay the 
 plaintiff; he did not agree to pay 
 the plaintiff absolutely, or with his 
 own funds. He did not purchase the 
 stock. He simply agreed to saw the 
 logs, and market the lumber, and 
 apply the net proceeds in payment 
 of the debts specified. He incurred 
 no personal liability for the debts, 
 aild was required only to be faith- 
 ful in the discharge of the trust as- 
 sumed. 
 
 The defendant could not become 
 bound to pay to the plaintiff the debt 
 due him from Ward & McVicker by 
 any verbal promise made to him. 
 Such a promise to be binding within 
 the statute of frauds must be in writ- 
 ing, and founded upon a sufficient 
 consideration passing between the 
 parties. But if Bender had purchased 
 lumber of Ward ^ Mc Vicker, and thus 
 become indebted to them, and in consid- 
 eration thereof had agreed to pay a por- 
 tion of his debt to the plaintiff in satis- 
 faction of the amount due him from 
 Ward Sf Mc Vicker, such a promise, as 
 stated above, would not have been 
 within the statute of frauds. But the 
 difficulty here is that there was no 
 such debt to Ward & McVicker, and 
 no such promise by the defendant. 
 But the trial judge held that if the 
 jury were satisfied that the defendant 
 agreed to pay the |1,000, as testified 
 to by the plaintiff, the plaintiff could 
 recover upon the theory that the 
 property had been placed in the hands 
 of the defendant for sale, and that he 
 would be liable to pay the plaintifE 
 
 after he had disposed of it, and hence, 
 that he could waive the delay and be 
 bound by his promise to pay before 
 he had realized the proceeds. And it 
 is upon this theory in part that the 
 plaintiff now seeks to uphold the re- 
 covery at the circuit. 
 
 The case then stands thus : The 
 defendant by his agreement with Ward 
 & McVicker was not personally bound 
 to pay this debt. He was bound only 
 to pay it out of the proceeds of the 
 property when realized. The prop- 
 erty was placed in his hands upon the 
 consideration expressed in the paper, 
 and he had it at the time of the al- 
 leged promise to the plaintiff. What 
 consideration is there to uphold the 
 promise ? Clearly none. That prom- 
 ise, if valid, imposed upon him an 
 entirely new obligation ; it bound him 
 to pay the .f 1,000 personally, whether 
 he realized sufficient to pay it from 
 the sale of the lumber or not. It 
 created a personal liability when none 
 existed before. Such a promise to be 
 valid, aside from the statute of frauds, 
 must be based upon a consideration. 
 The plaintiff furnished none, and the 
 lumber which had been before placed 
 in defendant's hands upon a different 
 consideration furnished none. After 
 this promise the defendant's interest 
 in the lumber, and control thereof, 
 were no greater than before. 
 
 But the counsel for the plaintiff 
 strenuously contends that the promise 
 of the defendant is without the stat- 
 ute of frauds, and founded upon a 
 sufficient consideration, simply be- 
 cause Ward & McVicker placed in 
 defendant's hands property upon 
 trust to pay this debt ; and there 
 are some general expressions in re- 
 ported cases which, literally taken, 
 support this construction. In Mal- 
 lory V. Gillett, 21 N. Y. 412, Jtjdge 
 CoMSTOCK says that when the debtor 
 puts a fund into the hands of the prom- 
 isor, either by absolute transfer or upon 
 a trust ta pay the debt, the promise to 
 
SEC. 158.] 
 
 GXJAKANTIES. 
 
 281 
 
 agreement, the original debtor is discharged from his indebted- 
 ness, the agreement is not within the statute ; but if the origi- 
 
 pay it is not within the statute of frauds. 
 This general language needs some 
 limitation or explanation. If the 
 promise in such case be made to the 
 debtor in consideration of the trans- 
 fer, it is no doubt valid. If it be 
 made to the creditor after it has be- 
 come the duty of the promisor under 
 his arrangement with the debtor to 
 pay, then it is valid; as if in this 
 case. Bender had converted the prop- 
 erty into money, and then promised 
 the plaintifE to pay the debt, he could 
 have been sued directly on such prom- 
 ise. That would have been an origi- 
 nal promise to discharge his own obli- 
 gation to the plaintifE. As said by 
 Judge Comstock in that case : ' The 
 law would imply an obligation on the 
 defendant's part to pay over the 
 money to the plaintiff after selling 
 the goods ; and when the law will im- 
 ply a debt or duty against any man, 
 his express promise to pay the same 
 debt, or perform the same duty, must 
 in its nature be original.' Poland, 
 C. J., in FuUam «. Adams, 37 Vt. 
 391, after laying down the rule in 
 substantially the same language as 
 that used by Judge Comstock, says 
 the true principle why the promise to 
 the creditor in such a case is valid is, 
 that 'the party making the promise 
 holds the funds of the debtor for the 
 purpose of paying his debt, and, as 
 between him and the debtor, it is his 
 duty to pay the debt, so that when he 
 promises the creditor to pay it, in sub- 
 stance he promises to pay his own debt, 
 and not that of another.' Throop, inhis 
 work on Verbal Agreements, vol. 1, 
 p. 535, lays down the rule as follows ; 
 'When thepromisorabsolutely controls 
 the fund, but his application thereof 
 to the payment of the debt due to the 
 promisee will acquit him of a duty 
 which he owed to the person who fur- 
 nished it, the promise is not within 
 the statute.' Here the defendant 
 owed Ward & McVicker no duty to 
 pay the debt. The only duty he owed 
 
 them was to convert the property and 
 apply the proceeds upon the debts 
 specified. When this action was com- 
 menced he was not in any default in 
 the discharge of that duty, and the 
 action was not brought upon such a 
 theory. 
 
 To test this case further. Suppose 
 a voluntary assignee of an insolvent 
 debtor after he had taken possession 
 of the property assigned, but before 
 he has converted it into money, and 
 before the duty to pay has arisen, 
 promises without any further or new 
 consideration to pay the debt of one 
 of the preferred creditors, could such 
 a promise be enforced? Suppose one 
 takes a conveyance of real estate >om 
 debtor upon the agreement with him 
 that he will rent it, and accumulate 
 the rent for ten years, and then pay 
 the net amount to his creditors, and 
 the next day without any new consid- 
 eration he promises at once to pay 
 the creditors, could such a promise be 
 enforced^ These cases are analogous 
 to the. one in hand, and no authority, 
 certainly no case that would be re- 
 garded as authority in this State, can 
 be found which would authorize the 
 enforcement of such promises. They 
 would be void at common law as with- 
 out any consideration, and void also 
 under the statute of frauds as not in 
 writing. 
 
 But we can go one step farther in 
 this case. Even if the promise had 
 been made after the defendant had 
 converted the proceeds, it could have 
 been enforced against him only to the 
 extent of the proceeds applicable to 
 this debt. Ardem v. Rowney, 5 Esp. 
 254. If the amount applicable to 
 this debt had been less than the 
 $1,000, then for the excess of the debt 
 the promise would have been without 
 consideration. Defendant in such a 
 case would have owed the duty to pay 
 the plaintifE his share of the proceeds, 
 and his promise to that extent would 
 have been valid as one to discharge 
 
282 
 
 STATUTE or FRAUDS. 
 
 [chap. IV. 
 
 nal debtor continues liable, then the agreement is within the 
 statute.^ Therefore, when one, thus undertaking, agreed " to 
 pay and guarantee " the debt, it was held that the word 
 " guarantee " was not to be understood in a technical sense, 
 but that the agreement was an absolute agreement to pay, 
 and that indebitatus assumpsit would lie.^ In an Alabama 
 
 his own obligation. But his promise 
 for more would, as to the excess, not 
 have been to pay anything for which 
 he was liable in any way, but to pay 
 the debt of Ward & McVioker, and 
 hence within the statute of frauds. 
 Here the complaint was not framed, 
 and the trial was not conducted, for a 
 recovery upon such a theory. There 
 was no proof that the property was 
 sufficient to pay the .$1,000, but on 
 the contrary, the proof showed that 
 it was not sufficient. The plaintiff's 
 counsel upon the argument claimed 
 that the case of Young u. French, 
 35 Wis. Ill, was very much in 
 point in his favor. But in that 
 case there was a new consideration 
 for the promise sued on, moving 
 from the plaintiff to the defendant, 
 and hence that case is unlike this. 
 It is difficult to perceive hpw the 
 doctrine of waiver can apply in a 
 case like this. A person may waive 
 some act or condition which another 
 is to perform to or for him. He may 
 choose to pay a debt before due ; but 
 in a legal sense he waives nothing by 
 so doing. Here, however, there was 
 no debt of the defendant, and he 
 could not by such a waiver, if we call 
 it such, based upon no consideration, 
 impose upon himself an entirely new 
 obligation." 
 
 1 In Yale v. Edgerton, 14 Minn. 
 194, the defendant loaned plaintiff 
 $300, which the latter promised to 
 repay with interest, and at the same 
 time assigned and delivered to the 
 defendant a chattel mortgage made 
 by another party before that time, 
 and also the debt which the chattel 
 mortgage was given to secure, amount- 
 ing to $1,600. At the time agreed 
 upon for the payment, $50 was paid 
 and the time for the payment of the 
 
 balance was extended, interest 
 to be paid thereon at the rate of one 
 per cent per month. Afterwards, the 
 defendant still holding the chattel 
 mortgage and debt as collateral se- 
 curity, for the balance due him, it 
 was agreed between plaintiff, defend- 
 ant, and mortgagor, that the defend- 
 ant, for a good and valid considera- 
 tion, should discharge and satisfy the 
 chattel mortgage and the original 
 debt secured by it then due with in- 
 terest, amounting to $1,700, and that 
 he should pay to the plaintiff out of 
 the first issue of a bank specified, the 
 balance of said $1,700 remaining after 
 deducting therefrom the unpaid bal- 
 ance of the loan to plaintiff and in- 
 terest. In pursuance of this agree- 
 ment the defendant did satisfy and 
 discharge the chattel mortgage and 
 the debt secured by it. The promise 
 of the defendant to paj' the plaintiff 
 the balance of the debt due him was 
 the only consideration for the latter's 
 consent to the discharge and satisfac- 
 tion of the mortgage ■ and the debt 
 secured by it. It was held that an 
 action would lie upon the promise of 
 the defendant to pay the plaintiff the 
 balance of the debt . secured by the 
 mortgage after deducting the amount 
 loaned by the former to the latter. 
 The consideration of the defendant's 
 promise, being the consent of the 
 plaintiff to the release and discharge 
 absolutely of the mortgage and the 
 mortgage debt by the defendant, was 
 a sufficient consideration; and the 
 promise was an original one and not 
 within the statute of frauds. 
 
 2 Parker v. Benton, 35 Conn. 343. 
 In this case Butler, J., said : " We 
 think that by the contract as claimed 
 by the plaintiffs, and which we must 
 presume to have been found by the 
 
SEC. 158.J 
 
 GUARANTIES. 
 
 283 
 
 case,^ it was held that where, by an arrangement between a 
 creditor and the promisor, the original debtor is discharged, 
 
 jury, the defendant became indebted 
 to the plaintiffs by an assumption of 
 the debt of TiUey & Co. to the extent 
 of seventy-five cents on the dollar of 
 that debt, and it is elementary law 
 that, where a' sum certain is due on a 
 simple contract, indebitatus assumpsit 
 will be to recover it. It is true that the 
 language of the motion in respect to 
 the assumption claimed is that ' the 
 defendant then and there agreed to 
 pay and guarantee the debt of the 
 plaintiffs,' but it is clear from the 
 whole statement of the contract that 
 it was intended to be an absolute con- 
 tract to pay the debt, and that the 
 word 'guarantee' as used in that 
 construction, is not to be understood 
 in its technical sense. We have no 
 disposition to relax the rules of con- 
 struction applicable to the statute of 
 frauds, or in any manner to weaken 
 that statute. Our views on that sub- 
 ject are fully expressed by Judge 
 Button, in Clapp v. Lawton, 31 Conn. 
 95; and if this case was as claimed, 
 analogous to that, we should come to 
 the same conclusion in respect to it. 
 But this case differs essentially from 
 that. There a third party received 
 the property of the debtor and prom- 
 ised him generally to pay his debts. 
 None of the creditors were parties to 
 the arrangement, and the original in- 
 debtedness continued as before. Here 
 the contract was tripartite, between 
 the debtor, a creditor, and a third per- 
 son; and it contemplated the dis- 
 charge of tlie original debtor, and a 
 new obligation, by the third party, to 
 the particular creditor. Such new 
 obligation and indebtedness is not 
 within the statute of frauds. In 
 Turner v. Hubbell, 2 Day (Conn.) 
 457, the distinguished counsel for 
 the defendant in error deduced from 
 the cases which had then occurred 
 imder this branch of the statute, 
 the following definition of the prom- 
 ise intended by it, to wit ; ' An un- 
 dertaking by a person, not be/ore lia- 
 
 ble, for the purpose of securing or per- 
 forming the same duty for which the 
 party for whom the undertaking is 
 made, is, at the same time, liable,' and 
 it was adopted by the court. With a 
 single modification that definition fur- 
 nishes as perfect a test as lias ever 
 been, or, we think, can be devised. 
 The modification required is this : In 
 the case of Williams v. Leper, 3 Burr. 
 1886, the promise to pay the debt was 
 made after the original debtor had 
 been discharged by reason of a dis- 
 tress, and the counsel in Turner u. 
 Hubbell seem to have assumed that a 
 contract to pay the debt of another 
 would be within the statute 'of frauds 
 if the original debtor was liable at 
 the time the promise was made. But 
 it is now well settled that if the origi- 
 nal debtor is discharged by the new 
 contract, it is not within ^the statute. 
 See the cases cited by Judge Dutton 
 in his revision of Swift's Digest, 
 p. 248. The foregoing definition may 
 be modified therefore, so as to read : 
 'An undertaking by a person not be/ore 
 liable, for the purpose of securing or 
 performing the same duty for which 
 the party for whom the undertaking 
 is made continues liable.' Applying 
 this test to the case in hand, it is ob- 
 vious that the objection of the de- 
 fendant ought not to prevail. It was 
 the purpose and effect of the tripartite 
 contract in question to discharge the 
 original debtors in consideration of 
 their giving up their property to the 
 defendant, as well as to onerate the 
 defendant, in consideration of that 
 discharge, the assent of the plaintiff 
 to the delivery of the property to the 
 defendant, and of his agreement to 
 loan the funds necessary to enable the 
 defendant to purchase the debts and 
 carry out his speculation. As the 
 original debtors did not continue liable, 
 an essential element of the test was want- 
 ing, and the contract was not within the 
 statute." 
 
 1 Underwood v. Lovelace, 61 Ala. 
 
284 
 
 STATUTE OF TEAXTDS. 
 
 [chap. IV. 
 
 and a new debt is created binding on the promisor alone, the 
 promise, whether verbal or written, is supported by a valuable 
 consideration, the detriment to the promisee in the extin- 
 guishment of the original debt, and will support an action, 
 although no consideration moved from the original debtor 
 to the promisor, and even though there was no request from 
 the original debtor, or subsequent assent on his part. A 
 promise to pay a certain sum which is due from A to B to 
 B's creditors is only binding as to the amount named, and 
 even though the creditors are specifically named, a creditor 
 
 155. Where contractors to furnish 
 materials and build a house for an- 
 other to furnish a certain part of the 
 materials, and the latter after furnish- 
 ing a small part of the materials 
 abandons the contract because of the 
 insolvency of the principal contractors, 
 and the owner of the premises ver- 
 bally promises to pay for the balance, 
 and other materials are furnished on 
 the faith of such promise, it is not 
 within the statute. Schoenfleld v. 
 Brown, 78 111. 487. But where A 
 contracted to do certain work on B's 
 premises, having partially completed 
 it, he refused to go on, alleging that B 
 was insolvent, C, a mortgagee, told 
 him to go on and he would see him 
 paid. It was held that there was no 
 consideration for this promise, as A 
 was bound to go on under the original 
 contract, and that it was a mere prom- 
 ise to answer for the default of B, 
 and being verbal and without consid- 
 eration, could not be enforced. Elli- 
 son V. Jackson &c. Co., 12 Cal. 542. 
 A promise by a landlord to a person 
 from whose service he has enticed 
 away the tenant, and to whom the 
 tenant was indebted, to subordinate 
 his lien on the tenant's crops as land- 
 lord to the other's statutory lien for 
 advances, in consideration that the 
 latter would forbear to sue him for 
 damages, is not within the statute, 
 unless the landlord also agreed to 
 answer for any default of the tenant 
 to the other. Wejls v, Thompson, 50 
 Ala. 84. And quere ? whether the un- 
 dertaking in the latter event would 
 not, in view of the consideration, be 
 
 original? The plaintifE furnished lum- 
 ber to erect certain houses; the de- 
 fendant advanced the money to M to 
 erect them. The lumber was deliv- 
 ered to M, but charged to the defend- 
 ant. The plaintifE said to the defend- 
 ant, " I am furnishing this lumber and 
 charging it to you, and if it is not all 
 right, I want you to say so." TI.c 
 defendant said it was all right if he 
 got a certain deed of one of the 
 houses that had been built. The de- 
 fendant informed M of this conversar 
 tion, and continued to furnish the 
 lumber. M testified that the deed 
 was delivered to the defendant, and 
 that he left money in his hands to 
 pay for the lumber, and it was held 
 that the defendant's Undertaking was 
 original. Booth v. Heist, 94 Penn. 
 St. 177. In Bailey v. Rutjes, 86 N. C. 
 517, the plaintiff delivered lumber on 
 the order of A, the lessee, which was 
 used on the premises of B and C, the 
 lessors, and then sued them for the 
 price. It was held that although it 
 was not error to charge that if the 
 plaintiff believed he was furnishing 
 the lumber on their credit, they were 
 liable ; yet if the lessors, knowing 
 that he expected them to payfor the 
 lumber, acted in such a manner as to 
 create a belief on his part that they 
 would do so, and thereby induced him 
 to deliver it, a, promise on their part 
 to pay for it might be inferred. But 
 that, if the defendants were not origi- 
 nally liable by reason of some con- 
 tract, an oral promise to pay for the 
 lumber after it was furnished and used 
 would not bind them. 
 
SEC. 158.] GUAEANTIES. 286 
 
 SO named has no remedy against the promisor for his debt, 
 if A has previously paid the sum named to other creditors 
 designated by B.-^ Where the defendant, in order to get rid 
 of an incumbrance on his own property, or to obtain some direct 
 personal advantage to himself, or because of his indebtedness to such 
 person to an amount equal thereto, promises to pay the debt of 
 another, the promise is not within the statute. And if the 
 original debt is discharged and extinguished by the substitu- 
 tion in lieu thereof of a new contract by a third person, to 
 pay the amount of that debt, such new contract is not a col- 
 lateral promise to answer for the debt or default of another.^ 
 Thus, where A was indebted to B & Co. for goods sold, 
 and, upon being released from his liability, assigned to the 
 latter a debt, which was due to him from C & Co., and 
 notice of the assignment was given to a partner in the house 
 of C & Co., who, by parol, promised in the name of the firm 
 to pay the debt of B & Co. out of the partnership fimds; 
 it was held, in an action by B & Co. against C & Co. for 
 money had and received, that the promise Avas not within the 
 statute.^ So where A sold goods to B, who, being unable to 
 pay, transferred them to C, who promised to pay for them, it 
 was held that this was a new sale to C, and not a mere promise 
 by C to pay the debt of B.* If A be a creditor of B, and B 
 and C propose to enter into, or have entered into partner- 
 ship, and say to A, " We wish this debt to be a debt from 
 us both, and we will pay it," and A accedes to that, although 
 there is no writing, the agreement is valid and effectual, 
 and is not impeached or affected by the statute. The effect 
 of such an agreement is to extinguish the first debt, and 
 for a valuable consideration to substitute the second debt.* 
 So where there is a defined and ascertained debt due from A 
 to B, and a debt to the same or a larger amount due from C 
 to A, and the three agree that C shall be B's debtor instead 
 of A, and C promises to pay B, the latter may maintain an 
 action against C.^ But it is incumbent on the plaintiff to show 
 
 1 Odell V. Mulry, 9 Daly (N. Y. * Browning v. Stallard, 5 Taunt. 
 C. P.) 381. 450; see also De Colyar on Guaran- 
 
 2 Add. on Contrs. 153. ties, 83-87 ; 1 Wms. Saund. 224. 
 8 Lacy p. McNelle, 4 D. & E. 7 ; ^ Ex parte Lane, De G. 300. 
 
 and see Hodgson v. Anderson, 3 B. & " Eairlie v. Denton, 8 B. &. C. 395 ; 
 
 C. 842 ; 5 D. & K. 735 ; Taylor v. 2 M. & R. 353 j Wilson v. Coupland, 
 Hilary, 1 C. M. & R. 741. 5 B. & Aid. 228; Crowfoot «. Guer- 
 
286 STATUTE OP PKAtTDS. [CHAP. IT. 
 
 that at the time when C promised to pay B, there was an ascertained 
 debt due from A to B A It is also necessary that the original 
 debt from A to B should be extinguished ; for B cannot sue 
 C if he retains the right to sue A.^ So that if the creditor 
 " were to sue or issue execution against the original debtor, 
 the latter might show that the plaintiff, on good considera- 
 tion, gave up his remedy against him, and took the liability 
 of the other instead, which though not properly accord and 
 satisfaction, would be a complete defence." ^ 
 
 Where the plaintiffs were creditors, and the defendants 
 debtors, to T & Co., and by consent of all parties an 
 arrangement was made that the defendants should pay to 
 the plaintiffs the debt due from them to T & Co., it was 
 held that as the demand of T & Co. on the defendants 
 was for money had and received, the plaintiffs were entitled 
 to recover on a count for money had and received against 
 the defendants.* In Parkins v. Moravia,^ the defendant un- 
 dertook to pay the plaintiff the amount due from him to B 
 for work to be done by B, in consideration that the plaintiff 
 would advance money to B, Wilson v. Coupland ® was cited, 
 and it was argued that this was an assignment of a chose in 
 action. Abbott, C. J., said : " It is an assignment of a thing 
 not in esse; Wilson v. Coupland is not like this case." A ver- 
 dict was taken for the plaintiff subject to this and another 
 point of law for the consideration of the court above, but it 
 does not appear that any motion was made. Much impor- 
 tance cannot, therefore, be attached to the case.'^ 
 
 Sec. 159. indemnities, Whether -within the Statute. — There 
 appears to be some doubt in the English courts as to whether 
 or not promises to indemnify are within the statute. In 
 
 ney, 2 M. & Sc. 482 ; Hodgson v. An- « Wilson v. Coupland, 5 B. & Aid. 
 
 dereon, 3 B. & C. 855 ; 5 D. & R. 735. 228 ; Thompson v. Percival, 5 B. & 
 
 1 Pairlie v. Denton, 8 B. & C. 395; Aid. 925; see also Roe v. Haugh, 3 
 2 M. & E. 353. Salk. 14 ; Israel v. Douglas, 1 H. Bl. 
 
 2 Wms. Saund. 224, citing Cuxon 239 ; Tatlock v. Harris, 3 T. E. 174. 
 V. Chadley, 3 B. & C. 591 ; 5 D. & E. M C. & P. 376. 
 
 417 ; Wharton v. Walker, 4 B. & C. ^ 5 b. & Aid. 228. 
 
 163 ; 6 D. & E. 288 ; Parker v. Wise, ' See De Colyar on Guaranties, 
 
 6 M. & Sel. 239 ; Liversidge v. Broad- 86. Smith's Merch. Law, 8th ed. 457. 
 
 bent, 4 H. & N. 603. And see as to assignments of debts 
 
 ' Bird V. Gammon, 5 Sc. 220 ; 3 and choses in action 36 & 37 Vict. c. 
 
 Bing. (N. C.) 883, per Tindal, C. J. 66, § 25, subs. 6. 
 
SEC. 159.] GUARANTIES. 287 
 
 Thomas v, Cook,^ it was laid down that a promise to in- 
 demnify does not fall within the words or policy of the act. 
 On the other hand, in Green v. Cresswell,^ Denman, C. J., 
 referring to Thomas v. Cook, said : " The reasoning in that 
 case does not appear to us satisfactory in support of the 
 doctrine there laid down : wliich, taken in its full extent, 
 would repeal the statute. For every promise to become 
 answerable for the debt or default of another may be shaped 
 as an indemnity, but even in that shape we cannot see why 
 it may not be within the words of the statute. Within 
 the mischief of the statute it most certainly falls." Green 
 V. Cresswell, however, was dissented from in Cripps v. Hart- 
 noU,* and Batson v. King.* In the former of these cases 
 Pollock, C. B., said : " Now it has been laid down that a 
 mere promise of indemnity is not within the statute of 
 frauds, and there are many cases which would exemplify 
 the correctness of that decision. On the other hand, an 
 undertaking to answer for the debt or default of another 
 is within, the statute, and no doubt some cases might be 
 put where it is both the one and the other, that is to say, 
 where the promise to answer for the debt or default of 
 another would involve what might very properly and legally 
 be called an indemnity." In the latter case the same learned 
 judge said : " If a man says to another, ' If you will at my 
 request put your name to a bill of exchange, I will save you 
 harmless,' that is not within the statute. It is not a responsi- 
 bility for the debt of another. It amounts to a contract by 
 one, that, if the other will put himself in a certain situa- 
 tion, the first will indemnify him against the consequences. 
 In Green v. Cresswell, Lord Dbnman" pointed out a dis- 
 tinction between that case and one where the defendant is 
 a co-surety. F don't tliink that the case itself was rightly decided." 
 In a later English case ^ the doctrine of Green v. Cresswell, 
 ante, was directly overruled, and the doctrine of Reader v. 
 
 1 8 B. & C. 728; 3 Man. & R. 444. 374; 29 L. J. C. P. 119; Reader v. 
 
 2 10 Ad. & El. 453 ; 2 P. & D. 430. Kingham, 13 C. B. (N. S.) 344 ; Wildes 
 8 4 B. & S. 414 ; 32 L. J. Q. B. 381. ... Dudlow, L. R. 19 Eq 198. 
 
 * 4 H. & N. 739. It appears, therefore, that promises 
 
 5 Readerti.Kingham,13C.B.(N.S.) to indemnify may or may not be with- 
 
 344. See also Mallett v, Bateman, 16 in the statute, according to circum- 
 
 C. B. (N. S.) 537, ;)cr Btles, J. ; and stances. See Smith's Mercantile Law, 
 
 Fitzgerald v. Dressier, 7 C. B. (N. S.) 462, n. (i), 7th ed. 
 
288 STATUTE OP EEAUDS. [CHAP. IV. 
 
 Kingham has quite recently been confirmed.^ In this case 
 the Vice Chancellok said : " I am surprised to find that 
 there has been so much conflict ; " and added : " I am happy 
 to find that, the matter having been most carefully and 
 elaborately considered in the case of Reader v. Kingham, 
 when the full number of judges was present, the case of 
 Green v. Cresswell was overruled, and the doctrine of 
 Thomas v. Cook restored." Thus practically, although 
 perhaps not decisively, the doctrine of Green v. Cresswell 
 has no authoritative force in England, and has but little 
 force in our courts. In a recent case in Indiana,^ after a 
 careful review of the cases, the doctrine of this case was 
 directly repudiated, and the distinction between a contract 
 of, guaranty and one of indemnity was well illustrated by 
 Elliott, J. He said: "There is, in principle, an obvious 
 and important • difference between a contract of guaranty 
 and one of indemnity. The former is a collateral -under- 
 taking, and presupposes some contract or transaction to 
 which it is collateral.^ The contract, though in form a 
 guaranty, may be so framed as to constitute an absolute 
 and original undertaking, as was the case in Frash v. Polk,* 
 but even in that class of cases there is an obligation from 
 the party whose act or contract is guaranteed, and there is 
 also a debt, aiid may be default, toward the promisee. 
 It is impossible to conceive a guaranty as existing without 
 some act or contract guaranteed. A contract of indemnity is 
 essentially an original one. Between the promisor and promisee 
 tJiere is a direct privity. Between the person to whom the 
 promise of indemnity is given, and the person for whom 
 the latter undertakes as surety or bail, there is no privit)'- 
 at all. No matter what may be done by the person for 
 whom bail is entered, at the request of a third, he who 
 becomes bail cannot have any action, because as to the 
 person bailed the undertaking was purely voluntary.^ The 
 
 1 Wildes V. Dudlow, L. R. 19 Eq. Ind. 11 ; 2 Am. Rep. 323 ; Gofe v. 
 138. Sims, 45 Ind. 262 ; Dickinson v. Colter, 
 
 2 Anderson v. Spence, 72 Ind. 315; id. 445; Taylor v. Taylor, 64 id. 356, 
 37 Am. Rep. 162. 359. 
 
 8 Dole V. Toung, 24 Pick. (Mass.) * 67 Ind. 55. 
 
 250; Story on Prom. Notes, §457; ^ -White's Ex'rs v. White, 30 Vt. 
 
 McMillan v. Bull's Head Bank, 32 338; McPherson u. Meek, 30 Mo. 345. 
 
SEC. 159.] GUARANTIES. 289 
 
 contract is an original and independent one, in which there 
 is no debt or default toward the promisee, to which there 
 are no collateral contracts, and in which there is no remedy 
 against the third party. A contract of this character has 
 long been held not to be within the statute.^ The general 
 rule running through almost all the cases is, that if the tliird 
 person is not liable, then the undertaking is not within the 
 statute. This doctrine is exemplified in the great number of 
 cases which hold that a promise to answer for the debt or 
 default of an infant ovfemme covert is not witliin the statute, 
 because there is no third person bound.^ It must be held, 
 both upon principle and authority, that the cases which eon- 
 fuse the contracts of guaranty and indemnity, and place 
 both upon the same footing, were erroneously decided, and 
 that they are not to be accepted as true interpreters of the 
 law." 3 
 
 The plaintiff having promised to indemnify G against the 
 consequences of a bail bond into which E had entered at 
 plaintiff's request, and E being forced to make a payment 
 in consequence, it was agreed between the plaintiff and 
 defendant that the plaintiff should obtain the money hy 
 discounting a bill drawn by the plaintiff and accepted by 
 the defendant ; it was held that the plaintiff was not liable 
 on his promise to indemnify, it not being in writing.* 
 
 In this country it is generally held that a verbal contract 
 of indemnity made upon a good consideration is not within 
 the statute. Thus, where A, in consideration of twenty-five 
 dollars, verbally agreed to indemnify B against any claim 
 made upon him for a certain subscription he had made, and 
 a judgment for the amount thereof was afterwards obtained 
 by him, it was held that A was liable upon his promise for the 
 amount of the judgment;^ and it has been held that a verbal 
 promise to indemnify a person against loss from becoming 
 
 1 Read v. Nash, 1 Wils. 305; Tom- (S. C.) 395; Drake «. Meurellen, 33 
 linson v. Gill, Amb. 330; Loomis v. Ala. 106; Boche v. Chaplin, 1 Bail. 
 Newhall, 15 Pick. 159; Harrison v. (S. C.) 419. 
 
 Sawtel, 10 Johns. (N. Y.) 242 ; Toplis " Ovemllmg Brush v. Carpenter, 
 
 V. Grane, 5 Bing. (N. C. ) 636 ; Marcy v. Ind. 78. 
 
 Crawford, 16 Conn. 549. « Cresswell v. Wood, 10 Ad. & El. 
 
 2 Harris v. Huntback, 1 Burr. 373; 460. 
 
 Chapin v. Lapham, 20 Pick. (Mass.) ^ Conkey v. Hopkins, 17 John. 
 
 467 ; Mease v. "Wagner, 1 MoCord (N. Y.) 113. 
 
290 
 
 STATUTE OF FRAUDS. 
 
 [chap. IV. 
 
 surety for anotlier, upon tlie faith of which the promisee 
 assumes the responsibility, is an original undertaking and 
 supported by a sufficient consideration.^ In a recent case 
 in Indiana ^ this doctrine was carefully and ably considered, 
 
 1 Chapin v. Merrill, 4 Wend. (N. 
 Y.) 657 ; Lucas v. Chamberlain, 8 B. 
 Mon. (Ky.) 276; Harris «. Sawtelle, 
 
 10 John. (N. Y.) 242; Dunn v. West, 
 5 B. Mon. (Ky.) 376; Holmes <,. 
 Knights, 10 N. H. 175 ; Mills v. Brown, 
 
 11 Iowa, 315 ; Chapin v. Lapham, 20 
 Pick. (Mass.) 467; Jones v. Shorter, 
 1 Ga. 294; Perley v. Spring, 12 Mass. 
 297 ; Lucas v. Chamberlain, 8 B. Mon. 
 (Ky.) 276. In Bohannon v. Jones, 30 
 Ga. 488, the defendant verbally prom- 
 ised the plaintiff, who was a sheriff 
 and about to sell the horse of another 
 upon an execution that he held against 
 such person, that if he would not sell 
 the horse he would pay the amount of 
 the execution, and the defendant did 
 not sell the horse, and was subsequently 
 obliged to pay the debt, and it was 
 held that the promise was not within 
 the statute, and a similar doctrine was 
 held in Tindall v. Touchberry, 3 
 Strobh. (S. C.) 177, and these cases 
 seem sustainable upon the ground 
 that as the promise is made to a pub- 
 lic oflScer for doing or not doing an 
 act, from which a direct liability is 
 incurred by him, and has no immediate 
 relation to the debt, it is an original 
 promise of indemnity which is not 
 within either the letter or spirit of the 
 statute. 
 
 2 Anderson v. Spence, 72 Ind. 315 ; 
 37 Am. Rep. 162. In this case the 
 opinion of Elljott, J., is such a care- 
 ful and masterly review of the cases 
 that I give the main portion of it. He 
 said : " The appellant contends that 
 the contract upon which the action is 
 founded creates no liability, and in 
 support of his contention states and 
 argues these two general propositions : 
 1st. There was no consideration to 
 support the promise made to appellee ; 
 2d. That as the agreement was not in 
 writing, it is void, because it is a con- 
 tract to answer for the default of an- 
 
 other, and therefore within the statute 
 of frauds. 
 
 There is nothing in the first propo- 
 sition deserving discussion, and we 
 put it aside witli the remark that ap- 
 pellant got all the consideration he 
 stipulated for ; and he is not now in a 
 position to make a complaint (as least 
 with much prospect of having . it 
 heeded) of lack of consideration. 
 
 The second proposition involves an 
 inquiry into the nature of the oral 
 agreement upon which appellee relies. 
 If it is an original agreement, it is 
 not within the statute ; if a collateral 
 one, it is : the great weight of author- 
 ity is, that an original agreement is 
 not within the statute, although it 
 may directly concern a third person, 
 or relate to the performance of some 
 act by one not a party to the contract. 
 Thacher v. Rockwell, 4 Col. 375; 
 Edenfield v. Canady, 60 Ga. 456; 
 Hartley w. Varner, 88 111. 561; John- 
 son V. Knapp, 36 Iowa, 616 ; Smith v. 
 Cramer, 39 id. 413 ; Lester v. Bowman, 
 id. 611 ; Emerson v. Slater, 22 How. (U. 
 S.) 28 ; DeWolf ti.Eabaud, 1 Pet.(U. S.) 
 476; Morrison v. Baker, 81 N. C. 76; 
 Spooner v. Dunn, 7 Ind. 81 ; Crawford 
 V. King, 54 id. 6 ; Billingsley v. Dempe- 
 wolf, 11 id. 414; Nelson v. Hardy, 7 
 Ind. 367; Beaty v. Grim, 18 id. 131. 
 The general rule, as we have stated it, 
 is in its terms clear, and is well sup- 
 ported by the authorities, but there is 
 much difficulty in determining what 
 are original or what collateral agree- 
 ments. The cases upon this point are 
 much in conflict, and it is by no 
 means an easy task to determine from 
 them what are to be deemed original 
 contracts. The first case in our own 
 reports, which directly bears upon the 
 question under discussion is that of 
 Brush V. Carpenter, 6 Ind. 78, where 
 it was held, ' An oral promise by A 
 to B to indemnify B against loss, if he 
 
SEC. 1S9.J 
 
 GXJAEANTIES. 
 
 291 
 
 and the doctrine stated in the text announced. In that case 
 it appeared that one Mary SuUenger had been indicted for 
 
 will become replevin bail for C, is void 
 under the statute of frauds.' The 
 case was not very carefully considered, 
 and very few of the adjudged cases 
 seem to have been brought to the at- 
 tention of the court. The case of 
 Brush V. Carpenter, 6 Ind. 78, did not 
 receive any direct notice from the 
 time it was decided except a bare ref- 
 erence in two cases, until the decision 
 in Horn v. Bray, 51 Ind. 555, where it 
 was cited and commented upon at 
 much length, and declared to lay down 
 an erroneous rule, the court saying : 
 ' The ruling in Brush v. Carpenter is 
 against the current of American ad- 
 judications, and has been, in effect, 
 though not expressly, overruled by 
 the subsequent decisions of this 
 State.' The question in Horn o. 
 Bray, 51 Ind. 556, was whether a ver- 
 bal contract of indemnity as between 
 sureties was valid, and it was not 
 there necessary to expressly approve 
 or directly overrule Brush v. Carpen- 
 ter. Here we must approve or con- 
 demn. There is not a little confusion 
 in our own cases upon the subject of 
 what is an original and what a collat- 
 eral contract, but the weight is decid- 
 edly against the doctrine of Brush v. 
 Carpenter. 
 
 The English cases have not been at 
 all harmonious. The old case of 
 Winckworth v. Mills, 2 Esp. 484, held 
 that a promise of indemnity was with- 
 in the statute, but in Thomas v. Cook, 
 8 B. & C. . 728, the contrary doctrine 
 was declared. Thomas t. Cook was, 
 in turn, overruled in Green v. Cress- 
 well, 10 Ad. & El. 453. For a long 
 time the doctrine of Green v. Cress- 
 well has been viewed with disfavor, 
 and it was, long before its overthrow, 
 often severely censured, notably so in 
 the cases of Batson v. King, 4 H. & 
 N. 739, and Cripps v. HartnoU, 4 B. & 
 S. 414. After a long struggle the 
 doctrine of Green v. Cresswell was 
 directly overthrown in Header v. 
 Kingham, 13 C. B. (N. S.) 344. In 
 
 the later case of Wildes v. Dudlow, 
 L. E. 19 Eq. Cas. 198, Reader v. King- 
 ham is expressly approved, the court 
 saying that the case of Thomas it. 
 Cook, 8 B. & C. 728, was decided 
 ' upon the plainest principles of com- 
 mon sense and justice.' While the 
 doctrine of Green v. Cresswell, supra, 
 was still recognized as the law of 
 England, the courts declared that 
 there was an important and broad 
 distinction between the undertaking 
 as- surety in civil cases and that as 
 bail in criminal proceedings. This 
 doctrine is stated with clearness and 
 force by Pollock, C. B., in Cripps 
 V. HartnoU, 4 B. & S. 414. This 
 learned judge, after speaking of 
 Green v. Cresswell, supra, said : ' But 
 there is a great distinction between 
 that case and the present. Here the 
 bail was given in a criminal proceed- 
 ing ; and where bail is given in such 
 a proceeding, there is no contract on 
 the part of the person bailed to in- 
 demnify the person who became bail 
 for him. There is no debt, and with 
 respect to the person who bails, there 
 is hardly a duty; and it may very 
 well be that the promise to indemnify 
 the bail in a criminal matter should 
 be considered purely as an indemnity, 
 which it has been decided to be. Now 
 it has been laid down that a mere 
 promise of indemnity is not within 
 the statute of frauds, and there are 
 many cases which would exemplify 
 the correctness of that decision.' 
 The English cases therefore establish 
 a rule which would take the present 
 case out of the statute, even though 
 it be conceded that the doctrine of 
 Green v. Cresswell should be deemed 
 the correct one. We confess, however, 
 that it seems to us that there was a real 
 conflict between the doctrine of Green v. 
 Cresswell and that of Cripps v. Hart- 
 noU, and that the distinction attempted 
 to be made by the later case was' simply 
 an effort to get rid of an unsound doc- 
 trine without expressly overruling it. 
 
292 
 
 STATTTTB OF FEAUDS. 
 
 L[CHAt. IV. 
 
 assault and battery with intent to kill, and was in custody 
 upon that charge. The defendant, being desirous to secure 
 
 Green v. Cresswell was always in con- 
 flict with the English cases, and there 
 are many of them holding, to horrow 
 the language of the cases, 'that the 
 debt or default must be toward the 
 promisee.' Eastwood v. Kenyon, 11 
 Ad. & El. 438; Fitzgerald v. Dressier, 
 7 C. B. (N. S.) 374. There is no 
 ' debt or default towatd the promisee ' 
 in cases where one person becomes 
 bail for another at the request of a 
 third. In such a case, it is impossible 
 to conceive a debt or default as exist- 
 ing toward the promisee. 
 
 Long before the final overthrow of 
 Green v. Cresswell, many, indeed 
 most, of the American courts had ac- 
 cepted the doctrine, which indeed had 
 never been directly challenged, either 
 in England or America, that the debt 
 or default must be toward the promi- 
 see, and had carried it to its logical 
 conclusion. There are however many 
 American cases holding to the doc- 
 trine of Green v. Cresswell, some of 
 them somewhat extending it. With 
 the downfall of the original case, the 
 doctrine which it declared, always 
 plainly erroneous upon principle, must, 
 in time, be repudiated by all the 
 courts of the land. The doctrine of 
 Green v. Cresswell has "been repudiated 
 and that of Thomas v. Cooke adopted 
 in Michigan. Potter v. Brown, 35 Mich. 
 274 ; Comstock v. Morton, 36 id. 277. 
 Massachusetts : Blake v. Cole, 22 
 Pick. (Mass.) 97; Chapin v. Laphain, 
 20 id. 467. Ma:ine: Smith u. Say- 
 ward, 5 Me. 604. Minnesota : Gaetz 
 V. Foos, 14 Minn. 265. New York: 
 Sanders v. Gillespie, 59 K. Y. 250. 
 New Jersey : Apgar v. Hilers, 24 N. J. 
 H. 812. New Hampshire: Cutter v. 
 Emery, 37 N. H. 567; Holmes v 
 Knights, 10 id. 175. Kentucky; 
 Jones V. Letcher, 13 B. Mon. (Ky.) 
 363 ; Dunn v. West, 5 id. 376 ; Lucas 
 V. Chamberlain, 8 id. 276. Connecti- 
 cut ; Eeed v. Holcombe, 31 Conn. 
 360; Iowa Mills v. Brown, 11 Iowa, 
 314. Vermont: Beaman i/. Eussell, 
 
 20 Vt. 205. . Indiana : Anderson v. 
 Spence, ante. Georgia: Jones v. 
 Shorter, 1 Kelly (Ga.)' 294, and "Wis- 
 consin : Vogel V. Melms, 31 Wis. 306. 
 In North Carolina, DraUghan v. 
 Bunting, 9 Ired. (N. C.) 10, the doc- 
 trine of Green v. Cresswell is adopted, 
 while in the other States the question 
 is an open one. Ferrett v. Maxwell, 
 28 Ohio St. 383 ; Simpson v. Nance, 1 
 Speera (S. C.) 4; Bissig v. Britton, 59 
 Mo. 204 ; Garner v. Hodgkrns, 46 id, 
 399 ; Macy v. Childress, 2 Tenn. Ch. 
 438 ; Gadden v. Pierson, 42 Ala. 370. 
 In Aldrich v. Ames, 9 Gray (Mass.) 
 76, Shaw, C. J., spestking for tlie 
 court, held an oral promise of indem- 
 nity made to one to induce him to be- 
 come bail for another to be good. In 
 Holmes v. Knights, 10 N. H. 175, an 
 oral promise to indemnify a plaintiff, 
 if he would become baU for a third 
 person, was held not to be within the 
 statute. Cases are cited in Horn v. 
 Bray, from the reports of Massachu- 
 setts, Pennsylvania, Iowa, Maine, 
 New Hampshire, Vermont, Maryland, 
 Georgia, and Kentucky, showing that 
 a contract to indemnity is not within 
 the statute ; and to these may be 
 added Vogel v. Melms, 31 Wis. 306; 
 s. V. 11 Am. Rep. 608; Shook u. Van- 
 mater, 22 Wis. 532; Keedw. Holcomb, 
 31 Conn. 360; Sanders v. Gillespie, 
 59 N. Y. 250; Green v. Brookins, 23 
 Mich. 48; 9 Am. Eep. 74 ; Stocking v. 
 Sage, 1 Conn. 519. The general doc- 
 trine, that a promise to indemnify the 
 promisee for becoming surety for a 
 person other than the promisor is hot 
 within the statute, is approved by 
 many of the text-writers. 3 Pars. 
 Cont. (6th ed.) 21, n.; Roberts on 
 Frauds, 223; 1 HiUiard Cont. 384, § 
 11, 385, § 12 ; Throop, Verbal Agree- 
 ments, § 361. Our own cases have de- 
 clared the same general doctrine. In 
 Downey v. Hinchmau, 25 Ind. 453, it 
 was said that, ' to make the promise 
 collateral the pirty for whom the 
 promise is made must be liable to 
 
SBC. 159.] 
 
 GUABANTEES. 
 
 293 
 
 her release, procured th© plaintiff to enter into a recogni- 
 zance for her appearance to answer to the charge, promising 
 him oraUy that he would indemnify him against all loss, and 
 save him harmless from all liabilities, costs, charges, and ex- 
 penses by reason of so becoming bail for her. The plaintiff, 
 having been damnified by reason of his having entered into 
 such recogiiizance, in an action to recover the same from the 
 defendant, he set up the statute of frauds in bar of the claim. 
 The court held that the statute had no application to con- 
 tracts for indemnity.^ So it is held that an agreement to 
 indemnify a person against the consequences of an act which 
 may amount to a trespass, are valid, unless a wiKul tres- 
 pass is contemplated*^ Thus, an agreement to indemnify an 
 
 the party to whom it is made.' In 
 Palmer v. Blain, 55 Ind. 11, it was held 
 that a Terbal promise by one person to 
 the creditor of an execution issued on 
 a judgment against a third, that if he 
 will satisfy such execution, the prom- 
 isor will make payment, of the judg- 
 ment in property and money, was not 
 within the statute. Green u. Cress- 
 well is cited with approval in Crosby 
 V. Jeroloman, 37 Ind. 264; but the 
 point involved in that case was very 
 different from that here under discusr 
 sion. The question in Crosby v. Jerol- 
 oman was whether there had been a 
 novation, not whether t^ie contract 
 was an original or collateral one ; and 
 it was rightly held, that unless the 
 original debt was extinguished by the 
 new promise, the case was not taken 
 out of the statute. In Ellison v. 
 Wishart, 29 Ind. 32, the question and 
 the holding were the same as in Cros- 
 by V. Jeroloman. The question in 
 Druly V. Hunt, 35 Ind. 507, was pre- 
 sented by the refusal to give the jury 
 the following instruction: 'If Druly 
 promised to guarantee or warrant the 
 pay to plaintiff which had been prom- 
 ised to be paid by a public meeting, 
 his promise was only collateral, and 
 not binding on Druly unless in writ- 
 ing.' It is very plain that no such 
 question as the one involved In the 
 present could have arisen in that case. 
 It may be safely affirmed, without 
 
 further citation, that there is no case 
 in our own reports directly supporting 
 the doctrine of Brush v. Carpenter, 
 and that there are several indirectly 
 condemning, and one, at least, censur- 
 ing it in express words, and in effect 
 overthrowing it." Horn v. Bray, ante. 
 In Easter v. White, 12 Ohio St. 219, 
 the same doctrine was held as in 
 Brush V. Carpenter, ante. 
 
 1 Conkey v. Hopkins, 17 John. (N. 
 Y.) 113 ; Staats v. Hewlett, 2 Den. (N. 
 Y.) 559. In Barry «. Ransom, 12 N. Y. 
 462, it was held that a parol agree- 
 ment between two sureties that one of 
 them would indemnify the other from 
 loss, was held not to be within the 
 statute. But in Michigan it is held 
 that an engagement to indemnify 
 sureties against loss is within the stat- 
 ute, and when made in writing in the 
 name of one party and purporting 
 upon its face to bind no other, it can 
 no more be shown by parol to be in 
 fact the undertaking of a different 
 party than could such a liability be 
 originally created by parol. First 
 Nat. Bank v. Bennett, 33 Mich. 520. 
 In Bjssig V. Britton, 59 Mo. 204, a 
 verbal promise to hold a surety upon 
 a replevin bond harmless was held to 
 come within the statute as being a 
 promise to answer for the default of 
 another. 
 
 2 Stone V. Hooker, 9 Cow. 154; 
 Avery v. Halsey, 14 Pick. (Mass,) 174. 
 
294 STATUTE OP FRAUDS. [CHAP. IV. 
 
 officer to induce him to execute process by attaching prop- 
 erty where the title is in dispute, is valid, although by parol.^ 
 In Connecticut^ it was held that a parol promise to indemnify 
 a person against a trespass, where the act to be done was 
 under a claim of right, is valid, and not within the statute. 
 In that case the facts were, that it was agreed between A 
 and B that if C would enter upon the- land of D and fish in 
 D's mill-pond, that, if C should be prosecuted therefor by 
 D, B would pay A one-half of the amount recovered and the 
 expenses of defending the suit. C did the acts specified, 
 and D sued him in tresspass therefor and recovered judg- 
 ment, the amount of which was paid by A, together with 
 the expenses of defending the suit. In an action to recover 
 of B one-half of such disbursements it was held that the 
 contract was an original undertaking, and not within the 
 statute. "The promise of the defendant," said Hinmak, J., 
 " to pay one-half of the damages which might be recovered 
 against Samuel P. Crawford for fishing in the mill-pond, and 
 one-half of the expenses of defending against such a suit as 
 might be brought against him for such fishing, was in no 
 sense a promise to answer for the debt or default of Samuel 
 P. Crawford, but was an original undertaking, and, of course, 
 not within the statute of frauds. It could not be for the 
 debt of Crawford, for he owed none. It was not for his 
 default ; but was, rather, a promise of indemnity, to a certain 
 extent, for doing a particular act, like the promise of indem- 
 nity to an officer for taking property, which it may be doubted 
 whether the creditor can hold." 
 
 If a surety upon an obligation promises a third person that 
 if he will become a surety with him, he will indemnify him 
 against loss thereby, his promise is an original one because 
 it is a promise to answer, not for another's default, but his 
 own ; * and it is held that a promise to indemnify another, 
 
 ' Stark V. Raney, 18 Cal. 622; groundless suits brought against him 
 
 Marsh v. Gould, 2 Pick. (Mass.) 284; by the crewfor chastisements inflicted 
 
 Train v. Gold, 5 id. 380 ; Wright v. within reasonable limits for the main- 
 
 Vemey, 3 Doug. 240. It has been tenance of the discipline of the sliip, 
 
 held that an agreement to indemnify but not for expenses incurred in a 
 
 the captain of a vessel against all prosecution where he was convicted, 
 
 legal expenses which may arise from Babcock v. Terry, 97 Mass. 482. 
 
 his chastisement of the crew, is valid ^ Jiarcy v. Crawford, 16 Conn. 548. 
 
 and binding as to expenses incurred in ' Tarrell v. Maxwell, 28 Ohio St. 383. 
 
SEC. 159.] GUARANTIES. 295 
 
 if he will become surety for a third person, is not within 
 the statute,^ nor to indemnify a person if he will become a 
 guarantor for another.^ And, generally, a mere promise of 
 indemnity is not within the statute. Thus, where a person 
 promises to repay to another a share of the expenses of a 
 suit brought at the instance of the promisor, and in reliance 
 upon his promise, and for the mutual interest of the parties, 
 the promise is not within the statute, being a contract for 
 indemnity rather than guaranty .3 So where A agreed with 
 B to. assist in getting up an exhibition of the school of which 
 B was the master, upon the understanding that he should 
 lose nothing, but should be indemnified for his expenses and 
 services, it was held that the promise of indemnity was an 
 original one, and not within the statute.* In a Massachusetts 
 case, the plaintiff transferred his stock in a corporation, and 
 a note he held against the corporation, to the defendant in 
 exchange for a farm, the defendant agreeing to indemnify 
 the plaintiff against his indorsements on certain notes of the 
 corporation. It was held that the defendant's promise of 
 indemnity w^s founded on a good consideration, and was not 
 within the statute.^ In Maine,^ a parol promise by a fro 
 chien ami to pay counsel for services afterwards to be ren- 
 dered in a suit, for an infant, and to indemnify him for 
 indorsing the writ, was held not to be within the statute. 
 So, where the plaintiff at the request of the defendant, who 
 verbally agreed with the plaintiff, who had been trusted in 
 a suit against A, that if he would pay A the amount he owed 
 him, he would pay any judgment which should be recovered 
 against him. In reliance upon this promise, and upon no 
 other consideration, the plaintiff paid to A the amount of 
 his indebtedness, and it was held that the promise was 
 an original undertaking, and not within the statute.'' 
 
 1 Dunn u. West, 5 B. Mon. (Ky.) = Dorwin v. Smith, 35 Vt. 69; 
 
 376; Lucas v. Chamberlin, 8 id. 276; Goodspeed v. Fuller, 46 Me. 141. 
 Mills ;;. Brown, 11 Iowa, 315 ; Harrison * Walker v. Norton, 29 Vt. 226. 
 V. Sawtel, 10 John. (N. Y.) 242 ; Jones ^ Alger v. Scoville, 1 Gray (Mass.) 
 
 V. Shorter, 1 Ga. 294; Holmes v. 391. See also Aldrich r. Ames, 9 id. 
 
 Knights, 10 N. H. 175 ; Perley v. 76, where it was held that a promise to 
 
 Spring, 12 Mass. 297 ; Chapin v. Lap- indemnify a person for hecoming hail 
 
 ham, 20 Pick. (Mass.) 467. for another is not within the statute. 
 
 " Chapin v. Merrill, 4 Wend. (N. « Sanborn v. Merrill, 41 Me. 467. 
 y.) 657. ' Soule v. Albee, 31 Vt. 142. 
 
296 STATUTE OF FKATJDS. [CHAP. IV. 
 
 SeO. 160. Promise to Indemnify Against Costs of Suits.— ^ 
 A promise to indemnify a third person against the costs of 
 a suit commenced or defended by him at the request of the 
 promisor, is not within the statute Thus, in Howes v. 
 Martin,^ the plaintiff had accepted several bills of exchange 
 from the defendant. These bills had all been regularly taken 
 up, except the last, which was for .£20. This bUl had come 
 into the hands of one Greensill, and the defendant, being 
 unable to take it up when due, had prevailed upon Greensill 
 to accept £16 in part, and the plaintiff's acceptance for six 
 guineas, being the balance of the bill, with the interest then 
 due for the remainder. This bill for six guineas not being 
 paid when due, Greensill brought his action on it against; 
 Howes as the acceptor. On the action being brought, the 
 plaintiff acquainted Martin with the circumstance, and he 
 desired the present plaintiff to defend the action. In con- 
 sequence of this advice the plaintiff defended the action, 
 and Greensill obtained a verdict for the amount of the bill, 
 which, with costs, amounted to £S2. The present action 
 was brought to recover this sum. Lord Kenyqn held that 
 the case was not within the statute, saying that it appeared 
 that the plaintiff never had any consideration whatever for 
 the acceptances, which were given merely on the defendant's 
 account and for his use ; that the defence to the action on 
 the note was on his account, and from whence he could have 
 derived a benefit ; that as he therefore was personally inter- 
 ested and directed the defence to be made, by which he might 
 have been benefitted, the money must be considered to have 
 been laid out by the plaintiff on his account and to his use, 
 and that he, therefore, was entitled to recover it. So, in 
 Bullock V. Lloyd,^ it was held that the promise of the in^ 
 dorser of a dishonored bill to pay the indorsee the costs 
 of an action against the acceptor, need not be in writing.^ 
 
 1 1 Esp. 162; Dorwin v. Smith, 35 forbearance to sue the maker. It was 
 Vt. 69 ; Goodspeed v. Fuller, 46 Me. held that such promise was within the 
 141. statute, there being no new considera- 
 
 2 2 C. & P. 119. tion therefor. Peabody v. Harvey, 4 
 ' But see AVinckworth v. Mills, 2 Conn. 119; Huntington v. Harvey, 4 
 
 Esp. 484. The indorser of -., promis- Conn. 124. See also Jones v. Walker, 
 sory note, who was discharged by the 13 B. Mon. (Ky.) 356 ; Turner v. Hub- 
 laches of the holder, promised him to bel, 2 Day (Conn.) 457 ; Ellison v. 
 pay the note in consideration of his Wisehart, 29 Ind. 32. So a promise 
 
SEC. 160.] 
 
 GUAEANTIES. 
 
 297 
 
 In Adams v. Dansey,^ the plaintiff, an occupier of land, at 
 the request of the defendant, and upon a promise of indem- 
 nity, resisted a suit of the Vicar for tithes ; it was held that 
 this was not a promise required by the statute to be in 
 writing. "Here," said Tdsdal, C. J., '*as between Adams 
 and Dansey, what promise is there as to the debt, default, 
 or miscarriage of another ? It is a direct promise , to repay 
 Adams any money which might be paid by him for costs in 
 the suit between the Vicar and Adams. It has been urged 
 that at all events the promise would not be available for 
 costs antecedently incurred. But it was competent to the 
 plaintiff to make any bargain he pleased as the price of Ins 
 resisting the tithe suit for the benefit of the defendant." * 
 
 by the holder to extend the time of 
 payment of a note, made in consider- 
 ation of a promise by a third person 
 to pay additional interest, and a ver- 
 bal release of the maker in considera- 
 tion of a promise by a third person to 
 pay the amount, is not binding, nor a 
 bar to an action on the note, the 
 promises which were the consideration 
 being void. Evans v. Lohr, 3 111. 511, 
 But the promise of one creditor to 
 pay the claim of another against their 
 mutual debtor, in consideration of the 
 forbearance of the latter to contest 
 the validity of a judgment obtained 
 by the former against the debtor, is 
 an original undertaking, and not with- 
 in the statute of frauds. Smith v. 
 Rogers, 35 Vt. 140. See also Tem- 
 pleton V. Bascom, 33 Vt. 132 ; Pratt «. 
 Humphrey, 22 Conn. 317; Fish v. 
 Thomas, 5 Gray (Mass.) 45; Ferris v. 
 Barlow, 2 Aik. (Vt.) 106. 
 
 1.6 Bing. 506; 4 Moo. & P. 245. 
 
 ^ And see Spark v, Heslop, 1 E & 
 E. 563; 28 L. J. Q. B. 197. In Peck 
 V. Thompson, 15 Vt. 637, A owed B, 
 and sent him with a verbal order, to 
 procure the money from C on A's 
 account. C refused to pay on a 
 verbal order, and required B to bring 
 a written, order from A, or else to give 
 his own accountable receipt for the 
 money. B received the money, and 
 gave his receipt to account to C for 
 it, on demand. Afterwards C called 
 on B, ami threatened to commence a 
 
 suit upon his receipt. Of this B 
 notified ^, relying upon him to settle 
 the demand of C. In order to induce 
 B to submit to a suit in favor of C, 
 and thereby afford A an opportunity 
 to prove such payment, A and D 
 promised B to indemnify him against 
 any judgment which C might recover, 
 and also against the expense of de- 
 fending C's suit. It was held, that 
 the promise of A and D was not 
 affected by the statute of frauds. In 
 Rowe V. Whittier, 21 Me. 545, it was 
 agreed between the plaintiff and de- 
 fendant in an action to settle the 
 same in a certain manner, if the de- 
 fendant would "pay the expenses," 
 and he verbally promised the plain- 
 tiff's attorney to pay the same to him. 
 It was held that the promise was not 
 within the statute of frauds, as to the 
 taxable costs, he being liable to pay 
 the same to . the plaintiff, but that it 
 was within the statute as to the charge 
 for commissions, he not being liable to 
 the plaintiff for them. In Eagland v, 
 Wynn, 37 Ala. 32, it was held that a 
 verbal promise by the sureties on the 
 official bond of a sheriff, after a de- 
 cree against them all has been ren- 
 dered, to pay an item of costs which 
 had been omitted in the taxation of 
 costs, on condition that the plaintiff 
 would allow a credit on the decree 
 for a sum which it was alleged had 
 been paid, is not within the statute. 
 
298 
 
 STATTTTB OP FRAUDS. 
 
 [chap. it. 
 
 Generally it may be said that, if a promise of indemnity is 
 not collateral to the liability of some other person to the 
 same party to whom the promise is made, it is not within 
 the statute, and, in the absence of all evidence that there 
 was a liability of any other person to the plaintiff to which 
 the promise of indemnity could be collateral, it will be 
 treated as an original promise.^ 
 
 Sec. 161. Parol Guaranty of Note Turned Out to Pay Debt. 
 
 — Under the rule as previously stated, that a promise which is 
 in effect to pay the debt of the promisor, although in form to pay 
 the debt of another, is not within the statute, it is held that 
 a parol guaranty of a note of a third person, which a debtor 
 transfers to a creditor in payment of his debt, either in whole 
 or in part, is not within the statute,^ and the creditor may 
 
 1 Beaman v, Russell, 20 Vt. 205. 
 
 2 Hassinger v. Newman, 83 Ind. 
 124 ; 43 Am. Kep. 64. But it was held 
 in this ease that an oral promise to 
 pay what the maker did not, is within 
 the statute. In Milks v. Rich, 80 N. Y. 
 269, the defendant recovered money 
 from plaintiff for his own benefit, and 
 delivered at the time to the plaintiff 
 a note of one Marsh, for the amoimt, 
 verbally promising that the note was 
 good and that it would be paid at ma- 
 turity. It was held that the defend- 
 ant was liable for the amount on the 
 note, and the promise to pay was not 
 within the statute of frauds. The 
 defendant delivered the note, and the 
 plaintiff received it as a mode of pay- 
 ing for the money, and the defendant's 
 promise was regarded in effect, not as 
 a collateral promise to answer for the 
 default of Marsh, but as a promise to 
 pay the plaintiff for the money the 
 defendant had, in case Marsh did not 
 pay him. It was the promise of one 
 to pay his own debt in case a third 
 person does not pay it. "Within the 
 principles laid down in the authori- 
 ties, such a promise is not within the 
 statute. Fowler v. Clearwater, 35 
 Barb. (N. Y.) 143; Dauber jj. Black- 
 ney, 38 id. 432 ; Losee v. Williams, 6 
 Lans. (N. Y.) 228; Johnson v. Gilbert, 
 4 Hill (N. Y.) 178; Brown v. Curtis, 2 
 
 N. Y. 225; Cardell v. McNiel, 21 id. 
 336; Bruce v. Burr, 67 id. 237; Dun- 
 ham V. Morrow, 2 N. Y. 533 ; Mobile 
 &c. R. R. Co. V. Jones, 57 Ga. 198. In 
 the case of Milks v. Rich, ante, Eakl, 
 J., while doubting the soundness of 
 the doctrine that such a parol con- 
 tract is not within the statute, yet 
 said that the court yielded its assent 
 to it because he thought the authori- 
 ties last cited should control. In Row- 
 land V. Rourke, 4 Jones (N. C.) L. 387, 
 it was held that a contract to make 
 good certain notes which a debtor 
 gave to his creditor in payment of a 
 debt, in case the maker was not good 
 for the amount on a certain day, was 
 not within the statute. See also .lones 
 V. Palmer, 1 Doug. (Mich.) 379. In 
 Eagle Mowing and Reaping Machine 
 Co. V. Shattuck, 53 "Wis. 455; 40 Am. 
 Rep. 78, it was held that where a 
 debtor induces his creditor to take in 
 settlement of the indebtedness the 
 note of a third person, with such 
 debtor's guaranty of its payment, not 
 stating the consideration, this is, in 
 effect, a promise by such debtor to 
 pay his own debt in a particular man- 
 ner, and is not within the statute of 
 frauds. Cassodat, J., said : " At the 
 time of the accounting and settle- 
 ment of the defendants with the 
 agent, the maker of the note in ques- 
 
SEC. 161.J GITAEAKTIBS. 299 
 
 maintain an action against the promisor upon such guaranty 
 to recover the amount of the note, or such part thereof as he 
 
 tion was not indebted to the plaintiff, 
 but to the defendants. The note was 
 not given for property belonging to, 
 or furnished by, the plaintiff, but for 
 property belonging to and furnished 
 by the defendants. The note at the 
 time was the property of the defend- 
 ants. The defendants being indebted 
 to the plaintiff for money or notes 
 taken for the plaintiff's machines, and 
 by them converted to their own use, 
 turned out the note in question, with 
 the guaranty upon it, as their own 
 property, in payment of their own 
 debt. Are they to be discharged of 
 their debt without being held liable 
 on their guaranty? Does the case 
 come within the language or meaning 
 of the statute 1 Was the promise of 
 the defendants anything more than 
 a promise to pay their own debt in the 
 manner stated ? We think it was not, 
 and the case therefore comes clearly 
 within the rule of Wyman v. Good- 
 rich, 26 Wis. 21, where it was held 
 that 'where the owner of a note, as 
 part of the terms of sale thereof, 
 guarantees its payment, his contract 
 is not within the statute of frauds.' 
 It was not the consideration of the 
 note which was the basis of the prom- 
 ise of the defendants to the plaintiff, 
 but the money or property of the 
 plaintiff, which the defendants had 
 converted to their own use, and which 
 they undertook to pay by the transfer 
 of the note with their guaranty upon 
 it. It was in form a guaranty of the 
 payment of the note, but the guar- 
 anty was in fact made in payment of 
 their own debt. Such a case is neither 
 within the letter nor spirit of the stat- 
 ute, as abundantly appears from the 
 decisions of this court, and cases there- 
 in cited." In Putnam v. Famham, 27 
 Wis. 187 ; 9 Am. Eep. 459, a debtor 
 orally promised to pay part of his 
 debt by paying the debt of the credi- 
 tor to a third person, to which arrange- 
 ment the latter assented. Held, a 
 valid promise. The principal case is 
 
 sustained by Barker v. Scudder, 56 
 Mo. 272; Allen v. Eighmie, 9 Ilun 
 (N. Y.) 201 ; Mobile and Girard R. Co. 
 V. Jones, 57 Ga. 198 ; Malone i . Kee- 
 ver, 44 Penn. St. 107 ; Milks v. Rich, 
 80 N. Y. 269 ; 36 Am. Eep. 615. A 
 recent Massachusetts case, Dows v. 
 Swett, 120 Mass. 322, however, ad- 
 vances a doctrine which is apparently 
 opposed to this, and holds that a parol 
 guaranty of a note of a third person 
 given in payment of the debts of the 
 promisor is within the statute ; and in 
 New York, Draper v. Snow, 20 N. Y. 
 331 ; Brewster v. Silence, 8 id. 207 ; 
 Wood 0. Wheelock, 25 Barb. (N. Y.) 
 625, such a guaranty was held to be 
 within the statute, upon the ground 
 that the consideration was not suffi- 
 ciently connected with the considera^ 
 tion in the principal contract. In 
 Bruce v. Burr, 67 N. Y. 237, the defend- 
 ant contracted to sell and deliver to 
 the plaintiff a quantity of books, and 
 to accept in payment therefor the note 
 of one Lund, the plaintiff at the same 
 time orally guaranteeing its payment at 
 maturity. The court held that the 
 guaranty was not within the statute. 
 In Johnson v. Gilbert, 4 Hilt. (N. Y. C. 
 P.) 178, the plaintiff paid a debt which 
 the defendant owed, and in considera- 
 tion of such payment, the defendant 
 transferred to him a note against one 
 Eastman, and guaranteed its payment, 
 and the guaranty was held to be valid. 
 In Garden v. McNiel, 21 N. Y. 336, in 
 which the defendant delivered the 
 plaintiff a chattel note in part pay- 
 ment for a horse, verbally guarantee- 
 ing its payment, a similar doctrine 
 was held, Comstock, J., saying : " In 
 mere form it was certainly a collateral 
 undertaking, because it was a promise 
 that another person should perform 
 his obligation. But looking at the 
 substance of the transaction, we see 
 that the defendant paid in this man- 
 ner a part of the price of a horse sold 
 to himself. In a sense merely formal 
 he agreed to answer for the debt of 
 
300 
 
 STATUTE 05' PEAUBS. 
 
 [chap. IV. 
 
 has failed to obtain from the maker* Whatever may; b© said 
 as to the soundness of this rulej its justice cannot be doubted; 
 and there can be no doubt that ^t comes fairly within the 
 rule that, where l^e promise is in effect a promise to pay the 
 debt of the promisor it is not within the statute, because, 
 unless the note was accepted in. payment of the promisor's 
 debt, he would gtOl remain liable upon the original debt for 
 any deficiency which might arise from the creditor being 
 unable to collect the full amount thereof, and his guaranty, 
 therefore, creates no new obligation, but is in reality merely 
 a promise to pay a debt from which he was never released; 
 A different doctrine , might be held where the legal effect of 
 the transaction is to release the debtor from the debt, there 
 being nothing in the transaction, which shows that the original 
 claim is to be kept on foot, because, while in the former case 
 there is a mere change in the form of liability, in the latter 
 there is a creation of a new liability, in place of one which is 
 extinguished. It is upon this ground that the doctrine of a 
 recent Massachusetts case ^ previously referred tOj , which is ap- 
 
 Cprnell. In reality he undertoqk to pay 
 his own vendor so much of the price of 
 the chattel, unless a third person should, 
 make the payment for him, and thereby 
 discharge Hpi."- In Dauber ». BUqIct 
 ney, 38 Barb. (N. T.) 432, under a 
 similar state of facts, Hoyi^, J., said : 
 '< Wherever the holder of a note 
 against a third person turns it out in 
 payment of his own debt, or in pay- 
 ment of property purchased, or far 
 money received. by him from the per- 
 son to whom he transfers it, and at 
 the same time agrees that the note is 
 good; or will be paid at maturity, or 
 that it will be collected, by due pro- 
 cess of law against the maker, this is 
 an undertaking in substance, entirely 
 for his own benefit and advantage, and 
 the contract is valid, although it rests 
 entirely in parol, and is not within the 
 statute of frauds." In California and 
 Dakota the statute in express terms 
 except? this class of promises from 
 the operation of the statute. 
 
 1 Dqws I). Swett, 120 Mass. 322. 
 In this ca»e tlie court, after speaking 
 of transfers as collateral security or 
 
 in conditional, payment, said : " In the 
 latter class i of, ca?es the transaction 
 is as if the debtor said, ' I owe you a 
 debt. Take this note and collect it if 
 you can. If you get the money on it, 
 that will pay you,, If you do not, I 
 will myself pay you what I owe.' In 
 all such , cases the defendant's prom^ 
 ise is la effect to pay his own debtj 
 an4 it is not n^ce^sary that such promr 
 ise should be in writing, though inci- 
 dentally the debt of- a third person is 
 guaranteed. And many of the decii 
 sions of courts which at first sight 
 may appear to ho^d that an oral guar- 
 anty of. the nqte of another, wliich is 
 transferred on account of a debt due 
 from the guarantor, is not within the 
 statute of frauds, on careful examina.; 
 tion will be f oimd not to rest- on that 
 principle, and not to be necessarily 
 inconsistent with our own conclusion 
 in the present case. Eor example, in 
 Milks V. Rich, 80 N. Y. 271; 36 Am. 
 Rep. 615, Eael, J., after stating that 
 'the reasoning to take this promise, 
 out of the statute i? quite subtle, and 
 I should have much difficulty in yield. 
 
SEC. 161.] 
 
 GUARANTIES. 
 
 801 
 
 pareiitly opposed to the doctrine of the cases first cited in this 
 section, may be reconciled witli, or at least distinguished from 
 •them. In that case the defendant who was indebted to the 
 plaintiffs for goods purchased of them by him to the amount of 
 two hundred dollars, and for which they held his due bill, 
 •made an arrangement with them to surrender to him the due 
 bill, upon his delivering to them the note of one Robinson for 
 the same sum, payable to them or order, the defendant verbally 
 agreeing that he would pay the note, if ttdbinson did not. This 
 arrangement was carried into effect by the delivery of the 
 note of Robinson to the plaintiffs, payable to them, and the 
 surrender to the defendant of the due bill. The maker of 
 the note having failed to pay it, in an action to recover the 
 same of the defendant, it was held that his promise was col- 
 lateral, and within the statute. It is evident that the original 
 liability of the defendant for goods sold was merged in the 
 due bill, and when the due bill was surrendered to him and 
 the note of a third person taken in its place and stead, \mder 
 the arrangement detailed, the defendant ceased to be liable 
 
 ing it any assent, but for the author- 
 ities which I think ought now to con- 
 trol,' goes on to say : ' The defendant's 
 promise may be regarded in effect, not 
 aS a collateral promise to answer for 
 the default of Marsh, but as a prom- 
 ise to pay the plaintiff the money he 
 had had, in case Marsh did not pay 
 him, like the promise of one to pay 
 his own debt in case a third person 
 did not pay it.' In Bruce v. Burr, 67 
 N. Y. 237, the decision rests on the 
 same distinction, and both cases refer 
 for authority to Cardell v. McNiel, 21 
 N. Y. 336, where Comstock, C. J., in 
 delivering the opinion of the court, 
 said : ' In mere form it was certainly 
 a collateral undertaking. . . . But look- 
 ing at the substance of the transac- 
 tion, we see that the defendant paid 
 in this manner a part of the price of 
 a horse sold to himself. In a sense 
 merely formal, he agreed to answer 
 for the debt of Cornell. In reality, 
 he undertook to pay his own vendor 
 so much of the price of the chattel, 
 unless a third person should make the 
 payment for him, and thereby dis- 
 
 charge him.' In all these cases, it 
 will be observed that the court care- 
 fully put the decision on the express 
 ground that the original debtor is not 
 discharged, and his debt is not extin- 
 guished until the note is actually 
 paid. So in Pennsylvania, in Taylor 
 V. Preston, 79 Penn. St. 441, Woor>- 
 WARD, J., a, high authority, says : ' The 
 statute does not require the promise 
 to be in writing where it is in effect to 
 pay the promisor's own debt, though 
 that of a third person be incidentally 
 guaranteed; it applies to the mere 
 promise to become responsible, but 
 not to actual obligations,' — i.e., of 
 the promisor. ' Buying the land, the 
 promise to pay for it, whatever the 
 form, was a promise to pay their own 
 debt. It was not only a stipulation to 
 pay a debt which Preston owed, but a 
 stipulation to pay the price of prop- 
 erty they had bought.' To the same 
 effect are Townsend v. Long, 77 Penn. 
 St. 147 ; 18 Am. Eep. 438 ; and Malone 
 o. Keener, 44 id. 109." See also liing 
 V. Summitt, 73 Ind. 312 ; 38 Am. Rep. 
 145. 
 
302 STATUTE OF FRAUDS. [CHAP. IV. 
 
 to the plaintiffs in any form, as both in law and in fact in the 
 absence of proof to the contrary the note was accepted in 
 payment of the original debt, and Robinson was substituted 
 as debtor in place of the defendant, so that the defendant's 
 promise to pay the note, if Robinson did not, was a promise 
 on his part to pay the debt t)f another, and not a mere promise 
 to pay his own debt. 
 
 The true test for determining whether a guaranty indorsed 
 upon a note is an original undertaking or a collateral promise, 
 within the statute of frauds, is not whether it was indorsed 
 before the delivery of the note, but whether the promise of the 
 maker of the note and that of the guarantor were parts of one 
 and the same original transaction. Thus where, three days 
 after the execution and delivery of promissory note from A 
 to H, T indorsed thereon, in pursuance of a previous agree- 
 ment, " I guarantee the payment of the within note," upon 
 the faith of which previous agreement H had sold and deliv- 
 ered to A certain horses, it was held that such indorsement was 
 not within the statute of frauds.^ When the owner of a note, 
 as apart of the terms of the sale thereof guarantees its payment, 
 his contract is- not within the statute of frauds, for the reason 
 that the promise is made upon a new and original considera- 
 tion moving between the creditor and the party promising, in 
 an independent dealing between them.^ Under this rule a 
 verbal promise by the assignee of a building contract, to pay 
 a debt of the assignor, was held to be part of the subject- 
 matter, and not within the statute of frauds.* 
 
 Sec. 162. Contract for Del Credere Agency. — A contract for 
 a del credere agency is not a promise to answer for the debt of 
 another within the statute. In Coutourier v. Hastie,* Paeice, 
 B., said : " The other and only remaining point is whether 
 the defendants are responsible by reason of their charging a 
 del credere commission, though they have not guaranteed by 
 writing signed by themselves. We think they are. Doubtless 
 if they had for a percentage guaranteed the debt owing, or 
 
 1 Howland w. Aitch, 38 Cal. 133. 673 ; Swan v. Nesmith, 7 Pick. (Mass.) 
 
 ^ Wyman k. Goodrich, 26 Wis. 21. 220; Sherwood v. Stone, 14 N. Y. 
 
 8 Rabberman v. "Wisekamp, 54 111. 267 ; Bradley v- Richardson, 23 Vt. 
 
 179. 720; WolfE v. Koppel, 5 Hill (N. Y.) 
 
 4 8 Exch. 40; affirmed, 5 H. L. C. 460. 
 
SBC. 163.] 6UAEANTIES. 303 
 
 performance of the contract by the vendee, being totally 
 unconnected with the sale, thej'- would not be liable without 
 a note in writing signed by them ; but being the agents to 
 negotiate the sale, the commission is paid in respect of that 
 employment ; a higher reward is paid in consideration of their 
 taking greater care in sales to their customers, and precluding 
 all question whether the loss arose from negligence or not, 
 and also for assuming a greater share of responsibility than 
 ordinary agents — namely, responsibility for the solvency and 
 performance of their contracts by their vendees. This is the 
 main object of the reward being given to them ; and though 
 it may terminate in a liability to pay the debt of another, that 
 is not the immediate object for which the consideration is 
 given, and the case resembles in this respect those of Williams 
 V. Leper ^ and Castling v. Aubert.^ We entirely adopt the 
 reasoning of an American judge (Mb. Justice Cowen) in a 
 very able judgment on this point in Wolff v. Koppel." ^ 
 
 In Wickham v. Wickham,* Wood, V. C, said : " When I 
 look at the whole of the case (Coutourier v. Hastie) I cannot 
 but conclude that the judges considered that an agent entering 
 into a contract in the nature of a del credere agency, entered 
 in effect into a new substantial agreement with the persons 
 whose agency he undertook, that the agreement so entered 
 into by him was not a simple guaranty, but a distinct and 
 positive undertaking on his part on which he would become 
 primarily liable, otherwise I cannot see how the learned 
 judges could arrive at the conclusion that the undertaking 
 was not within the statute." The promise of a factor who, 
 having possession, sells the goods under a del credere commis- 
 sion, agreeing to guarantee the sales, rests upon the consider- 
 ation of his duty and responsibility growing out of his 
 employment, and is not within the statute.^ 
 
 Sec. 168. Goods Furnished to an Infant. — The rule is that 
 in order to make an undertaking to pay the debt of another 
 a guaranty, the liability of the party for whom the guaranty 
 is given must be a clear and ascertained legal liability ; con- 
 sequently if goods are furnished to or money is paid on behalf 
 
 1 3 Burr. 1886 ; 2 Wils. 308. * 2 K & J. 479. 
 
 2 2 East, 325. ^ Inmau v. Inman, 6 Mo. App. 384. 
 8 5 Hill (N. Y.J 458. 
 
304 STATTTTE OF FRAUDS. [CHAP. IV. 
 
 of an infant, or a married woman or any person laboring 
 under a legal disability, on the promise of the defendant to 
 be answerable, the undertaking is original and not collateral, 
 for the infant cannot be liable, and there is no privity between 
 the plaintiff and the infant.^ But this rule does not apply 
 where the promise is to pay a debt for necessaries which the 
 minor had previously contracted. Thus in a Massachusetts 
 case^ a father orally promised the plaintiff that if he Would 
 forbear demanding of his son the amount of a debt which 
 the son had previously contracted for necessaries, it Was 
 held that the promise was collateral and within the statute. 
 As the rule is predicated upon the ground that as there 
 is no liability on the part of the infant, there is no debt 
 of .the third person, and consequently the promise is origi- 
 nal, it follows as a necessary inference that in all cases 
 where liahility does exist upon the part of the infant, the 
 promise is collateral and within the statute. 
 
 When the party in whose behalf the promise is made is not 
 liable at all for the debt or duty in reference to which the 
 promise is made, it is evident that the statute does not apply, 
 because there is no debt to which the promise can be collateral, 
 or in reference to which it can be regarded as an undertaking 
 to answer for the debt, default, or miscarriage of another, and 
 in all such cases the promise is an original undertaking on 
 the part of the promisor, although he derives no advantage 
 therefrom, and an action of indebitatus assumpsit will lie 
 against him without regard to the special promise, and the 
 statute of frauds having no application, written evidence of 
 the promise is unnecessary.* 
 
 Sec. 164. Rights under Parol Gruaranty. — In England, it is 
 held that money |)aid under a parol guaranty cannot be re- 
 covered ; * but it has recently been held in Connecticut,^ and, 
 
 1 Duncomb V. Tickridge, Aleyn. 94j (Mass.) 365. See also Clark w. Levi, 
 Harris t;. Huntback, 1 Burr. 373; 10 N. Y. Leg. Obs. 184. 
 
 King V. Summit, 73 Ind. 312 ; Drake " Prentice v. Wilkinson, 5 Abb. Pr. 
 
 V. Pleurellen, 33 Ala. 106; Chapin v. (N. Y.).K S. 49; Mease v. Wagner, 1 
 
 Lapham, 20 Pick (Mass.) 467 ; Roche McCord (S. C.) 395. 
 
 V. Chaplin, 1 Bailey (S. C.) 419; * Griffith d. Young, 12 East, 513; 
 
 Mease v. Wagner, 1 McCord (S. C.) Shaw v. Woodcock, 7 B. & C. 73. 
 
 395. 6 Simpson v. Hall, 47 Conn. 417. 
 
 2 Dexter v. Blanchard, 11 Allen 
 
SEC. 166.] GTJAKANTIES. 305 
 
 as we believe, correctly, that a recovery may be had in such 
 cases, the law implying that such payment was made at the 
 request of the person promised for. And in England it 
 appears that the courts can exercise summary jurisdiction 
 over one of their officers who has given such a guaranty, as 
 attorney, by compelling him to perform it.^ Where the fact 
 that a guaranty has been given is admitted by the payment 
 of money into court, proof that it was in writing is dispensed 
 with.'' 
 
 Sec. 165. Dissolution or Alteration of Contract. — The stat- 
 ute does not contain any provision requiring that a contract 
 which must be in writing, shall be dissolved by writing, and 
 it seems, therefore, that such a contract may, before breach, 
 be wholly waived and abandoned by a parol agreement, so as 
 to prevent its being sued upon.^ But if another contract is 
 subsfituted for it, it must be valid, and must be in writing, 
 if it comes within the class of contracts required by the stat- 
 ute to be so proved,* and any alteration in the terms of an 
 agreement required to be in writing, must also be evidenced 
 by writing.^ 
 
 Sec. 166. Application of the Statute to Toreign Contracts. — 
 An action cannot be maintained upon a contract made in a 
 foreign country, which is valid there, but which could not, 
 on account of the statute, be sued on if made here." The 
 rule seems to be well established, that so much of the law as 
 affects the rights and merits of the contract, all that relates 
 ad litis decisionem is adopted from the foreign country ; but 
 so much as afPects the remedy only, all that related ad litis 
 ordinationem, is taken from the lex juri of the country where 
 the action is brought.'' 
 
 1 In re Greaves, 1 C. & J. 374, n. (a) ; 323 ; Noble v. Ward, L. E. 2 Exchq. 
 Evans v. Dunscombe, 1 id. 372 ; Senior 135. 
 
 V. Butt, and Payne v. Johnson, cited in ^ Pearson v. Henry, 5 T. K. 6 ; 
 
 Evans v. Dunscombe, ante. Mitchinson v. Hewson, 7 id. 348. 
 
 2 Middleton o. Brewer, Peake, 20; " Leraux v. Brown, 12 C. B. 801; 
 and see Prec. in Ch. 208, 374. Williams v. Wheeler, 8 C. B. (N. S.) 
 
 s Hobson V. Cowley, 27 L. J. Exchq. 299. 
 205 ; Goss k. Lord Nugent, 5 B. & Aid. ' Huber v. Sleiner, 2 Sc. 326 ; Ad- 
 
 66 ; Lavery v. Turley, 30 L. J. Exchq. dison on Contracts, 176 ; 2 Wm. 
 49. Saunders, 399; 1 Smith's L. C. 7th 
 
 * Moore u. Campbell, 10 Exchq. cd. (Eng.) 658, notes to Moystyn v. 
 
 Fabrigas. 
 
306 STAO^UTE OF FEATJDS. [CHAP. IV. 
 
 Sec. 167. False Hepresentatious as to the Solvency of 
 Another. — In England, as well as in Alabama, Indiana, Ken- 
 tucky, Maine, Massachusetts, Michigan, Missouri, Oregon, 
 Vermont, Virginia, "West Virginia, and Wyoming, it is ex- 
 pressly provided by statute, substantially, that no action 
 shall be brought to charge any person by reason of any repre- 
 sentation or assurance made concerning the character, con- 
 duct, ability, trade, or dealings of any other person, unless 
 such assurances, etc., were made in writing, signed by the 
 party to be charged. But in the other States no such provi- 
 sion exists, and the rule which has existed ever since Pasley 
 V. Freeman,^ was decided, holding that an action lies for a 
 false representation as to the credit and responsibility of 
 another, whereby another person is induced to give him 
 credit, it has been held that the statute does not apply to this 
 class of actions, and such was the rule in England^ prior to 
 the statute 9 Geo. 4, chap. 14, as Avell as in those States in 
 which the provision of the English statutes in this respect 
 has been adopted ; ^ and the very circumstance that legislative 
 action has been deemed necessary to avoid liability in such 
 cases, would seem sufficient to put the question at rest in 
 those States where the legislature has not deemed it proper 
 to interfere. It will be noticed that the statute applies only 
 to representations relative to third person, and made for the 
 purpose of obtaining credit for him, and representations rela- 
 tive to the quality, cost, or value of property owned by a 
 third person do not come within the statute, especially when 
 not made for the purpose of obtaining credit for him, but 
 rather for the purpose of enabling him to sell the property.* 
 
 1 Pasley v. Preeman, 3 T. E. 51. Goss, 49 Barb. (N. Y.) 96 ; Ewins v. 
 
 "■ Poster u. CJiarles, 6 Bing. 396 ; Calhoun, 7 Vt. 79 ; Weeks v. Burton, 
 
 Tapp V. Lee, 3 B. & P. 367 ; Haycrof t 7 id. 67 ; Patten v. Gumey, 17 Mass. 
 
 ■0. Creasey, 2 East, 92. 182. See also Adams v. Anderson, 4 
 
 8 Warren v. Barker, 2 Duv. (Ky.) H. & J. (Md.) 558; "West v. Wilcox, 1 
 
 155; Benton v. Pratt, 2 Wend. (N. Y.) Day (Conn.) 22; Hart v. Tallmadge, 
 
 385; TJpton v. Vail, 6 John. (N. Y.) 2 id. 381; Enssell v. Clarke, 7 Cr. (U. 
 
 181 ; Wells v. Eenway, 28 Barb. (N. S. C. C.) 69. 
 
 Y.)466;Eumseyt'.Lovell, Anth.N.P. * Medbury y.Watson,6Met.(Mass.) 
 
 (N.Y.) 26; Williams W.Wood, 14 Wend. 246. In Norton u. Huxley, 13 Gray 
 
 (N. Y.) 126; Allen v. Addington, 7 (Mass.) 385, the court held that the 
 
 Wend. (N. Y.) 9; Gough v. Dennis, statute applies only to cases where 
 
 Lalor Suppt. (N. Y.) 55; Zabriskie v. the representations were made with 
 
 Smith, 13 N. Y. 322 ; Van Bruck ii. the intent that such person might obtain 
 
 Peyser, 2 Eob. (N. Y.) 468; Viele v. credit, monet/, or goods. 
 
SEC. 167.] GUARANTIES. 307 
 
 Thus, in the case first cited in the last note.^ In an action 
 by A against B, tlie declaration alleged that B, intending to 
 deceive and defraud A, falsely and fraudulently affirmed to 
 A, who desired to purchase a tannery, that he (B) M^ell knew 
 such a tannery as A wanted, which was worth |4,000 ; that the 
 owner paid that sum for it, and would sell it for what it cost 
 him ; that he (B) would aid A in buying it for that sum, and 
 that A relying upon B's affirmations relating thereto, and not 
 knowing the contrary nor the value of the tannery, purchased 
 the same of the owner, and paid 14,000 therefor, but that B's 
 representations were false ; that the tanner)'- was not worth 
 $4,000, and that the owner only paid |3,000 for it, wliich was 
 more than it was worth when A so bought it of him. The 
 declaration also alleged knowledge on B's part that his repre- 
 sentations were false, and that A was damaged thereby. It 
 being insisted that the case came within the statutes relative 
 to representations as to the character, etc., of third person^, 
 the court held that this section of the statute did not apply, 
 and that the action could be maintained, although the repre- 
 sentations were verbaL But false representations as to the 
 condition of the title to property of a third person, with an 
 assurance that because of such condition, the person to whom 
 they are made would he safe in giving him credit, is within the 
 statute.^ Thus, in the case last cited the plaintiff was in- 
 duced to lend money to a third party by the defendant's 
 representation that he had in his possession the title deeds 
 to an estate, which he said such third party had lately bought, 
 and that nothing could be done without his knowledge, and 
 that the plaintiff would he perfectly safe in making the loan, it 
 was held to amount to a representation that the third party's 
 credit was good, and therefore was within the statute.^ Rep- 
 resentations by an agent* or officer^ of a corporation as to its 
 pecuniary standing or ability come within this section of the 
 statute. Thus, where the agent of an insurance company 
 made false representations as to the pecuniary responsibility 
 
 1 Medbury v. Watson, ante. facts, the Court of Exchequer were 
 
 2 Swann v. Phillips, 8 Ad. & El. divided upon the question. 
 
 457. * Wells V. Prince, 15 Gray (Mass.) 
 
 3 See Lyde v. Barnard, Tr. & G. 562. 
 
 250, where, under a similar state of ^ McKinney v. Whiting, 8 Allen 
 
 (Mass.) 207. 
 
308 STATUTE OF FRAUDS. [CHAP. IV. 
 
 of a company in which he desired to have the plaintiff insure, 
 and in which, by reason of such representations the plaintiff 
 did insure, it was held that the action was within the stat- 
 ute.-^ And the same was held where a treasurer of a corpo- 
 ration made false representations to the plaintiff as to the sol- 
 vency of such corporation, for the purpose of inducing him 
 to take a note of the corporation signed by him as agent.^ 
 But a representation that the makers of certain notes which 
 a third person takes as collateral security for a debt are good, 
 does not come within this section of the statute,^ nor does a 
 representation, express or implied, that the signatures to a 
 note are genuine.* But it seems that representations as to 
 the credit and ability of the maker of a note, made by a per- 
 son with a view of inducing such person to indorse the note, 
 so that the person making the representations could get it 
 discounted for his own use, are within the statute, and do not 
 form a basis for an action unless in writing.^ In an action 
 for money had and received, where the gist of the action is 
 the defendant's false representations, in reference to the finan- 
 cial standing of another, the statute of frauds is available as 
 a defence, unless the representations were in writing.^ 
 
 Sec. 168. statute Applies to Corporations. — It is not neces- 
 sary that the "other person" spoken of in the statute 
 should be a natural person. An artificial person is equally 
 within the meaning of the statute.'^ Hence, if the represen- 
 tations are such that the case would be governed by the 
 statute, if the company were a natural person, the fact 
 
 ■ Wells V. Prince, ante. chase the goods, to pay the defend- 
 
 2 McKinney v. Whiting, ante. ant a debt which was owing him from 
 
 ' Belcher v. Costello, 122 Mass. such third person. 
 
 189. « Hunter v. Randall, 62 Me. 423. 
 
 * Cabot Bank v. Morton, 4 Gray ' Deraux v. Steinkeller, 6 Bing. 
 
 (Mass.) 156. (N. C.) 84; Boyd v. Croydon Ey. Co., 
 
 ' Mann v. Blanchard, 2 Allen 4 id. 669; McKinney v. Whiting, 8 
 
 (Mass.) 386. See also Kimball v. Allen (Mass.) 207 ; Rust v. Bennett, 
 
 Comstock, 14 Gray (Mass.) 508, 39 Mich. 521 ; Pharmaceutical Society 
 
 where it was held that a fraudulent v. London &c. Association, 4 Q. B. 
 
 representation that a person is of Div. 313; People v. May, 27 Barb, 
 
 good credit, for the purpose of en- (N. Y.) 238; British Ins. Co. v. Com- 
 
 abling him to purchase goods on missioners of Texas, 31 N. Y. 32; 
 
 credit, is within the statute ; although People v. Utica Ins. Co., 15 Johns. 
 
 the representation was made in order (N. Y.) 381; People v. Rector, 23 
 
 to enable such third person to pur- N. Y. 44 
 
SEC. 168.J GTJAEANTIES. 309 
 
 of its being an artificial one will make no difference.^ 
 While the stockholders of a corporation are not liable 
 for its debts, and do not stand in such a relation to it 
 that their promise to pay its debts can be said to be 
 an original undertaking,^ yet if a stockholder contracts 
 with a person on behalf of the corporation, and agrees to 
 become personally responsible to the other party to the con- 
 tract, it has been held that his undertaking was original, 
 although the corporation is also liable for the debt. Thus, 
 where the plaintiff, at whose house a pauper who had been 
 injured was left directly after the injury, applied immediately 
 to the overseer of the poor to support him, and the overseer 
 sent word, in his official capacity, to the plaintiff, to take 
 good care of the pauper, and that if the latter did not pay 
 him, he, the overseer, would see that he had his pay ; it was 
 held that this promise was an original promise, not within 
 the statute of frauds, and was binding upon the town.^ So 
 where A and B were both members of a religious society, 
 and B, in the course of his duty as steward of the society, 
 said to A : "I want you to board W (the minister) ; if you 
 will do it, I will see that you shall be well paid, and have the 
 money for it." A gave credit to B, not knowing that he was 
 an officer of the society, but B did not suppose that he was 
 becoming personally liable. It was held that the contract 
 was not within the statute of frauds, and that A could re- 
 cover in an action against B for Ws board.* In a case in 
 the United States Supreme Court,^ a contractor for a railroad 
 bridge agreed with a stockholder that the work should be 
 done by a day certain ; that the contractor should thereupon 
 receive the money and notes of the stockholder, which were, 
 when paid, to go towards payment of the indebtedness of 
 the railroad company to the contractor ; that this agreement 
 should in no way affect the agreement with the railroad com- 
 pany on which an action was then pending. It was held that 
 the undertaking of the stockholder was original, and not col- 
 lateral, and, therefore, that a parol alteration of its terms 
 
 1 Bush V. Sprague, Mich. S. C. 1883. « Blodgett v. Lowell, 33 Vt. 174. 
 
 2 Trustees v. Flint, 13 Met. (Mass.) * Bushee v Allen, 31 Vt. 631. 
 539; Quin v. Hanford, 1 Hill (N. Y.) " Emerson v. Slater, 22 How. (TJ. 
 82. S.) 28. 
 
310 STATUTE OF PBATJDS. ' [CHAP. IT. 
 
 before breach was good. In an Iowa case^ the defendants 
 advertised that, by reason of their being stockholders in a 
 certain bank they would redeem its notes, whereupon the 
 notes acquired credit, and circulated freely. It was held an 
 original promise, and not within the statute. The doctrine 
 of this case can only be sustained upon the ground that such 
 advertisement operated as an assumption by the stockholders 
 of the indebtedness of the corporation upon a sufficient con- 
 sideration, and that thereafter credit was given to them, rather 
 than to the corporation, by the bill-holders and those to whom 
 the bills were passed. In a Pennsylvania case,^ where the 
 directors of a corporation transferred part of their stock, and 
 resigned their directorship, that their transferees might be 
 elected in their stead ; and the transferees verbally promised, 
 in consideration therefor, to pay the debts of the corporation, 
 it was held that such promise was within the statute of frauds, 
 and could not be enforced. In Maine, a contract made by on^ 
 of a committee of five, chosen by a parish to build a church 
 in the name of the whole, is not binding on the corporation, 
 and therefore not upon the other contracting party. And 
 he having entered upon the performance, if other members 
 of the parish agree in writing to secure to him the payment 
 of the amount of his contract, according to its terms, one- 
 half when he shall have completed the work, and the balance 
 in sixty days thereafter, this is an original and not a collateral 
 promise. The labor to be performed in completing the work 
 is a sufficient consideration.' 
 
 1 Tarbell v. Stevens, 7 Iowa, 163. 
 
 2 Maule V. Bucknell, 50 Penu. St. 39. 
 ' Adams v. Hill, 16 Me. 216. 
 
CHAPTER V. 
 
 AGEEBMENT HT CONSIDEEATION OF MAKEIAGE. 
 
 SECTION. 
 
 169. Promise to Marry not Within the Statute. 
 
 170. Consideration for Promise Need not be Expressed. 
 
 171. Memorandum Must be Complete. 
 
 172. Bond. 
 
 173. May be Proved by Letters. 
 
 174. Marriage not Part Performance. 
 
 175. Part Performance Independent of Marriage. 
 
 176. Eepresentations of Third Party Referring to Marriage. 
 
 177. By Whom Enforced. 
 
 178. Representation Must be Clear. 
 
 179. Parol Evidence Admissible to Prove Promise. 
 
 180. Marriage Cannot take Place on Faith of Representation. 
 
 181. Party Making, Refusing to be Bound. 
 
 182. Expression of Wish by Husband. 
 
 183. False Representations of Fact. 
 
 184. Fraud not Allowed to be Covered by the Statute. 
 
 185. Written Agreement after Marriage. 
 
 186. Not Revocable. 
 
 187. Time of Performance. 
 
 188. Post-nuptial Settlement. 
 
 189. Promise must be Absolute. 
 
 Section 169. Promise to Marry not Within the Statute. — 
 
 Mere promises to marry are not within the statute, and need 
 not be reduced into writiag in order to be binding,^ but may 
 be made by parol,^ unless it appears that it was expressly agreed 
 that the contract is not to be performed in one year^ in which 
 case it clearly comes within the statute relating to that class 
 of contracts, and evidence is admissible to show whether the 
 contract was or was* not to be performed within one year,* 
 
 1 Harrison «. Cage, Ld. Raym. 386 ; » Derby v. Phelps, 2 N. H. 515 ; 
 Salk. 24 ; 5 Mod. 411 ; Cock v. Baker, Lawrence v. Cook, 56 Me. 193 ; Nichols 
 Str. 34. V. Weaver, 7 Kan. 373. 
 
 2 Taylor on Evid. 909; B. N. P. < Wallace, D. J., in XJUman o. 
 280 c; 2 Sel. N. P.; Cock v. Baker, 1 Meyer, XJ. S. C. C. {S. D. N. Y.), of 
 Str. 34 ; Harrison v. Cage, 1 Ld. Raym. whose opinion an abstract is given in 
 386 ; Short v. Statts, 58 Ind. 29. Alb. L. J., No. 631, p. 164, says : " As 
 
312 
 
 STATUTE OF PEATJDS. 
 
 [chap. T. 
 
 and if not, there seems to be no good reason why the statute 
 should not apply to this as well as to other contracts, the 
 rule being that this clause of the statute applies to all agree- 
 ments where each party stipulates to do something, as well 
 as to contracts to pay money.^ But the rule being that if 
 the contract may be performed within a year it is not within 
 the statute unless there is an express agreement that it shall 
 not be performed within that time,^ it is clear that this clause 
 does not apply to this class of contracts, unless an express 
 
 an original proposition, it may be de- 
 bated whetlier the statute of frauds 
 was ever intended to apply to agree- 
 ments to marry. They are agreements 
 of a private and confidential nature, 
 which in countries where the common 
 law prevails, are usually proved by 
 circumstantial evidence ; and at the 
 time the English statute was passed, 
 were not actionable at law, but were 
 the subjects of proceedings in the 
 ecclesiastical courts to compel per- 
 formance of them. Nevertheless, at 
 an early day after such actions be- 
 came cognizable in courts of law, the 
 defence of the statute of frauds was 
 interposed under that clause of the 
 statute which denies a right of action 
 upon any agreement made upon con- 
 sideration of marriage, unless the 
 agreement is in writing ; and though 
 it was held that such clause only re- 
 lated to marriage settlements, there 
 seems to have been no doubt in the 
 minds of the judges that promises to 
 marry were within the general pur- 
 view of the statute. In our own 
 country, in Derby v. Phelps, 2 N. H. 
 515, the question was directly decided, 
 and it was held that, although the de- 
 fence could not be maintained under 
 the marriage clause of the statute, it 
 was tenable under the clause requiring 
 all agreements not to be performed 
 within a year to be in writing. To the 
 same effect are Nichols v. "Weaver, 7 
 Kan. 373, and Lawrence v. Cook, 56 
 Me. 193. The question has never 
 been presented in our own State, and 
 the ruling upon the trial was made 
 under the impression that the excep- 
 tion in the third clause of our statute 
 
 was meaningless, unless intended to 
 relate to all the clauses. It was en- 
 tirely unnecessary, if limited to the 
 particular clause in which it is placed, 
 because, by the settled construction 
 of the statute, the clause did not ap- 
 ply to excepted classes of promises. 
 1 Ld. Eaym. 387; 1 Str. 35. When 
 English statutes — such as the statute 
 of frauds — have been adopted into 
 our own legislation, the known and 
 settled construction of these statutes 
 has been considered as silently incor- 
 porated into the acts. Pennock v. 
 Dialogue, 2 Pet. (U. S.) 1. A more 
 careful examination has satisfied me 
 that the only purpose of inserting the 
 exception was by way of explanation, 
 and to remove any doubt as to the 
 meaning of the clause by incorpo- 
 rating into it expressly what would 
 otherwise have been left to implica- 
 tion. While the letters of the parties 
 show a marriage engagement, the terms 
 of the engagement and the time of the 
 marriage are not indicated sufficiently 
 to take the case out of the statute. 
 The evidence offered to show that the 
 promise of the defendant was not by 
 its terms to be performed within a 
 year was sufficient to present a ques- 
 tion of fact for the jury. As this 
 question was withdrawn from their 
 consideration, there must be a new 
 trial." 
 
 1 Cabot V. Hoskins, 3 Pick. (Mass.) 
 83 ; Lapham W.Whipple, 8 Met. (Mass. ) 
 50. 
 
 ^ Moore v. Fox, 10 John. (N. Y.) 
 244 ; Dresser v. Dresser, 35 Barb. (N. 
 Y.) 573. 
 
SEC. 169.] CONSIDERATION OF IfAREIAGB. 313 
 
 offreement that it shall not be performed in one year is shown, 
 and the fact that the marriage is not to transpire until the 
 happening of a certain event which it is not expected will 
 happen within a year does not bring it within the statute. 
 Thus in a Connecticut case,^ the plaintiff in her declara- 
 tion in one count set up a contract to marry, entered 
 into between herself and the defendant on the first day 
 of June, 1846, by which the defendant promised to marry 
 her upon his return &om a whaling voyage, which it was 
 expected would occupy about eighteen months. It was 
 insisted by the defendant that the promise alleged in this 
 count was within the statute of frauds, and the trial judge 
 charged the jury that it was so, unless they should find that 
 there had been a previous mutual contract to marry, without 
 any specification as to the time of its performance, which was 
 afterwards postponed until the defendant returned from his 
 voyage. But the court held that, while the charge of the 
 court was otherwise correct, yet it was erroneous as to the 
 contract being within the statute of frauds, if only as stated 
 in the count referred to. Storks, J., saying : " We think 
 that part of it was erroneous, in which the jury were in- 
 structed, that the contract, as stated in the second and tliird 
 counts, was within the statute of frauds, and therefore must 
 be in writing. It is now well settled, that it was not an 
 agreement made upon consideration of marriage within that 
 statute.^ Nor, in our opinion, is the agreement, as alleged 
 in those counts, one which, by the true construction of that 
 statute, was not to be performed within one year from the 
 making thereof. It is not alleged in any form, that it was 
 made with reference to, or that its performance was to depend 
 on, the termination of a voyage which would necessarily occupy 
 that time. It is only alleged, that it was expected by the 
 parties, thai the defendant would be absent for the period of 
 eighteen manths. But this expectation, which was only an 
 opinion or belief of the parties, and the mental result of their 
 private thoughts, constituted no part of the agreement itself ; 
 nor was it connected with it, so as to explain or give a con- 
 struction to it, although it naturally would, and probably 
 
 1 Clark V. Pendleton, 20 Conn. » Cock v. Baker, Bui. N. P. 280; 
 496. S. C. 1 Str. 34. 
 
314 STATXTTB OF FRAUDS. [CHAP. V. 
 
 did, form one of the motives which induced them to make the 
 agreement. The thing thus anticipated did not enter into 
 the contract, as one of its terms; and according to it, as 
 stated, the defendant, wheneyer he should have returned, 
 after having embarked on the voyage, whether, before or 
 after the time during which it was thus expected to continue, 
 would be under an obligation to perform his contract, with 
 the plaintiff. As it does not therefore appear, by its terms, 
 as stated, that it was not to be performed within a year from 
 the time when it was made, it is not within, the statute.^ 
 It is unnecessary for us to determine what would be the 
 effect of proof that the event, upon which the performance 
 of a verbal contract depended, could not hy possibility take 
 place within a year from the making thereof, when it did not 
 appear from the contract itself that it was not to be performed 
 within that time ; because there was no claim, in the present 
 case, which raised that point." 
 
 The contracts contemplated by this clause of the statute are 
 those which are made in consideration of the marriage itself, 
 and contracts merely in comtemplation or expectation of marriage 
 are not within the statute.^ This distinction is illustrated by 
 several well considered American cases. Thus in an Indiana 
 case,^ a husband and wife, having orally agreed before mar- 
 riage that the survivor, after marriage, should not claim any 
 of the estate left by the decedent; in an action by the 
 widow against the husband's administrator to recover the 
 statutorj-^ allowance to a widow out of a deceased husband's 
 estate, it was held that the agreement was not within the 
 statute, so far as it related to provisions in consideration of 
 marriage, but otherwise as to the provisions of the statute 
 relating to sales of real estate; but that the agreement 
 not being severable, could not be enforced against the widow. 
 In a Connecticut case,* it appeared that the parties on the eve 
 of marriage agreed that certain notes which Mrs. Riley, then 
 single, held against Mr. Riley should not be extinguished by 
 
 1 Anon., 1 Salk. 280; 1 Ld. Kaym. ^ Lassence v. Tierney, 1 Mao. & G. 
 
 316 ; Holt. 326 ; Peter v. Compton, 551 ; Warden v. Jones, 2 De G. & J. 
 
 Skin. 353 ; Fenton v. Emblers, 3 Burr. 76 ; aff'g S. C. 23 Beav. 487. 
 1278; Moore v. Fox, 10 John. (N. Y.) » Rainbolt v. East, 56 ifnd. 538; 26 
 
 244; Peters v. Westborough, 19 Pick. Am. Rep. 40; ChUd v. Pearl, 43 Vt. 
 
 (Mass.) 364 ; Wells v. Horton, 4 Bing. 224. 
 40; Linscott v. Mclntire, 15 Me. 201. * Eiley v. Riley, 25 Conn. 154. 
 
SEC. 169.] CONSIDEBATION OF MAr.EIAQE. 316 
 
 the marriage, but should remain her separate property, col- 
 lectible out of his estate, if she would forbear to insist on 
 their payment before marriage. In delivering the opinion 
 of the court, Ellsworth, J., says : " As to the objection 
 derived from the statute of frauds and perjuries, we think 
 there is no ground for it. The ante-nuptial promise was made 
 in consideration of forhearance, and not in consideration of mar- 
 riage, though it was made in contemplation of marriage, 
 which is not inconsistent with the claim of the appellant's 
 counsel, that a promise in consideration of marriage must be 
 in writing. Marriage was not the meritorious cause of Riley^s 
 promise, the marriage obligation was aUeady perfect, and the 
 promise in question was made upon the assumption that it was 
 so, and for the exact purpose of saving the notes from the effect 
 of the marriage when the marriage contract should be executed. 
 No advancement or benefit was to accrue to either party in the 
 event of the marriage, any more than if it did not take place, 
 and hence it is not possible to consider marriage as the con- 
 sideration of the promise. It was the debt, the forbearance 
 of it ; and this forbearance having been extended upon the 
 request of Riley, there is no reason why his estate should not 
 be liable." But where the marriage is the sole consideration 
 of the contract, it is within the statute, whether made between 
 the parties themselves, or a third person.^ Thus in Brown 
 V. Conger,^ it appeared that it was mutually agreed between 
 the plaintiff and one Isaac C. Brown, that in consideration 
 that the plaintiff would marry him, he would give her one- 
 third of all his property of every kind, which he represented 
 to be of the value of $13,000. The plaintiff in pursuance of 
 such contract married Brown and' lived with him until the 
 time of his death, and Brown not having performed his part 
 of the contract in his lifetime, or made provision therefor in 
 his will, a bill for specific performance was brought against 
 the executor of his estate ; but the court held that, as the corir 
 tract was made upon the consideration of marriage solely, it was 
 void, and that marriage is not alone such a part performance 
 as will take it out of the statute.^ 
 
 1 Jorden v. Money, 5 H. L. C. 207 ; re Willougliby, 11 Paige Ch. (N. T.) 
 
 Brenner v. Brenner, 48 Ind. 202; Dy- 257. 
 gert V. Kemershnider, 32 N. Y. 029; = 8 Hun (N. Y.) 625. 
 
 Henry v. Henry, 27 Ohio St. 121; in = Dung v. Parker, 52 N. Y. 496. 
 
316 STATtTTE OF PBATJDS. [CHAP, V. 
 
 Sec. 170. Consideration for Promise Need not be Expressed. 
 — Marriage is a good consideration to support a promise, but 
 it is not necessary that the agreement should expressly state 
 that the promise was made in consideration of marriage, if 
 from the evidence it is sufficiently proved that such was the con- 
 sideration.^ Thus, where A being about to marry B, the 
 uncle of A addressed him by letter as follows : " I am glad 
 to hear of your intended marriage with B, and, as I promised 
 to assist you at starting, I am happy to tell you that I will 
 pay you ^150 yearly during my life, and until your annual 
 income derived from your profession shall amount to 600 
 guineas, of which ypur own admission will be the only evi- 
 dence that I shall receive or require," and the husband's 
 income never amounted to 600 guineas, it was held that the 
 letter contained a good consideration to support an action 
 against the executors of the uncle for arrears of the 
 annuity.^ 
 
 Sec. 171. Memorandum Must be Complete. — The memo- 
 randum need not be of a formal character, but it must be 
 complete in itself, or specific performance will not be decreed.^ 
 " Part performance, to take a case out of the statute of frauds, 
 always supposes a complete agreement. There can be no 
 part performance where there is no completed agreement in 
 existence. It must be obligatory, and what is done must be 
 under the terms of the agreement, and by force of the agree- 
 ment." * 
 
 The putting a deed into the hands of a solicitor with 
 instructions to prepare a conveyance is not enough to take 
 a parol agreement out of the statute.^ Where, previously to 
 an intended marriage, the intended husband gave instructions 
 in his own handwriting for a settlement, which was prepared 
 but not executed, it was held that there was no memorandum 
 within the statute.® 
 
 1 Hammersley v. De Biel, 12 C. & ^ Bawdes v. Amhurst, Prec. Ch. 
 F. 45. 402 ; Montacute v. Maxwell, 1 P. "Wms. 
 
 2 Shadwell .,. Shadwell, 7 Jur. (N. 618 ; 1 Str. 236 ; Eedding v. Wilkes, 3 
 S.) 311; and see Saunders v. Cramer, Bro. C. C. 400. 
 
 3 Dr. & War. 87. e Caton v. Caton, L. E. 1 Ch. 137 ; 
 
 s Watson's Comp. of Eq. 551. affd. ib. 2 H. L. 127 ; and see post, 
 
 * Lady Tliynne v. E. of Glengall, chapter on the memorandum or note 
 
 2 H. L. C. 158, per Loed Bkotigham. of the contract. 
 
SEO. 173.] CONSrOEEATION OF MARRIAGE. 
 
 317 
 
 Sec. 172. Bona. — Where a bond or deed is given, either 
 by the intended husband to his intended wife, or vice versa, 
 it may, though suspended during the marriage, be specifically 
 enforced after the death of the covenantor by the covenantee.^ 
 
 Where a man, by deed, covenanted to pay a woman an 
 annuity for her life, payable half-yearly, for her separate use, 
 and free from anticipation, and afterwards married the annui- 
 tant, and died leaving her surviving, it was held that the 
 annuity was not extinguished, but only suspended by the 
 marriage, and that the widow was entitled to recover arrears 
 accrued subsequently to the death of her husband.^ 
 
 Sec. 173. May be Proved by Letters. — The promise may 
 be made by letters ^ though written to a third person,* and a 
 
 1 Acton V. Peirce, 2 Vern. 480; 
 Cannel v. Buckle, 2 P. Wms. 243. 
 
 2 Fitzgerald o. Fitzgerald, L. E. 2 
 P. C. 83. 
 
 3 Wankford v. Fotherley, 2 Ver. 
 322 ; Luders v. Anstey, 4 Ves. 501 ; 5 
 Ves. 213. 
 
 * Moore v. Hart, 1 Ver. 110, 200. 
 In Seagood v. Meale, Prec. Ch. 560, 
 some stress was laid upon the opera- 
 tion of the letter, as an encouragement 
 to the party to marry ; and in the case 
 of Ayliffe v. Tracy, 2 P. Wms. 65, this 
 operation as influencing the intended 
 husband to conclude the match, was con- 
 sidered as necessary to the obligatory 
 effect of the letter, within the statute of 
 frauds. The case was as follows : The 
 plaintiff courted one of the daughters 
 of Sir Thomas Halsewood, and treated 
 with the father about the marriage; 
 the father consented to the marriage, 
 and wrote to his daughter intimating 
 that he had met the plaintiff, Mr. Ay- 
 liile, and had agreed to give him as a 
 portion £3,000, which the plaintiff (he 
 said) seemed fully to assent to, and 
 that they were to meet the next day, 
 when the affair was to be fully con- 
 cluded; and subscribed his name to 
 the letter. Accordingly, the father 
 and intended husband met and agreed 
 to the marriage, and the father gave 
 money to the daughter to buy her 
 wedding clothes, and the wedding-day 
 
 having been appointed, the father 
 died before that day, having made his 
 will long before this treaty for the 
 marriage, and given his daughter only 
 £2,000, the daughter did not show this 
 letter to her intended husband, whom 
 she afterwards married; and the £2,000 
 was paid to the plaintiff, the husband, 
 but he made no settlement, nor was 
 he required to make any on his wife. 
 The LoED Chancellor was of opinion, 
 that these circumstances amounted to 
 nothing more than a mere communi- 
 cation, and had no ingredient of 
 equity ; the husband, his lordship said, 
 had made no settlement ; he did not 
 know of this letter, it being written to 
 his daughter; and that, therefore, he 
 could not be supposed to have married 
 in confidence of this letter; that he 
 had accepted the £2,000 legacy as the 
 portion, and at that time had de- 
 manded no more ; and that the other 
 daughter had but £1,500 portion. See 
 this case very differently reported in 
 9 Mod. 3. Upon a somewhat similar 
 principle, where an uncle by letter 
 promised his niece £1,000 portion, but 
 in the same letter dissuaded her from 
 marrying the person intended, the Lords 
 Commissioners, Rawlinson and Hutch- 
 ins, Vern. 202, would not decree the 
 payment, but left the plaintiff to his 
 action at law. Douglass v. Vincent, 2 
 Vern. 202. But it is not so easy to 
 
318 
 
 STATUTE OF FRAUDS. 
 
 [chap. V. 
 
 written promise which has been subsequently revoked does 
 not require a memorandum or note in writing to revive it, 
 
 account for the determination by the 
 same judges in the same term in the 
 case of Cookes v. Mascall, 2 Vern. 200, 
 which ease was as follows : A marriage 
 was in treaty between the plaintiff 
 Cookes and the defendant Mascall's 
 daughter, it being intended that Sir 
 Thomas Cookes would make a consid- 
 erable settlement on the plaintiff, his 
 kinsman; proposals were made for 
 mutual settlements, and it was there- 
 by agreed that Mascall should settle 
 £iO per annum for the present, and 
 that Edward Cookes, the father, should 
 settle the reversion of his estate at 
 Wick, after the death of him and his 
 wife, and should allow his son £20 per 
 annum for maintenance in the mean- 
 time, and Mascall was to settle rever- 
 sions of copyholds after the death of 
 himself and his wife, of the value of 
 £80 per annum. In 1684, a meeting 
 was appointed, and held at Worcester, 
 in order to a full agreement ; the pro- 
 posals were then considered, and all 
 parties seemed to allow and approve 
 thereof. In October, 1684, Cookes, 
 the father, with one Baker, an attor- 
 ney, came over to Mascall's house at 
 Fordebigg, in order to make a final 
 arrangement touching the settlement 
 to be made on the intended marriage. 
 Mr. Baker having conversed with both 
 parties, proceeded to draw the agree- 
 ment into articles in writing to be 
 mutually signed by the parties; but 
 before the same were ready for execu- 
 tion, Mascall and Cookes disagreed; 
 and Mascall by his answer swore posi- 
 tively, that upon reflecting that Sir 
 Thomas Cookes had refused to make 
 any settlement on his kinsman, as it 
 was pretended he would, and that 
 Cookes the father also refused to set- 
 tle a further estate upon the plaintiff, 
 to answer the reversion that Mascall 
 was to settle, expectant on the death 
 of his mother, he refused to proceed 
 any further, in order to perfect the 
 agreement, and never signed it. But 
 Cookes put up what Baker had writ- 
 
 ten into his pocket, and so they parted, 
 and had no further meeting nor treaty ; 
 but Cookes the father swore, that after 
 the articles were drawn, they were 
 read over and agreed to, and that 
 Mascall promised to meet at another 
 time to execute; that young Cookes 
 was afterwards permitted to come to 
 Mascall's house, and in December, 
 1684, married his daughter, Mascall 
 being privy to it, helping to set them 
 forwards in the morning, and enter- 
 taining them, and seeming well pleased 
 with the marriage, upon their return 
 to his house at night. Upon this case, 
 Cookes the father, having by his an- 
 swer offered to perform the agreement 
 on his part, the court thought Jit to 
 decree Mascall also to perform the 
 agreement, according to what was con- 
 tained in the writing drawn by Baker, 
 though it was not signed by Mascall, 
 as was intended it should have been, 
 nor any other agreement reduced into 
 writing. In Montacute v. Maxwell, 1 
 P. Wms. 618, the plaintiff brought a 
 bill against the defendant her hus- 
 , band, setting forth that the defendant, 
 before her intermarriage with him, 
 did promise that she should enjoy all 
 her own estate to her separate use, 
 that he had agreed to execute writ- 
 ings to that purpose, and had in- 
 structed counsel to draw such writings, 
 and that when they were to be married, 
 the writings not being. perfected, the 
 defendant desired this might not delay 
 the match, in regard his friends being 
 there, it might shame him; but en- 
 gaged upon his honor she should have 
 the same advantage of the agreement 
 as if it was in writing, drawn in form 
 by counsel, and executed ; upon which 
 the marriage took effect, and after- 
 wards the plaintiff wrote a letter to 
 the defendant, her husband, putting 
 him in mind of his promise, to which 
 the defendant her husband wrote her 
 an answer under his hand, expressing 
 that he was always willing she should 
 enjoy her own fortune, as if sole, and 
 
SEC. 173.] CONSIDEEATION OF MARBIAGB. 
 
 319 
 
 but it may be revived by parol.^ In the case last cited the 
 father wrote a letter signifying his assent to the marriage of 
 
 1 Bird V. Blosse, 2 Vent. 361. 
 
 that it should be at her command. To 
 this bill the defendant pleaded the 
 statute of frauds, and averred that he 
 never signed any promise or agree- 
 ment before marriage, for her enjoy- 
 ing any part of her estate separately, 
 which he pleaded in bar of any relief 
 or discovery. It was urged against 
 this plea, that the promise was on the 
 plaintifi's side, executed by her inter- 
 marriage ; and was, therefore, like the 
 several cases in which equity did re- 
 lieve and compel a mutual execution ; 
 that the letter written by the defend- 
 ant, though after marriage, was an 
 evidence under his hand of the agree- 
 ment before the marriage, and so took 
 it out of the statute. On the other 
 side, it was said that the express words 
 of the statute made all such promises 
 in consideration of marriage void, 
 unless they were in writing, signed by 
 the parties ; and that there was the 
 greatest reason for it, since in no case 
 could there be supposed so many un- 
 guarded expressions and promises used 
 as in addresses in order to marriage, 
 where many passages of gallantry 
 usually occur, and it was therefore 
 provided by the statute, that all prom- 
 ises made in consideration of mar- 
 riage should be void unless signed by 
 the party. That it was very wrong to 
 call marriage the execution of the 
 promise, when until the marriage it 
 was not within the statute; and the 
 statute makes the promise in consid- 
 eration of marriage void; therefore, 
 to say that the marriage was an exe- 
 cution which should render the prom- 
 ise good, was quite frustrating the 
 statute ; which the court took notice 
 of and approved. And the Lord 
 Chancellor declared, that in cases 
 of fraud, equity should relieve, even 
 against the words of the statute ; as 
 if one agreement in writing should 
 be proposed and drawn, and another 
 fraudulently and secretly brought in 
 and executed in lieu of the former; 
 
 in this, or such like cases of fraud, 
 equity would relieve ; but when, as in 
 the case before iiim, there was no 
 fraud, but only a reliance upon the 
 honor, word, or promise of a party, 
 the statute making those promises 
 void, equity would not interfere ; nor 
 were the instructions given to counsel 
 for preparing the writings material, 
 since after they were drawn and en- 
 grossed, the parties might refuse to 
 execute them, and as to the letter, it 
 consisted only of general expressions, 
 as " that the estate should be at the 
 plaintiffs command, or at her service : 
 indeed, had it recited or mentioned the 
 former agreement, and promised the 
 performance thereof, it had been mate- 
 rial; but as this case was circum- 
 stanced, the plea should be allowed : 
 and as the plea was in bar of a discov- 
 ery as to all matters, which if discov- 
 ered and admitted might be barred by 
 the statute, so far might the statute 
 be pleaded in bar of such discovery. 
 But according to the report of the 
 same case in Strange, 1 Str. 236, the 
 plaintiff afterwards amended her bill, 
 by further charging that in order to 
 induce her to marry him, without a 
 previous settlement, and to secure the 
 performance of his promise in execut- 
 ing it afterwards, the husband had 
 promised to take the sacrament on it, 
 and that he did take the sacrament on 
 the marriage accordingly. That after 
 the marriage he wrote a letter, where- 
 in he promised to make such settle- 
 ment, and that he was ready to sign 
 the writings, according to her desire. 
 To this he confessed that he did take 
 the sacrament, but said he did it only 
 in compliance with a custom estab- 
 lished in the parish church (of which 
 he was a member) of receiving the 
 sacrament on their marriages, and not 
 to give any sanction to this pretended 
 agreement: and as to the letter, that 
 he did not remember the particulars ; 
 but if he had written any thing con- 
 
320 
 
 STATUTE OF FEAT7DS. 
 
 [chap. V. 
 
 his daughter with J S, and that he would give her ,£1,500, 
 and afterward by another letter, upon a further treaty concern- 
 
 cerning his readiness to sign any writ- 
 ings, it only related to some proposals 
 he had made of settling a sum of 
 il,500 on her, and which he did soon 
 after sign. He then pleaded the stat- 
 ute of frauds and perjuries again. 
 But the LoKD Chancellok was of 
 opinion that the case was very much 
 altered by these new circumstances. 
 That at first it stood purely on the 
 parol promise before marriage ; upon 
 which there was no color to relieve the 
 plaintiff. But that such parol promise 
 on marriage was a sufficient consider- 
 ation to support a settlement made 
 agreeable to it after marriage. That 
 this has been frequently determined ; 
 that it was also a sufficient considera- 
 tion to establish a promise made in 
 writing after marriage : Reade v. Liv- 
 ingston, 3 Johns. Ch. (N. Y.) 481; 
 Argenbright v. Campbell, 3 H. & M. 
 (Va.) 144; Chichester «. Vass, 1 Munf. 
 (Va.) 98; that there was great evi- 
 dence of such a promise made in writ- 
 ing after marriage ; the defendant did 
 not deny his writing, but declared 
 himself ready to execute the writings 
 as she desired ; he avoided it, however, 
 by saying that they referred to pro- 
 posals of settling £1,500, which was 
 impossible, because it appeared that 
 she never desired any such settlement. 
 And though he had said he had signed 
 that settlement, it did not appear when 
 he did it; and his lordship was very 
 suspicious that he had done it since 
 the amended bill. His answer to the 
 charge of receiving the sacrament, in 
 confirmation of his promise, was not 
 at all satisfactory. He could have no 
 occasion to promise receiving the sac- 
 rament, but on that account; and 
 though he might receive it in compli- 
 ance with the custom of his church, 
 yet that was very consistent with his 
 laying hold of that solemn act of de- 
 votion, to testify his sincerity. The 
 plea was ordered to stand for an 
 answer. 
 According to the report of the same 
 
 case in Eq. Ca. Abr. (1 Eq. Abr. 19), 
 the husband privately countermanded 
 the instructions given by him for draw- 
 ing the settlement, and then drew in 
 Lady Montacute to marry him, and 
 from the loose statement in Precedents 
 in Chancery (Prec. in Chan. 526), it 
 seems that some such decided act of 
 fraud was imputable to the defendant. 
 Eor the Chancellor is there repre- 
 sented to have said, that if the par- 
 ties rely wholly upon the parol agree- 
 ment, neither party can compel the 
 other to the specific performance, for 
 the statute of frauds is directly in 
 their way. But that if there is any 
 agreement for reducing the same into 
 writing, and that is prevented by the 
 fraud and practice of the other party, 
 this court will, in such case, give re- 
 lief ; as where instructions are given, 
 and preparations made for the draw- 
 ing of a marriage settlement; and 
 before the completion thereof the 
 woman is drawn, by the assurances 
 and promises of the man to perform 
 it, to marry without a settlement. 
 
 We perceive in this case, under the 
 different views which the books give 
 us of it, an anxiety in the court to 
 prevent the statute from being ener- 
 vated by dangerous exceptions; and 
 we must regard the decision as wholly 
 proceeding on the proof of actual 
 fraud. It was fully seen that if the 
 marriage could be considered as an 
 execution of the contract, to take the 
 case out of the statute, this clause of 
 the statute would be made a perfect 
 nullity. For it is clear that the com- 
 pulsory execution of the supposed 
 agreement could never be called for 
 in equity, until the marriage, which 
 was the only consideration of making 
 it, and without which it could have 
 no application, was celebrated, so 
 that if the celebration of the mar- 
 riage were an answer to the statute, 
 the clause could never be enforced, 
 since the exceptions out of it would 
 always arise, together with the occa- 
 
SEC. 173.] CONSIDEKATION OF MAEEIAGE. 
 
 321 
 
 ing the marriage, receded from the proposals of his first 
 letter, but at a later time he declared that he would agree to 
 
 sions for its application. In a case 
 determined a few years afterwards 
 (Sansum v. Butter, 1 Bac. Abr. 119), 
 the same doctrine on this subject was 
 maintained. On the marriage of the 
 plaintiff with the defendant's daugh- 
 ter, the defendant promised to give 
 her £450 portion, and accordingly 
 paid the plaintiff £200 in part, but 
 took a bond from him for it, till u 
 suitable settlement should be made, 
 and the defendant himself gave par- 
 ticular directions conceriiing the set- 
 tlement, which was drawn accord- 
 ingly and engrossed; but before it 
 was executed, the plaintiff's wife died, 
 and the bill was brought to have the 
 £200 bond deliyered up, and the re- 
 maining part of the portion paid ; the 
 defendant pleaded the statute of 
 frauds and perjuries, the agreement 
 not having been reduced to writing, 
 and signed by the parties ; and by way 
 of answer denied that the £200 was 
 paid in part of the portion, but said 
 that it was lent to the plaintiff, and 
 that the bond was given for securing 
 the re-payment. The plea was allowed, 
 notwithstanding it had been insisted 
 that the agreement was executed by 
 the marriage ; for that if the marriage 
 should be looked upon as an execu- 
 tion of the agreement on one side, so 
 as to take the case out of the statute, 
 it would entirely evade it ; for that all 
 promises of this kind suppose a mar- 
 riage either already had, or to be had. 
 The authority of these cases, and the 
 rational groimds on which they pro- 
 ceeded, seem not to have been broken 
 in upon, even at times when the doc- 
 trine of part performance has been 
 most favorably received by the courts, 
 and may now, it is conceived, be con- 
 sidered as out of controversy. But 
 though these parol promises, made 
 before and in consideration of mar- 
 riage, fall obviously within the stat- 
 ute of frauds, and as the authorities 
 decisively show; ought not to be taken 
 out of it, by any evidence in proof of 
 
 their solemnity and repetition, or by 
 the preparations made, or directions 
 given, for carrying them to their 
 accomplishment, or by the consequen- 
 tial fact of the marriage; yet it ap- 
 pears from the expressions of Lokd 
 Chancbllok Parker, in the above 
 case of Montaoute v. Maxwell, as re- 
 ported in Strange, that a verbal prom- 
 ise on marriage is a sufficient consid- 
 eration to support a settlement made 
 agreeable to it after marriage. And 
 his lordship added, that it had been 
 frequently so determined. The indul- 
 gent inclination of the courts of 
 equity towards these settlements after 
 marriage has carried them a great 
 way ; for the inference from this doc- 
 trine is, that the consideration for 
 these settlements after marriage, de- 
 rived from the existence of these 
 prior agreements, does not depend 
 upon the legal obligation to the per- 
 formance of these agreements, since 
 the statute has made them remediless. 
 Substantively, they have no validity, 
 but in this auxiliary light they are 
 capable of giving validity to what 
 would be incapable of standing alone 
 against the claims of creditors or pur- 
 chasers provided the verbal promises 
 proved, and the settlement made dis- 
 cover a clear correspondence. In a 
 case, indeed, in which there was a 
 double infirmity in the promise made 
 before marriage, the same effect was 
 given to it. In Lavender u. Black- 
 stone, 2 Lev. 146, a promise made by 
 an infant on his marriage to settle his 
 estate when of age, was held a suffi- 
 cient consideration to support the set- 
 tlement after marriage made in pur- 
 suance of such promise. And in the 
 late case of Dundas v. Dutens, 1 Vez. 
 Jun. 196 ; and see Pitcaim v. Ogbourne, 
 2 Vez. 375 ; also Shaw v. Jakeman, 4 . 
 East,201,the Chancellor was of opin- 
 ion in favor of the settlement against 
 the husband's creditors, notwithstand- 
 ing it was urged at the bar and admit-' 
 ted by the court, that a parol agree- 
 
322 STATUTE OF PEAUDS. [CHAP. V. 
 
 what was proposed in his first letter, and the letter was held 
 a sufficient promise in writing, and that his last declaration 
 had set up the terms of the first letter again. 
 
 Sec. 174. Marriage is not Part Performance. — Marriage 
 alone does not amount to an act of part performance, so as to 
 take a parol contract, entered into before and made in consid- 
 eration of the marriage, out of the statute.^ If it were so, 
 there would be an end of the statute, which says that a 
 contract in consideration of marriage will not be binding 
 unless it be in writing. But if marriage were to be consid- 
 ered as part performance, every parol contract followed by 
 marriage would be binding.^ While equity will lend its aid 
 to a party to defeat a fraud notwithstanding the statute of 
 fi'auds, yet in order to induce such aid something more than 
 a merely moral wrong must be established. Lokd Mans- 
 field, in an English case ^ in which a bill was brought to 
 secure the specific performance of a contract made by the 
 defendant who was about to marry, that his wife should enjoy 
 all her own estate to her separate use after the marriage, in 
 refusing the aid of the court, said: "In cases of fraud equity 
 should relieve, even against the words of the statute, as if one 
 agreement in writing should be proposed and drawn, and 
 another fraudulently and secretly brought in and executed 
 in lieu of the former ; in this and such like cases of fraud 
 equity would relieve, but where there is no fraud, only relying 
 upon the honor, word, or promise of the defendant, the statute 
 making those promises void, equity will not interfere." 
 
 ment previous to marriage is abso- Jones, 23 Beav. 487 ; affd. 2 De G. & J. 
 
 lutely void, and that a subsequent 76; Cooper K.Wormald, 27 Beav. 266; 
 
 marriage is not a part execution of Caton v. Caton, L. E. 1 Ch. 137 ; ib. 
 
 such an agreement to take it out of 2 H. L. 127. In Jeston v. Key, L. E. 
 
 the statute of frauds and perjuries. 6 Ch. 613, Mellish, L. J., said : " There 
 
 Eoberts on Frauds, 190-200. was a marriage contract between the 
 
 1 Montacute v. Maxwell, 1 P. Wms. husband and the wife's father. They 
 620. both agreed to make a settlement, and 
 
 2 Brown v. Conger,'8 Hun (TS. Y.) this agreement was not performed by 
 625 ; Montacute v. Maxwell, 1 P. Wms. either party. But the contract was 
 618; 2 Cox, 236; Bedding v. Wilks, 3 partly performed by the marriage." Tliis, 
 Bro. C. C. 400; Dundas <i. Dutens, 1 however, is, it is submitted, .inconsis- 
 Ves. J. 199 ; 2 Cox, 240. tent with the above cases, none of 
 
 ' Lassence v. Tiemey, 1 Mac. & G. which were referred to in argument, 
 
 572 ; 2 H. & T. 135, per Lord Ckan- and the case itself did not turn upon 
 
 WOKTH, L. C. ; see also Ilammersley j). any parol promise in consideration of 
 
 De Biel, 12 C. & F. 45; "Warden v. marriage. 
 
SEC. 175.] CONSIDEEATION OF MARRIAGE. 323 
 
 Sec. 17o. Part Performance Independently of Marriage. — 
 There is a distinction between the cases in which there is no 
 part performance except by the marriage and those where there 
 is part performance independently of the marriage, as where a 
 contract to settle property is carried out. In the latter the 
 part performance may be such as to take the case out of the 
 statute.^ In order to bring a case within the rule it must be 
 proTcd that the parol contract which it is sought to enforce 
 formed part of the general arrangement on which the marriage 
 took place, and was not a separate transaction.^ In this class 
 of cases the courts are not inclined to scrutinize these ancil- 
 lary acts with much severity, or require that they should in 
 themselves be of much importance.* Where, previously to the 
 defendant's marriage, it was agreed that £500, the property of 
 the wife, should be settled upon her, and the marriage took place 
 before the settlement was executed, but afterwards a draft 
 settlement was prepared of which the husband approved, and 
 on which he acted during his wife's life, it was held by Lord 
 Haedwicke that there were strong circumstances to take 
 the case out of the statute. 
 
 Again, where a father, shortly before the marriage of his 
 daughter, told her intended husband that he meant to give 
 certain leasehold property to them on their marriage, and 
 after the marriage he gave up possession of the property to 
 the husband, to whom he directed the tenants to pay the 
 rents, and handed the title-deeds to the husband, who 
 expended money on the property, it was held that there was 
 sufficient part performance to take the case out of the statute.* 
 In Neale v. Neale,* taking possession and making permanent 
 improvements by the husband and wife were held a sufficient 
 part performance of an antenuptial verbal promise by the 
 father of the husband to convey land to the wife, made in 
 consideration of the intended marriage. In Surcome v. Pen- 
 niger,^ a father, before the marriage of his daughter, told her 
 
 1 Hammersley v. De Biel, 12 C. & » Taylor v. Beech, 1 Vee. S. 297. 
 P. 64 n. ; Lassence v. Tlemey, 1 Mac. * Surcome v. Pinniger, 3 D. M. G. 
 
 & G. 572, per Lord Cottenham ; Sur- 575 ; and see Simmons v. Simmons, 6 
 
 come V. Pinniger, 3 D. M, G. 574, per Hare, 352. 
 TuKNEE, L. J.; "Warden v. Jones, 23 6 g "Wall. (TJ. S.) 1. 
 Beav. 494, per Romillt, M. E. 6 3 De G. M. & G. 571. 
 
 ^ Goldicutt V. Townsend, 28 Beav. 
 450, per Romillt, M. R. 
 
324 STATUTE OF FKAUDS. [CHAP. V. 
 
 intended husband that he should give them certain leasehold 
 property on their marriage. After the marriage he put the 
 husband in possession, and told the tenants to pay their rents 
 to the husband, who also laid out some money on the prop- 
 erty. This, it will be seen, was a parol gift in anticipation of 
 the marriage; the subsequent acts were held by the lord 
 justices a good part performance, ^er L. J. Ttjenbr : "In this 
 case there has been a part performance by the delivery up of 
 possession to the husband — a fact which has always been 
 held t& change the situation and rights of the parties — and 
 there has been a considerable expenditure by him on the 
 property. There is, therefore, here what was wanting in 
 Lassence v. Tierney, viz., acts of part performance besides the 
 marriage. The difficulty in these cases is that the statute of 
 frauds presents an obstacle to suing upon the agreement. 
 But it has been held in many cases that if there be a written 
 agreement after marriage, in pursuance of a parol agreement 
 before the marriage, this takes the case out of the statute ; so 
 does also part performance." The recent case of Ungley v. 
 Ungley ^ is still more emphatic. A father, in contemplation 
 of the marriage of his daughter, verbally promised to give her 
 a certain house as a present, and at once after the marriage 
 put her and her husband in possession. The father was the 
 owner of the premises, which were leasehold, subject to a 
 charge in favor of a building society, payable in installments. 
 He paid those which fell due in his lifetime, and at his death 
 there was a balance of £.110, which fell due shortly after his 
 death. It was held by Malins, V. C, that the verbal promise 
 having been proved, the possession was a part performance, 
 which took the case out of the statute of frauds ; that the 
 intent of the donor was to give the house free from incum- 
 brances, and so the £110 was payable out of the personal 
 estate of the deceased. This could hardly be called a contract 
 made upon consideration of marriage ; it was rather a gift in 
 anticipation thereof ; and yet possession, without the making 
 of improvements, was held a sufficient part performance, 
 probably because the marriage itself was to be regarded as a 
 strengthening circumstance. In Hammersley v. De Biel ^ the 
 lady's father and her intended husband made a verbal agree- 
 
 1 L. K. 4 Ch. Dev. 73. 2 12 CI. & Fin. 64. 
 
SEC. 175.] CONSIDEEATION OF MARRIAGE. 325 
 
 ment prior to the marriage, by which the father agreed to 
 settle certain property on his daughter, and the husband 
 agreed to settle a certain jointure upon her. The intended 
 husband executed his settlement as he had promised, and the 
 marriage took place. It was held by Lord Ch. Cottenham 
 that this execution of the settlement in pursuance of his 
 contract by the husband, being an act done by him over and 
 above the marriage, was a sufficient part performance to take 
 the father's verbal agreement out of the statute, and it was 
 accordingly enforced. On appeal to the House of Lords, 
 Lord Campbell and Lord Lyndhurst were strongly of the 
 same opinion with Lord Cottenham, but the decision below 
 was actually affirmed upon another view of the case.^ In 
 Warden v, Jones,^ where the antenuptial verbal agreement 
 was between the intended husband and wife alone, and not 
 between the husband and another person, it was held by 
 RoMiLLY, M. R., that the execution of a settlement by one of 
 the parties was not a sufficient part performance to render 
 the agreement binding as against the other. The distinction 
 made by the M. R. in this case would probably not be 
 accepted and followed in those American States which have 
 so largely increased the wife's capacity to contract by various 
 statutes, provided the doctrine of the preceding case (Ham- 
 mersley v. De Biel) was approved and adopted. If the execu- 
 tion of a written instrument, like a settlement of property, is 
 an effectual part performance of a verbal antenuptial agree- 
 ment between one ,of the spouses and a third person, there 
 can be no reason, by the modern law respecting married 
 women which prevails in those States, why the same result 
 should not follow in the case of a verbal antenuptial agree- 
 ment between the two intended spouses. In Duval v. Get- 
 ting,^ a father, in contemplation of her marriage, made a 
 verbal gift of land to his daughter ; the marriage and subse- 
 quent possession by the daughter and her husband were held 
 to constitute a part performance. In Gough v. Crane* a 
 verbal antenuptial agreement was made by a woman and her 
 intended husband to the effect that he should be entitled 
 
 1 Hammersley v. De Biel, 12 CI. & '3 Gill. (Md.) 138. 
 Fin. 45. * 3 Md. Ch. 119. 
 
 2 23 Beav. 487. 
 
326 STATTJTB OP FEAUDS. [CHAP. V. 
 
 absolutely to all her things in action, in consideration of a 
 yearly allowance to be paid by him to her for pin money. 
 At the marriage the wife's bonds were delivered to the 
 husband, and he afterwards paid her the pin money as agreed. 
 After her death this agreement was enforced against her 
 representatives, the Maryland court of appeals holding that 
 the delivery of possession was a good part performance. 
 This decision has been criticized on the ground that, as the 
 husband was entitled by law to the possession of his wife's 
 choses in action, the fact of his possession did not indicate 
 any contract, and therefore lacked the first essential element 
 of a part performance, and the decision is clearly opposed to 
 the distinction taken by the court in Warden v. Jones, supra. 
 The doctrine of part performance, as applicable to promises 
 made in consideration of marriage, was very fully discussed 
 in Caton v. Caton.^ There, previously to a marriage, the 
 intended husband and wife agreed in writing that the hus- 
 band should have the wife's property for life, paying her £80 
 a year for pin money, and that she should have it after his 
 death, and he gave instructions for a settlement upon that 
 foothold. The settlement was accordingly prepared, when 
 the parties agreed that they would have no settlement, the 
 husband promising, as the wife alleged, that he would make 
 a will giving her all her property. The marriage took place, 
 and the husband made a^ will accordingly, which he afterwards 
 revoked. It was held by Lobd Ckanwoeth that, under the 
 circumstances, there was no contract to make a will, and that 
 there had been no part performance.^ His lordship said: 
 "The courts of equity require specific performance of a 
 parol contract for the sale or purchase of land when that 
 contract has been in part performed, because if the statute 
 were insisted upon, it would be to make it the means of 
 effecting instead of preventing fraud. ' The right to relief in 
 such cases rests not merely on the contract, but on what has 
 been done in pursuance of the contract. The ground on 
 which the court holds that part performance takes a contract 
 
 1 L. R. 1 Ch. 137 ; affd. L. E. ; ib. Lords, Lokd Cranworth's decision 
 2 H. L. 127 ; see the remarks of Ma- was aflBu:med on the ground that there 
 LiNS, "V. C, on this case in Coles u. was no memorandum in writing, and 
 Pilkington, L. R. 19 Eq. 179. the question of part performance was 
 
 2 On the appeal to the House of not argued. 
 
SBC. 176.] CONSIDERATION OF JIAEIIIAGB. 327 
 
 out of the purview of the statute is that when one of two 
 contracting parties has been induced or allowed by the other 
 to alter his position on the faith of the contract, as, for 
 instance, by taking possession of land, and expending money 
 in building or other like acts, there it would be a fraud in the 
 other party to set up the legal invalidity of the contract on the 
 faith of which he induced or allowed the person contracting 
 with him to act and expend his money." ^ 
 
 Sec. 176. Sepresentations of Third Party Kef erring to Mar- 
 riage. — If one person holds out inducements to another to 
 celebrate a marriage, and holds them out deliberately and 
 plainly, and the other person consents to celebrate the 
 marriage in consequence of them, if he had good reason 
 to expect that it was intended that he should have the benefit 
 of the proposal which was so held out, the court will give 
 effect to the proposal. 
 
 Thus where proposals of marriage written by the lady's 
 brother, acting by her father's authority, stated that "Mr. 
 J. P. Thompson (the father) also intends to leave a further 
 sum of ,£10,000 in his will to Miss Thompson to be settled 
 on her and her children, the disposition of which, supposing 
 she has no children, will be prescribed by the will of the 
 father. These are the bases of the arrangement, subject of 
 course to revision ; but they will be sufficient for Baron De 
 Biel (the intended husband) to act upon," and Baron De 
 Biel, upon receiving the proposals, provided a jointure as 
 required by them for his intended wife, and then married her, 
 and the sum of £10,000 was not left by Mr. Thompson ; it 
 was held that his estate was liable to pay it.^ 
 
 In Bold V. Hutchinsoh,^ the estate of a deceased father 
 was charged with the payment of a sum of money which he 
 had by parol promised to leave by will, Lokd Romilly said : 
 " Moral obligations in matters of this description, as they are 
 treated in courts of equity, are co-extensive with and not 
 different from legal obligations, where they are expressed in 
 clear and distinct language. No doubt vague and ambiguous 
 
 1 And see Williams v. Williams, F. 45; affg. S. C. nom. ; De Biel v. 
 37 L. J. Ch. 854. . Thompson, 3 Beav. 475. 
 
 2 Hammersley v. De Biel, 12 C. & ' 20 Beav. 250 ; affd. 5 De G. M. & 
 
 G. 558. 
 
328 STATUTE OF PKATTDS. [CHAP. V. 
 
 representations might be made to persons on marriage which 
 might create expectations and belief, which the person making 
 them might be morally, though not legally, bound to execute ; 
 but where the matter is clearly and distinctly expressed, then, 
 in my opinion, the legal obligation follows the moral obliga- 
 tion, and is co-extensive with it." ^ 
 
 Again where, upon the treaty for a marriage, the father of 
 the lady wrote to the husband, " I stUl adhere to my last 
 proposition, viz., to allow Elizabeth £100 a year . . . and at 
 my decease she shall be entitled to her share of whatever 
 property I may die possessed of," it was held that this was a 
 contract binding on the father, but that it did not include 
 freehold property." ^ 
 
 Sec. 177. By "Whom Enforced. — Such representations may 
 be enforced not only by the persons to whom they were 
 made, but also by the issue of the marriage. Thus where, 
 previously to a marriage, the solicitors to the father of the 
 intended wife stated in a letter that the father did not 
 propose to exercise a certain power of appointment, and the 
 fund to which the wife would become entitled in default of 
 appointment was comprised in the settlement made on the 
 marriage, and the father afterwards exercised his power in 
 favor of his other children, it was held, under the circum- 
 stances, that the child of the marriage was entitled to have 
 brought into the settlement, out of the father's estate, a sum 
 equal to that which would have come under the settlement in 
 default of appointment.^ 
 
 Sec. 178. Representation Must be Clear. — In order to make 
 a third person liable upon his representations or promises, 
 the person seeking to enforce them must show distinctly that 
 clear and sufficient representations or promises were made ; * 
 a vague representation is not enough, and there must be a 
 reasonable certainty as to the amount. 
 
 In Kay v. Crook,^ a father, on the treaty for the marriage 
 of his eldest son, promised by letter to settle a sum of money 
 
 1 See also Saunders v. Cramer, Dr. 106 ; affd. ib. 473 ; 13 "W. R. 335, 
 & War. 87 ; Warden v. Jones, 23 Bear. 761. 
 
 487; affd. 2 De G & J. 1176. * Eandall v. Morgan, 12 Ves. 67; 
 
 2 Laver v. Pielder, 32 Beav. 1. Maunsell v. White, 4 H. L. C. 1039. 
 8 Walford v. Gray, 11 Jur. (N. S.) » 3 Sm. & G. 407. 
 
SEC. 180.] CONSIDERATION OP MAKEIA6E. 829 
 
 forthwith, and to recognize his son in common with the rest 
 of his family in the future provisions of his will. The sum 
 of money was settled, and the marriage took place on the 
 faith of the representations in the letter. By his will the 
 testator made a substantial provision for his son, but much 
 less than equal to those made for his other children. It was 
 held that the promise was so vague as to the amount that 
 consistently with it the testator might have given all his 
 property to a stranger, and that the promise was satisfied by 
 the provision in the will. Sttjabt, V. C, said : " A vague 
 representation is not enough. If the plaintiff can show a 
 representation by his father that he would leave him a sum 
 certain by his will, and if he contracted a marriage on the 
 faith of that representation, he is entitled in this court to have 
 that sum made good out of his father's assets." There is not 
 here (what was relied upon in the case of Hammersley v. De 
 Biel) 1 a certain sum specified as to the amount of the 
 provision.^ 
 
 Where a father, prior to the marriage of his daughter, in a 
 correspondence with her intended husband, stated that aU 
 his property would be equally divided amongst his children 
 at his decease ; but in a settlement executed prior to the mar- 
 riage there was no expression of any such intention, it was 
 held that all that was intended to be binding on the father 
 was embodied in the settlement.* 
 
 Sec. 179. Parol Evidence Admissible to Prove Promise. — 
 
 Such an agreement may be enforced although the letters con- 
 taining the promise have been lost, if their existence, and the 
 substance of their contents, is clearly established by evidence.* 
 
 Sec. 180. Marriage Cannot Take Place on Faith of Represen- 
 tations. — A parol promise, made prior to a marriage, cannot 
 be enforced, if the marriage did not take place by reason of 
 any reliance on such promise, or if it was not acted on as 
 a reason and consideration for the marriage,^ nor will a written 
 
 1 12 C. & F. 45. aftg. S. C. 27 Beav. 523 ; and see Sands 
 
 2 See also Jameson v. Stein, 21 v. Soden, 10 W. R. 765. 
 
 Beav. 5; Laver v. Melder, 32 Beav. 1 ; * Gilchrist v. Herbert, 28 L. T. (N. 
 
 LofEus V. Maw, 3 Giff. 603; McAskie S.) 381. 
 
 V. McCay, 2 I. R. Eq. 452. « Goldicutt v. Townsend, 28 Beav. 
 
 « Lexley w. Heath, 1 D. F. & J. 489, 445; Jameson v. Stein, 21 Beav. 5; 
 
330 STATUTE OF FEAUDS. [CHAP. V. 
 
 promise be enforced, if the person seeking to enforce perform- 
 ance of it did not know of it when the marriage took place, 
 as the marriage cannot be supposed to have taken place in 
 consideration of the promise.-^ 
 
 Sec. 181. Party Making Representation Refusing to be Bound. 
 — Although a mere representation of an intention to do some- 
 thing by an instrument revocable in its nature will, if acted 
 upon by the person to whom the representation is made, be 
 enforced, yet if the person making the representation refuses 
 definitively to bind himself to perform his promise, the court 
 will not enforce the specific performance of the promise. 
 Thus, where the testator on the marriage of one of his 
 nephews told him that he had left him certain estates by 
 will, and subsequently on being applied to to make a settle- 
 ment, wrote to the nephew as follows: "My sentiments 
 respecting you continue unalterable ; however, I shall never 
 settle any part of my property out of my power so long as I 
 exist ; my will has been made for some time, and I am confi- 
 dent that I shall never alter it to your disadvantage. I have 
 mentioned before, and I again repeat, that my county of 
 Tipperary estates will come to you at my death, unless some 
 unforeseen occurrence should "take place. I have never 
 settled anything on any of my nephews, and I should give 
 cause for jealousy if I was to deviate in this instance from a 
 resolution I have long made ; " and shortly afterwards the 
 marriage took place ; and the marriage settlement (of which 
 the testator was a trustee) recited the promise contained in 
 the letter, and the testator having quarrelled witli his nephew 
 left the estates to other persons ; it was held in the House of 
 Lords that there was no contract which could be enforced. 
 The case was decided on the short principle that there never 
 was any engagement on the part of the uncle that he would 
 bind himself to leave the property to his nephew. Loed 
 CoTTENHAM pointed out that it could not be argued that the 
 testator, who cautiously insisted on reserving to himself 
 power while he " existed," had given up his power, and that 
 too by the very letter in which he made the reservation ; and 
 his lordship distinguished the case from Hammersley v. De 
 
 Caton V. Caton, L. E. 1 Ch. 137 ; affd. l Aylifie v. Tracy, 2 P. Wms. 66. 
 
 L. E. 2 H. L. 127. 
 
SEC. 182.] CONSIDERATION OF MAEEIAGE. 331 
 
 Biel ^ on the ground that in that case there was a contract 
 which was partly performed by the execution of a settlement 
 by the intended husband, and by the marriage.'^ 
 
 It 'has been said that if a person possesses a legal right, 
 the court will not interfere to restrain him from enforcing 
 it, although between the time of its creation and that of his 
 attempt to enforce it, he has made representations of his 
 intention to abandon it, and the person to whom the repre- 
 sentations were made has acted on them.* This, however, 
 seems to be inconsistent with the decision in Hammersley v. 
 De Biel.* And it is to be noticed that this case was not 
 referred to by any of the counsel or law lords in Jorden v. 
 Money, see Prole v. Soady.^ 
 
 Sec. 182. Expression of 'Wish by Husband. — Where a suitor 
 wrote to the mother of the lady as follows : " If your daughter 
 has or may have money, my wish and intention is that it 
 should be settled for her sole and entire use," and consent 
 was given to the marriage, in the faith that the intention 
 thus expressed would be fulfilled, and the marriage took 
 place without a settlement; the court ordered the wife's 
 property to be settled in the usual way, Stttaut, V. C, saying : 
 " It is clear that the marriage took place on the faith of the 
 promise expressed in this letter to settle the whole of the 
 young lady's property, present and future, for her separate 
 use. The defendant, therefore, is as much bound in the eye 
 of this court, as if he had executed a settlement containing 
 such stipulations."® But where an intended husband, who 
 was an infant, wrote to the trustee of the intended wife on 
 Tuesday, that he especially wished his wife's property entirely 
 settled on herself, and that the marriage was to take place 
 on the Saturday, and it took place, unknown to the trustee, 
 on the Wednesday, without any settlement, it was held that 
 
 1 12 C. & r. 45. » 2 GifE. 1 ; Loffus v. Maw, 3 Giff. 
 
 2 Maunsell v. White, 4 H. L. C. 603; McAskie .,. McCay, 2 I. E. Eq. 
 1039 ; see also Moorhouse v. Colvin, 5 452. 
 
 Beav. 341 ; affd. 21 L. J. Cap. 782 ; 6 Alt v. Alt, 4 GifE. 84 ; and see 
 
 Kirwan u. Burchell, 10 Ir. Ch. Rep. Payne «. Mortimer, 1 GifE. 118; affd. 
 
 63 ; Caton v. Caton, L. R. Ch. 137 ; 4 De G. & J. 447 ; Loffus v. Maw, 3 
 
 affd. L. R. 1 H. L. 127. Giff. 592 ; Skidmore v. Bradford, L. R. 
 
 8 Jorden v. Money, 5 H. L. C. 185. 8 Eq. 134. 
 
 4 12 C. & F. 45. 
 
332 STATUTE OP FEATJDS. [CHAP. V. 
 
 this letter contained no settlement or agreement for a settle- 
 ment binding on the husband or wife.^ 
 
 Sec. 183. False Representation of Pact. — If a representation 
 is made upon the circumstances of a person about to form a 
 connection in marriage, and that representation is of such a 
 nature that, if not made good, or if varied, it -will materially 
 affect the circumstances in life of that party, the court will 
 hold the party bound to make good that representation, even 
 at the suit of individuals concerned in fraudulently defeat- 
 ing such a representation upon which that connection was 
 proceeding.^ Thus, where the agent of the intended husband 
 made out a schedule of his debts, to be laid before the father s 
 of the intended wife, and concealed a large debt due to him- 
 self, he was afterwards restrained from enforcing the debt.* 
 So where a mortgagee aided in concealing his mortgage upon 
 an estate settled in contemplation of marriage, he was post- 
 poned to the objects of the settlement.* Again, where a 
 note was given to the intended husband by his brother for 
 a large sum of money, as the balance of accounts between 
 them, when no such balance esdsted, and the marriage took 
 place on the faith of that sum being owing, the brother was 
 charged with the pretended balance.® 
 
 Sec. 184. Fraud not Allowed to be Covered by the Statute. 
 — If a person by means of fraud prevents the due execution 
 of an agreement, the statute will not apply. Thus, where 
 the defendant, on a treaty of marriage for his daughter with 
 the plaintiff, signed a writing, which comprised the terms of 
 the agreement, but afterwards designing to elude its force, 
 and free himself from it, he ordered his daughter to affect 
 good humor, and persuade the plaintiff to deliver up the 
 writing, and then marry him; and she accordingly did so, 
 the plaintiff afterwards brought his bill for relief, and ob- 
 tained a decree on the ground of fraud.^ 
 
 1 Beaumont v. Carter, 32 Beav. ' Montefiori v. Monteflori, 1 W. Bl. 
 586. 363 ; see also Jorden v. Money, 5 H. 
 
 2 He Manneville v. Crompton, 1 V. L. C. 210. 
 
 & B. 356, per Lokd Eldon. « Mullet a. Halfpenny, cited Peachey 
 
 ' Neville v. Wilkinson, 1 Bro. C. C. on Settlements, 82 ; and see Cookes v. 
 
 543. Mascall, 2 Vern. 200. 
 * Berrisford v. Milward, 2 Atk. 49. 
 
SEC. 184.] CONSIDERATION OF MAEKIAGE. 333 
 
 In Money v. Jorden,i the defendant, a bond creditor of the 
 plaintiff, promised, on the plaintiff's marriage, never to enforce 
 it, and the marriage took effect on the faith of such assurance. 
 RoMiLLY, M. R., held that the defendant was bound to give 
 effect to the promise, and granted an injunction to restrain 
 her from suing on the bond. On appeal to the Lords Jus- 
 tices,2 their lordships differed, Knight Bruce, L. J., agree- 
 ing -with the Master of the Rolls that there was sufficient 
 ground for the interposition of the court, while Lord Cran- 
 "WOKTH, L. J., held that the declarations being of intention 
 merely, and not of fact, were not such representations as to 
 bind the creditor. In the House of Lords,^ Lord Cran- 
 "WORTH adhered to his opinion, saying that the doctrine 
 " that where one by his words or conduct wilfuUy causes 
 another to believe in the existence of a certain state of 
 things, and induces him to act on that belief, or to alter liis 
 own previous position, the former is concluded from averring 
 against the latter a -different state of things, as existing at 
 the same time,"* does not apply to a case where the represen- 
 tation is not a representation of a fact, but a statement of 
 something which the party intends or does not intend to do,^ 
 and Lord Brougham took the same ground. Lord St. 
 Leonards differed, both upon the facts and the law ; think- 
 ing,® that it was utterly immaterial whether there was a mis- 
 representation of fact, as it actually existed, or a misrepre- 
 sentation of an intention to do, or to abstain from doing, an 
 act which would lead to the damage of the party induced to 
 act upon the faith of that representation ; that if an inten- 
 tion is declared, with reference, for example, to a marriage, 
 not to enforce a given right, and the marriage takes place on 
 that declaration, there is a binding undertaking. The deci- 
 sion of the Master of the Rolls was reversed.^ 
 
 1 15 Beav. 372. partly on the ground of the statute of 
 
 2 2 D. M. G. 318. frauds, and S. C. 1 De G. F. & J. 51, 
 
 * Nom. Jorden v. Money, 5 H. L. C. where Lord Campbell said that the 
 185. ratio decidendi of the case vpas, that 
 
 * Pickard v. Sears, 6 Ad. & El. 469. where a person possesses a legal right, 
 5 P. 214. a court of equity will not interfere to 
 8 P. 248. restrain him from enforcing it, though, 
 ' See the remarks upon this case in between the time of its creation and 
 
 Piggott V. Stratton, Johns. 356, where that of his attempt to enforce it, he 
 Wood, V. C, said that it was decided, has made representations of his inten- 
 
334 STATUTE OP FEATJDS. [CHAP. V. 
 
 Sec. 185. Written Agreement after Marriage. — A written 
 agreement made after marriage, in pursuance of a parol 
 promise made before marriage, is sufficient as against the 
 person making it.^ But a post-nuptial settlement, made in 
 pursuance of a parol ante-nuptial agreement, is not binding 
 as against, creditors.^ There are some dicta to be found in 
 the cases which support the contrary proposition. 
 
 In Dundas v. Dutens,* Loed Thublow seemed to think 
 that a post-nuptial settlement of the wife's property, reciting 
 a parol ante-nuptial agreement to make a settlementj could 
 be enforced against creditors.* 
 
 In De Biel v. Thomson,^ Lokd Langdalb, M. R., said that 
 in the case of Randall v. Morgan,® Sib Wm. Gbajstt expressed 
 great doubt whether a letter written after the marriage, re- 
 ferring to a parol agreement before the marriage, would be 
 sufficient to give validity to a promise which of itself pro- 
 duced no obligation ; but that Lobd Habcotjbt, in the case 
 of Hodgson V. Hutchenson,'' thought that a letter after the 
 marriage, considering the transactions before, was, in that 
 case, sufficient. 
 
 On appeal,^ Lobd Cottenham referred to the cases of 
 Hodgson V. Hutchenson,® Taylor v. Beech,^" and Montacute v. 
 Maxwell,^^ as deciding that a written promise after marriage 
 to perform a parol agreement made before, would be binding 
 within the statute.^^ But the actual decisions in these cases 
 turned on acts of part performance. In Surcome v. Pinni- 
 ger,^^ where Ttienee, L. J., expressed an opinion to the same 
 effect, the decision was also grounded upon acts of part per- 
 formance ; and in Barkworth v. Young, ^* the marriage took 
 
 tion to abandon it; and eee Stephens ^ 3 Beav. 474. 
 
 V. Venables, 31 Beav. 128; Loffus v. « 12 Ves. 73. 
 
 Maw, 3 Giff. 604. ' 5 Vin. Abr. 522, pi. 34. 
 
 1 Taylor v. Beech, 1 Ves. S. 297 ; 8 g. C. Nom. Hammersley !.. De 
 Montacute v. Maxwell, 1 P. Wms. Biel, 12 C. & F. 64, n. 
 
 618; 2 Cox, 236; Barkworth v. Young, » 5 Vin. Abr. 522, pi. 34. 
 
 4 Drew. 1 ; Hammersley «. De Biel, 1° 1 Ves. S. 297. 
 
 12 C. &F. 64, n. ii 1 P. Wm's. 618 ; 2 Cox, 236. 
 
 2 See May on Voluntary and l^ On the appeal to the House of 
 Fraudulent Alienation of Property, Lords, 12 C. & F. 45, the defence 
 p. 346. under the statute was abandoned. 
 
 8 2 Cox, 235 ; 1 Ves. J. 196. w 3 D. M. G. 571. 
 
 * See the remarks of Geant, M. E., " 4 Drew, 12. 
 upon this case in Bandall v. Morgan, 
 12 Ves. 74. 
 
SEC. 183.] CONSEDEEATION OF MARRIAGE. 335 
 
 place on the faith of representations made by a third 
 party. 
 
 On the other hand, in Spurgeon v.^CoUier,! it was held 
 that a settlement made after marriage was voluntary, proof 
 of its having been made in pursuance of a parol contract 
 failing,, and that even if such promise had been proved to 
 have existed, it would not have supported the settlement. 
 Lord Northtngton saying: "If such a parol agreement 
 were to be allowed to give effect to a subsequent settlement, 
 it would be the most dangerous breach of the statute, and a 
 violent blow to credit. For any man, on the marriage of a 
 relation, might make such a promise, of which an execution 
 never could be compelled against the promisor, and the 
 moment his circumstances failed he would execute a settle- 
 ment pursuant to his promise, and defraud all his creditors." 
 
 In Warden v.- Jones,^ the point was expressly decided, and 
 the decision of Lord Thtjrlow in Dundas v. Dutens^ dis- 
 sented from. 
 
 The facts were as follows : Previously to a contemplated 
 marriage, the intended husband and wife went to a solicitor 
 to have a settlement prepared of some railway stock, of 
 which the intended wife was the registered proprietor, but 
 which was subjected to a mortgage, and the certificates of 
 which were in the hands of the mortgagee. The solicitor 
 not being able to prepare the settlement before the time fixed 
 for the marriage, the husband told the wife that it would be 
 equally good if made afterwards, and no settlement, or agree- 
 ment for a settlement, was made in writing before the mar- 
 riage. Shortly after the marriage a settlement was executed, 
 whereby the husband covenanted to invest part of the pro- 
 ceeds of the stock upon trust for the benefit of his wife and 
 children. He sold the stock, paid off the mortgage, and 
 invested the stipulated amount, according to his covenant. 
 It was held that the settlement was voluntary and fraudu- 
 lent, and therefore void as against creditors, and that the 
 wife had no equity to a settlement. 
 
 Lord Cranworth, on the appeal,"" said: "The argument 
 here was, first, that the parol agreement being proved, the 
 
 1 1 Eden, 55. » 2 Cox, 235 ; 1 Ves. J. 196. 
 
 2 23 Beav. 487 ; affd. 2 De G. & J. * 2 De G. & J. 84. 
 76. 
 
336 STATUTE OP PEATJDS. [CHAP. V. 
 
 parties were under a moral, though not legal, obligation to 
 perform it, so th0,t the settlement could not be fraudulent. 
 To this, however, the judgment of Loed Nokthington in 
 Spurgeon v. Collier affords a conclusive answer.^ 
 
 Sec. 186. Not Revocable. — It is stated by Atherley ^ that 
 a promise by letter or in writing will be enforced even though 
 the person making it dissents from the marriage, and declares 
 that he will give the parties nothing ; and this rule is sus- 
 tained by Wonckford v. Fotherley,^ but is subject to the 
 exception that it is to be applied only where a mutual attach- 
 ment has been permitted to grow up under the sanction of 
 the promisor.* In the case cited by Atherley in support of 
 the rule,^ the treaty for the settlement upon the basis of a 
 letter of the lady's father was depending for a long time, and 
 in the meantime the parties married. The father, before they 
 went to the church, revoked his promise, and said he would 
 give them nothing, Somers, Loed-Keepek, said he looked 
 upon this as nothing, after the young people's affections were 
 engaged, regarding such a tardy revocation as a fraud upon 
 those who, reposing faith therein, had ' permitted their rela- 
 tions to each other to suffer an irrevocable change. 
 
 Sec. 187. Time of Performance. — Where no time is speci- 
 fied in which the contract is to be performed, it must 
 be performed within a reasonable time after the marriage 
 is consummated.^ Thus, in the case last cited, the defend- 
 ant promised that if the plaintiff married his daughter, 
 he would endeavor to do her equal justice with the rest 
 of his daughters, as fast as it was in his power with con- 
 venience; and it was held that he was bound to perform 
 the promise within a reasonable time afte^ the marriage, and 
 was bound to make an advancement to the plaintiff and his 
 wife equal to the largest made to any of his daughters, and 
 that in determining what is a reasonable time, his property 
 and the circumstances were to be considered. 
 
 1 See also Gulliver v. Gulliver, 2 ^ Preem. Ch. 201. 
 
 Jur. (N. S.) 700 ; Spicer v. Spioer, 24 « D'Aquillar u. Drinkwater, 2 V. 
 
 Beav. 367; Hogarth v. Phillips, 4 & B. 234. 
 
 Drew. 360 ; Cooper v. Wormald, 27 ^ 'Wonckford v. Fotherley, Freem. 
 
 Beav. 266; Goldicutt v. Townsend, 28 Ch. 201. 
 
 Beav. 445; Mignanu. Parry, 31 Beav. ^ Chichester v. Voas, 1 Mnnf. (Va.) 
 
 211. 98. 
 
 2 Atherley, Marriage Settlement, 84. 
 
SEC. 189.] CONSIDERATION OF MAKRIAGB. 337 
 
 Sec. 188. Post-nuptial Settlement. — It has been held in 
 England that a post-nuptial settlement made upon and recit- 
 ing a parol ante-nuptial contract, is valid as against the cred- 
 itors of the person contracting ; ^ but the rule now seems to 
 be both in England ^ and in this country,' that such settle- 
 ment is not good as against prior creditors, but is good as 
 between the parties.* In Randall v. Morgan,^ a contrary- 
 doctrine was intimated, but the weight of authority is the 
 other way ; and in New Jersey ® it has been held that, upon 
 proper proof of such ante-nuptial agreement, the court would 
 give effect to a post-nuptial settlement made in pursuance of 
 it, even against the creditors of the husband. 
 
 Sec. 189. Promise must be Absolute. — In order to give 
 effect to such a promise, it must be absolute in its terms. 
 Thus, in Randall v. Morgan,^ the father of the wife, in a let- 
 ter to her husband before their marriage, said : " The addi- 
 tion of ^1,000, three per cent stock, is not sufficient to in- 
 duce me to enter into a deed of settlement. Whether Mary 
 remains single or marries, I shall allow her the interest of 
 i£ 2,000, at four per cent ; if the latter, I may bind myself to 
 do it, and to pay the interest at her decease to her and her 
 heirs." It was held that, taking the whole letter together, 
 there was no contract to enforce. 
 
 1 Dundas v. Duten, 1 Ves. J. 196. * Beade v. Livingston, ante ; War- 
 
 2 Warden v. Jones, 2 De G. & J. den v. Jones, ante ; Bovy's Case, 1 
 76; Spicer v. Spicer, 23 Beav. 487; Vent. 193 ; Spicer w. Spicer, 24 Beav. 
 Bovy's Case, 1 Vent. 193. 367. Also cases cited in n. 3. Argen- 
 
 3 Davidson u. Green, Riley (S. C.) bright v. Campbell, 3 H. & M. (Va.) 
 Eq; 219 ; Reade v. Livingston, 3 144 ; Montacute v. Maxwell, 1 P. 
 Johns. Ch. (N. Y.) 481; Borat v. Wms. 618; Hammersley k. De Biel, 
 Carey, 16 Barb. (N. Y.) 136 ; Winn v. 12 Clr. 745; Lavender v. Blackstone, 
 Albert, 5 Md. 66 ; Smith v. Green, 3 2 Lev. 147. 
 
 Humble (Tenn.) 118; Blow v. May- ^ Randall v. Morgan, 12 Ves. 67. 
 
 nard, 2 Leigh (Va.) 29; Andrews v. See also Shaw v. Jakeman, 4 East, 
 
 Jones, 10 Ala. 400; Izard v. Izard, 201. 
 
 Bailey (S. C.) Eq. 228; Wood o. « Satterthwaite u. Ensley, 4 N. J. 
 
 Savage, 2 Doug. (Mich.) 316 ; Bat^ Eq. 489. 
 
 tersbee v. Harrington, 1 Swanst. 113. ' 12 Ves. 67. 
 
' SECTION IV. 
 
 INTEREST IN LANDS. 
 
 " No action shall be brought upon any contract or sale of lands, tene- 
 ments, or hereditaments, or any interest in, or concerning them . . . 
 unless the agreement upon which such action shall be brought, or 
 some note or memorandum thereof shall be in writing and signed by 
 the party to be charged therewith, or some other person thereto au- 
 thorized in writing." 
 
CHAPTER VI. 
 
 INTEBEST IN LANDS. 
 
 SBCTIOK. 
 
 190. Historical View of Alienation of Estates in Lands. 
 
 191. Application of the Statute. 
 
 192. Instances of Agreements Within the Statute. 
 
 193. Agreements between Landlord and Tenant. 
 
 194. Contracts Relating to Land which are not Within the Statute. 
 
 195. Sale of Growing Crops. 
 
 196. Sale of Crops after Severance. 
 
 197. Growing Trees. 
 
 198. Distinction between Growing Trees and Crops. 
 
 199. Intermediate Class of Crops. 
 
 200. Crops when mere Accessories to Land. 
 
 201. Crop not yet Sown. 
 
 202. Distinction between Crops Fructus Industriales and Fructus Naturales. 
 
 203. Rule in Jones v. Plint. 
 
 204. Rule in Waddington v. Bristow. 
 
 205. Rule in Purner v. Piercy. 
 
 206. Crops Sold with the Land. 
 
 207. Rights of Out-Going Tenant. 
 
 208. Whether Fructus Industriales are Goods while Growing. 
 
 209. Growing Crops not Returning Profits Within the Tear. 
 
 210. Shares in Companies, when an Interest in Lands, when Goods, etc. 
 
 211. Shares in a Mine. 
 
 212. Agreement for Lease, or for Sale of. Within Statute. 
 
 213. Mixed Indiyisible Contract. 
 
 214. Agreements Amounting to Transfer of an Interest in Land. 
 
 215. Agreement to Let Furnished Lodgings. 
 
 216. Agreement to Pumish House. 
 
 217. Agreement to Repair. 
 
 218. Agreement to Build. 
 
 219. Instances of Agreements not Within the Statute. 
 
 220. Parol Sales of Buildings, Fixtures, etc. 
 
 221. Contracts for Labor to be Done upon or for Land. 
 
 222. Contract to Pay Taxes, Mortgages, etc., upon Lands. 
 
 223. Agreements to Pay Additional Price for Land Conveyed, etc. 
 
 224. Contracts to Sell Lands for Another. 
 
 225. Land Warrants. Possessory Rights, etc. 
 
 226. Instances of Contracts Within the Statute. 
 
 227. Equitable Interests. 
 
 228. Agreements to make Mutual Wills. 
 
 229. Agreements for Exchange or Partition of Lands. 
 
 230. Disputed Boundaries. 
 
340 STATUTE or FRAUDS. [CHAP. VI. 
 
 BEOTIOlf, 
 
 231. Dower. 
 
 232. Pews in Churches. 
 
 233. Partnership in Lands. 
 
 234. Agreements merely Collateral. 
 
 235. Action in Respect of Void Contracts. 
 
 236. Lien for Repayment of Purchase-Money. 
 
 237. Liability on Implied Contract. 
 
 238. Mortgages. 
 
 239. Parol Gift of Mortgage. 
 
 240. Equitable Mortgage by Deposit of Title-deeds, etc. 
 
 241. Special Agreement not Necessary. 
 
 242. What Interest Passes. 
 
 243. Explanation of Extent of Charge. 
 
 244. Deposit of Copies of Court Roll, etc. 
 
 245. Deposit of Shares in Companies. 
 
 246. Deposit of Insurance Policy. 
 
 247. Deeds Relating to Property Abroad. 
 
 248. Whether Mortgagor Bound to Execute a Legal Mortgage. 
 
 249. Adverse Possession. 
 
 250. Subseguent Advances. 
 
 251. Sub-Mortgage. 
 
 252. Legal Mortgage not Security for Subsequent Advances. 
 
 253. Rectification of Accompanying Instruments. 
 
 254. Deposit of Deeds to have Legal Mortgage Drawn, Effect of. 
 
 255. Presumption of Mortgage may be Rebutted by Evidence. 
 
 256. Parol Evidence to Contradict Memorandum. 
 
 257. Sale in Bankruptcy. 
 
 258. Parol Agreement to Deposit Deeds, Effect of. 
 
 259. Delivery to Wife of Depositor. 
 
 260. Deeds Remaining in Possession of Debtor. 
 
 261. Deposit with Firm. 
 
 262. Whether all the Title-deeds Should be Deposited. 
 
 263. Good Titles Need not be Shown. 
 
 264. Part of Deeds Deposited with One Creditor, and Part with Another, 
 
 Effect of. 
 
 265. Deeds Relating to Part of an Estate. 
 
 266. Memorandum Referring to Different Deeds from those Deposited, 
 
 Effect of. 
 
 267. Direction to Third Person to Hand over Deeds, Effect of. 
 
 268. Sales of Lands by Auction. Judicial Sales, Sheriff's Sales, etc. 
 
 Section 190. Historical View of Alienation of Estates in 
 Lands. — In the rudest state of society in all coiintries, some 
 formality beyond mere words signifying the consent of the 
 parties, was always necessary to the transfer of property in 
 land, the object being to give notoriety to a transaction 
 which was to determine the reciprocal rights and obliga- 
 
SEO. 190.] INTEEBST IN LANDS. 341 
 
 tions of the parties to this important description of prop- 
 erty.^ With regard to movables, the things being susceptible 
 of manual delivery, a mere parol expression of consent has 
 at all times been deemed sufficient to consummate and pub- 
 lish the transfer ; but where lands or houses are the subject 
 of the conveyance, the transferee must come to the thing, 
 which remains stationary and unchanged, and the conversion 
 of the property and change of title require to be effected 
 and promulgated by an ostensible relinquishment by the one 
 party and occupation by the other, accompanied by expres- 
 sions to testify the intention, and to make the transaction 
 amount to a delivery of the possession. In the first ages of 
 man in his social state, the history of most nations makes 
 mention of authorized ceremonies accompanying the trans- 
 fers of property in land, sometimes popular and arbitrary, 
 and sometimes judicial, and transacted before magistrates.^ 
 As the possession of land carried with it, in the feudal times, 
 a reciprocity of personal duties, some notoriety and solem- 
 nity in the conveyance of this species of property seems to 
 have been very proper under a system of polity, in which the 
 transfer of land implied an investiture as well as a grant. 
 The subject of these transmutations being either corporeal 
 or incorporeal, and things untangible and incorporeal being 
 incapable of actual delivery, the notoriety of this actual 
 delivery was, therefore, where the subject was not corpo- 
 real, supphed by the solemnity of an instrument in writing, 
 sealed and delivered. Such things were said to He not in 
 livery, but in grant, as reversions, remainders, rents, advow- 
 sons, commons, and such like hereditaments. But manors, 
 houses, and lands, being things of a corporeal existence, and 
 susceptible of a specific transfer, were, therefore', necessary 
 to be transferred by livery of seizin. While society was in 
 its rudiments, and writing uncommon, the notoriety of the 
 
 1 As to feudal tenures and the the preservation of the fruits of the 
 
 jealousy with which they were tenure to the land; and were finally 
 
 guarded, see Bract, lib. 2, Cap. 584; destroyed by stat. 12th Charles 
 
 Lib. Feud. 5, tit. 13 ; 4 tit. 45, edit. Second, by which the restraint upon 
 
 Cujae. These tenures received a the testamentary disposition of lands 
 
 severe blow in the reign of Edward was removed. 
 
 Eirst, by the passage of the statute "^ Vide Heineccius, Rom. Antiq. lib. 
 
 Quia Emptores which combined the 2, tit. 1, No. 19, 20; and see 23d 
 
 power of alienation in the vassal with chapter of Genesis. 
 
342 STATUTE OF FKATTDS. [CHAP. VI. 
 
 livery was chiefly relied upon till the formality of a written 
 instrument came into use, as an authentication of the livery 
 and seizin, and brought with it some relaxation of the old 
 ceremonies. 
 
 The first feudal grants are said to have been gratuitous, 
 whereby the donor parted only with the dominium utile or 
 usufruct to the vassal, reserving to himself the dominium 
 directum; and, on account of the favor which prompted the 
 gift, there seems to have been much humility in the form of 
 acceptance by the donee, who, being chosen for his personal 
 qualifications or deserts, received from the hands of the supe- 
 rior himself his investiture (therefore called the investitura 
 propria'), in the presence of the pares curiae, and on the land 
 itself, with a rigorous exaction and observance of those cir- 
 cumstances of ceremony which were calculated to impress 
 the memory of the transaction on the witnesses. The first 
 departure, in practice, from the rigor of the primitive 
 observances, seems to have been a Bymbolical delivery of 
 the possession; though from the great inconvenience in 
 many cases, of making the corporeal transfer, this substitu- 
 tion must be but little short of the antiquity of the direct 
 method by livery and seizin on the land itself; and, indeed, 
 it seems to have been the usage of very remote times.^ As 
 it was the intention of the words, which were used before 
 writing was adopted, to declare the tenor of the grant, and 
 the nature and obligation of the investiture ; so, when the 
 practice added writing to the transaction, such writing did 
 only record the fact and the intention of the parties, in a 
 form extremely short and simple.^ 
 
 It is easy to apprehend how rapidly this simple document 
 would assume a more complicated shape, and modify itself 
 to the more intricate wants and interests of mankind, by 
 qualifying the grant with express stipulations and condi- 
 tions. And we can readily suppose that it would soon 
 make the principal figure in all conveyances of land, and 
 
 1 Thus the delivery of a shoe was memorial of the transaction, and a 
 
 the symbol of the transfer of the method of recording the testimony of 
 
 land of Elemelech to Boaz. The the ocular witnesses, 
 
 purchase by Jeremiah of Hanameel's ^ gee the account of the hreve tes- 
 
 fleld was ratified by an instrument, tatum in the Book of Peuds, 1 tit. 4 ; 
 
 subscribed and sealed. Genesis, chap- and Craig, lib. 2, Dieg. 2, No. 16. 
 ter 22, but this seemed to be only a 
 
SEC. 190.] IKTEEEST IN LANDS. 343 
 
 become the standing evidence of the change of the prop- 
 erty. It was the natural effect of this altered state of 
 things, to substract from the feudal investiture much of its 
 sanctity and publicity; the improper investiture, as it was 
 called, being received from the attorneys or stewards of the 
 lord, instead of the lord himseK, came into common practice ; 
 attestation of common witnesses, instead of the pares curiae, 
 was received; and, as these witnesses, being not the pares 
 curiae of the particular manor, served as well for one as 
 another, all the lands lying in one county, and intended to 
 be conveyed, might pass by the livery of one parcel in the 
 name of them all. 
 
 The ancient form of conveyance thus gradually declined 
 ftom the dignity of the proper investiture, and yet, slight as 
 it had become in respect to its ceremonial, the ingenuity of 
 men was very early at work in inventing substitutionary 
 methods of evading the necessity of making the livery of 
 seizin by themselves or their attorneys. It is said by a sensi- 
 ble writer,! that " earlier than the time of Littleton, it had 
 come into fashion to transmit land by attornment if there 
 was a tenant, and by a lease and release if there was none ; 
 in the first of which cases, the form of getting the consent 
 of the tenant of the ground, to the transfer, supplied the 
 place of that livery, which could not be given ; and, in the 
 other case, the grantor gave to the grantee an imaginary 
 lease, in order to put him into possession, and the next 
 minute released." In each of these methods by attorn- 
 ment,2 and lease and release, an act was done of an osten- 
 
 1 Dalrymple on Feudal Property, quent and fraudulent practice of 
 ch. 6, § 3. tenants, in attorning to strangers, 
 
 2 The ceremony of attornment who claim title to the estates of their 
 seems at all times to have produced respective landlords or lessors, who 
 more danger than security to property, are thereby put out of the possession 
 The statute 4 Ann. c. 16, § 9, has, of their respective estates, and put to 
 therefore, made all grants and con- the difficulty and expense of recover- 
 veyances good without attornment, ing the same by action at law ; it is 
 and thus removed the necessity for therefore, thereby enacted, that all 
 making it : but its efficacy as an act such attornments shall be void, and 
 of notoriety and evidence yet re- the possession not altered; but it is 
 mained, and, as it appears, continued also thereby provided, that the same 
 to be made an ill use of; for the act shall not extend to effect any 
 statute 11 Geo. 2, c. 19, § 11, reciting attornment made pursuant to any 
 that the possession of estates was judgment at law, or decree, or order 
 rendered very precarious, by the fre- of a court of equity, or made with 
 
344 STATUTE OF FEATJDS. [CHAP. VI. 
 
 sible kind to notify the change of property; for the attorning 
 in one case, and the actual entry upon the lease in the other, 
 was stiU. a ceremony, though but slight in comparison of the 
 old formalities which took place upon the feudal feoffment. 
 While the ancient forms of transmission and investure were 
 thus declining into shadows, the practice of creating secret 
 trusts and confidences (for such were uses at the common 
 law) for evading the pressure of the feudal burdens, which 
 were daily becoming less tolerable, as social and political 
 changes diminished their utility and their recompense, and 
 for escaping the consequences of attainders and convictions, 
 which, multiplied with the contests of factions and the 
 struggles of liberty, were threatening to become universal. 
 "Which practice," says Loed Bacon,^ "was turned to de- 
 ceive many of their just and reasonable rights. A man that 
 had cause to sue for land, did not know against whom to 
 bring his action, or who was the owner of it. The wife was 
 defrauded of her thirds, the husband of liis courtesy, the lord 
 of his wardship, relief, heriot, and escheat; the creditor of 
 his extent for debt, and the poor tenant of his lease." 
 
 The method pursued for remedying these inconveniences, 
 while it failed of accomplishing its immediate purpose, near- 
 ly caused all the ancient notorious method of transfer, and 
 even its very shadows and substitutes, to disappear, by giving 
 effect to new and secret conveyances. The statute of the 
 27th Hen. 8, c. 10, called the Statute of Uses, which had 
 been preceded by many partial attempts to attain the same 
 object,^ by fastening upon the interest of the cestui que use 
 the same obligations, and subjecting it to the same remedies 
 
 the privity and consent of ttie land- land to be extended by the creditors 
 
 lord or landlords, lessor or lessors, or of cestui que use ; 1 Eic. 2, c. 9 ; 4 
 
 to any mortgagees after the mortgage Hen. 4, c. 7 ; 1 Hen. 6, c. 3 ; 1 Hen. 7, 
 
 has become forfeited. c. 1, allowed actions for the freehold 
 
 1 Use of the Law, 153. to be brought against the cestui que 
 
 2 To remedy the inconveniences of use if in the actual pernancy of the 
 these creations of uses and trusts, in profits ; 11 Hen. 6, c. 5, made the 
 respect to lands, a multitude of cestui que use liable to the action of 
 statutes were enacted for making the waste ; 1 Ric. 3, c. 1, gave legal effect 
 cestui que use to be considered, for to his conveyances and leases, made 
 the particular purpose then in the without the concurrence of his 
 contemplation of the legislature, the feoffees ; and 4 Hen. 7, c. 17 ; 19 Hen. 
 real owner of the land. Thus, the 7, c. 15, made him answerable for the 
 60th Edw. 3, c. 6 ; 2 Eic. 2, sess. 2, c. feudal perquisites, and gave the lord 
 3 ; 19 Hen. 7, c. 15, subjected the the wardship of his heir. 
 
SEC. 190.] INTEEEST IN LANDS. 345 
 
 in a variety of particular instances, as had before accompa- 
 nied exclusively the legal ownership, at once identified the 
 use with the legal property in the land, or, as it is expressed, 
 " transferred the use into the possession "; or, in other words, 
 annexing the possession to the use. Before this statute, 
 equitable estates were created without livery, or entry, or 
 attornment, and by virtue of this statute, these equitable 
 estates, as soon as they were created, became clothed with 
 the legal interest, so that legal estates became grantable 
 without livery, entry, or attornment. The bargain and sale 
 came now, therefore, to be the general method of convey- 
 ance, which, having once raised the use upon the valuable 
 consideration, left the statute to do the rest of the work: 
 and so completely does form and solemnity seem at this 
 juncture to have been lost sight of, that it appears, accord- 
 ing to some authorities, and that of Lobd Coke among 
 others, that even lands might, in the interval between the 
 statute of uses and enrolments, have been transferred by a 
 parol bargain and sale.^ Nor does it appear that such un- 
 solemn modes of conveyance, where the customs of boroughs 
 have sanctioned them, received a decided and universal pro- 
 hibition till the great statute of Charles the Second, which is 
 the subject of this treatise, was enacted. In the meantime, 
 it should be remarked, that the evil, which it was the direct 
 purpose of the statute to prevent, eluded its intention in the 
 new shape of a trust, the courts having determined a use 
 upon a use, not to be executed or converted into the legal 
 estate by the statute. The easy and informal transfer of 
 real property, by the secret method of a bargain and sale 
 unrecorded, called for the legislative interference by the 
 statute of enrolments, whereby it was made^ necessary to 
 register in court these conveyances of the freehold, which 
 were thenceforth required to be in writing, under seal. But 
 this statute omitted to extend its provisions to bargains and 
 sales for terms of years, the consequence of which omission • 
 was the total disappointment of its salutary purpose by the 
 conveyance by lease and release, not then, indeed, for the 
 first time invented, but for the first time founded on a lease 
 made by a bargain and sale, to save the necessity of the entry, 
 by the help of the use executed by the statute. 
 
 1 See 2 Inst. 676; 1 Leon. 18. 2 27 Hen. 8, c. 16. 
 
346 STATUTE OF PEATJDS. [CHAP. VI. 
 
 Amid all these changes, however, under which the old 
 feudal fabric of conveyance had sunk into desuetude, the 
 transfer by parol, if the act of livery accompanied, existed 
 potentially, until the statute of frauds and perjuries, by the 
 clauses which form the subject of this chapter, imposed uni- 
 versally the necessity of writing upon all conveyances of 
 lands, or interests in lands, for more than three years. As 
 the registering was avoided by the lease and release, so the 
 necessity of writing might have been eluded by parol declara- 
 tions of trusts, but the statute of frauds and perjuries had this 
 danger also in view, and by the seventh and eighth sections, 
 already treated of in a separate chapter of this treatise, made 
 aU actions, declarations, and assignments of trusts, void ; and, 
 upon the whole, the statute would have restored the notori- 
 ety without the inconvenience of the feoffment by livery of 
 seizin, had it seemed, in other respects, proper to the framers 
 thereof to have extended the provision to the registration 
 and recording of what it has required to be in writing.^ 
 
 The passing of this statute is, however, properly regarded 
 as a new and important era in the law in respect to contracts, 
 trusts, and translations, of or concerning property in land : 
 and past experience having proved the fertility of invention 
 in suggesting means of eluding similar restraints, the courts 
 seem resolved to make the wisdom of this law effectual, by 
 discountenancing subtle distinctions and evasive exceptions. 
 Epithets of a harsh kind have sometimes been thrown upon 
 it ; and to some it has seemed to be a miscellany of uncon- 
 nected provisions : its objects were certainly numerous and 
 extended, and subsequent experience and modern refinement 
 may find something in the matter to be supplied or altered, 
 and something in the language to be corrected, but a general 
 and simultaneous view of its enactments, will disclose, to the 
 diligent and unpresumptuous student, a totality of plan and 
 
 1 By an act of the 2d Ann. c. 4, a And, by the statute 8 Geo. 2, c. 6, the 
 register is directed to he kept of all benefit of a similar provision is ex- 
 deeds and conveyances affecting lands tended to the North Riding of York- 
 in the West Biding of Yorkshire, shire. Registration has been made 
 Another statute of the same Queen, universal in Scotland, with great 
 6th Ann. c. 35, has established a advantage to that country. See 
 siinilar register in the East Riding. Darymple on Feuds, chap. 6, § 4. 
 A third, viz. 7th Ann. c. 20, does the And in this country it is required in 
 same for the county of Middlesex, all the States. 
 
SEC. 191.J INTEREST IN LANDS. 347 
 
 structure, and a wise and uniform purpose of protecting and 
 purifying the daily commerce of mankind. 
 
 The temptation, indeed, to convey so important a property 
 as land without writing is but small ; even when the talent 
 of writing was rare, the livery of seizin was seldom unaccom- 
 panied by the charter of feoffment ; but as the use of this 
 accompanying instrument, by becoming general did not, there- 
 fore, become essential, while, on the other hand, it made the 
 livery a transaction of less impression and solemnity, the pos- 
 sibility of swearing a man out of property of land seemed 
 to be such as might prove a temptation to the needy and 
 profligate. An end, therefore, has been anxiously put to the 
 chances and opportunities of both fraud and perjury, in re- 
 spect to the conveyance of interests and estates in land, 
 except as to a lease for one, two, or three years, which is 
 all that is left to the uncertainty of verbal testimony.^ 
 
 Sec. 191. Application of the Statute. — This section does 
 not refer to agreements which operate as an immediate trans- 
 fer or conveyance of an estate or interest in lands, but to 
 contracts which contemplate the making -or execution of a 
 grant, transfer, or conveyance at some future time.^ Nor 
 does it embrace contracts relating to land but which do not 
 confer an interest therein. The question as to what consti- 
 tutes an interest in lands, within the meaning of this section, 
 is a vexed one, and one which has often been before the 
 courts, with varying results, so that no general rule, afford- 
 ing an invariable test for determining what contracts re- 
 lating to lands are within the statute, can be given ; so that 
 the only guide in this respect, which can be given, is a refer- 
 ence to the class of contracts which have been held by the 
 courts to come within the statute, or not to be subject to its 
 operation. But it would seem that it may safely be said, that 
 a contract which involves the title to land, or anything which is 
 permanently connected therewith, comes clearly within the provi- 
 sions of this section ; but contracts which, although they relate 
 to matters which are connected with land, yet are only tempo- 
 rarily a part thereof, do not come within the statute ; and 
 under these rules arise the distinctions between contracts 
 
 1 Roberts on Frauds, 264-270. ^ gugd, V. & P. 94. 
 
348 STATUTE OP FBATIDS. [CHAP. TE. 
 
 relating to matters fruetus natiirales and, those which are 
 merely fruetus industriales, and contracts relating to fix- 
 tures which the tenant or owner of the land has a right to 
 remove, and those which he has not. This portion of the 
 fourth section of the statute refers to agreements for the sale 
 and purchase and acquisition of lands, tenements, or heredit- 
 aments, or any interest in or concerning them not operating 
 as an immediate transfer or conveyance of any estate or inter- 
 est, but as contracts to make or execute a grant, or transfer, 
 or conveyance, at some subsequent period.^ 
 
 Sec. 192. instances of Agreements 'Within the Statute. — 
 Agreements for leases and for the sale, assignment, or surren- 
 der of leasehold estates, being contracts for a grant or transfer 
 of an estate or interest in land, are within this clause of the 
 statute, and must consequently be authenticated by a signed 
 writing.^ Where anything is done which substantially amounts 
 to a sale or parting with an interest in land, the contract is 
 within the statute.^ Where it was agreed between the plaiatiff, 
 who was the tenant of a farm, and the defendant, that the 
 plaintiff should surrender her tenancy and prevail on her land- 
 lord to accept the defendant as tenant in her place, and that the 
 defendant should then pay her for so doing £100, it was held 
 that the contract amounted to a sale of an interest in land, 
 within the statute. As it appeared, however, that the plain- 
 tiff had given up the land, and that the defendant had suc- 
 ceeded to her interest, and had afterwards admitted that he 
 owed her £100, it was held that the £100 might be recov- 
 ered on an "accounts stated."* Contracts for the letting 
 and hiring of furnished houses and lodgings by the day, week, 
 or month, are contracts for an interest in land, and must be 
 authenticated by a signed writing,^ because if carried out, it 
 would amount to a demise; yet a mere contract for board 
 
 1 Sugd. "Vend. 94, n.; Blood v. Co., 9 N. H. 355; Bliss ». Thomson, 
 Hardy, 15 Me. 61 ; Patterson v. Cun- 4 Mass. 488 ; Sherburne v. Puller, 5 
 ningham, 12 Me. 506; Scotten v. Mass. 133; Hughes v. Moore, 7 Cr. 
 Brown, 4 Harr. (Del.) 324. Th'is ex- (U. S. C. C.) 176. 
 
 tends to the sale of a pew. Vichi v. * Kelly v. Webster, 12 C. B. 290. 
 
 Osgood, 8 Barb. (K Y.) 130. i Cocking v. "Ward, 1 C. B. 868. 
 
 2 Anon., Ventr. 361 ; Poulteney v. ^ Inmanu. Stamp, 1 Stark. 12 ; Edge 
 Holmes, 1 Str. 405 ; Olmstead v. Niles, v. Strafford, 1 C. & J. 391. 
 
 7 N. H. 523; Folsom u. Great Palls 
 
SEC. 193.] INTBEEST IN LANDS. 349 
 
 and lodging as an inmate of the house, although the lodger 
 is to have a separate room, is not,^ nor is a mere contract by 
 the occupant of a house to take a lodger giving him certain 
 specified rooms, although it implies a license to go upon the 
 land.2 Agreements to furnish houses entered into between 
 a landlord and an intended lessee or tenant, where the occu- 
 pation of the house forms the substance of the contract, and 
 the furnishing of it is bargained for only in connection with 
 such occupation, are within the fourth section.* Where an 
 oral agreement was made between the plaintiff and the de- 
 fendant for a lease of a ready-furnished house, and the 
 house being only partially furnished, the defendant prom- 
 ised to send in more furniture, and the plaintiff took pos- 
 session of the house, and the furniture not being put in, he 
 brought his action to recover damages for the breach of the 
 defendant's promise, it was held that the promise formed 
 part of an entire contract for an interest " in or concerning 
 lands, tenements, and hereditaments, and ought consequently 
 to have been expressed in writing." * If the agreement does 
 not form part of a contract for the letting and hiring of a 
 house, it is then of course only a sale and purchase of goods 
 and chattels, and has nothing whatever to do with an interest 
 in land. 
 
 Sec. 193. Agreements between Landlord and Tenant. — 
 
 Agreements to make alterations and repairs in buildings 
 entered into between a landlord and tenant, where the prin- 
 cipal subject-matter of the agreement is the letting of the 
 buildings, and the improvements and alterations are accessorial 
 thereto, and contracted for only in connection with the lease, are 
 contracts involving an interest in land within the statute, 
 and cannot be enforced unless in writing.® Thus, where the 
 
 1 "Wright V. Stavert, 2 E. & E.. 721. was held, however, to be a condition 
 
 2 Ckompton, J., in Wright t>. Stavert, precedent to the defendant's right of 
 ante; Wells v. Kingston-upon-Hull, action for the rent agreed upon. 7 
 10 C. & P. 402. Ad. & El. 54, n. (6). 
 
 8 Vaughan v. Hancock, 3 C. B. 766 ; ' Vaughan v. Hancock, 3 C. B. 766 ; 
 
 Simmons v. Simmons, 12 Jur. 8; Bots- Scoggin v. Slater, 22 Ala. 687; Dubois 
 
 wick V. Leach, 3 Day (Conn.) 476; v. Kelly, 10 Barb. (N. Y.) 496. In 
 
 Perrine v. Leachman, 10 Ala. 140; Smith v. Goulding, 6 Cush. (Mass.) 
 
 Hawley v. Moody, 24 Vt. 603. 154, it was held that an agreement 
 
 * Mechelen v. Wallace, 7 Ad. & El. not to claim damages for the flowage 
 
 49. The sending in of the furniture of land by a dam which a person was 
 
350 STATUTE OP FRAUDS. [CHAP. VI. 
 
 plaintiff, being in the possession of premises for an unexpired 
 
 term, agreed to give up possession to the defendant for the 
 
 balance of the term upon his agreeing to do certain repairs, 
 
 and the defendant was let into possession and occupied for 
 
 the balance of the term, but neglected to make the repairs, 
 
 it was held that the contract related to an interest in land, 
 
 and consequently, being within the statute, an action for its 
 
 breach could not be maintained.^ But an agreement to pay 
 
 an additional sum in consideration that the landlord will make 
 
 certain alterations in the premises, has been held not to be 
 
 within the statute. Thus, where a tenant who was in the 
 
 actual occupation of premises under a lease, verbally agreed 
 
 with the landlord that if he would put another story on the 
 
 house he would pay him £10 per year upon the cost of the 
 
 addition, in addition to the rent, it was held that the absence 
 
 of a written contract was no objection to a recovery of such 
 
 additional rent.^ In such cases, the tenant being in actual 
 
 possession, the contract is treated rather as a contract for 
 
 work and labor, than for an interest in land. But, if the 
 
 sum so to be paid is treated as rent, the contract would come 
 
 within the statute, because, as rent issues out of the land, it 
 
 is treated as an interest in land.^ 
 
 about to erect, did not confer an in- 116 Mass. 526 ; and where the law raises 
 terest in land ; but only amounted to a a promise, it is not within the statute, 
 waiver of a claim for damages, and, although it is raised from an agree- 
 therefore, need not be in writing. So ment concerning an interest in lands, 
 in Shortu. Woodward, 13 Gray (Mass.) or otherwise within the statute. Pike 
 86, it was held that an agreement to v. Brovra, 7 Gush. (Mass.) 133; Good- 
 take a certain annual compensation win v. Gilbert, 9 Mass. 510 ; Felch u. 
 for damages occasioned by flowing Taylor, 13 Pick. (Mass.) 138; and un- 
 lands by a dam, did not confer an in- der this rule it follows that an agree- 
 terest ill land, and, therefore, might ment, either on the part of tlie land- 
 be made by parol. But in these in- lord or tenant, to do an act, which the 
 stances the agreement merely amounts law makes it their duty to do in tlie 
 to a license, and may be revoked by absence of an express contract, is not 
 parol at the will of the owner of the within the statute ; and in this view it 
 lands afiected by the flowage. Where is held that a parol agreement by a 
 a contract for the making of repairs, tenant to leave the premises in as 
 or even the assignment of a lease, good condition as he found them, is 
 Griffith V. Young, 12 East, 514 ; Sea- not within the statute. Halbut v. 
 man v. Price, 1 Ey. & M. 195, is ex- Forest City, 34 Ark. 246. 
 ecuted, while no action can be main- i Buttermere v. Hayes, 5 M. & W. 
 tained on the special contract, yet an 456. 
 
 action will lie for materials furnished, " Hoby v. Roebuck, 7 Taunt. 157 ; 
 
 work and labor done, etc. Cooking v. Price v. Leybum, Gow. 109. 
 Ward,! C. B. 368; Kelly v. Webster, ' Brown v. Brown, 33 N. J. Eq. 
 
 12 C. B. 283; Eastham v. Anderson, 650 ; Angell v. Duke, L. E. 10 Q. B. 
 
SEC. 194.] INTEKEST IN LANDS. 351 
 
 Sec. 194. Contracts Relating to Land not Within the Statute. 
 — A contract for the manufacture of brick upon the land of 
 another from the clay of which the soil is composed, the brick 
 to remain the property of the owner of the land until the clay 
 and brick used in their manufacture are paid for, is held not 
 to be a contract for an interest in land ; ^ and in Massachu- 
 setts 2 and some other States ^ it is held that a sale of growing 
 fruit, or trees to be gathered or cut and removed by the vendee, 
 is not a sale of an interest in land.* So in Indiana it is held 
 that a verbal contract by the owner of land with another that 
 he may set out fruit trees (500 peach) on his land, and have 
 one-half the produce thereof^ after part performance, is not 
 within the statute ; ^ and the same is held in Maryland as to 
 a sale of growing fruit,^ and iq Massachusetts ^ as to a sale of 
 mulberry trees growing upon the vendor's land and raised 
 to be sold. So the sale of buildings and other fixtures, 
 erected by a tenant, and which he has a right to remove, is 
 held not to be within the statute.^ The principal difficulty, 
 says Me. Tayloe,® in interpreting what is meant by an in- 
 terest in lands has arisen in applying that term to cases 
 where trees, growing crops, or other things annexed to the 
 freehold form the subject of the contract ; and here the deci- 
 sions of the courts, so far from furnishing a safe guide, only 
 assist in confusing the student, since, to use the words of 
 
 174 ; Morgan v. Griffith, L. R. 6 Exchq. « Purner v. Piercy, 40 Md. 212. 
 
 70. ' Whitmarsh v. Walker, 1 Met. 
 
 1 Brown v. Morris, 83 N. C. 251. (Mass.) 313. 
 
 2 Nettleton I). Sykes, 8 Met. (Mass.) » Horsfall o. Hey, 2 Exchq. 778; 
 34; White v. Frost, 102 Mass, 375; Hallen v. Eunder, 1 C. M. & E. 266; 
 Drake r. Wells, 11 Allen (Mass.) 141; Keyson v. School District, 35 N. H. 
 Whitmarsh i,. Walter, 1 Met. (Mass.) 477; Forbes v. Hamilton, 2 Tyler 
 313; Douglass v. Shummay, 13 Gray (Vt.) 356; Erear v. Hardenburgh, 5 
 (Mass.) 498; Giles v. Simonda, 15 id. John. (N. Y.) 272; Howard v. Easton, 
 
 441 ; Delaney v. Eoot, 99 Mass. 546 
 Nelson v. Nelson, 6 Gray (Maes.) 385 
 Parsons v. Smith, 5 Allen (Mass.) 578 
 
 7 id. 205 ; Benedict v. Beebe, 11 id. 
 145; Lower v. Winters, 7 Cow. (N 
 Y.) 263; Mitchell v. Bush, 7 id. 185 
 
 Claflin c.. Carpenter, 4 Met. (Mass.) Barnes v. Pevine, 15 Barb. (N. Y 
 
 580. 247; Clark v. Schultz, 4 Mo. 235 
 
 8 Purner i;. Piercy, 40 Md. 212 ; Scoggin v. Slater, 22 Ala. 687 ; Zeika- 
 
 Byassee v. Reese, 4 Met. (Ky.) 372; fosse v. HuUck, 1 Morris (Iowa) 175 
 
 Cain V. McGuire, 13 B. Mon. (Ky.) Cassell v. Collins, 23 Ala. 676 ; Green 
 
 340. . V. Vardiman, 2 Blackf. (Ind.) 324 
 
 * But see post, § 197. Sale of grow- Beach v. Allen, 14 N. Y. S. C. 441 
 
 ing trees. Thouverin v. Lea, 26 Tex. 612. 
 
 6 Wiley V. Bradley, 60 Ind. 62. ' 2 Taylor on Evidence, § 754. 
 
352 STATTJTB OP FKAUDS. [CHAP. VI. 
 
 Lord Abinger,^ "no general rule is laid down in any of 
 them which is not contradicted by some other." Indeed, 
 none of the courts, either in this country or in England,^ 
 have agreed upon any unifo'rm test by which to determine 
 the merits of this question. In some of the cases they have 
 endeavored to solve it by reference to the law of emblements, 
 and have held that whatever will go to the executor cannot 
 be considered as an interest in land.^ In other cases the 
 test has been whether the property in dispute could have 
 been seized in execution at common law,* and in others a 
 distinction has been drawn between products of the soil, 
 fructus industriales, and those which are fruetus naturales^ 
 whUe in others the decisions have rested partly on the legal 
 character of the principal subject-matter of the contract, but 
 principally on the consideration whether, in order to effectuate 
 the intention of the parties, it is necessary to give the vendee 
 an interest in the land^ and this seems to be the most con- 
 sistent and reliable test which can be given. Where a 
 contract relates to an interest in lands, any collateral con- 
 tract which if it stood alone would not be within the stat- 
 ute, falls with it. Thus, a contract to let a furnished house 
 
 1 Eodwell V. Phillips, 9 M. & W. 1 Barb. (N. Y.) 542 ; Owens v. Lewis, 
 505. 46 Ind. 488 ; Buck v. Pickwell, 27 Vt. 
 
 2 Sugden's Vendors and Purcha- 157 ; Daniels v. Bailey, 43 Wis. 566 ; 
 sers, 141-158. Pitch.;;. Burk, 38 Vt. 687; Sterling v. 
 
 8 In Eodwell v. Phillips, 9 M. & W. Baldwin, 42 id. 306 ; Kilmore v. How- 
 
 505, LoKD Abinger seemed to re- lett, 48 N. T. 509 ; 'Wood v. Shultis, 
 
 gard this as the test, and said: "Grow- 11 N. Y. S. C. 309. Indeed, it may be 
 
 ing fruit would not pass to an executor, said to be well established that the 
 
 but to the heir ; it could not be taken sale of growing crops, the annual pro- 
 
 by a tenant for life, or levied in ex- duce of land, and the result of period- 
 
 ecution under a writ of fieri facias by ical planting and cultivation, are not 
 
 the sheriff ; therefore it is distinct within the statute, and may be made 
 
 from all those cases where the in- by parol. Austin v. Sawyer, 9 Cow. 
 
 terest would pass, not to the heir at (N. Y. ) 39 ; Marshall v. Ferguson, 23 
 
 law, but to some other person." Cal. 65 ; Bernal v. Hovious, 17 id. 541 ; 
 
 * Dunn V. Purgesou, Hayes Exohq. Mattock v. Fry, 15 Ind. 483 ; Brisky v. 
 
 Rep. 543 ; Jones v. Flint, 10 Ad. & El. Hughes, 4 id. 146; Bull v. Grissey, 19 
 
 758 ; Eodwell v. Phillips, ante. 111. 631 ; Heavilon v. Heavilon, 29 Ind. 
 
 ^ Jones V. Flint, ante ; Evans v. 509. Although in some of the States 
 
 Roberts, 5 B. & C. 832 ; Slocum v. Sey- a distinction is made as to whether the 
 
 mour, 36 N . J. L. 138 ; Home v. Bat- crop, at the time of the sale, is ripe, so 
 
 chelder, 49 N. H. 204 ; Putney v. Day, as to require no farther nourishment 
 
 6 id. 430 ; Kingsley v. Holbrook, 45 id. from the soil. Bryant v. Crosby, 40 
 
 813 ; Frank v. Harrington, 36 Barb. Me. 9. 
 (N. Y.) 415; Green v. Armstrong, 1 ^ Jones u. Flint, ante. 
 Den. (S. Y.) 550; "Warren v. Leland, 
 
SEC. 195.] INTEREST IN LANDS. 353 
 
 comes within the statute, and consequently a parol contract 
 to put more furniture into the house cannot be enforced.^ 
 A parol contract to surrender a house and fixtures for a cer- 
 tain sum is within the statute, -and even though the house 
 is surrendered according to the agreement, the agreed sum 
 cannot be recovered;^ but an agreement by a landlord to 
 pay a tenant for fixtures which the tenant has a right to 
 remove, at their valuation at the expiration of the term, 
 is not within the statute.^ 
 
 Sec. 195. Sale of Growing Crops. — In the case of con- 
 tracts for the sale of growing crops, it is of importance to 
 determine whether the sale is of " an interest in land " within 
 the fourth section, or of " goods, wares, and merchandise " 
 within the seventeenth, and it is difficult to lay down any 
 precise rule as to when a sale of growing crops is a sale of 
 an interest in or concerning lands. Loud Abingee, in Rod- 
 well V. Phillips,* said : " It must be admitted, taking the 
 cases altogether, that no general rule is laid down by any one 
 of them that is not conti-adicted by some other." ^ But it 
 
 ' Mechlen i>. "Wallace, 7 Ad. & El. 9 M. & W. 504; Waddington v. Bris- 
 
 49 ; Vaughan v. Hancock, 3 C. B. 766. tow, 2 B. & P. 455 ; Austin v. Sawyer, 
 
 2 Kelly u. Webster, 12 C. B. 163. Cow. 39; Green v. Armstrong, 1 
 
 8 HaUen v. Runder, 1 C. M. & R. Den. (N. Y.) 550; Cutler v. Pope, 13 
 
 266 ; Lee v. Gansell, 1 Q. B. D. 700. Me. 377 ; Pierrepont v. Barnard, 5 
 
 * 9 M. & W. 505. Barb. (N. Y.) 364. Bni fructus indus- 
 
 ^ And see Jones v. Flint, 10 Ad. & triales, such as growing crops of 
 
 El. 753 ; 2 P. & D. 594 ; Marshall v. turnips, potatoes, and com ; and the 
 
 Green, L. R. 1 C. P. D. 35. Agree- annual productions of the soil raised 
 
 ments for the sale and purchase of by the labor of man, which are seizable 
 
 growing grass (primae vesturae), grow- by the sheriff under a fieri facias, and 
 
 ing timber or underwood, growing pass to the executor and not to the 
 
 fruit and hops, not made with a view to heir, are considered goods and chat- 
 
 its immediate severance and removal tels, and contracts for the sale of 
 
 from the soil and delivery as a chattel them are, from this their original 
 
 to the purchaser, has been held to be a nature, considered to be contracts for 
 
 contract for the sale of an interest in the sale of goods and chattels and not 
 
 land, as it is not distinguishable from of an interest in land, although they 
 
 the land itself in legal contemplation are to remain in the soil and derive a 
 
 until actual severance, and passes to nutriment therefrom until they have 
 
 the heir, and not the executor. Cros- arrived at maturity, and the mere 
 
 by V. Wadsworth, 6 East, 610 ; Grif- license to come upon the land for the 
 
 fiths V. Puleston, 13 M. & W. 358 ; purpose of gathering and securing the 
 
 Carrington v. Roots, 2 M. & W. 248 ; crop, which is incident to such a con- 
 
 Scorell V. Boxall, 1 Y & J. 398 ; Sugd. tract, is not a sale of an interest in 
 
 "Vend. ch. 3, § 2; Petch v. Tutin, land within the meaning of the 
 
 15 M. & AV. 115; Rodwell v. Phillips, statute. Parker v. Staniland, 11 East, 
 
354 
 
 STATUTE OP FEAtTDS. 
 
 [chap. VI. 
 
 would seem that, in order to carry out the intention of the 
 framers of the statute, the test to be applied in determining 
 
 362; Warwick v. Bruce, 2 M. & S. 
 208; Mayfield v. "Wadsley, 3 B. & C. 
 357 ; 5 D. & R. 224 ; EranB v. Roberts, 
 
 8 D. & R. 614; 5 B. & C. 829; Watts 
 V. Friend, 10 B. & C. 446; Sainsbury 
 r. Matthews, 4 M. & W. 347 ; Dunne 
 V. Ferguson, 1 Hayes, 541. And if 
 fruit is sold at so much a bushel, and 
 timber at so much a foot, with a view 
 to its immediate severance from the 
 soil and delivery as a chattle to the 
 vendee, the contract is not a contract 
 for the sale of an interest in land, but 
 for the sale of goods and chattels, 
 " the produce of the trees when they 
 should be cut down and severed from 
 the freehold." Smith i;. Surman, 9 
 B. & C. 568 ; and the same has been 
 held as to a sale of all the fruit in a 
 certain orchard for a gross sum. 
 Pumer v. Piercy, 40 Md. 212. It is 
 the same as if the parties had con- 
 
 , tracted for so much fruit already 
 picked, and for so many feet of 
 timber already felled. Loed Abingek, 
 
 9 M. & W. 505; Rolfe, B., Wash- 
 bourne V. Burrows, 16 Law J. Exch. 
 266; 1 Exch. 115. And when there 
 has been an actual severance and de- 
 livery of the produce, the value of it 
 may be recovered under a common 
 count in indebitatus assumpsit for 
 goods sold and delivered. Poulter v. 
 Killingbeck, 1 B. & P. 397 ; Teall v. 
 Auty, 4 Moore, 642 ; Purner v. Piercy, 
 ante. But where a man agrees to 
 hire the land and take the crops 
 growing thereon at a valuation, and 
 to pay a certain sum for work and 
 labor and materials expended in 
 getting the lands ready for tillage, 
 this is an entire contract for an in- 
 terest in land, and the growing crops 
 cannot in such a case be treated as 
 goods and chattels. Earl of Falmouth 
 V. Thomas, 1 C. & M. 89 ; Harvey v. 
 Grabham, 5 Ad. & El. 62. But in 
 New York It has been held that a 
 contract between A and B, that A 
 will carry on B's farm and sow and 
 gather all the crops thereon for a 
 
 certain share of the crops, is not a 
 contract relating to an interest in 
 land, and that after A has entered 
 upon the execution of the contract, B 
 cannot revoke it, even as to the grow- 
 ing grass. Hobbs v. Weatherwax, 38 
 How. Pr. (N. Y.) 385. 
 
 Where a contract was entered into 
 for the sale of a crop of corn on the 
 land and the profit of the stubble 
 afterwards, and the vendor was to 
 have liberty for his cattle to run with 
 the purchaser's, and the purchaser 
 was to have some potatoes growing 
 on the land and whatever lay grass 
 was in the fields, and was to harvest 
 the corn and dig up the potatoes, and 
 the vendor was to pay the tithe, it 
 was held, that this was not a contract 
 for any interest in land, but a sale of 
 goods and chattels as to all but the 
 lay grass, and as to that, a contract 
 for the agistment of the defendant's 
 cattle. Jones v. Flint, 10 Ad. & El. 
 753 ; 2 P. & D. 594, S. C. The ten- 
 dency of the courts now seems to be 
 to hold that a sale of growing crops 
 either of grain, vegetables, fruits, or 
 roots, of whatever kind or description 
 which mature at certain periods, and 
 are of a perishable nature, is not a 
 sale of an interest in lands, whether 
 the same is mature or immature at 
 the time of sale, or whether they are 
 to be gathered by the vendor or 
 vendee, but rather as an executory 
 contract for the sale of goods, with a 
 license to the vendee to enter and 
 take away the same, which license, 
 according to our courts, may be re- 
 voked at any time by the vendor. 
 Delaney v. Root, 99 Mass. 548; but 
 which according to the present Eng- 
 lish doctrine is irrevocable. Marshall 
 ^. Green, 1 C. P. Div. 35. But in any 
 event, according to many of the cases, 
 the contract is valid, and if the license 
 is revoked before the delivery is com- 
 plete, an action lies for its breach. 
 McCarty v. Oliver, 14 TJ. C. C. P. 290 ; 
 Drake v. Welles, 11 Allen (Mass.) 143; 
 
SEC. 196.] INTEREST IN LANDS. 355 
 
 whether a contract for the sale of a growing crop, whether 
 fructus naturales or fructus industriales, or whether it is 
 mature or immature, or whether it is to be severed by the 
 vendor or the purchaser, is or is not within the fourth sec- 
 tion of the statute, is, did the seller contract to give the pur- 
 chaser an estate in the land, or did he merely contract for the 
 sale of the chattels, with or without a license to go upon the 
 land for a particular purpose.^ 
 
 Sec. 196. Sale of Crops after being Severed. — Where the 
 contract is, that growing crops shall be severed, and the prop- 
 erty in them transferred immediately, then the contract is for 
 a sale of goods within the seventeenth section, and not for a 
 sale of an interest in land within the fourth section.^ In 
 Crosby v. Wadsworth,^ it was decided that contracts for the 
 sale of growing crops of grass and hops came within the 
 fourth section, the ground of decision, which has been recog- 
 nized in several subsequent cases, being that the purchaser 
 had an immediate exclusive right to the land for a specific 
 period, namely, while the crops were growing to maturity, and 
 until they were harvested!^ In Parker v. Staniland,^ it was 
 held that a contract by the owner of a close, cropped with 
 potatoes, to sell them at so much a sack, the defendant to 
 get them out of the ground immediately, was not a con- 
 tract for an interest in the land, within the fourth section 
 of the statute, the contract being for the sale of a mere 
 chattel, and the land being considered as a warehouse for 
 the potatoes till the defendant could remove them.^ In 
 
 Owens V. Lewis, 46 Ind. 488 ; Kerr i;. harvesting and carrying away the 
 
 Connell, Berton (N. B.) 151; Whit- subject-matter of the sale. See Jones 
 
 marsh v. Walker, 1 Met. (Mass.) 316; o. Flint, 10 Ad. & El. 759. 
 
 Giles w. Simonds, 15 Gray (Mass.) 444; ^6 East 602, and Wadington v. 
 
 the rule being the same in this re- Bristow, 2 B. & P. 452 ; and see Jones 
 
 spect as in the case of the breach of v. Flint, 10 Ad. & El. 753 ; 2 P. & D. 
 
 a contract for the sale and delivery 594. 
 
 of ordinary chattels. * See Parker v. Staniland, 11 East, 
 
 1 Coleridge, Ld. C. J., in Mar- 362; Evans u. Roberts, 5 B. & C. 829; 
 shall V. Green, 1 C. P. D. 38. 8 D & R. 611 ; Smith i;. Surman, 9 B. 
 
 2 See 1 Wms. Saund. 395, notes to & C. 561 ; 4 Man. & R. 455; Warwick 
 Duppa V. Mayo. In certain cases, v. Bruce, 2 M. & Sel. 205 ; Sainsbury 
 however, it may be the intention of v. Matthews, 4 M. & W. 343 ; S. C. 
 the parties that the purchaser shall nom. Stanbury v. Matthews, 7 Dow. 
 have an interest in the land, and not 23. 
 
 merely an easement of the right to ^ 11 East, 36. 
 
 enter the land for the purpose of " See also Cutler i>. Pope, 13 Me. 
 
356 STATUTE 01" FBAUDS. [CHAP. VI. 
 
 Washburn v. Burrows,^ Rolfb, B., said: "When a sale of 
 growing crops does, and when it does not, confer an interest 
 in land, is often a question of much nicety; but certainly 
 when the owner of the soil sells what is growing on the land, 
 whether natural produce, as timber, grass, or apples, or fruc- 
 tus industriales, as corn, pulse, or the like, on the terms that 
 he is to cut or deliver them to the purchaser, the purchaser 
 acquires no interest in the soil, which in such case is only in 
 the nature of a warehouse for what is to come to him merely 
 as a personal chattel." ^ 
 
 Sec 197. Growing Trees. — In the case of a sale of stand- 
 ing trees, which are to be severed by the vendor, and de- 
 livered to the vendee at so much a cord ^ or per foot,* or even 
 for a gross sum, the fourth section of the statute has no ap- 
 plication, because although the thing contracted for is a part 
 of the realty at the time when it is contracted for, yet the 
 contract only relates to the trees when severed and reduced 
 to mere chattels, and the vendee does not contract for or 
 acquire any interest in land whatever, any more than in the 
 case of a sale of productions coming under the head of /rttc- 
 tus industriales referred to in the previous section. Thus in 
 Smith V. Surman,^ the contract was for the sale of trees still 
 standing, at a certain price per foot. It was held that the 
 contract was for the sale of chattels within the seventeenth 
 section, and did not confer an interest in land within the 
 fourth section. Littledale, J., said : " The words in the 
 
 337 ; Warwick u. Bruce, 2 M. & Sel. at the defendant's saw-mill, at two 
 
 205 ; Sainsbury v. Matthews, 4 M. & dollars per log, in the years 1873 and 
 
 W. 343 ; S. C. nom. Stanbury v. 1874, and to be measured and counted 
 
 Matthews, 7 Dowl. 23. at said mill, which logs the defendant 
 
 ^ 1 Exch. 115. agreed to accept and pay for ; that 
 
 2 And see Dunne v. Ferguson, the plaintiif's assignor cut a large 
 
 Hayes, 340. number of logs from the lot, in ad- 
 
 8 Kilmore v. Hewlett, 48 N. Y. 569. dition to the 206, which he refused to 
 
 * In Boyce v. Washburn, 4 Hun deliver to the defendant, by means of 
 
 (N. Y.) 792; an action was brought which the defendant had sustained 
 
 to recover the price of 206 logs, sold damage. Held, that this was not a 
 
 to the defendant. The defence was contract for the sale of standing 
 
 that the logs were delivered under a timber, and that it was not essential 
 
 contract, by which the plaintifE's to its validity that it should be in 
 
 assignor agreed to deliver to the de- writing, and therefore such defence 
 
 fendant all the market pine saw-logs could be established under it. 
 
 that could be cut from the "Perry" ' g b. & C. 561 ; 4 M. & E. 455. 
 
 lot, in Wilton, the logs to be delivered 
 
SEC. 197.] INTEREST IN LANDS. 357 
 
 (fourth) section relate to contracts for the sale of the fee 
 simple, or of some less interest than the fee, which give the 
 vendee a right to the use of the land for a specific period. 
 If in this case the contract had been for the sale of the trees, 
 with a specific liberty to the vendee to enter the land to 
 cut them, I think it would not have given him an interest in 
 the land within the meaning of the statute. The object of 
 a party who sells timber is, not to give the vendee any inter- 
 est in his land, hut to pass to him an interest in the trees, 
 when they hecome goods and chattels. Here the vendor was 
 to cut the trees himself. His intention clearly was, not to 
 give the vendee any property in the trees until they were cut 
 and ceased to be part of the freehold."^ In Marshall v. 
 Green,2 the facts were very similar, the only distinction 
 being that the trees were to be cut by the purchaser, but the 
 court did not consider this to be of any weight, and decided 
 that the contract was for the sale of goods. It seems also 
 that in England a contract for the sale of gravel, stone, or 
 other minerals, to be taken immediately, is within the seven- 
 teenth section.* But in this country it is held that a sale of 
 sand, gravel, etc., to be taken out by the vendee, is a sale of 
 an interest in land and within the statute, unless in writing, 
 and if the land is owned by two or more persons, a contract 
 signed by one of the owners does not aifect the right of the 
 other owner to rely upon the statute.* But in Iowa it has 
 been held that a license to take minerals from another's land 
 is not within the statute when the licensor has taken and 
 holds possession of the land, and the license is admitted by 
 the licensor himself,^ but a distinction is made when the 
 licensee has not acted under the license, and where he has 
 entered upon its execution, and in the former case the 
 statute is held to apply. 
 
 The principal conflict arises where growing trees are sold 
 
 1 See the remarks of Bayley, J., on * O'Donnell v. Brehen, 36 N. J. L. 
 this case in the Earl of Falmouth u. 257. See also Johnson u. Kellogg, 7 
 Thomas, 1 C. & M. 105; and of Lokd Heisk. (Tenn.) 272; where a memo- 
 Abingek in Rodwell v. Phillips, 9 M. randum of a sale of an interest in a 
 & W. 505. sandbank was held insufficient because 
 
 2 L. R. C. P. D. 35. it failed to give the time of purchase, 
 ' Coulton V. Ambler, 13 M. & W. or the location of the sandbank. 
 
 403; and see Dart. V. & P. 5th ed. ^Anderson v. Simpson, 21 Iowa, 
 203. 399. 
 
358 
 
 STATUTE OP FKAUDS. 
 
 [chap. VI. 
 
 to be severed by the vendee himself, and upon the question 
 whether such a sale is within the fourth section of the statute, 
 there is considerable conflict of doctrine in the courts of this 
 country. In Massachusetts the question is made to depend 
 upon the circumstance whether the parties intend an immedi- 
 ate and present transfer of the title in the trees or not. If the 
 former, the sale is treated as within the provision of the statute 
 relating to an interest in land, hut if the parties do not intend 
 that the title in the trees shall pass to the vendee until they are 
 severed, although such severance is to be made by the vendee, 
 it is treated as an executory contract for the sale of chattels 
 merely when they are severed.^ The rule is thus expressed 
 
 1 Nettleton v. Sikes, 8 Met. (Mass.) 
 34; Claflin v. Carpenter, 4 id. 580; 
 Whitmarsh v. Walker, 1 id. 313 ; De- 
 laney v. Root, 104 Mass. 548 ; White 
 V. Foster, 102 Mass. 375. There is no 
 question but that growing trees are 
 the subjects of grant and conveyance 
 by deed as a part of the freehold and 
 inheritance, eren though no right in 
 the soil on which they are standing 
 passes thereby beyond that of having 
 them stand thereon and derive nutri- 
 ment therefrom till they are severed. 
 Clapp V. Draper, 4 Mass. 266 ; Putnam 
 V. Tuttle, 10 Gray (Mass.) 48; Rich 
 0. Zeilsdorf, 22 Wis. 544; Green u. 
 Armstrong, 1 Den. (N. Y.) 550. Trees, 
 while growing, are essentially a part 
 of the real estate or freehold on wliich 
 they stand. But, while some of the 
 cases hold a sale of them to be of an 
 interest in land, other cases make a 
 distinction between a sale of them to 
 he presently cut, and where they are to 
 remain unsevered for any length of time, 
 holding it to be a sale of chattels in the 
 one case, and of an interest in land in 
 the other. But all agree that, if it is 
 a sale of an interest in land, it copies 
 within the 4th, and not the 17th, sec- 
 tion of the statute. The court of 
 New Jersey say : " I am satisiied that 
 such sale (of standing trees by the 
 owner of the freehold) is of an inter- 
 est in land ; " such trees " are a part 
 of the inheritance, and can only be- 
 come personalty by actual severance, 
 or by severance in contemplation of 
 
 law as the effect of a proper instru- 
 ment in writing." Slocum v. Seymour, 
 36 ST. J. 139, 140, citing Green v. Arm- 
 strong, ante. So in Vorebeck v. Roe, 
 50 Barb. (N. Y.) 305, the court say: 
 "It is well settled by authorities in 
 this State, that trees form a part of the 
 land, and, as such, are real property. 
 And a contract for the sale of them is a 
 contract for the sale of an interest in the 
 land." In Vermont, it was held that 
 so long as trees are annexed to the land, 
 and are not in contemplation of law sev- 
 ered therefrom, they cannot be sold by 
 verbal contract, although a sale of 
 growing crops of annual culture is 
 not a contract or sale of an interest 
 in land. Buck v. Pickwell, 27 Vt. 164. 
 But see Sterling v. Bostwick, 42 id. 
 306, where a different rule is an- 
 nounced by Bakeett, J. In Massa- 
 chusetts, the court, in one case, say 
 " a contract for the sale of standing trees, 
 to be cut by the vendee, does not convey 
 to him any interest in the land ; and it 
 is to be construed as passing an interest 
 in the trees when they are severed from 
 the freehold, an^ not an interest in the 
 land." Claflin v. Carpenter, 4 Met. 
 (Mass.) 583; Parsons v. Smith, 5 Al- 
 len (Mass.) 580. But this is limited 
 and explained by the same court in 
 White V. Foster, 102 Mass. 378, that 
 such a sale of trees is an "executory 
 contract for the sale of chattels, as they 
 shall be thereaflerward severed from the 
 real estate, with a license to enter on the 
 land for the purpose of removal," And 
 
SEC. 197.] 
 
 INTEREST IN LANDS. 
 
 359 
 
 in an early case : ^ " A contract for the sale of standing trees to 
 be cut by the vendee does not convey to him any interest in 
 
 1 Claflin V. Carpenter, ante. 
 
 in Delaney v. Root, 99 Mass. 648, the 
 court say that a sale of trees or grow- 
 ing annual crops, to be severed from 
 the land by the purchaser, does not 
 convey any interest in the land ; " and 
 so far as it implies a license to enter 
 upon the land, the license maij be re- 
 voked before it is executed." In Poor 
 
 V. Oakman, 104 Mass. 316, it is said 
 
 "they (standing trees) become personal 
 property by being cut^ and the license to 
 go upon the land and take them away 
 
 becomes irrevocable. But, before they 
 
 are cut, the license may be revoked, 
 
 otherwise it would ex proprio vigore 
 
 convey an interest in the land." And 
 
 the cases of Giles v. Simmonds, 15 
 
 Gray (Mass.) 441, 444, and Whit- 
 marsh V. Walker, 1 Met. (Mass.) 313, 
 
 316, are to the same effect. The cases 
 
 of Huff 0. McCauley, 63 Penn. St. 
 
 210, and Green v. Armstrong, ante, 
 
 hold, that if the sale of trees is not 
 
 made with a view to their immediate 
 
 severance, it is a contract for the sale 
 
 of interest in land. And Pattison's 
 
 Appeal, 61 Penn St. 294 ; McClintock's 
 
 Appeal, 73 id. 865 ; Yeakle v. Jacob, 
 
 33 id. 376 ; Bowers v. Bowers, 95 id. 
 
 477, may he cited to the same point. 
 
 The same is held in Vermont in Ster- 
 ling V. Baldwin, 42 Vt. 306, although 
 
 in a previous case. Buck v. Pickwell, 
 
 27 Vt. 157, it was held that the prop- 
 erty in the trees did not pass until 
 
 severed. In Connecticut, however, it 
 
 seems that if the sale be of apart of the 
 
 freehold, which may be separated there- 
 from, as of gravel, stones, timber, trees, 
 
 and the boards and bricks of the houses 
 
 to be pulled down and carried away, it 
 
 would not be within the statute of 
 
 frauds. Bostwick o. Leach, 3 Day 
 
 (Conn.) 476, 484. In Indiana, it is 
 
 held that no interest in standing trees 
 
 which can be enforced passes until 
 
 severance, and that a license to enter 
 
 and cut them may be revoked at any 
 
 time before they are severed. Arm- 
 strong V. Lawson, 73 Ind. 498 ; Owens 
 
 v. Lewis, 46 id. 488. And this was 
 formerly the rule in Vermont. Buck v. 
 Pickwell, ante, and such is the rule in 
 Maine, Cutler v. Pope, 13 Me. 377 ; 
 Erskine v. Plummer, 7 id. 447, as to 
 trees ; but crops ripe and ready to be 
 severed are held to be chattels, and a 
 sale of them before severance is held 
 not to pass an interest in land. Bry- 
 ant V. Crosby, 40 Me. 9. In New 
 York, a sale of growing trees, grass, 
 and other crops fructus naturales are 
 held to be void as passing an interest 
 in land. Green v. Armstrong, 1 Den. 
 (N. Y.) 660; McGregor v. Brown, 10 
 N. Y. 114; Boyce v. Washburn, 4 
 Hun (N. Y.) 792; Kilmore v. How- 
 lett, 48 N. Y. 669 ; Mumford v. Whit- 
 ney, 15 Wend. (N. Y.) 380; Warren 
 V. Leland, 2 Barb. (N. Y.) 614; Vore- 
 beck v. Koe, 50 id. 302; Dubois v. 
 Kelley, 10 id. 496; Smith v. N. Y. 
 Centl. R. R. Co., 4 Keyes (N. Y.) 180 ; 
 Bennett v. Lent, 18 Barb. (N. Y.) 347 ; 
 Lawrence d. Smith, 27 How. Pr. (N. Y.) 
 327. But a parol license to cut stand- 
 ing trees is held not to be within the 
 statute, and, when executed, is held 
 to be irrevocable. Pierrepont v. Barn- 
 ard, 6 N. Y. 279. So a contract to 
 cut cord-wood standing on the ven- 
 dor's land and to deliver it at so much 
 a foot, is held not to be within the 
 statute. Kilmore v. Hewlett, 48 N. Y. 
 569. See also Boyce b. Washburn, 4 
 Hun (N. Y.) 792, where a similar doc- 
 trine was held as to a contract for logs. 
 A contract to work a farm on shares 
 is held not to be within the statute, 
 and the license thus given after entry 
 under the contract is irrevocable, even 
 as to the growing grass. Hobbs v. 
 Wetherwax, 38 How. Pr. (N. Y.) 385. 
 Nor a contract for the sale of improve- 
 ments upon land. Lower v. Winters, 
 7 Cow. (N. Y.) 263 ; Benedict y. Beebe, 
 11 John. (N. Y.) 145. In New Hamp- 
 shire, it is held that a sale of growing 
 trees which ihvolves a future right on 
 the part of the vendee to enter to 
 
360 
 
 STATUTE OF FRAUDS. 
 
 [chap. VI. 
 
 the land, and it is to be construed as passing an interest in 
 the trees when they are severed from the freehold." ^ In a 
 
 1 See also Parsons v. Smith, 5 Allen (Mass.) 580. 
 
 they hold, if the purchaser has accepted 
 and received the growing crop by having 
 the same marked off and separated from 
 the rest of the field, it would constitute 
 a complete sale, and pass the property 
 in the crop. Graff v. Fitch, 58 111. 
 377. The following English cases 
 sustain the same doctrine, if they are 
 fructus industriales. Parker v. Stanl- 
 land, 11 East, 362, which was of pota- 
 toes to be taken at once. Warwick 
 V. Bruce, 2 M. & S. 205, which was of 
 potatoes in October ; Evans v. Rob- 
 erts, 5 B. & C. 836, of potatoes to be 
 dug by the vendor ; Jones v. Flint, 10 
 Ad. & El. 753, which was of corn and 
 potatoes not yet mature, and were to 
 derive their nutriment from the land, 
 though a different doctrine in such 
 cases had been held in Emmerson v. 
 Heelis, 2 Taunt. 38. But if it had 
 been growing grass, Crosby v. Wads- 
 worth, 6 East, 602 ; or hops. Wadding- 
 ton V. Bristow, 2 B. & P. 452 ; or grow- 
 ing fruit, Rodwell v. Phillips, 9 M. & 
 W. 592, it would, according to the 
 cases cited, have been a sale of an 
 interest in land, and not of merchan- 
 dise. But as to hops, see remarks of 
 Pakke, B., in Rodwell u. Phillips, 
 ante, where in remarking upon the 
 decision in Waddlngton v. Bristow, 2 
 B. & P. 452, that "hops are /rartus in- 
 dustriales. That case would probably 
 be decided differently now." See also 
 Frank v. Harrington, 36 Barb. (N. T.) 
 415, where hops were held to be fruc- 
 tus industriales, and a sale of them on 
 the vine, held not to be within the 
 statute. So growing fruit has been 
 held to come under the same head. 
 Pumer v. Piercy, 40 Md. 212. And, 
 inasmuch as growing grass matures 
 annually, and is valueless unless gath- 
 ered when mature, and is more or less 
 dependent for its growth and value 
 upon the industry of man, as by its 
 manurance, etc., it is believed that it 
 would now be treated as f-uctus indus- 
 triales and its sale not within the 4th 
 
 sever them, whether the right is to be 
 exercised within u, certain specified 
 time, or at an indefinite period, is 
 within the statute. Howe v. Batchel- 
 der, 49 N. H. 204; Kingsley v. Hol- 
 brook, 45 id. 313 ; Oakington v. Richey, 
 41 id. 275 ; Putney v. Day, 6 id. 430 ; 
 Olmstead ;;. Mies, 7 id. 522. In Mis- 
 sissippi, where a contract for the sale 
 of trees has been executed by the 
 vendee, that is, where he has entered 
 and severed them from the land, the 
 title thereto is held to have thus be- 
 come vested in him and the contract 
 effective. Harrell v. Millner, 35 Miss. 
 700. And the vendee has an irrevocable 
 license to enter and take them away. 
 Owens V. Lewis, 46 Ind. 488 ; Pierre- 
 pont V. Barnard, 6 N. Y. 279 ; Drake 
 V. Wells, 11 Allen (Mass.) 141 ; Barnes 
 V. Barnes, 6 Vt. ; Poor v. Oakman, 104 
 Mass. 316; Heath v. Randall, 4 Cush. 
 (Mass.) 195; Russell i>. Richards, 10 
 Me. 429; McNeal v. Emerson, 15 
 Gray (Mass.) 384; Smith u. Benson, 
 1 Hill (N. Y.) 176. Several of the 
 American cases hold that a sale of 
 growing crops not yet mature, being a 
 mere sale of chattels, is not within 
 the statute, although made by parol, 
 though no reason is given if with the 
 crops the sale carries a right to oc- 
 cupy the land for them to grow and 
 mature, why it would not be like the 
 sale of trees with a right to have them 
 stand for a definite or unlimited time, 
 unless, as some of the English cases 
 imply, such crops, after their sale, par- 
 take of the character of emblements. 
 Whipple a.Foot, 2 Johns. (N. Y.) 418 ; 
 Stewart v. Doughty, 9 id. 108 ; Austin 
 V. Sawyer, 9 Cow, (N. Y.) 40, 42; 
 McGregor v. Brown, 10 N. Y. 114; 
 Warren v. Leland, 2 Barb. (N. Y.) 213 ; 
 Bennett v. Scott, 18 icj- ; Newcomb v. 
 Eayner, 2 John. (N. Y.) 421 n. In one 
 case in Illinois, the court seem to re- 
 gard a sale of unmatured crops as a 
 sale of an interest in land. Powell v. 
 Rich, 41 III. 469. But, in another. 
 
SBC. 197.] INTEREST DT LANDS. 361 
 
 later case ^ the court limits and explains this rule thus : " A 
 sale of trees is an executory contract for the sale of chattels 
 as they shall be thereafter severed from the real estate, with 
 a license to enter on the land for the purpose of removal." 
 Until the trees or other growing crops are severed from the 
 soil, no title passes to the vendee and the license is revoca- 
 ble,^ otherwise it would ex proprie vigore convey, an interest 
 in the land.^ But after the trees are out by the vendor they 
 become personal property, and the license is irrevocable as it 
 then becomes a license coupled with an interest.* Thus in a 
 case previously cited ^ the plaintiff entered into a parol con- 
 tract with the defendant, that the defendant should cut cer- 
 tain trees upon the plaintiff's land, peel them and take the 
 bark to his own use, and pay therefor a certain price per 
 cord. The defendant entered in pursuance of the contract, 
 and cut and peeled the trees, but the plaintiff, after the con- 
 tract was executed on the part of the defendant, forbade him 
 from taking away the bark. But the defendant notwith- 
 standing this, entered and took away the bark, and in an 
 action of trespass brought against him therefor, it was held 
 that no recovery could be had, because after the license had 
 been executed by the defendant, the plaintiff could not re- 
 voke it. In Indiana,^ Maine,'^ and Mississippi,^ practically 
 the same doctrine prevails, it being held that under a parol 
 sale of growing trees, no title to the trees passes to the ven- 
 dee, and the license to enter and sever and remove them is 
 revocable at any time, but that after they have been severed 
 hy the vendor the title thereto vests in him, and the license to 
 take them away becomes irrevocable. That is, after severance, 
 the trees become chattels, and the license becomes then coupled 
 with an interest in chattels upon the land, and cannot be re- 
 voked until the licensee has had a reasonable time to execute it. 
 
 section under the principle upon of the trees are cut, it may be revoked 
 
 which the case of Marshall v. Green, as to the residue. Giles v. Simonds, 
 
 1 C. P. D. 35, rests. 15 Gray (Mass.) 441, 
 
 1 "White V. Forster, 102 Mass. 378. ^ Nettleton v. Sikes, ante. 
 
 2 Delaney v. Root, 99 Mass. 548. « Armstrong <■. Lawson, 73 Ind. 
 " Poor V. Oakman, 104 Mass. 816 ; 498 ; Owens v. Lewis, 46 id. 488. 
 
 Drake v. Wells, 10 Allen (Mass.) 141. ' Cutter v. Pope, 13 Me. 377; Ers- 
 
 ^ Poor V. Oakman, ante ; Nettleton kine v. Plummer, 7 id. 447. 
 V. Sikes, 8 Met. (Mass.) 34 ; Claflin v. ^ Harrell v. Millner, 35 Miss. 700. 
 Carpenter, ante. But if only a part 
 
362 
 
 STATUTE 01" FEAIJDS. 
 
 [chap. VI. 
 
 In Pennsylvania ^ it is held that a contract for standing 
 timber to be severed and removed at the discretion of the 
 vendee, is a sale of an interest in land. But if it is to be 
 severed and removed at once, it is held to amount only to the 
 sale of a chattel interest, and therefore not within the fourth 
 section of the statute.^ Such also, is the rule in Connecti- 
 cut,^ Kentucky,* Maine,^ Maryland,^ and in Vermont.^ The 
 
 1 Huff V. McCauley, 53 Penn. St. 
 210 ; McCIintock's Appeal, 73 id. 365 ; 
 Yeakle v. Jacob, 33 id. 376. In Bow- 
 ers 0. Bowers, 95 id. 477, it is said : 
 " A contract for standing timber on a 
 tract of land, to be taken off at the dis- 
 cretion of the purchaser as to time, is an 
 interest in land, within the meaning of 
 the statute of frauds, the transmis- 
 sion of which must be in writing." 
 Patterson's Appeal, 61 Penn. St. 294. 
 In that case, Thompson, C. J., says, 
 the announcement that the timber 
 growing on a man's land might be 
 held by a contract in parol while the 
 soil itself can only be legally trans- 
 mitted by a written instrument, would 
 strike even the improfessional mind 
 with surprise. The rigid requirements 
 of the statute have, however, been so 
 ' far relaxed by courts of equity that 
 effect is sometimes given to verbal 
 agreements for an estate or interest 
 in land ; but it is only in cases where 
 the contract, in all its essential parts, 
 is established by clear and unequivo- 
 cal proof, and where it has been so 
 far executed that it would be unjust 
 and inequitable to rescind it; and 
 this is done in order that the statute 
 itself may not become an instrument 
 of fraud. Hazlett v. Hazlett, 6 Watts. 
 (Penn. ) 464 ; Woods v. Farmere, 10 id. 
 195; Moore u. Small, 19 Penn. St. 
 461; Hart v. CarrpU, 85 Penn. St. 
 508. To take a case of parol sale 
 out of the statute, the terms of the 
 contract, the ,land which forms its 
 subject-matter, the nature and extent 
 of the interest to be acquired therein, 
 the consideration to be paid, etc., 
 must all be fully and satisfactorily 
 shown. Exclusive possession, taken 
 and kept up in pursuance of the con- 
 tract, is an indispensable ingredient 
 
 in every case. Hence it is that there 
 cannot be a valid parol sale of land 
 by one tenant in common to his co- 
 tenant in possession. Spencer's Ap- 
 peal, 81 Penn. St. 317. 
 
 2 McCIintock's Appeal, ante. 
 
 ° Bostwick V. Leach, 4 Day (Conn.) 
 476. 
 
 * Cain V. McGuire, 13 B. Hon. 
 (Ky.) 340 ; Byassee v. Bead, 4 Met. 
 (Ky.) 372. 
 
 6 Cutler V. Pope, 13 Me. 377 ; Saf- 
 f ord t. Ames, 7 Me. 168 ; Erskine v. 
 Plummer, 7 id. 447. 
 
 6 Purner v. Piercy, 40 Md. 212. 
 See full statement of case and opinion 
 of Stbwakt, J., post, p. 388. 
 
 ' In Stanley o. Baldwin, 42 Vt. 
 308, Barrett, J., In a very able opin- 
 ion, attacks somewhat the former doc- 
 trine in that State as held in Buck v. 
 Pickwell, 27 Vt. 157, and says: "In 
 Buck V. Pickwell no notice was taken 
 by Bennett, J., of the distinction 
 which seemed to be established out- 
 side of Vermont and clearly stated in 
 note 1. Greenl. Cruise, 55, § 45 : 'The 
 principle now most generally recog- 
 nized seems to be this, that in con- 
 tracts for the sale of things annexed 
 to and growing on the freehold, if the 
 vendee is to liave the right to the 
 soil for a time for the purpose of further 
 growth and profit, of that which is the 
 subject of the sale, it is an interest in 
 land within the meaning of the stat- 
 ute, and must be proved in writing. 
 But where the thing is sold in pros- 
 pect of a separation from the soil 
 immediately, or within a reasoi^able 
 and convenient time without any stip- 
 ulation for the beneficial use of the 
 soil, but with a mere license to enter 
 and take it away, it is to be regarded 
 as substantially a sale of goods only, 
 
SEC. 197.] LNTEKEST IN LANDS. 363 
 
 ground upon -which the cases holding this doctrine proceed 
 is, that the contract is for the sale of chattels only, and that 
 the circumstance that the trees are growing or standing upon 
 the vendor's land at the time of the sale, hut which are to 
 be removed immediately, does not in any sense make it a 
 contract for a sale of land or any interest in, or concerning 
 land, and that the circumstance that the vendee has the 
 right to enter upon the land to sever and remove the trees, 
 does not bring it within this section (fourth) of the statute ^ 
 upon the ground that such sale operates as a constructive 
 severance of them, and a parol license to enter upon the land 
 for such a purpose 'does not confer upon the licensee any 
 interest in the land itself, but is rather a license coupled 
 with an interest in a chattel upon the land, and only protects 
 him against liability for such entry so long as the license re- 
 mains unrevoked^ and by some of the cases whether the 
 license is revoked or not, if the hcensee has entered upon 
 the execution of the license, upon the ground that the license 
 being coupled with an interest in chattels upon the land is irre- 
 vocable, if exercised within a reasonable period? Thus in the 
 case last cited, which may be regarded as a leading case, and 
 as expressing the doctrine as now held in England, the plain- 
 tiff beijig tenant in fee of certain copyhold land, within a 
 manor, by the custom whereof trees growing on the land 
 were the property of the tenant in fee, having let the land 
 to a yearly tenant, sold by parol to the defendant twenty-two 
 specified trees growing on the land, upon the terms that 
 they were to be cut down by the defendant, and '''■ got away 
 as soon as possible" and to be paid for at a certain future 
 day. The defendant almost immediately entered upon the 
 land and cut down six of the trees, and sold to a third person 
 
 although an incidental benefit may be sons v. Smith, 5 Allen (Mass.) 578; 
 
 derived to the vendee from the cir- Douglass d. Shumway, 13 Gray (Mass.) 
 
 cumstance that the thing may remain 498; Nettleton v. Sikes, 8Met. (Mass.) 
 
 for a long time on the land '" 34; Whitmarsh w. Walter, 1 id. 313; 
 
 ' Smith V. Bryan, 5 Md. 141 ; Pur- ClaflSin v. Carpenter, 4 Met. (Mass.) 
 
 ner v. Piercy, 40 Md. 212; Cain v. 580; Nelson u. Nelson, 6 Gray (Mass.) 
 
 McGuire, 13 B. Mon. (Ky.) 340; 385. 
 
 Byasse v. Reese, 4 Met. (Ky.) ; Mc- ^ Armstrong v. Lawson, 73 Ind. 
 
 Clintock's Appeal, 71 Penn. St. 365; 498; Owens v. Lewis, 46 id. 488; 
 
 Drake v. Wells, 11 Allen (Mass.) 141 ; Delaney v. Root, 99 Mass. 546. 
 White 1-. Frost, 102 Mass. 375 ; Giles » Marshall u. Green, 1 C. P. Div. 
 
 V. Simonds, 15 Gray (Mass.) 441 ; Par- 35. 
 
864 
 
 STATUTE OF FRAUDS. 
 
 [chap. VI. 
 
 the tops and stumps of several of them. The plaintiff then 
 gave notice to the defendant that he forbade him to enter the 
 land, or to cut down or carry away any of the trees, and caused 
 the gate to the field in which the- trees were to be locked. 
 The defendant disregarded the notice, and cut down the 
 remainder of the trees, and carried away the whole twenty- 
 two of them, and for this purpose broke open the locked 
 gate. The plaintiff brought trespass and the court held^ 
 
 1 Marshall v. Green, 1 Q. B. D. 35. 
 We give the opinions of Coleridge, 
 C. J., Brett, J., and Grove, J., entire, 
 because the case is destined a leading 
 one upon this head of the statute, and 
 is not readily accessible to the great 
 majority of lawyers. Lord Cole- 
 ridge, C. J., said : " Upon these facts 
 it is plain that if there was a contract 
 in point of law, the plaintiff is wrong, 
 for the property in the trees felled 
 would be in the defendant, and the 
 defendant would be right in going to 
 take them away. If there was no 
 valid contract, the defendant is wrong. 
 The possession of the land was not in 
 the plaintiff, but in that of his tenant. 
 The question is whether, by reason of 
 either the 4th or 17th section of the 
 statute of frauds, a writing is requisite 
 for such a contract as this. First, was 
 it a contract or sale of lands, or any 
 interest in, or concerning them ■? Many 
 discussions have taken place upon the 
 exact meaning to be attached to the 
 words of this section, and many deci- 
 sions have been given, all of which it 
 may not be possible to fully reconcile. 
 If the matter were res Integra, much 
 might be said in favor of the view 
 taken by Littledale, J., in Smith v. 
 Surman, 9 B. & C. 561, 671, that they re- 
 late only to what may be termed con- 
 veyancing interestSjthat is, to contracts 
 for the sale of the fee or of some less 
 interest which would give the vendee 
 a right to the use of the land for a 
 specific period ; but the matter is very 
 far from being res Integra, and con- 
 tracts for certain natural products of 
 the land have been held to fall within 
 the 4th section, and it is now too late 
 to dispute the correctness of such de- 
 
 cisions. What, then, is the test? I 
 myself despair of giving a true test, 
 or one that can be satisfactorily ap- 
 plied to every conceivable case. It is 
 suggested that where you sell some- 
 thing which is to derive benefit from 
 the land, you part with an ' interest ' 
 within the 4th section. This is an in- 
 telligible rule, but it is one that must 
 vary according to times and seasons. 
 I find in a book of great authority, 
 which has received the sanction of 
 that eminent lawyer, the late Mr. 
 Justice Williams, in the notes to 
 Duppa V. Mayo, Wms. Saunders, 1871 
 ed., p. 394, it is said ' that the prin- 
 ciple of the decisions appears to be that t 
 wherever at the time of the contract it is 
 contemplated that the purchaser should 
 derive a benefit from the further growth 
 of the thing sold from further vegetation 
 and from the nutriment afforded by the 
 land, the contract is to be considered 
 as for an interest in land ; but where 
 the process of vegetation is over, or the 
 parties agree that the thing sold shall he 
 immediately withdrawn from the land, 
 the land is to be considered as a mere 
 warehouse of the thing sold, and the 
 contract is for goods'; and, further, 
 ' that it appears to be now settled that 
 with respect to fructus industriales (i.e. 
 corn and other growth of the earth 
 which are produced, not spontane- 
 ously, but by labor and industry), a 
 contract for the sale of them while grow- 
 ing, whether they are in a state of maturity 
 or whether they have still to derive nutri- 
 ment from the land, is not a, contract 
 for the sale of any interest in land, 
 but merely for the sale of goods. 
 Growing trees, though planted by the 
 hand of man, do not fairly come un- 
 
SEC. 197.] 
 
 INTEREST EST LANDS. 
 
 365 
 
 that such a contract was not a contract for the sale of lands 
 or any interest in or concerning them within the meaning of 
 
 der the designation of fmctus indus- 
 triales. I think we must look to the 
 position of the matters at the time of 
 the contract, and I think that where 
 at the time of the contract it is con- 
 templated by the parties that the pur- 
 chaser should derive ben^t from the 
 land, then there is a contract within the 
 ith section; but if the thing purchased is 
 to be immediately withdrawn from the 
 land, then the parties having had no in- 
 tention of dealing with any interest in or 
 concerning land, the contract does not 
 fall within that section.' Applying this 
 to the present case, the contract of 
 the 27 th February was for trees ' to 
 be got away as soon as possible.' 
 Now a contract to sell trees to be cut 
 down and carried away at once would 
 seem, but for judicial decisions, 
 nothing like a sale of an interest 
 in land, and, as it seems to me, there 
 is no sufficient pressure of authority 
 to prerent us from holding that, which 
 but for those decisions would seem 
 clear, namely, that the present is not 
 a case falling within the 4th section ; 
 indeed, there is some direct authority 
 to assist us in arriving at the conclu- 
 sion, which, in the absence of author- 
 ity, would have seemed inevitable. 
 The case of Smith «. Surman, 9 B. & 
 C. 561, is a case only distinguishable 
 from the present by the fact that the 
 trees were to be cut by the vendor ; 
 and the dicta of Littledale, J., if 
 well founded, as we think they are, 
 which are to be found in the report 
 of that case, are decisive of the pres- 
 ent case, and confirmatory of our 
 view of the law. The next question 
 is whether, if this contract is withm 
 the 17th section, there has been a 
 sufficient acceptance and actual re- 
 ceipt to satisfy the requirements of 
 that section. This is a matter upon 
 which there are an infinite number of 
 reported decisions ; the principle, how- 
 ever, which can, from an early period, 
 be found in those decisions, is that 
 there need not be an actual manual 
 
 receipt by the buyer of the whole 
 article; it is enough if there has 
 been a constructive acceptance and 
 receipt. Was there here enough ? 
 Six of the trees were cut down be- 
 fore the countermand, and portions 
 of them sold to a third person, with- 
 out, it would seem, the actual knowl- 
 edge of the plaintiff, but, as it must 
 be taken, with his consent. What 
 more could a purchaser do ■? Trees 
 are bulky articles which cannot be 
 carried away merely by the hand, and 
 the purchaser cuts off their tops and 
 stumps and sells them, thus showing 
 by his conduct that he adhered to the 
 contract. If anything short of actual 
 manual receipt would do, what was 
 done here was enough. He is allowed 
 to deal with the goods as his own, and 
 deals with them as only an owner has 
 a right to deal. The cases of Hodg- 
 son V. Le Bret, 1 Campb. 233; An- 
 derson V. Scott, id. 236, and the judg- 
 ment of LoHD Kenton in Chaplin a. 
 Rogers, 1 East, 191, appear directly 
 in point. Lord Kenton, in Chaplin 
 V. Rogers, 1 East, 194, says : ' Where 
 goods are ponderous, and incapable 
 of being handed over from one to 
 another, there need not be an actual 
 delivery.' The defendant, therefore, 
 had a perfect right to go upon the 
 land and carry out his contract, by 
 cutting down and carrying away, as 
 he did, the whole of the trees he pur- 
 chased. I do not rely upon the fact 
 that the land was not then in the pos- 
 session of the plaintiff, and, therefore, 
 I express no opinion as to how far the 
 fact that the plaintiff had no present 
 interest in the land may strengthen 
 the defendant's case." 
 
 Brett, J., said : " It is admitted 
 that if the trees were the property of 
 the defendant by virtue of a valid 
 contract, no action lies. Upon the 
 facts, it appears that no contract in 
 writing was signed by the plaintiff, and 
 that the trees had not been taken away 
 by the defendant before the plaintiff 
 
366 
 
 STATUTE OK TBAUDS. 
 
 [chap. VI. 
 
 the fourth section, and that it fell within the seventeenth 
 section of the statute, and that the entry of the defendant 
 
 gave notice that he revoked the con- 
 tract. It was said, first, that the con- 
 tract was , one within the 4th section 
 of the statute of frauds, and, secondly, 
 that if not within the 4th section, but 
 within the 17th, there was no suffi- 
 cient acceptance and actual receipt. 
 A contract may concern land in va- 
 rious ways. It may relate to some- 
 thing in the land, to something affixed 
 to the land, or to something both in 
 the land and affixed to it. Certain 
 tests have been applied for the pur- 
 pose of determining whether or not a 
 contract falls within the 4th section. 
 Most of these tests are given in the 
 note to Duppa v. Mayo, Wms. Saund., 
 ed. 1871, 394, an addition which has 
 the sanction of the authority of a 
 learned, eminent, and profound law- 
 yer, and which has just been referred 
 to by the Lord Chief Justice. In 
 this case, the subject-matter of the 
 contract, timber trees, was to be taken 
 away by the buyer immediately ; ap- 
 plying, therefore, the tests given in 
 the notes to Duppa v. Mayo, the con- 
 tract regards only trees, and is within 
 the 17th section and not within the 
 4th. There was no writing ; therefore 
 we must ascertain whether there was 
 acceptance and actual receipt before 
 the countermand. That there was 
 acceptance was hardly questioned. 
 Was there evidence of actual receipt ■? 
 I say was there evidence, because, 
 though the question was tried by con- 
 sent before the judge, it is left for 
 this court to draw inferences from 
 the facts. It appears that the vendor 
 and owner of the trees was not in pos- 
 session of the land, yet I think the 
 case maybe traced as though he were. 
 Before the countermand, the defend- 
 ant had a license to go on the land ; 
 he had a right to go there by reason 
 of the parol contract ; he went there 
 and cut down six of the trees and 
 lopped them. I do not rely upon 
 the agreement to sell the stumps and 
 tops, for I think the mere making of 
 
 a sub-contract would not be enough, 
 but there was more than this. Where 
 there has been no carrying away of 
 the thing sold, the question is, has 
 the vendee been in actual possession 
 of the thing sold, and done something 
 to the thing itself which could only 
 legally be done by the owner ? I in- 
 cline to think that something done 
 concerning the thing would not be 
 sufficient evidence, to be left to a jury, 
 of actual receipt. In Hodgson v. Le 
 Bret, 1 Campb. 233, the goods were 
 marked by the purchaser with his 
 name ; that was t^e act of an owner. 
 In Anderson v. Scott, 1 Campb. 2.35, 
 the plaintiffs initials were marked 
 upon the casks in his presence, al- 
 though they were upon the seller's 
 premises. The fact that the plaintiff 
 allowed or procured this to be done 
 in his presence was evidence to show 
 that he intended to be the owner of 
 the casks. Here, before there was 
 any revocation of the verbal contract, 
 what was done sufficiently satisfied the 
 requirements of the statute as to actual 
 receipt. The contract, therefore, was 
 binding, and the defendant is entitled 
 to succeed." 
 
 Gkove, J., said : "I have a little 
 to add. One point, however, I wish 
 to notice. In case of this description, 
 not only the subject-matter of the bar- 
 gain is to be looked at, but also the 
 intention of the parties as to the mat- 
 ter in respect of which they bargain. 
 In Smith v. Surman, Seegeant Ens- 
 SBLL, in his argument, says : ' A sale 
 of crops or trees, or other matters ex- 
 isting in a growing state in the land, 
 may or may not be an interest in land 
 according to the nature of the agree- 
 ment between the parties, and the 
 rights which such an agreement may 
 give.' LiTTLEDALE, J., in the same 
 case, 9 B. & C. 573, says : ' The 
 object of a party who sells timber is 
 not to give the vendee any interest in 
 his land, but to pass to him an interest 
 in the trees, when they become goods and 
 
SEC. 197.J INTEREST IN LANDS. 367 
 
 and the severance by him of six of the trees, and the sale of 
 the stumps and tops of several of them, afforded sufficient 
 evidence of acceptance and actual receipt to satisfy that 
 section, and consequently that the action was not maintaina- 
 ble, because the entry being made under a license coupled with 
 an interest in chattels was lawful, and the notice given by the 
 plaintiff was inoperative to defeat the defendant's right under 
 the license, as (under the circumstances) it was irrevocable.^ 
 It will be observed that the distinction between the doctrine 
 of this case, and that held in Massachusetts is, that the con- 
 tract for the sale of standing trees is treated in Marshall v. 
 Green, in the absence of any express or implied stipulation 
 to the contrary, as passing the title to the trees to the vendee 
 immediately, and therefore treating them as chattels, and con- 
 structively severed instantly upon the completion of the contract 
 of sale, as effectually as they would be by a contract in writ- 
 ing, and also holding that, if an immediate severance is not 
 contemplated by the parties, but the trees are to remain and 
 derive a further benefit from the soil "from the further 
 growth of the thing sold from further vegetation, and from 
 the nutriment afforded by the land, the contract is to be con- 
 sidered as for an interest in land," and that the license to enter 
 and sever and remove the trees is irrevocable after the vendee 
 has entered upon its execution. While under the rule as 
 adopted in Massachusetts, as we have seen,^ if the parties 
 
 chattels' By considering what, in each the land being then the plaintiffs ten- 
 case, was the object of the parties, ant's, the defendant is entitled to the 
 many of the cases may, I think, be Terdict." 
 
 reconciled. Here the defendant merely ^ In Anderson v. Simpson, 21 Iowa, 
 intended to buy the trees ; he had no in- 390, it was held that a license given 
 tention of being interested in the land ; he by the owner of lands to another to 
 merely wanted timber, and wished to enter upon his lands to dig minerals 
 have it severed from the land at therein, was irrevocable after the li- 
 once ; he only bought so much wood. I cettse had entered upon its execution. 
 am, perhaps, hardly satisfied that the In Brown u. Morris, 83 N. C. 251, a 
 circumstance that the plaintiff was contract under which one is to make 
 not in possession of the land was im- brick on the land of another from the 
 material ; it may be that the plaintiff clay forming a part of the soil of such 
 had no right in the land except the land, the property in the bricks to re- 
 right to remove the trees, and this main in the owner of the land until he 
 may be a matter which strengthens has been paid for the clay and wood 
 the case for the defendant. It is not, used in their manufacture, was held 
 however, needful to discuss this ques- not to be a contract relating to an in- 
 tion in the present case, as I agree terest in land, 
 that independently of any considera- ^ Ante, p. 358. 
 tions that may arise from the fact of 
 
STATUTE OP FEATJDS. [CHAP. VI. 
 
 intend a present transfer of the title to the trees, the contract 
 is treated as for an interest in land, and while, after the trees 
 have been severed hy the vendee, the vendor cannot revoke 
 the license to enter and remove them, yet he may at any 
 time revoke it, before it has been executed, or as to any trees 
 not then severed.^ If the doctrine of constructive severance 
 has any validity, and it seems to be generally adopted, there 
 appears to be no good reason why it may not be as well 
 effected by a parol as by a written contract, and the objec- 
 tion that if this doctrine is recognized, perpetual estates in 
 land may be effected by parol, is without foundation, because 
 it is confined to contracts where an immediate severance is irv- 
 tended, so that, if not carried into effect within a reasonable 
 time, it ceases to be operative. 
 
 In Pennsylvania, Connecticut, Kentucky, Maryland, Maine, 
 and Vermont, as we have seen,^ the doctrine of Marshall v. 
 Green is practically adopted. In New Hampshire it is held 
 that a sale of growing trees is a sale of an interest in land, 
 and can only be made in writing where a right to enter and 
 sever and remove them at any future time, fixed or indefinite, is 
 given.^ But it is held that, when a valid contract for their 
 sale has been made, they are reduced to chattels and may be 
 sold as such by the person to whom they have so been sold,* 
 as, where they are reserved by the grantor in a deed convey- 
 ing the lands,^ or where the contract ig in writing,^ provided 
 it is not attempted thereby to confer upon the purchaser a 
 right to enter, to sever, and remove the same at his discretion, 
 without reference to the reasonableness or unreasonableness 
 of his delay in doing so,'^ and in the case last cited where the 
 grantor reserved certain growing trees to be cut and removed 
 within a certain specified time after notice from the grantee, it 
 was held that by such reservation, the trees were constructively 
 severed and became mere chattels, and passed to the admin- 
 istrator, and a fortiori would pass to a vendee under a parol 
 
 1 Ante, p. 361. Bank of Lansingburgh v. Crony, 1 
 
 2 Ante, p. 358 n.; also Smith v. Barb. (N.Y.)542; "Warren «. Deland, 
 Bryan, 5 Md. 151. 2 Id. 613. 
 
 » Kingsley v. Holbrook, 45 N. H. ^ Kingsley v. Holbrook, 45 N. H. 
 
 313 ; Putney v. Day, 6 id. 430 ; 01m- 313 ; McClintock's Appeal, 71 Pena 
 
 stead V. Niles, 7 id. 522; Howe v. St. 367. 
 Batehelder, 49 id. 204. 6 Sterling v. Baldwin, 42 Vt. 306. 
 
 * Ifingsley v. Holbrook, ante ; ' McClintock's Appeal, ante. 
 
SEC. 197.] INTEREST IN LANDS. 369 
 
 sale otherwise valid under the seventeenth section.^ In New 
 York it is held that a parol sale of growing trees, grass, and 
 other crops fructus naturales is a sale of an interest in land 
 under the statute, and therefore void,^ and this is also the 
 rule in New Hampshire * and New Jersey.* In the latter 
 State in the case cited, the court say : " Trees form a part of 
 the land, and as such are real property. And a contract for 
 the sale of them is a contract for the sale of an interest in 
 land." But in New York it is held that a contract to cut 
 trees standing on the vendor's land and deliver them to the 
 vendee at a certain sum per cord,^ or to cut timber trees and 
 deliver them to the vendee at a certain sum per foot,® is not 
 a contract for a sale of an interest in land, and a similar doc- 
 trine has been held as to a contract for carrying on a farm 
 for a share of the crops, including grass "^ and for the sale of 
 improvements made upon land.* In Illinois,^ as to growing 
 crops, it has been held that a sale of them before they are 
 mature is a sale of an interest in lands. But in a later case ^^ 
 this rule has been so far qualified as to hold that, where the 
 purchaser has accepted and received the growing crop hy having 
 the same marked off and separated from the rest of the field, 
 the title to the crop passes to the purchaser a good title 
 thereto, thus virtually bringing the doctrine of that court 
 within the rule as adopted in Marshall v. Green. In Canada ^^ 
 it is held that a sale of growing trees is a sale of an interest 
 in land, but in a more recent case ^^ the question was consid- 
 
 1 Sterling v. Baldwin, ante ; Kings- * Slocum v. Seymour, 36 N. J. L. 138. 
 ley V. Holbrook, ante. " Kllmore v. Howlett, 48 N. Y. 669. 
 
 2 Green u. Armstrong, 1 Den. (N. ^ Boyce v. Washburn, 4 Hun (N. 
 Y.) 550; Smith v. N. Y. Cent. E. E. Y.) 792. 
 
 Co., 4 Keyes (N. Y.) 180; McGregor ' Hohbs v. Weatherwax, 38 How. 
 
 V. Brown, 10 N. Y. 114 ; Lawrence v. Pr. (N. Y.) 385. 
 
 Smith, 27 How. Pr. (N. Y.) 327; ' Benedict v. Beebe, 11 John (N. 
 
 Boyce v. Washburn, 4 Hun (N. Y.) Y.) 145; Lower v. Winters, 7 Cow. 
 
 292 ; Muraf ord v. Whitney, 15 Wend. (N. Y.) 263. 
 
 (N. Y.) 380; Bemnett v. Scut, 18 » Powell w. Eich, 41 111. 469. 
 
 Barb. (N. Y.) 180; Vorebeck v. Eoe, i" Graff y. Fitch, 58 111. 377. 
 
 50 id. 302; Dubois v. Kelly, 10 id. " McCarthy v. Oliver, 14 TJ. C. C. 
 
 496. In Bishop v. Bishop, 11 N. Y. P. 290; MacDonnell v. McKay, 15 
 
 123, it was held that />o?es necessarily Grant (Ont); Lawrence w. Ervington, 
 
 used in raising hops, which were 21 id. 261 ; EUis v. Grubb, 3 N. C. Q. 
 
 taken down and piled in the yard for B. (0. S.) 611; Hamilton v. McDon- 
 
 the purpose of gathering the crop, nell, 5 id. 720. 
 
 were a part of the land. ''^ Summers u. Cook, 28 Grant 
 
 s See p. 372. (Ont.) 170. 
 
370 STATUTE OF FRAUDS. [CHAP.VI, 
 
 ered with reference to the new phase adopted in Marshall v. 
 Green, and while the court adhered to its previous doctrine, 
 yet it was by a divided court,' so that the question may be 
 saicj to be an open one. In that case the plaintiff, by a con- 
 tract in writing, dated Oct. 15, 1873, agreed to sell to one 
 Casselman all the , merchantable white and red pine timber 
 suitable for his purposes, standing, lying, or being on certain 
 premises owned by the plaintiff for |600, of which sum $400 
 was payable on the date of the agreement, and the balance in 
 one year. The contract provided that the timber should be 
 cut and removed before the 15th of October, 1881. Cassel- 
 man, his agents, representatives, or assigns, by the terms of 
 the contract were authorized to enter upon the premises at all 
 times during the eight years for the purpose of cutting and 
 removing the timber. ■ Casselman did not pay the 1200 stip- 
 ulated to be paid in one year, and after the expiration of the 
 year, assigned the contract to the defendant. The question 
 presented was, whether the contract was for a sale of an 
 interest in land, and therefore within the statute ; and it was 
 held by a majority of the court that it was, and the judge 
 delivering the opinion of the majority. Blake, V. C, thus 
 comments on the doctrine of Marshall v. Green: "I think 
 we have in this case an unfortunate extension of the intelli- 
 gible rule, that growing trees are an interest in land, and that 
 a contract in respect of them falls within the same rules as 
 
 1 Proudfoot, v. C., dissenting, tion is entirely distinct from another 
 and in an able opinion sustaining the much relied on in the argument, viz., 
 rule as adopted in Marshall v. Green, whether the trees were not so con- 
 He said ; "Loud Hardwicke treated a nected with the soil as to he an inter- 
 sale of standing timber as a sale of est in land, and so require a writing 
 chattels although the purchaser had to evidence the contract under the 
 eight years to remove it in. Buxton statute of frauds. But it does not 
 V. Lister, 3 Atk. 383. And I notice seem at all clear that a sale of trees 
 also, that in Stokeley v. Butler, Hob. is such an interest in land as requires 
 173, the grantee of the trees not only a writing for the sale of them." After 
 had five years to remove them, but adverting to the case of Marshall v. 
 had also the right to make some pits Green, and its doctrine, he continued : 
 on the land, and to convert the trees " The true rule deducible from these 
 into timber where they stood. These cases would seem to be that if the 
 cases and many others that might be trees were purchased for the timber as 
 cited seem to establish that where the they stood, and not with the intention of 
 trees are dealt tvith separately from the allowing them to increase in size and 
 land, they will be considered as become more valuable from remaining 
 chattels, as the purchasers plainly on the soil, they are to be treated as 
 intended they should be. This ques- chattels." 
 
SEC. 198.] INTEREST IK LANDS. 371 
 
 a contract in respect to lands ; and that it is to be regretted 
 that this question is left to depend upon the length of time 
 the party has to remove the property purchased. But be this 
 as it may, Marshall v. Green would have to be almost indefi- 
 nitely extended, if the clause ' the trees to be got away as 
 soon as possible,' be enlarged so as to cover a period of eight 
 years." A similar doctrine is held in New Brunswick.^ 
 Mk. Benjamin, in his excellent treatise on Sales,^ says the 
 decision in Marshall v. Green seems open to some criticism. 
 It must be supported either on the ground that it falls within 
 the principle that the property was not to pass until it had 
 been cut down, and that this was the inference drawn from 
 the words " to be cut down as soon as possible," or else it 
 must be taken to have introduced a limitation upon the prin- 
 ciple that even where the property passes before severance 
 in fructus naturales, yet, if the evidence shows that they are 
 to gain nothing hy further growth in the soil, then to sell them 
 as they stand is not a sale under the fourth but under the 
 seventeenth section. 
 
 Sec. 198. Distinction betw^een Growing Trees and Growing 
 Crops. — The distinction between growing trees and ordinary 
 annual, biennial, or other crops which mature at regular 
 periods, is quite marked, and is well illustrated by Joy, B.,^ 
 in which the question was, whether a sale of a growing crop 
 of potatoes was a sale of chattels, or of an interest in the 
 land. He said : " The general question for our decision is, 
 whether there has been a contract for interest concerning 
 lands within the statute of frauds, or whether it merely con- 
 cerned goods and chattels, and that question resolves itself 
 into another, — whether growing crops are goods and chattels ? 
 In one case it has been held that a contract for potatoes did 
 not require a note in writing because the potatoes were ripe ; 
 and in another the distinction turned upop the hand that 
 was to dig them, so that if dug by A, they were potatoes ; 
 but if by B, they were for an interest in land. Such a course 
 always involves the judges in perplexity, and the case in 
 
 1 Seegoe o. Perley, 1 Kerr (N. B.) ^ Benjamin on sales, 3d Eng. ed., 
 
 439; Kerr v. Connell, Berton (N. B.) § 126. 
 
 151; New Brunswick Lumber Co. v. ' Ferguson v. Dunne, 1 Hayes 
 
 Kirk, 1 Allen (N. B.) 443 ; Murray v. (Irish) 542. 
 GUbert, 1 Hannay (N. B.) 548. 
 
372 STATUTE OF PEATJDS. [CHAP. VI. 
 
 obscurity. Another criterion must therefore be had recourse 
 to, and fortunately the later cases have vested the matter on 
 a more rational and solid foundation. At common law grow- 
 ing crops were uniformly held to be goods, and they were 
 subject to all the leading consequences of being goods,, as 
 seizure on execution, etc. The statute of frauds takes things 
 as it finds them, and prevails for lands or goods according as 
 they were esteemed before its enactment. In this way the 
 question may be satisfactorily decided. If before the statute 
 a growing crop has been held to be an interest in lands, it 
 would come within the fourth section ; but if only goods and 
 chattels, then it comes within the seventeenth section. And 
 as we think that growing crops have all the consequences of 
 chattels, and are like them subject to be taken in execution, 
 we must rule the point saved, for the plaintiffs." ^ " Growing 
 crops," says Sargent, J.,^ "for many purposes are, and 
 always have been, considered chattels. They go to the exec- 
 utor upon the death of the owner of the land, and not to the 
 heir, and they may be levied on and sold like other personal 
 chattels. And this being the case when the statute was 
 enacted, they continued to be so treated, and may properly 
 be so now. But the word ' land ' is a comprehensive term, 
 including standing trees, buildings, fences, stones, and waters, 
 as well as the earth we stand on, and pass under the general 
 description of land; in a deed standing trees must be re- 
 garded as part and parcel of the land in which they are 
 rooted and from which they draw their support ; and upon 
 the death of the ancestor they pass to the heirs as a part of 
 the inheritance, and not to the executor as emblement, or as 
 chattels. Neither can they be levied upon or sold on execu- 
 tion as chattels while standing. This being the case when 
 the statute of frauds was passed, it has since then been prop- 
 erly held, we think, that a sale of growing trees with a right 
 at any future time to enter upon the land and remove them, 
 does convey an interest in land."^ Whether, a sale of crops 
 fructus industriales while they are immature and still grow- 
 
 1 See also Pattison's Appeal, 61 " Putney v. Day, 6 N. H. 430; 
 Penn. St. 294 ; Kingsley v. Holbrook, Olmstead v. Niles, 7 id. 522 ; Green v. 
 45 N. H. 319. Armstrong, 1 Den. (N. T.) 550; "War- 
 
 2 Kingsley v. Holbrook, 45 JJ^. H. ren v. Leland, 2 Barb. (N. Y.) 614. 
 319. 
 
SEC. 198.] 
 
 INTEREST IN LANDS. 
 
 373 
 
 ing, are (says Me. Benjamin in his work on Sales) only 
 chattels, but " goods, wares, and merchandise," has not, it is 
 believed, been dirfectly decided.^ Both Bayley, J,, and Lit- 
 
 1 See Glover v. Coles, 1 Bing. 6 ; 
 and Owen v. Legh, 3 B. & Aid. 470, 
 both being cases of distress for rent. 
 Pitkin V. Noyes, 48 N. H. 294. 
 
 "It seems pretty plain,'' says 
 Blackburn, J., in his work on sales, 
 " upon principle, that an agreement 
 to transfer the property in something 
 that is attached to the soil at the time 
 of the agreement, but which is to be 
 severed from the soil and converted 
 into goods before the property is to be 
 transferred, is an agreement for the 
 sale of goods within the meaning of 
 the 9 Geo. 4, c. 14, if not of the 29 
 Car. 2, c. 3. The agreement is, that 
 the thing shall be rendered into goods 
 and then in that state sold; it is an 
 executory agreement for the sale of 
 goods, not existing in that capacity at 
 the time of the contract. And when 
 the agreement is, that the property is 
 to be transferred before the thing is 
 severed, it seems clear enough, that it 
 is not a contract for the sale of goods, 
 it is a contract for a sale, but the thing 
 to be sold is not goods. If this be 
 the principle, the true subject of in- 
 quiry in each case, is, when do the 
 parties intend that the property is to 
 pass : if the things perish by inevi- 
 table accident before the severance, 
 whom do they mean to bear the loss ? 
 for in general that is a good test of 
 whatever they intend the property to 
 pass or not; in other words, if the 
 contract be for the sale of the things 
 after they have been severed from the 
 land so as to become the subject of 
 larceny at common law, it is at least, 
 since the 9 Geo. 4, u. 14, a contract 
 for the sale of goods, wares, and mer-, 
 chandises, within the 17th section of 
 the statute of frauds. If the contract 
 be for the sale of the things whilst 
 they are attached to the soil and not 
 the subject of larceny at common 
 law, it is a contract for the sale of 
 things, crops, fixtures, emblements, 
 trees, or minerals, which may or may 
 
 not be an interest in land within the 
 4th section of the statute, but are not 
 goods, wares, and merchandise within 
 the 17th section. On the whole the 
 cases are very much in conformity 
 with these distinctions, though there 
 is some authority for saying that a 
 sale of emblements or fixtures vesting 
 an interest in them, whilst in that 
 capacity, and before severance, is a 
 sale of goods within the meaning of 
 the 17th section of the statute of 
 frauds, and a, good deal of authority 
 that such a sale is not a sale of an 
 interest in land within the 4th section, 
 which, however, may be the case 
 though it is not a sale of goods, 
 wares, and merchandise within the 
 17th. 
 
 In reviewing the authorities, it is of 
 some importance to remark how the 
 question arose before the court, and 
 whether the decision ^turned upon the 
 legal effect of the contract proved in 
 evidence, or upon tlie contract stated 
 in the pleadings, for some misappre- 
 hensions seem to have arisen from 
 neglecting this. 
 
 The first case that is generally cited 
 on the subject is Waddington v. 
 Bristow, 2 B. & P. 452, decided by 
 the Common Pleas in 1801. It was 
 an action against executors. The 
 declaration was that the defendant's 
 testator was possessed of land on 
 which hops were then growing ; that 
 the plaintiffs bargained for and 
 agreed to buy, and the testator agreed 
 to sell all the hops then growing, to be 
 delivered in pockets, etc. In proof 
 of this declaration a document was 
 produced, signed by both parties, 
 which was in the following terms: 
 'Agreed to give the undermentioned 
 gentlemen at the rate of £10 per cwt. 
 for the quantities of hops as attached 
 to their respective names, to be in 
 pockets, and to be delivered at Whit- 
 stable. — Wm. Francis (the testator), 
 about 23 acres.' This paper was not 
 
374 
 
 STATUTE OF FRAUDS. 
 
 [chap. VI. 
 
 TLBDALB, J., expressed an opinion in the affirmative in Evans 
 V. Roberts, and Me. Tayloe, in his Treatise on Evidence,^ 
 
 1 Taylor on Ev. 875, § 1043, ed. 1878. 
 
 stamped, and the question was not 
 whether it came within the statute of 
 frauds or not, but whether it came 
 within the exemption in the Stamp 
 Act of agreements relating to the sale 
 of goods, wares, and merchandises. 
 Lord Alvanley thought it an agree- 
 ment for the sale of goods, and some- 
 thing more, viz., an agreement not to 
 sell the produce of the land to any 
 one else before it was severed. 
 Heath, J., and Eooke, J., thought a 
 contract for the sale of non-existing 
 goods was not within the exemption, ' 
 and that as in this case the hops did 
 not at the time of the sale exist as 
 goods, it required a stamp. Chamere, 
 J., thought a contract for the sale of 
 non-existing goods was within the 
 exemption ; he seems to have doubted 
 whether the agreement proved was 
 not within the exemption, but he 
 agreed with Lord Alvanley that the 
 agreement declared upon gave the 
 purchaser an interest in the produce 
 of the vendor's land. It seems prob- 
 able that Chambre, J., would have 
 held the agreement declared on within 
 the 4th section of the statute of 
 frauds, but it seems difficult to treat 
 this case as directly deciding any- 
 thing. 
 
 In Crosby v. Wadsworth, 6 East, 
 602, in 1805, the action was trespass 
 to the plaintiff's close growing grass 
 and hay. The plaintiff claimed the 
 hay under a parol contract; Lord 
 Ellenborouoh expressed an opinion 
 that it could not be an agreement 
 within the 17th section, because the 
 goods did not exist as such at the 
 time of the contract ; on this opinion 
 he afterwards acted in Groves v. 
 Buck, 3 M. & S. 178 ; and as has been 
 already observed, it is now by act of 
 Parliament, not law, whatever it 
 might be then. But the judgment of 
 the court was that an agreement con- 
 ferring an exclusive right to the grow- 
 ing grass was an agreement for an 
 
 interest in land. It may be observed 
 that on these pleadings the effect of 
 the agreement was not material; if 
 the agreement did not give an ex- 
 clusive right to the growing grass, 
 trespass would not lie ; if it did, the 
 statute applied : in either case the 
 plaintiff failed. 
 
 In Scorell v. Boxall, 1 Y. & J. 396, 
 in 1827, on similar pleadings, the 
 Exchequer decided the same point the 
 same way, where the subject-matter 
 of the action was growing underwood. 
 
 In both those cases the court had 
 to decide upon the contract as it was 
 stated on the pleadings ; but in many 
 cases the question depends as to the 
 legal effect of the contract proved. 
 In general, when there is a, contract 
 for the sale of goods in a state not 
 yet fit for delivery, it is considered 
 that the property is not intended to 
 be transferred to the purchaser until 
 the seller has done all that he is 
 bound to do to render the goods fit 
 for delivery, unless a contrary inten- 
 tion clearly appear (post, part 2), and 
 this rule must apply where the con- 
 tract is for the sale of things not yet 
 rendered into goods, but which are, 
 if the agreement is pursued, to be 
 rendered into goods. The intention 
 of the parties must be presumed to be 
 to transfer the property in the things 
 when in a deliverable state, i.e. when 
 severed from the soil, if that is to be 
 done by the seller, and not before. 
 There is no doubt on the authorities 
 that such a contract, continuing 
 executory till the subject-matter of 
 the sale is converted into goods, is 
 (now at least) a contract concerning 
 the sale of goods, and not a contract 
 for the sale of an interest in land. 
 
 Thus, in Smith v. Surman, 9 B. & 
 C. 570, in 1829, the King's Bench 
 held that a verbal agreement for the 
 sale of timber then growing, and to 
 be cut by the vendor, was a contract 
 for the sale of goods within the mean- 
 
SKC. 198.] 
 
 INTEREST IN LANDS. 
 
 375 
 
 treats the proposition as being perfectly clear in the same 
 sense. Blackbtten, J., on the contrary,^ says that the prop- 
 
 1 Blackburn on Sales, pp. 19, 20. 
 
 ing of the 17th section. liiTTLBDALE, 
 J., said, in delivering judgment ; ' The 
 impression on my mind is that 
 wherever the subject-matter at the 
 time of the completion of the con- 
 tract is goods, wares, and merchan- 
 dises, the 17th section attaches upon 
 it, although it has become goods, 
 wares, and merchandise between the 
 time of making and completing the 
 contract, either by one pf the parties 
 having bestowed his work and labor 
 upon his own materials, or by his 
 having converted a portion of his 
 freehold into goods and chattels.' 
 In that case the timber was to be cut 
 by the vendors. In Sainsbury v. 
 Matthews, 4 M. & W. 343, in 1838, 
 the Exchequer held that a contract 
 for the sale of potatoes not yet at 
 maturity, at so much per sack, to be 
 dug by the purchaser, was not a con- 
 tract passing any immediate interest 
 at all, but a contract for the sale of 
 goods at a future day. Pakke, B., 
 said : ' The contract gives no right to 
 the land, if a tempest had destroyed 
 the crop in the meantime, and there 
 had been more to deliver, the loss 
 would clearly have fallen upon the 
 defendant' (the vendor). 'It is only 
 a contract for goods to be sold and 
 delivered. The case is stronger than 
 that of Evans v. Roberts, because here 
 there is only a stipulation to pay so 
 much per sack for the potatoes when 
 delivered; it is only a contract for 
 goods sold and delivered.' Lord 
 Abingek, C. B., said: 'I think this 
 was not a contract giving an interest 
 in land ; it is only a contract to sell 
 potatoes at so much a sack on » 
 future day, to be taken up at the ex- 
 pense of the vendee. He must give 
 notice to the vendor for that purpose, 
 and cannot come upon the land when 
 he pleases.' 
 
 The terms of the agreement by 
 which the price was to depend on the 
 number of sacks seem to be in this 
 
 case important, and to make the 
 distinction between it and the follow- 
 ing cases : — 
 
 In Parker v. Staniland, 11 East, 
 365, in 1809, the bargain was for the 
 crop of potatoes in the ground in 
 November, and the purchaser was to 
 take them immediately; instead of 
 taking them immediately, he dug and 
 removed them at intervals, taking the 
 last about Lady Day, by which time 
 they were damaged by the frost. The 
 purchaser paid for all the potatoes he 
 had taken away, but refused to dig 
 up or take away the potatoes in a 
 part of the field where they were de- 
 stroyed by frost. The vendor re- 
 covered a verdict for their price. No 
 question could arise upon the 17th 
 section, for there was both a part 
 payment and a part acceptance and 
 receipt, but a rule nisi for a non-suit 
 was granted on the ground that tlie 
 bargain was for an interest in land ; 
 no point seems to have been made 
 about the risk of loss, perhaps be- 
 cause it was considered a clear thing 
 that the damage arose from the gross 
 negligence of the purchaser who 
 should have dug them up before the 
 winter. An objection to the form of 
 action, which would probably have 
 raised the same point in another 
 shape, was overruled, because not 
 taken at the trial. But though the 
 fact of the point not being made may 
 weaken the authority of the case, it 
 seems that Lokd Ellenborough did 
 consider that the contract gave the 
 purchaser property in the potatoes 
 whilst yet unsevered from the soil, 
 and that a property in them was not 
 an interest in land, • though,' said he, 
 'they were not in the shape of per- 
 sonal chattels, as not being severed 
 from the land, so that larceny might 
 be committed of them.' 
 
 In the very same week, June 6, 
 1809, the common pleas, in Enimerson 
 V. Heelis, 2 Taunt. 38, decided the 
 
376 
 
 STATtTTE OP FEATJDS. 
 
 [chap. VI. 
 
 osition is " exceedingly questionable," and that no authority- 
 was given for it in Evans v. Roberts. Mr. Taylor cites no 
 
 reverse. In that case there was a 
 sale by auction of a growing crop of 
 turnips, to be dug by the purchaser, 
 for a price less than £10, so that no 
 question could arise upon the 17th 
 section. There seems to have been 
 no express agreement as to when they 
 were to be removed, but in other 
 respects the contract seems identical 
 with that in Parker v. Stauiland. The 
 vendor brought an action against the 
 purchaser for not taking these turnips 
 away. On behalf of the defendant 
 several objections were made, which 
 were satisfactorily answered; but a 
 great one was, that it was a contract 
 for an interest in land, and that the 
 only memorandum was that made by 
 the auctioneer at the sale, and that 
 the signature of the auctioneer would 
 not bind the purchaser. The court, 
 after argument and taking time to 
 consider, decided that it was an inter- 
 est in land, but that the signature of 
 the auctioneer was binding. From 
 the expressions used, it appears that 
 the court thought the purchaser took 
 an interest in the turnips whilst yet 
 in the soil, and that it never occurred 
 to them that there could be any 
 difference between growing turnips 
 which are emblements, and hops and 
 growing timber, both of wliich were 
 instanced by the court. 
 
 In Eodwell v. Phillips, 9 M. & "W. 502, 
 in 1842, the Exchequer thought that 
 the- following agreement, ' Thomas 
 Phillips agrees to sell to Mr. Eodwell 
 the crops of fruit and vegetables of 
 the upper portion of the garden, from 
 the large pear trees, for the sum of 
 £30, and Lionel Kodwell agrees to 
 buy the same at the aforesaid price, 
 and has paid £1 deposit,' gave the 
 purchaser an interest in the fruit be- 
 fore severance, and consequently 
 required a stamp. The pears, how- 
 ever, in this case, were not emble- 
 ments nor fixtures, but part of the 
 freehold. In this case Lord Abinger, ■ 
 C. B., said : ' This was the case of an 
 
 action upon a contract, setting forth 
 that the plaintiff had bought of the 
 defendant a quantity of fruit and 
 vegetables, then growing and being in 
 a certain close of the defendant's, at 
 a certain rate agreed upon between 
 them, the price of £30, and in con- 
 sideration thereof, and that the plain- 
 tiff, at the request of the defendant, 
 had then promised the defendant that 
 he would accept and receive the said 
 fruit and vegetables, and pay the de- 
 fendant for the same at the rate or 
 price aforesaid, the defendant then 
 promised the plaintiff that he would 
 permit and suffer the plaintiff, and 
 the servants and agents of the plain- 
 tiff in that behalf, to enter into the 
 said close, and with all necessary and 
 convenient tools, utensils, and imple- 
 ments, to gather and take the said 
 fruit and vegetables, as and when the 
 same should be fit for being gathered 
 and taken, and to allow him to have 
 proper access to the said fruit and 
 vegetables for the purpose aforesaid : 
 and although the said fruit and 
 vegetables afterwards, to wit, on the 
 day and year aforesaid, became fit to 
 be gathered and taken, and the plain- 
 tiff, with his servants and agents in 
 that behalf, was then ready and will- 
 ing to gather and take the same, and 
 to pay for the same after the rate 
 aforesaid, whereof the defendant then 
 had notice ; and although the defend- 
 ant did then permit and suffer the 
 plaintiff to gather and take a very 
 small part, to wit, fifty bushels of the 
 said fruit and vegetables, yet the 
 defendant, not regarding his said 
 promise, did not nor would permit or 
 suffer the plaintiff, or his servants or 
 agents in that behalf, to gather or 
 take the residue of the said fruit, 
 or any part of such residue, although 
 often requested so to do. And then 
 the declaration goes on to allege, that 
 after the making of the said contract 
 with the defendant, and confiding in 
 his promise, the plaintiff entered into 
 
SEC. 198.] 
 
 INTEREST IN LANDS. 
 
 377 
 
 authority for Ms opinion, 
 are Mayfield v. Wadsley^ 
 
 The cases bearing on tliis point 
 and Hallen v. Runder.^ In the 
 
 1 3 B. & C. 357. (See Knight v. 
 The New England Worsted Co., 2 
 Cush. 289, 290.) 
 
 and made certain agreements with 
 divers other persons, for tlie sale to 
 them of parcels of the said fruit, 
 which, by the defendant's refusal to 
 permit his servants to take the resi- 
 due, he was unable to perform, and 
 that he lost money by the contract. 
 
 When the contract was produced at 
 the trial, it appeared that it was not 
 so extensive in its provisions as set 
 forth in the declaration. It was 
 answered, that though the contract 
 did not in terms express it, yet it 
 implied all that was alleged in the 
 declaration. Then the objection was 
 taken, that it was not a contract for 
 the sale of goods, wares, and mer- 
 chandises, but of an interest in land, 
 and therefore required a stamp ; and 
 I was of that opinion. There is a 
 great variety of cases, in which a 
 distinction is made between the sale 
 of growing crops and the sale of an 
 interest in land ; and it must be ad- 
 mitted, taking the cases altogether, 
 that no general rule is laid down iu 
 any one of them that is not contrar 
 dieted by some other. It is sufficient, 
 however, for us to say, that we think 
 this case ought not to be governed by 
 any of those in which it is decided 
 that a sale of growing crops is a sale 
 of goods and chattels. Growing fruit 
 would not pass to an executor, but to 
 the heir ; it could not be taken by a 
 tenant for life, or levied in execution 
 imder a writ of Ji.fa. by the sheriff; 
 therefore it is distinct from all those 
 cases where the interest would pass, 
 not to the heir-at-law, but to some 
 other person. Undoubtedly there is 
 a case (Smith v. Surman, 9 B. & Cr. 
 561) in which it appears that a con- 
 tract to sell timber growing was held 
 not to convey any interest in the land, 
 but that was where the parties con- 
 tracted to sell the timber at so much 
 
 = 1 C, M. & R. 267; Strong v. 
 Doyle, 110 Mass. 93. 
 
 per foot, and from the nature of that 
 contract it must be taken to have 
 been the same as if the parties had 
 contracted for the sale of timber 
 already feUed. In this case there 
 seems to be no doubt that this was a 
 sale of that species of interest in the 
 produce of the lands which has not 
 been excepted by the stamp act, and 
 that it is not a sale of goods and 
 merchandise; and the contract is of 
 a sufficient value to require a stamp.' 
 
 In general in this country it is held 
 that the sale of a growing crop is of a 
 mere chattel, and not within the 
 statute of frauds as to land. New- 
 comb V. Kayner, 2 John. (N. Y.) 430; 
 Austin V. Sawyer, 9 Cow. (N. Y.) 39 ; 
 Stanbaugh v. Yeates, 2 Eawle (Penn.) 
 161 ; Penhallow v. Dwight, 7 Mass. 
 341 ; Craddoek v. Riddlesburger, 2 
 Dana (Ky.) 205; Whipple v. Foot, 2 
 John. (N. Y.) 418. And this has been 
 held as to a sale of mulberry trees 
 then growing in a nursery. Whit- 
 marsh V. Walker, 1 Met. (Mass.) 313. 
 
 Tlie distinction between these cases, 
 in which the property in the things 
 was held to pass before they were 
 severed from the soil, and Sainsbury 
 V. Matthews, is precisely the same as 
 that between an ordinary bargain and 
 sale, and the case of Simmons v. 
 Swift, 5 B. & C. 857. 
 
 As the parties may enter iu fact into 
 a contract giving an interest in crops 
 whilst still unsevered, it is desirable 
 to inquire whether such a contract is 
 within either the 4th or 17th sections 
 of the statute of frauds. It is to be 
 observed that emblements are not 
 part of the freehold or inheritance; 
 they go to the executor, and not to 
 the heir ; they may be seized by the 
 sheriff under a Ji. fa., and are cer- 
 tainly chattels, but they are ryot goods, 
 but are so far a part of the soil that 
 
378 
 
 STATUTE OF FKATJDS. 
 
 [chap. VI. 
 
 former, an outgoing tenant obtained a verdict, whieli was 
 upheld, on account for crops bargained and sold, against an 
 incoming tenant, who had agreed to take them at valuation ; 
 and in the latter, counts for fixtures bargained and sold were 
 held sufficient. But Blackbtten, J., observes on these cases, 
 first, that in Hallen v. Runder the court expressly decided 
 that an agreement for the sale of fixtures between the land- 
 lord and the outgoing tenant was not a sale of goods, either 
 within the statute of frauds, or the meaning of a count for 
 goods sold and delivered ; and, secondly, that in both cases 
 the land itself was to pass to the purchaser, and the agree- 
 ment was, therefore, rather an abandonment of the vendor's 
 right to diminish the value of the land than a sale of any- 
 thing. The learned author, in another passage,^ says that 
 
 larceny at common law could not be 
 committed on them. A contract then 
 for the sale of growing crops as such 
 is a contract for the sale of an interest 
 in something that is a part of the soil, 
 though not a part of the inheritance, 
 and whether such an interest is within 
 the meaning of the 4th section of the 
 statute of frauds or not, depends on 
 the sense in which the words ' lands, 
 tenements, and hereditaments,' are 
 there used. 
 
 In Warwick v. Bruce, 2 M. & S. 205, 
 in 1813, in which the contract de- 
 clared on was a contract for the sale 
 of all the potatoes then growing on 
 certain lands, Lold Ellenborough 
 overruled an objection that the con- 
 tract was within the 4th section of the 
 statute of frauds. 'If,' said he, 
 'this had been a contract conferring 
 an exclusive riglit to the land for a 
 time, for the purpose of making a 
 profit of its growing surface, it would 
 be a contract for the sale of an in- 
 terest in land. But here it is a con- 
 tract for the sale of potatoes at so 
 much an acre. The potatoes are the 
 subject-matter of sale, and whether 
 at the time of the sale they were 
 covered with earth in the field or in a 
 box, still it was a sale of a mere 
 chattel.' It seems pretty clear that 
 LoKD Ellenbokohgh thought that 
 growing crops were not part of the 
 land within the 4th section, though he 
 
 certainly never intimates an opinion 
 that they were goods in any sense of 
 the word before severance. 
 
 In Evans v. Eoberts, 5 B. & C. 829, 
 in 1826, the agreement was for the 
 sale of a cover of potatoes, to be 
 turned up by the vendor at the price 
 of £5. No question would arise under 
 the 17th section, as the price was 
 below f 10 ; but it was objected that 
 it was a contract for the sale of an 
 interest in land. Holroyd, J., pointed 
 out that the purchaser was to have 
 nothing to do with the potatoes till 
 they were raised ; and, moreover, that 
 the vendor might choose which cover 
 the purchaser was to have, so that he 
 could have no interest in any specific 
 land; but though both these propo- 
 sitions seem pretty clear, and either 
 of them would have disposed of 
 the case, Bayljet and Littledale, 
 JJ., took the opportunity of giving 
 their opinion on the case at some 
 length. Littledale, J., among other 
 things, expressed the opinion that 
 ' land ' in the 4th section ' meant 
 land taken as mere land,' and this is 
 in accordance with Lord Ellen- 
 borough's opinion; but Batlet, J., 
 went further and stated that 'grow- 
 ing crops were mere goods and might 
 be recovered under a count for goods 
 bargained and sold.' " 
 1 Blackburn, p. 17. 
 
SEC. 199.] INTEREST IN LANDS. 379 
 
 " they are certainly chattels, but they are not goods, but are 
 so far a part of the soil that larceny at common law could 
 not be committed on them," and Lokd Ellenboeough was 
 also of this opinion.^ This point must, it is apprehended, be 
 considered as still undetermined. 
 
 In Lee v. Gaskell,^ upon a tenant's bankruptcy, his trustee 
 sold the fixtures to the plaintiff, "who resold them to the de- 
 fendant, the bankrupt's landlord. Held, following Hallen v. 
 Runder, that the sale did not fall within either the fourth or 
 the seventeenth section of the statute. "Fixtures," says 
 CoCKBXTEN, C. J., " although they may be removable during 
 the tenancy, as long as they remain unsevered, are part of 
 the freehold, and you cannot dispose of them to the landlord 
 or any one else as goods and chattels, because they are not 
 severed from the freehold, so as to become goods and chat- 
 tels." In Lee v. Gaskell, as in Hallen v. Runder, the fixtures 
 were bought by the landlord, the only distinction between 
 the cases being that in Lee v. Gaskell there had been an in- 
 termediate sale by the tenant's trustee. It remains, however, 
 to be decided whether on a purchase of fixtures by a person 
 who is not the landlord, the sale does not fall within the 
 seventeenth section, although, in the passage above cited, 
 CoCKBUHN, C. J., takes the contrary view. And by an in- 
 terlocutory remark, he indicates an opinion that the sale of 
 fixtures is nothing more than the sale of the right to sever. 
 
 Sec. 199. intermediate Class of Crops. — It is sometimes a 
 matter of doubt whether growing crops are properly com- 
 prehended in the class of fruetus industriales or fructus 
 naturales. There is an intermediate class of products of the 
 soil, not annual, as emblements, not permanent, as grass or 
 trees, but affording either no crop till the second or third 
 year, or affording a succession of crops for two or three years 
 before they are exhausted, such as madder, clover, teasles, 
 etc. The only reported case on this subject is Graves v. 
 Weld,3 which was argued by very able counsel, and decided, 
 after consideration, by Loed Denman, who delivered the 
 unanimous judgment of the court, consisting of himself and 
 LiTTLEDALE, Pakk, and Patteeson, JJ. The facts were 
 
 1 See his decision in Parker v. M Q. B. D. 700. 
 
 Staniland, 11 East, 365. « 5 B. & Aid. 105. 
 
380 STATUTE OF FBAUDS. [CHAP. VI. 
 
 that the plaintiff was possessed of a close under a lease for 
 ninety-nine years, determinable on three lives. In the spring 
 of 1830, the plaintiff sowed the land with barley, and in 
 May he sowed broad clover seed with the barley. The last 
 of the three lives expired on the 27th July, 1830, the reversion 
 being then in the defendant. In January, 1831, the plaintiff 
 delivered up the close to the defendant, but in the meantime 
 had taken off, in the autumn of 1830, the crop of barley, in 
 mowing which a little of the clover plant that had sprung 
 up was cut off, and taken together with the barley. Accord- 
 ing to the usual course of good husbandry, broad clover is 
 sown about April or May, and is fit to be taken for hay about 
 the beginning of June of the following year. The clover in 
 question was cut by the defendant about the end of May, 1831, 
 more than a twelvemonth after the seed had been sown. The 
 defendant also took, according to the common course of hus- 
 bandry, a second crop of the clover in the autumn of the 
 same year, 1831. The jury found, on questions submitted by 
 the judge : 1st. That the plaintiff did not receive a benefit 
 from taking the clover with the barley straw sufficient to 
 compensate him for the cost of the clover seed, and the 
 extra expense of sowing and rolling. 2d. That a prudent 
 and experienced farmer, knowing that his term was to expire 
 at Michaelmas, would not sow clover with his barley in the 
 spring, where there was no covenant that he should do so ; 
 and would not, in the long run and on the average, repay 
 himself in the autumn for the extra cost he had incurred in the 
 spring. The case was argued by Follbtt for the plaintiff, and 
 Gambibr for the defendant, and Lord Denman, in delivering 
 the judgment of the whole court, said : " In the very able 
 argument before us, both sides agreed as to the principle 
 upon which the law which gives emblements was originally 
 established. That principle was that the tenant should be 
 encouraged to cultivate by being sure of the fruits of his 
 labor ; but both sides were also agreed that the rule did not 
 extend to give the tenant all the fruits of his labor, or the 
 right might be extended in that case to things of a more per- 
 manent nature, as trees, or to more crops than one ; for the 
 cultivator very often looks for a compensation for his capital 
 and labor in the produce of successive years. It was there- 
 
SEC. 199.J INTEREST IN LANDS. 381 
 
 fore admitted by each that the tenant would be entitled to 
 that species of product otily which grows by the industry and 
 manurance of man, and to one crop only of that product. 
 But the plaintiff insisted that the tenant was entitled to the 
 crop of any vegetable of that nature, whether produced 
 annually or not, which was growing at the time of the cesser 
 of the tenant's interest ; the defendant contended that he 
 was entitled to a crop of that species only which ordinarily 
 repays the labor by which it is produced within the year in 
 which that labor is bestowed, though the crop may, in extra- 
 ordinary seasons, be delayed beyond that period. And the 
 latter •proposition we consider to he law." 
 
 The principal authorities upon which the law of emble- 
 ments depends are Littleton, § 68, and Coke's Commentary 
 on that passage. The former is as follows: "If the lessee 
 soweth the land, and the lessor, after it is sowne and before 
 the come is ripe, put him out, yet the lessee shall have the 
 corne and shall have free entry, egresse and regresse to cut 
 and carrie away the corne, because he knew not at what time 
 the lessor would enter upon him." Lord Coke says : ^ " The 
 reason of this is, for that the estate of the lessee is uncer- 
 taine, and therefore lest the ground should be unmanured, 
 which should be hurtful to the commonwealth, he shall reap 
 the crop which he sowed, in peace, albeit the lessor doth de- 
 termine his will before it be ripe. And so it is if he sets 
 rootes or sow hempe or flax or any other annuall profit, if, 
 after the same he planted, the lessor oust the lessee, or if the 
 lessee dieth, yet he or his executors shall have that yeare's 
 crop. But if he plant young fruit trees or young oaks, ashes, 
 elms, etc., or sow the ground with acornes, etc., there the 
 lessor may put him out notwithstanding, because they will 
 yield no -present annual profit." These authorities are strongly 
 in favor of the rule contended for by defendant's counsel ; 
 they confine the right to things yielding present annual pro- 
 fit, and to that year's crop which is growing when the interest 
 determines. The case of hops, which grow from ancient 
 roots, and which yet may be emblements, though at first 
 sight an exception, really falls within this rule. In Latham 
 V. Atwood,^ they were held to be lihe emblements, because 
 
 1 Co. Litt. 55 a. M Cro. Car. 515. 
 
382 STATUTE OF FKAUDS. [CHAP. VI. 
 
 they were "such things as grow by the manurance and indus- 
 try of the owner, by the making of hills and setting poles " : 
 that labor and expense, without which they would not grow 
 at all, seems to have been deemed equivalent to the sowing 
 and planting of other vegetables.^ 
 
 According to the principles here established, it would seem 
 that the crop of the first year in such cases would be fructus 
 industriales, but that of subsequent years, like fruit on trees, 
 planted by tenants, would be fructus naturales, unless requir- 
 ing cultivation, labor, and expense for each successive crop, 
 as hops do, in which event they would be fructus industriales 
 till exhausted. But the law as to the application of the 
 statute of frauds to sales of growing crops of this character, 
 especially of crops subsequent to the first gathered, cannot 
 be considered as settled. 
 
 Sec. 200. Crops 'When Mere Accessories to the Laud. — In 
 
 the Earl of Falmouth v. Thomas,^ where a farm was leased, 
 and the tenant agreed to take the growing crops and the 
 labor and materials expended, according to a valuation, it 
 was held that the whole was a contract for an interest in 
 land under the fourth section, and that the plaintiff could not 
 maintain an indebitatus count for goods bargained and sold 
 to recover the price of' the crops according to the valuation. 
 LiTTLBDAiiE, J., expressed the same opinion in Mayfield v. 
 Wadsley,^ saying that " where the land is agreed to be sold, 
 and the vendee takes from the vendor the growing crops, the 
 latter are considered part of the land." This rule seems 
 founded on sound principles, for in such cases the fact of his 
 having acquired an interest in the land is part of the con- 
 sideration which moves the purchaser to buy the crops ; or, 
 as it is put in Blackbxten on Sales,* the purchaser .pays for 
 an abandonment by the lessor or vendor of the right to injure 
 the freehold. He buys an interest ^'■concerning land," and 
 that is covered by the language of the fourth section. From 
 what has been said in reference to growing crops or anything 
 attached to the soil at the time when an agreement for its 
 sale is entered into, it will be observed that the cases all 
 
 1 10 B. & C. 446 ; Pitkin v. Noyes, s 3 b. & C. 366. 
 
 48 N. H. 294, 303. * Blackburn on Sales, 20. 
 
 2 1 Cr. & M. 89. 
 
SEC. 200.] INTEEEST IN LANDS. 383 
 
 agree, tliat where the title does not pass until the crop or thing 
 is severed, the contract is for the sale of goods because in 
 that case, while the crop is not mature, and may continue to 
 derive nutriment and benefit from the soil, yet during this 
 period the interest is in the vendor, and the title does not 
 vest in the vendee until the crop ceases to derive further 
 support from the soil, and has become a mere chattel,^ even 
 though the purchaser is to sever them.^ In Parker v. Stani- 
 land,^ the sale was by the plaintiff on a certain lot of two 
 acres at 4s. Qd. a sack, and the defendant was to get them im- 
 mediately.* The contract was held to be for the sale of 
 chattels merely. Both Lokd Ellenboeough and Bayley, 
 J., predicated their decision upon the ground that the crop 
 was to be taken away immediately, and distinguished the case 
 from Crosby v. Wadsworth^ and Waddington v. Bristow,^ 
 where the sale of a growing crop of grass was held to be 
 within the fourth section upon that ground. In Warwick v. 
 Bruce,'' and Sainsbury v. Matthews,^ decided in Exchequer 
 in 1838, twenty-five years after the decision by the King's 
 Bench in the former case, the distinction suggested in Par- 
 ker V. Staniland and Smith v. Surman, ante, was disregarded. 
 In both cases the contract was for the sale of a growing crop 
 of potatoes not then mature, and which were to be dug by the 
 
 1 Cain V. McGuire, 13 B. Mon. peaches ; In White v. Frost, 102 Mass. 
 
 (Ky.) 340; Safford v. Annis, 7 Me. 375; Clafflin «. Carpenter, onte, grow- 
 
 168 ; Cutler v. Pope, 13 id. 877 ; Kil- ing timber ; in Sainsbury v. Mattliews, 
 
 more V. Hewlett, 48 N. Y. 569; HufE 4 M. & W. 343 ; Warwick y. Bruce, on«e ; 
 
 V. McCauley, 53 Penn. St. 206 ; Boyce Evans v. Roberts, 5 B. & C. 829, a 
 
 V. Washburn, 4 Hun (N. Y.) ; Smith crop of potatoes. 
 V. Bryan, 5 Md. 141; Byasse *. ^ Sainsbury v. Matthews, ante; 
 
 Reese. 4 Met. (Ky,) 372; Clafflin v. Evans v. Roberts, ante; Marshall v. 
 
 Carpenter, 4 Met. (Mass.) 580; Whit- Green, 1 C. P. D. 35. 
 marsh v. Walker, 1 id. 313 ; Knox v. » Parker v. Staniland, 11 East, 362. 
 
 Harlason, 2 Tenn. Ch. 232 ; Green v. * See also Marshall v. Green, ante, 
 
 R. R. Co., 73 N. C. 524 ; Anonymous, where the same doctrine was applied 
 
 1 Ld. Rayd. 182 ; Smith v. Sumam, 9 where growing trees were to be cut 
 
 B. & C. 561 ; Pitkin v. Noyes, 48 N. and removed immediately. 
 
 H. 294 ; Mayfleld v. Wadsley, 8 B. & ' Crosby v. Wadsworth, 6 East, 
 
 C. 357 ; Rodwell v. Phillips, 9 M. & W. 602. 
 
 505. In Jones v. Plint, 10 Ad. & El. ^ Waddington v. Bristow, 2 B. & 
 
 753, a crop of corn ; in Dunne v. P. 452. 
 
 Ferguson, a crop of turnips ; in Frank ' Warwick v. Bruce, 2 M. & S. 
 
 V. Harrington, 36 Barb. (N. Y.) 415, 205. 
 
 a crop of hops. See also Pakke, B., « Sainsbury v. Matthews, 4 M. & W. 
 
 in Rodwell v. Phillips, ante ; in Pur- 343. 
 
 ner v. Pieroy, 40 Md. 212, a crop of 
 
384 STATUTE OF FEATJDS. [CHAP. VI. 
 
 purchasers. In the first case, the crop was sold for a gross 
 sum, and in the latter at 2s. a sack. In the latter case the 
 sale was held not to involve an interest in land, and the 
 court went the extreme length of holding that the sale was 
 of goods and chattels within the seventeenth section, Paeke, 
 B., saying : " This is a contract for the sale of goods and 
 chattels at a future day, the produce of certain land, and to be 
 taken away at a certain time." And the same view of the 
 question was taken by Littlbdale, J., in Evans v. Roberts.^ 
 In a later case ^ the question arose whether certain crops of 
 grass growing on a certain estate which were assigned as 
 security, implied a transfer of an interest in land, and Rolfe, 
 B., said : " When a sale of growing crops does, and when it 
 does not, confer an interest in land, is often a question of much 
 nicety ; but certainly when the owner of the soil sells what 
 is growing on the land, whether natural produce, as timber, 
 grass, or apples, or fructus industriales, as corn, pulse, or the 
 like, on the terms that he is to cut or sever them from the land, 
 and then deliver them to the purchaser, the purchaser acquires 
 no interest in the soil, which, in such case, is only in the 
 nature of a warehouse for what is to come to him merely as 
 a personal chattel." 
 
 So where a growing crop, fructus industriales produced 
 annually hy the labor and industry of man, is sold, the title 
 thereto vesting in the purchaser before severance, the contract 
 is not for the sale of an interest in land, but of goods and 
 chattels within the seventeenth section;^ but, where the 
 crop is fructus naturales, that is, the natural growth of the 
 soil, as grass, timber, fruit on trees,* in a majority of the cases, 
 it is held that the contract is for the sale of an interest in 
 lands when it is intended that the title thereto shall vest in 
 the purchaser before severance.^ 
 
 1 Evans v. Roberts, 5 B. & C. 836. * But see Pumer v. Piercy, 40 Md. 
 
 2 Washbum k. Burrows, 1 Exchq. 212, contra. Also Marshall v. Green, 
 107. 1 C. P. D. 35, where a difEerent prin- 
 
 ' Marshall v. Ferguson, 23 Cal. 65 ; ciple is adopted. 
 Austin u. Sawyer, 9 Cow. (N. Y.) 39; ^ As to grass, Watkins v. Eush, 3 
 Bryant v. Crosby, 40 Me. 9; Bernal Lans. (N. Y.) 234; Carrington v. 
 t). Hovious, 17 Cal. 541; Mattock i>. Boots, 2 M. & W. 248 ; Crosby u. Wads- 
 Fry, 15 Ind. 483; Bull v. Griswold, worth, 6 East, 602. As to timber, 
 19 111. 631 ; Brisker v. Hughes, 4 Ind. Drake v. Wells, 11 Allen (Mass.) 141 ; 
 146. White v. Frost, 102 Mass. 376; Whit- 
 
SEC. 201.] INTEBEST IN LANDS. 385 
 
 Sec. 201. Crop not yet Sown. — Where a contract is 
 entered into between the owner of land and another, that 
 the former will sow certain seeds on his land, and sell the 
 same to such other person at a certain fixed price per bushel, 
 pound, etc., or for a certain gross sum, the contract is treated 
 by the English courts as being an executory contract for the 
 sale of goods, etc., and not as a sale of an interest in lands. 
 Thus where A agreed to supply B with a quantity of turnip 
 seed, and B agreed to sow it on his own land, and to seU the 
 crop of seed produced therefrom to A at £1 Is. the Winches- 
 ter bushel ; and the seed so produced at the price agreed ex- 
 ceeded in value the sum of £10, is was held that this 
 contract was within the seventeenth section of the stat- 
 ute; "for," said Lord Tenteeden, "the thing agreed to 
 be delivered would at the time of delivery be a personal 
 chattel."^ A similar view seems to have been adopted 
 in New Hampshire,^ where a contract was entered into be- 
 tween the plaintiff and defendant, by which the defendant 
 agreed to plant tliree acres of potatoes and deliver them 
 to the plaintiffs, who were manufacturers of starch, at a cer- 
 tain sum per bushel, and the court treated the contract as 
 one for the sale of goods, etc., within the seventeenth sec- 
 tion, and left it for the jury to say whether the contract was 
 essentially one for the labor and skill of the defendant in 
 raising the potatoes, or substantially a sale of potatoes which 
 he might raise himself, or procure otherwise. But in Indi- 
 ana, in an early case,^ a contract between A and B that the 
 former would sell the latter all the broom corn which the 
 former should raise on twenty-five acres of his land in the 
 year 1853, at the rate f 60 a ton, was held to be a contract 
 within the fourth section of the statute. But it is difficult 
 to understand how such a contract can in any sense be re- 
 garded as a contract for a sale of land or any interest therein. 
 The vendee acquires no interest in the land, in any sense, 
 but only in the produce thereof after it is severed and has be- 
 
 marsh v. Walker, 1 Met. (Mass.) 313; Md. 212, where a sale of fruit on the 
 
 Nettleton v. Sikes, 8 id. 34; as to trees was held not to be within the 
 
 standing underwood, Scovell v. Boxall, 4th section. 
 
 1 y. & G. 396 ; growing poles. Teal v. i Watts v. Friend, 10 B. & C. 446. 
 Auty, 2 B. & B. 101 ; as to fruit on ^ pukin v. Noyes, 48 N. H. 294. 
 trees, Rodwell v. Phillips, 9 M. & W. » Bowman v. Conn, 8 Ind. 58. 
 505. But see Purner v. Piercy, 40 
 
386 STATUTE OF FRAUDS. [CHAP. VI. 
 
 come a chattel ; therefore it is believed that the rule adopted 
 in the first two cases cited is the true one, and that a contract 
 for the produce of a certain piece of land or a certain number 
 of acres thereof to be raised and severed by the vendor, is a 
 contract for chattels within the seventeenth section, and not 
 for an interest in lands within the fourth section. In New 
 York 1 the doctrine stated above was applied in a case where 
 a contract was made for the delivery of a certain number of 
 bushels of hop roots, although at the time, they were in the 
 ground. At one time the question whether the crop was ripe 
 or not seems to have been considered material. But this is no 
 longer regarded ; and it appears also to be immaterial whether 
 the price is to be estimated by the quantity sold, or by the 
 acre ; or whether the crop is to be harvested by the vendor 
 or purchaser.^ 
 
 Sec. 202. Sale of Crop before being Severed ; Distinction 
 between Fructus Naturales and Fructus Industriales. — Where 
 the contract is for the sale of crops before they are severed 
 from the soil, and which are still to derive nutriment from it, 
 a distinction is drawn between a contract for the sale oi fruc- 
 tus naturales ; such as growing grass, primae vesturae, growing 
 timber, or underwood, or growing fruit, which is within the 
 fourth section as a contract for an interest in land ; and a 
 contract for the sale of fructus industriales, such as growing 
 crops of corn, potatoes, or turnips, not produced sponta- 
 neously, but raised by the labor of man, which are seizable by 
 the sheriff under a writ of fieri facias, and pass to the exec- 
 utor and not to the heir, which is within the seventeenth sec- 
 tion, as a contract for the sale of goods, wares, and merchan- 
 dise. The leading case on this point is Evans v. Roberts.^ 
 The agreement was for the sale of a growing crop of pota- 
 "toes, to be turned up by the plaintiff, the vendor. The 
 
 1 Webster v. Zielly, 52 Barb. (N. guson, 1 Hayes, 541 ; Marshall v. 
 
 Y,) 482. Green, L. E. 1 C. P. D. 35. 
 
 2 Parker v. Staniland, 11 East, 362 ; » 5 B. & C. 829 ; 8 D. & E. 611, 
 
 "Warwick v. Bruce, 2 M. & Sel. 205j overruling in part Emmersou i;. Heelis, 
 
 Sainsbury v. Matthews, 4 M. & W. 2 Taunt. 38. Bricker v. Hughes, 4 
 
 343 ; S. C. nom. Stanbury v. Matthews, Ind. 146 ; Sherry v. Picken, 10 id. 375 ; 
 
 ,7 Dowl. 23 ; Evans v. Eoberts, 5 B. & Kilmore v. Hewlett, 48 N. Y. 569 ; 
 
 C. 829; 8 D. & R. 611 ; Hallen v. Eun- Cain v. McGuire, 13 B. Mon. (Ky.) 
 
 der, 1 C. M. &R. 266; Dunne v. Per- 340; Safford v. Armis, 7 Me. 168; 
 
 Smith V. Bryan, 5 Md. 141. 
 
SEC. 203.] INTEREST IN LANDS. 387 
 
 action was assumpsit for " crops of potatoes bargained and 
 sold," and it was held that this was not a contract for the 
 sale of any lands, tenements, or hereditaments, or any inter- 
 est in or concerning them, but a contract only for the sale or 
 delivery of things which, at the time of delivery, should be 
 goods and chattels. The grounds of decision were, that the 
 effect of the contract was to give the purchaser a right to all 
 the potatoes which a given quantity of land should produce, 
 but not to give Mm any right to the possession of the land ; 
 and also that growing potatoes are emblements, and, as such, 
 chattels, which go to the executor of tenant in fee simple, 
 and not to the heir, and may be taken in execution under a 
 fieri facias. 
 
 Sec. 203. Rule in Jones v. Flint. — In Jones v. Flint,^ 
 the contract was for sale of a crop of corn on the plain- 
 tiff's (the vendor's) land, and the profits of the stubble 
 afterwards ; the plaintiff was to have Hberty for his cattle 
 to run with the defendant's; and the defendant was also 
 to have some potatoes growing on the land, and whatever 
 lay grass was in the fields ; the defendant was to harvest 
 the corn, and dig up the potatoes. It was held that it 
 did not appear to be the intention of the parties to con- 
 tract for any interest in the land, and that the contract was 
 therefore not within the fourth section of the statute, but 
 was for a sale of goods and chattels as to all but the lay 
 grass, and as to that, a contract for the agistment of the de- 
 fendant's cattle; the court saying that if the lay grass was 
 excluded the parties must be taken to have been dealing 
 about goods and chattels, and that an easement of the right 
 to enter the land, for the purpose of harvesting and carrying 
 them away, was all that was intended to be granted.^ And 
 therefore, according to the foregoing rules, parol contracts for 
 the sale of growing fruit,^ growing grass,* growing poles,* and 
 
 1 10 Ad. & El. 753 ; 2 P. & D. 594. fructus naturales and fructus industria- 
 
 2 And see Dunne u. Ferguson, les seems to be demonstrated. 
 Hayes, 540. * Crosby u. Wadsworth, 6 East, 
 
 8 Rodwell V. Phillips, 9 M. & W. 602 ; Carrington v. Hoots, 2 M. & W. 
 
 501. But see Pumer v. Piercy, are(e, 248; Watkins w, Rush, 2 Lans. (N. Y.) 
 
 where a contrary doctrine is held. And 234. , 
 
 this would also seem opposed to the ^ Teall w. Auty, 4 Moo. 542 ; 2 Brod. 
 
 principle adopted in Marshall w. Green, & B. 101; Kingsley v. liolbrook. 45 
 
 anie, in which the distinction between N. H. 313. 
 
388 STATUTE OF FBAUDS. [CHAP. VI. 
 
 growing underwood,^ before being severed, have been held to 
 be within the fourth section of the statute,^ as these are/rwe- 
 tus naturales and would not pass to the executor, but to the 
 heir, and could not be levied in execution under a writ of 
 fieri facias by the sheriff ; and the contract confers on the 
 purchaser an exclusive right to the land during a limited 
 time, and for given purposes. 
 
 Sec. 204. Rule in Waddington V. Bristow. — In Wadding- 
 ton V. Bristow,^ it was held that a contract for the sale 
 of growing hops was a contract for the sale of an interest 
 in land. This case is, however, of questionable authority; 
 and in Rodwell v. Phillips,* Paeke, B., said, referring to 
 it : " Hops are fructus industriales. ' That case would now 
 probably be decided differently." And in Frank v. Harring- 
 ton,^ this question was directly decided, and the court held 
 that hops upon the vine are personal chattels, and may be 
 sold as such. 
 
 Sec. 205. Rule in Purner v. Piercy. — In a Maryland 
 case,^ the rule that crops coming under the head of fructus 
 naturales, but which mature annually, are to be treated the 
 same as crops fructus industriales, was adopted where a 
 contract was entered into by which the plaintiff agreed 
 by parol to sell to the defendant all the peaches then 
 growing in the peach orchard of the plaintiff, at a certain 
 specified sum, the defendant to gather and remove them 
 as they matured. The defendant or his agent, at the 
 time of the purchase, paid to the plaintiff a portion of the 
 purchase-money, and a further portion before any of the 
 peaches were gathered, and gathered the peaches as they 
 matured, and removed them. In an action to recover the 
 balance of the purchase-money, it was held that the contract 
 was not within the statute, as a contract for the sale of an 
 interest in land. Stewart, J., in delivering the opinion of 
 the court, said : " Growing crops, if fructus industriales, are 
 chattels, and an agreement for the sale of them, whether ma- 
 
 1 Scorell V. Boxall, 1 Y. & J. 396. « Frank v. Harrington, 36 Barb. 
 
 2 And see Fetch v. Tutin, 15 M. & (N. Y.) 415. 
 
 W. 115. 6 Purner v. Piercy, 40 Md. 212 ; 17 
 
 8 2 Bos. & P. 452. Am. Eep. 591. 
 
 4 9 M. & W. 503. 
 
SEC. 205.] INTEREST IN LANDS. 389 
 
 ture or immature, or whether the property in them is trans- 
 ferred before or after severance, is not an agreement for the 
 sale of any interest in land, and is not governed by the fourth 
 section of the statute of frauds. Growing crops, if fructus 
 naturales, are part of the soil, before severance, and an agree- 
 ment therefore vesting an interest in them in the purchaser 
 before severance, is governed by the fourth section ; but if 
 the interest is not to be vested till they are converted into chat- 
 tels by severance, then the agreement is an executory agree- 
 ment for the sale of goods, wares, and merchandise, governed 
 by the seventeenth, and not by the fourth, section of the 
 statute. Assuming these distinctions to be well founded, still 
 what is the natural and what the artificial product remains to 
 be determined in each case. Me. Phillips, in his work on 
 Evidence, vol. 3, p. 250, says : ' The statute does not include 
 agreements for the sale of the produce of a given quantity of 
 land, and which will afterward become a chattel ; though some 
 advantage may accrue to the vendee by its continuing for a 
 time in the land.' In Taylor's Law of Evidence, 2d vol., § 952, 
 the following propositions are submitted : ' 1st, a contract for 
 the purchase of fruits of the earth, ripe, though not yet gathered, 
 is not a contract for any interest in lands, though the vendee is 
 to enter and gather them ; 2d, a sale of any growing produce 
 of the earth, reared annually by labor and expense, and in 
 actual existence at the time of the contract, as, for instance, a 
 growing crop of corn, hops, potatoes, or turnips, is not within 
 the fourth section, though the purchaser is to harvest or dig 
 them; 3d, an agreement respecting the sale of a growing crop 
 of fruit, or grass, or of standing underwood, growing poles, or 
 timber, is within the fourth section, and a written contract of 
 sale cannot be dispensed with.' 
 
 However sound his first and second propositions, we 
 think his third is to be taken with some qualification, and 
 that a growing crop of peaches or other fruit, requiring 
 periodical expense, industry, and attention, in its yield and 
 production, may be well classed as fructus industriales, 
 and not subject to the fourth section of the statute. There 
 is nothing in the vegetable or fruit which is an interest 
 in or concerning land, when severed from the soil, whether 
 trees, grass, and other spontaneous growth prima vestura, 
 
390 STATUTE OF FRAUDS. [CHAP. VI. 
 
 or grain, vegetables, or any kind of crops fructus indus- 
 triales, the product of periodical planting and culture ; they 
 are alike mere chattels, and the severance may be in fact, 
 as when they are cut and removed from the ground; or 
 in law, as when they are growing, the owner in fee of the 
 land, by a valid conveyance, sells them to another person, or 
 where he sells the land, reserving them by express provision. 
 
 As a general rule, if the products of the earth are sold spe- 
 cifically, and hy the terms of the contract to be separately deliv- 
 ered, as chattels, such a sale is not affected by the fourth sec- 
 tion of the statute, as amounting to a sale of any interest in 
 the land. ^When such is the character of the transaction, it 
 matters not whether the product be trees, grass, and other spon- 
 taneous growth, or grain, vegetables, or other crops raised peri- 
 odically by cultivation ; and it is quite as immaterial whether 
 the produce is fully grown or in the process of growing, at the 
 time of making the contract. 
 
 The circumstance that the produce purchased may, or prob- 
 ably, or certainly will derive nourishment from the soil between 
 the time of the contract and the time of the delivery, is not con- 
 clusive as to the operation of the statute. If the contract, when 
 executed, is to convey to the purchaser a mere chattel, though it 
 may be in the interim a part of the realty, it is not affected by 
 the statute; but, if the contract is, in the interim, to confer 
 upon the purchaser an exclusive right to the land for a time, 
 for the purpose of making a profit of the growing surface, it 
 is affected by the statute, and must be in writing, although 
 the purchaser is at the last to take from the land only a 
 chattel. 
 
 To put a reasonable construction upon the terms of the 
 fourth section of the statute, from the evidence in this case, 
 it is clear the contract in question is not within its meaning. 
 It had been executed by the plaintiff, and the fruit had been 
 gathered, and, in fact, paid for at the time of the suit. It 
 was in proof that a part of the fruit was prematurely ripe at 
 the time of the contract. It would be a perversion of the 
 objects of the statute to hold as invalid the sale, in other 
 respects legal, of the growing crop of peaches, with no intent 
 of the parties to sell or purchase the soil, but affording a mere 
 license, express or implied, to the purchaser to go upon the 
 
SEC. 208.] INTEEEST IN LANDS. 391 
 
 land to gather the &uit and remove the same. Substantially 
 the transaction takes its character of realty or personalty 
 from the principal subject-matter of the contract and the 
 interest of the parties, and therefore a sale of any growing 
 produce of the earth in actual existence at the time of the 
 contract, whether it be in a state of maturity or not, is not 
 to be considered as a sale of an interest in or concerning 
 land. Where timber or other produce of the land, or any 
 other thing annexed to the freehold, is specifically sold, 
 whether to be severed from the freehold by the vendor, or 
 to be. taken by the vendee, render a special license to enter 
 for that purpose, it is still in contemplation of the parties, a 
 sale of goods only, and not within the statute." 
 
 Sec. 206. Crops Sold with the liand. — Where, upon a lease, 
 the tenant agrees to take the crops already growing on the 
 land at a valuation, and to pay for the work, labor, and mate- 
 rials employed in making the lands ready for tillage, this is 
 an entire contract for an interest in lands, and the growing 
 crops cannot be treated as goods.^ 
 
 Sec. 207. Right of Out-Going Tenant. — Where it appeared 
 that, by the custom of the county, the out-going tenant of a 
 farm was entitled in some cases to two-thirds, in others to 
 one-half of the crops of corn sown by him in the last year of 
 his tenancy ; that he was to cut the whole of the crops, and 
 keep the fences in repair until the entire crop was cut and 
 carried away,. it was held that under such circumstances the 
 out-going tenant had the possession in law of the field, until 
 the crop was carried away.^ 
 
 Sec. 208. "Whether Fructus Industriales, Goods while Grow- 
 ing. — It appears never to have been expressly decided whether 
 fructus industriales while growing are goods, wares, and mer- 
 chandise within the seventeenth section of the statute. In 
 Evans v. Roberts,^ both Bayley, J., and Littlbdaie, J., 
 thought that they were, but Blackbuen, J.,* says that the 
 
 ' Earl of Talmouth ^. Thomas, 1 2 Griffiths v. Puleston, 13 M. & "W. 
 
 C. & M. 89 ; Mayfield v. Wadsley, 3 358 ; 14 L. J. Ex. 33. 
 B. & C, 366; Harvey v. Grabham, 6 « 5 B. & C. 829; 8 D. & K. 611. 
 Ad. & El. 61. * Blackburn on Sales, pp. 19, 20. 
 
392 STATUTE OF FRAUDS. [CHAP. VI. 
 
 proposition is "exceedingly questionable," and that no au- 
 thority was given for it in Evans v. Roberts.^ 
 
 Sec. 209. Growing Crops not Returning Profit 'within the 
 Year. — It also seems to be doubtful whether growing crops 
 which do not produce a profit within the year in which they 
 are sown are fructus industriales or fructus naturales. In 
 Graves v. Weld,^ the tenant for a term determinable upon a 
 life sowed in the land, in the spring, first with barley, and 
 soon after with clover. The life expired in the following 
 summer. In the autumn the tenant mowed the barley, to- 
 gether with a little of the clover plant which had sprung up. 
 The clover so taken made the barley straw more valuable, 
 by being mixed with it ; but the increase of the value did 
 not compensate for the expense of cultivating the clover, 
 and a farmer would not be repaid such expense in the au- 
 tumn of the year in which it was sown. The reversioner 
 came into possession in the winter, and took two crops of the 
 same clover, after more than a year had elapsed from the 
 sowing. It was held that the tenant was not entitled to 
 emblements of either of these two crops : first, because em- 
 blements can be obtained only in a crop of a species which 
 ordinarily repays the labor by which it is produced, within 
 the year in which that labor is bestowed; and secondly, 
 because even if the plaintiff were entitled to one crop of the 
 vegetable growing at the time of the loss of his interest, this 
 had been already taken by him at the time of cutting the 
 barley.^ 
 
 Sec. 210. Shares in Companies, when an Interest in Lands 
 or Goods, 'Wares, and Merchandise. — A question sometimes 
 arises as to whether shares in a company possessed of real 
 estate are to be considered as within the fourth or seven- 
 teenth sections of the statute.. The question to be consid- 
 ered in deciding whether a share in a company is real estate 
 or not, is, it is submitted, has the shareholder an interest in 
 
 1 See further, Benjamin on Sales, ^ 5 B. & Aid. 105. See Frank v. 
 
 2d ed. p. 100, citing Glover w. Coles, Harrington, 36 Barb. (N.Y.) 415, where 
 
 1 Bing. 6; Owen y. Legh, 3 B. & Aid. a sale of growing hops was held not to 
 
 470; Mayfield v. Wadsley, 3 B. & C. be within the statute. 
 
 357 ; Hallen ;;. Eunder, 1 C. M. & R. s And see Latham v. Attwood, Cro. 
 
 267. Car. 515. 
 
SEC. 210.] 
 
 INTEEEST IN LANDS. 
 
 893 
 
 the land itself, and is the substantial object of the company a 
 dealing with land so that the share may result to the holder in 
 the shape of land, or is he merely entitled to participate in 
 the profits of the company ? ^ 
 
 It is not necessary that the instrument creating the com- 
 pany should expressly declare that the shares are to be per- 
 sonal estate.^ In England, shares in the following compa- 
 nies have been held not to be interests in land within the 
 statute of frauds and the Mortmain Act:* costbook min- 
 ing companies,* waterwork companies,^ dock companies,® canal 
 companies,' gas companies,* banking companies,^ foreign min- 
 ing companies,^*^ insurance companies," railway companies,^ 
 company formed for purchasing and improving land,^* and 
 turnpike companies.^* In England it is held that a con- 
 tract for the sale of railway shares is not a contract for 
 the sale of "goods, wares, or merchandise" within the sev- 
 enteenth section of the statute ; ^^ nor is a contract for the 
 
 1 Bradley v. Holdsworth, 3 M. & 
 W. 422 ; Watson v. Spratley, 10 Exch. 
 243; Powell v. Jessop, 18 C. B. 336; 
 Hayter u. Tucker, 4 K. 4b J. 243; 
 Morris v. Glyn, 27 Beav. 218 ; Bulmer 
 V. Norris, 9 C. B. (N. S.) 19; Bennett 
 V. Blain, 15 C. B. (N. S.) 518; Free- 
 man V, Gainsf ord, 154 L. J. C. P. 95 ; 
 Entwistle v. Davis, L. K. 4 Eq. 272 ; 
 Kobinson v. Ainge, L. E. 4 C. P. 429. 
 
 2 Edwards v. Hall, 6 T). M. G. 74; 
 overruling Ware v. Cumberledge, 20 
 Beav. 503. 
 
 » 9 Geo. m. c. 36. 
 
 * Watson V. Spratley, 10 Exch. 243 ; 
 Powell V. Jessop, 18 C. B. 336 ; Walker 
 V. Bartlett, 18 C B. 845 ; Hayter v. 
 Tucker, 4 K. & J. 243; Curling v. 
 Plight, 12 Jur. 423. 
 
 6 Bligh V. Brent, 2 Y & C. 268; 
 Weekly v. Weekly, cited 2 Y. & C. 
 281 ; Ashton o. Lord Langdale, 4 De 
 G. & Sm. 402. 
 
 ° Sparling v. Parker, 9 Beav. 450 ; 
 Hilton V. Giraud, 1 De 6. & Sm. 183 ; 
 Walker v. Milne, 11 Beav. 507. 
 
 ' Walker v. Milne, ubi supra ; Ash- 
 ton V. Lord Langdale, ubi supra ; Ed- 
 wards V. Hall, 6 D. M. G. 74 ; and see 
 also re Lancaster Canal Co., Mon. & 
 B. 94. 
 
 ' Sparling v. Parker, ubi supra. 
 « Humble v. Mitchell, 11 Ad. & El. 
 205; Myers v. Perigal, 11 C. B. 90; 2 
 D. M. Q. 599 ; Ashton v. Lord Lang- 
 dale, ubi supra ; Edwards v. Hall, ubi 
 supra. 
 
 1° Baker v. Sutton, 1 Keen, 234. 
 
 " March, u. Att. Gen., 5 Beav. 433. 
 
 " Bradley v. Holdsworth, 3 M. & 
 W. 422 ; Hibblewhite v. M'Morine, 6 
 M. &. W. 200 ; Duncuft v. Albrecht, 
 12 Sim. 189; Tempest v. Kilner, 3 C. 
 
 B. 249 ; Ashton v. Lord Langdale, ubi 
 supra ; Linley v. Taylor, 1 GifE. 67 S. 
 
 C. nom ; Taylor v. Linley, 2 De G. P. 
 & J. 84. 
 
 w Entwistle v. Davis, L. E. 4 Eq. 
 272. 
 
 " Tippets V. Walker, 4 Mass. 595. 
 But see Wells v. Cowles, 2 Conn. 597, 
 where the shares in such a company 
 were held to be real estate. 
 
 1* Hibblewhite v. McMorine, 6 M. & 
 W. 200 ; Duncuft v. Albrecht, 12 Sim. 
 189; Bowlby v. Bell, 3 C. B. 284; and 
 see Knight v. Barber, 16 M. & W. 66, 
 a case decided on the Stamp Act, 55 
 Geo. III. c. 184, sched. pt. 3, tit. " agree- 
 ment," in which the same words are 
 used. 
 
394 
 
 STATUTE OF PEAUDS. 
 
 [chap. VI. 
 
 sale of foreign stock,^ or shares in a joint-stock bank,^ cost» 
 book mining company,^ or projected railway company.* In 
 
 1 Heseltine v. Siggers, 1 Exch. 856. 
 
 2 Humble v. Mitchell, 11 Ad. & El. 
 205. 
 
 8 Watson V. Spratley, 10 E*x. 222. 
 
 * Tempest v. Kilner, 3 C. B. 249. 
 These cases decide the question 
 upon which the judges were divided, 
 whether a, contract for the sale of 
 stock is within the statute : Colt v. 
 Netterville, 2 P. "Wms. 308, citing Pick- 
 ering V. Appleby, Com. Rep. 354. 
 Upon the strength of words " accept 
 and receive " in this 17th section, it 
 has sometimes been contended in argu- 
 ment that only corporeal and tangible 
 things were the subjects of contract 
 embraced within the meaning of that 
 clause. Thus the counsel, in arguing 
 the case of Pickering v. Appleby, Com. 
 354, which was an action for a sum of 
 money for ten shares of the stock of 
 the governor and company of the 
 copper mines in England, sold to the 
 defendant according to parol agree- 
 ment, contended that where part of 
 the goods cannot be delivered or ac- 
 cepted, it cannot be a contract within 
 the statute, which extends only to such 
 things, part whereof may be delivered 
 or accepted. So, in the subsequent 
 case of Colt v. Netterville, 2 P. Wms. 
 307, it was contended at the bar that 
 whereas the statute enacts that no 
 contract should be good for the sale of 
 goods, wares, and merchandises of £10 
 price, unless part of the goods be ac- 
 cepted or earnest paid, or there was a 
 note in writing, this showed that such 
 goods were intended only as were 
 capable of actual delivery ; something 
 that was corporeal, and not stock, 
 which was incorporeal. 
 
 This reasoning, however, seemed to 
 be answered with some effect by the 
 counsel on the other side, who con- 
 tended, that though the statute says, 
 the contract shall be void, unless the 
 buyeraccepts partof the goods, or gives 
 earnest, or there is some memorandum 
 in writing; yet that it was not necessary 
 that the thing cohtrapted for should, 
 
 by that statute, be such as could be 
 delivered into the other party's hands. 
 That it was sufficient that part of the 
 goods be accepted, or that there be 
 earnest, or some memorandum in writ- 
 ing; and therefore if the goods can- 
 not be delivered, if there be earnest or 
 a memorandum in writing it is suffi- 
 cient. And it was asked, if in the 
 case of a contract for goods imported 
 in a ship, the contract should be held 
 to be not within the statute, because 
 the goods could not be delivered till 
 the arrival of the ship. It was further, 
 on the same. side, observed that the 
 intention of the act was to prevent 
 frauds and perjuries, which were equal- 
 ly dangerous in contracts for stock as 
 for land, or any other thing. And 
 that therefore the intention of the leg- 
 islature seemed to be aimed at all con- 
 tracts ; and that it was the more prob- 
 able that stocks were meant to be in- 
 cluded, because traffic in them was 
 used long before that act. According 
 to the report in Comyns, the judges 
 being divided in opinion, the case was 
 adjourned. But, L. C. 2 P. Wms. 307, 
 the question came afterwards before 
 all the judges, who were equally di- 
 vided upon it, six against six. 
 
 But in the case of Masselln. Cooke, 
 Prec. in Chan. 533, where the plaintiff 
 had agreed with one Green, the de- 
 fendant's broker, for £5,000 South Sea 
 Stock, at 187 per cent, to be delivered 
 about ten days after, and on the day 
 appointed the plaintiff attended at the 
 transfer office all day, but the defend- 
 ant did not come, and the stock having 
 in the meantime considerably risen, 
 the defendant refused to transfer it ; 
 the plea of the statute seemed to Mac- 
 clesfield, L. C, to be good. This 
 last-mentioned case of Massell o. 
 Cooke was probably the ease alluded 
 to in Cruee v. Dodson, Select. Cas., 
 in Ch. in Lord King's time, 41 Trin. 11 
 G. 3, wherein the court said that it had 
 been determined in Chancery that bar- 
 gains relating to stock are within the 
 
SEC. 210.] 
 
 INTEKEST IN LANDS. 
 
 395 
 
 this country, in some of the States, by the language of the 
 statute itself, all choses in action, which, of course, includes 
 " stocks," are expressly within its provisions, requiring a note 
 in writing for their sale. This is the case in New York.^ In 
 Indiana the word " goods " alone is used in the statute, and 
 under it, it is held that stocks, notes, 'and other merely incor- 
 poreal rights; 2 and in New Hampshire^ and Georgia* a sim- 
 ilar doctrine prevails as to notes, treasury checks, etc., and 
 carrying the principle to its legitimate sequence, it would 
 embrace stocks and all other incorporeal hereditaments. 
 Upon the other hand, in Massachusetts^ the statute is held 
 to include incorporeal hereditaments, as the sale of a patent 
 before letters granted, stocks, notes, etc. ; and such also is 
 the rule in Maine,® Maryland,^ Vermont,^ and also in Con- 
 necticut.^ In the last case, Waite, J., said: "In conse- 
 quence of the great increase in corporations and the amount 
 of capital invested in them, the stock of such companies has 
 become a large and valuable portion of the personal estate 
 
 statute of frauds, and if earnest be not 
 giyen, are nuda pacta. 
 
 In Colt V. Netterville, ante, the bill 
 was for a specific performance of an 
 agreement for transferring some York 
 Buildings stock, stating that the de- 
 fendant had agreed to transfer it to 
 the plaintiff on a particular day therein 
 mentioned, on the plaintiff's paying 
 the money, and that the plaintifi 
 agreed to pay so much per cent and 
 to accept the transfer, and did there- 
 upon pay to the defendant Qd. earnest. 
 To which bill the statute of frauds was 
 pleaded, denying that the defendant 
 received or accepted the &d. as earnest. 
 The plea was held ill, was overruled on 
 the ground that it was not material how 
 or in what manner the defendant re- 
 ceived it, hut how the other paid it, 
 upon the doctrine in Pinnel's Case, 
 5 Coke, 117. But Loed King seemed 
 to incline against construing the 17th 
 section of the statute to extend to 
 stock, " adverting to the case of one 
 Wolstonholme, who was declared a 
 bankrupt as having East India stock ; 
 but which decision was afterwards re- 
 versed by an act of parliament." 
 
 As to whether shares in a company 
 
 are " things in action " within the stat- 
 ute 32 & 33 Vict. c. 71, § 15, subs. 5, 
 see in re Jackson, L. R. 12 Eq. 355; 
 in re Fox, L. R. 17 Eq. 113. 
 
 1 Kessel v. Albestis, 56 Barb. (N.Y.) 
 362 ; People v. Beebe, 1 id. 379; Hagar 
 V. King, 38 id. 200 ; Allen v. Aguira, 7 
 N. Y. ; Peabody v. Speyers, 56 N. Y. 
 230; Truox v. Slater, 86 id. 630; Art- 
 cher V. Zeh, 5 Hill (N. Y.) 200. 
 
 2 Vawter v. Griffin, 40 Ind. 593. 
 
 ' Whittimore v. Gibbs, 24 N. H. 
 484. 
 
 * Beers v. Crowell, Dudly (Ga.) 
 28. 
 
 ^ Somerby v. Buntin, 118 Mass. 
 279; Tisdale o. Harris, 20 Pick. 
 (Mass.) 9; Boardman c. Cutter, 128 
 Mass. 390; Baldwin v. Williams, 3 
 Met. (Mass.) 367. 
 
 « Pray v. Mitchell, 60 Me. 430. In 
 Gooch V. Holmes, 41 Me. 523, the 
 statute was held to apply to a sale of 
 bank bills ; see also Riggs v. Magruder, 
 2 Cr. (U. S. C. C.) 143. 
 
 ' Calvin v. Williams, 3 H. & J. (Md.) 
 38. 
 
 8 Eay V. Wheeler, 44 Vt. 292. 
 
 9 North V. Forest, 16 Conn. 400. 
 
396 STATUTE OF FRAUDS. [CHAP. VI. 
 
 of our citizens. Contracts for the sale of such property are 
 almost daily made, and often to a very large amount. Such 
 contracts fall clearly within the mischiefs which the statute 
 is intended to remedy. There is as much danger of fraud and 
 perjury in the parol proof of such contracts as in any other. 
 The statute is highly important and beneficial in its opera- 
 tion, and ought not to be narrowed by any very rigid con- 
 struction ; ^ and we think it no strained construction of its 
 language to say the contract falls within the letter, as well 
 as within the spirit of the act. In Florida the statute applies 
 to ' personal property,' and this is held to include the stock 
 of corporations." ^ The possession of shares in a com- 
 pany, the members of which have no direct interest in 
 the land belonging to the company, but only a right to share 
 in the profits, does not entitle the holder to be registered as 
 a voter.^ But where the partnership deed declared that land 
 which had been conveyed to two of the partners should be 
 considered as personal estate, it was held that the partners 
 had a right to vote, the declaration being merely voluntary 
 and revocable.* 
 
 Sec. 211. Shares in a Mine, etc. — In Boyce V. Grreen,® it 
 was held that a sale of shares in a mine was an interest in land 
 within the statute, Bushe, C. J., saying: "The nature of 
 mining implies at least a right to open the ground and keep 
 it open, and such right to the land for a limited time as in- 
 duced the court in Crosby v. Wadsworth,® to hold a contract 
 for the sale of growing crops to be within the statute."'^ 
 In Ashton v. Lord Langdale,* mortgages of turnpike tolls, 
 and of railway undertakings, were held to be interests in 
 land within the Mortmain Act ; ® and in Toppin v. Lomas,!" 
 
 1 Howe V. Palmer, 3 B. & Aid. see too Rogers v. Harvey, 5 C. B. (N. 
 321. S.) 1. 
 
 2 Southern Life Ins. &c. Co. v. Cole, ^ Batty, 608. 
 4 Fla. 359. 6 q East, 602. 
 
 8 Bulmer v. Norrls, 9 C. B. (N. S.) ' And see Vice v. Anson, 7 B. & C. 
 
 19; Acland v. Lewis, ib. 32; Bennett 409. But it is submitted that these 
 
 !i. Blain, 15 C. B. (N. S.) 518; Free- cases can hardly be reconciled with 
 
 man v. Gainsford, 34 L. J. C. P. 95; those cited ante, p. 373, a. 1. 
 
 Tepper v. NichoUs, 18 C. B. (N. S.) 8 4 pe (j. & Sm. 402. 
 
 121 ; Wadmore v. Dear, L. R. 7 C. P. '9 Geo. II. c. 36. 
 
 212. w 16 C. B. 145. 
 
 4 Baxter v. Brown, 7 M. & Gr. 198; 
 
SEC. 214.] INTEEBST IN LANDS. 397 
 
 Westminster Improvement bonds were held to confer upon 
 the holder an interest in lands within the statute.^ 
 
 Sec. 212. Agreements for Leases or for Sale of Iieases within 
 Statute. — Agreements for leases and for the sale, assign- 
 ment, or transfer of leasehold estates, being contracts for a 
 gtant or transfer of an estate or interest in land, are within 
 the statute, and must consequently be authenticated by a 
 signed writing.® Where the defendant agreed to obtain a 
 transfer of the lease of a public-house, in which he himself 
 had no interest, to the plaintiff, it was held that this was a 
 contract within the statute.* 
 
 Sec. 213. Mixed Indivisible Contract. — Where the contract 
 relates as well to a sale of an interest in land as to other mat- 
 ters, the whole forming one indivisible contract, and it is 
 void as to the part which relates to the land, for want of 
 writing, it will also be void as to the other matters.* Thus 
 in a Michigan case ^ a verbal agreement was made for the 
 transfer of a farm and the wheat growing thereon. The court 
 held that as the contract for the conveyance of the farm was 
 void for want of a writing, the contract relating to the wheat 
 being connected therewith was also void. 
 
 Sec. 214. Agreement Amounting to Transfer of Interest in 
 Land. — An agreement which amounts substantially to a 
 transfer of an interest in lands, is within the statute." 
 Where a parol agreement was made between the plaintiff 
 and defendant, that if the plaintiff would surrender her ten- 
 ancy to her landlord, and would prevail on him to accept the 
 defendant as his tenant, in place of the plaintiff, he would 
 pay the plaintiff £100 as soon as he should become tenant 
 of the land, it was held that the contract was for the sale of 
 an interest in land.'^ A parol agreement by a lessee to quit 
 
 1 See further, 1 Lindley on Part> N. & P. 224 ; Vaughan o. Hancock, 3 
 nership, 3d ed. 692. C. B. 766 ; Lord Falmouth v. Thomas, 
 
 2 Add. on Contr. 7th ed. 145, citing 1 Cr. & M. 89 ; Savage v. Canning, 1 
 Anon. Ventr. 361 ; Poultney v. Holmes, Ir. C. L. 434 ; and see ante, p. 86, n. 6. 
 Str. 405. ' Jackson v. Evans, 44 Mich. 510. 
 
 8 Horsey v. Graham, L. R. 5 C. P. « Kelly v. Webster, 12 C. B. 290 ; 
 
 13. Smart v. Jones, 15 C. B. (N. S.) 717 ; 
 
 * Cooke V. Tombs, Anst. 420 ; May- 33 L. J. C. P. 156. 
 field V. Wadsley, 3 B. & C. 357, 361 ; ' Cocking v. Ward, 1 C. B. 858; 15 
 
 Mechlen v. Wallace, 7 Ad. & Bl. 49 ; 2 L. J. C. P. 246. 
 
398 STATUTE OF FRATIDS. [CHAP. VI. 
 
 possession on a certain day, and to pay all outgoings up to 
 that time, in consideration of £150 to be paid to him by 
 another person, who has agreed with the lessor for a new 
 lease to him on the termination of the existing term, is within 
 the statute ; ^ and so is a similar agreement, saying that the 
 lessee shall part with the land, and that the defendant (the 
 intended lessee) shall take it.^ Again, where there was a 
 parol agreement for the transfer of a lease, the lessee to pay 
 up all rent then due, and to endeavor to induce the landlord 
 to accept the transferee as tenant, it was held that the trans- 
 feree could not sue for a breach of the agreement to pay up 
 the rent.^ "Where the plaintiff, who was in the possession and 
 occupation of premises, where he carried on the business of 
 a milkman, agreed to yield up the possession and occupation 
 of the premises to the defendant, who was to pay the rent 
 and other outgoings, it was held that the agreement was for 
 the sale of an interest in land, and must be in writing.^ 
 
 Sec. 215. Agreement to Let Furnished Lodgings. — A con- 
 tract for the taking or letting of furnished lodgings, whether 
 by the day, week, or month, has been held to be a contract 
 for an interest in land, if any specific rooms are let.^ But 
 an agreement to take furnished lodgings in a boarding-house, 
 it not being intended to give the right to the exclusive occu- 
 pation of any particular part of the house, has been held not 
 within the statute.^ In Massachusetts ^ it has been held that 
 a contract by the keeper of a boarding-house, to provide a 
 man and his family for six months with board, and with three 
 specified rooms as lodgings, and to light and heat the same, is 
 not within the statute. 
 
 Sec. 216. Agreement to Furnish. — An agreement by a land- 
 lord to furnish a house previously to the entry of the in- 
 tended tenant, the agreement for furnishing being made as 
 part of the contract for the lease, is within the statute.* 
 
 1 Smith V. Tombs, 3 Jur. 72. 24 L. J. C. P. 76 ; 3 C. L. E. 351. 
 
 2 Smith V. Tombs, 3 Jur. 72. ^ Inman v. Stamp, 1 Stark, 12 ; 
 8 Hodgson V. Johnson, E. B. & E. Edge v. Strafiord, 1 C. & J. 391 ; 1 
 
 685 ; 5 Jur. (N. S.) 290 ; 28 L. J. Q. B. l^r. 295. 
 
 88. But the doctrine of this case was « Wright v. Stavert, 2 E. & E. 721 ; 
 
 questioned in Palbrook v. Lawes, L. R. ' White v. Maynard, 111 Mass. 250. 
 
 1 Q. B. D. 284. 6 Jur. (N. S.) 867 ; 29 L. J. Q. B. 161. 
 
 * Smart v. Harding, 15 C. B. 652; » Mechlen v. Wallace, 7 Ad. & El. 
 
SEC. 219.] INTEREST IN fiANDS. 399 
 
 Sec. 217. Agreement to Repair. — An agreement between a 
 landlord and tenant, relating to repairs and alterations to be 
 made on the property, is, when the repairs and alterations are 
 only to be executed because of the lease, within the statute. 
 Thus, where A being possessed of premises for the residue of a 
 certain term of years, agreed with B to relinquish possession 
 to him, and to suffer him to become tenant of the premises 
 for the residue of the term, in consideration of B's paymg 
 a sum of money towards completing certain repairs on the 
 premises, it was held that this was an agreement relating 
 to the sale of an interest in land.^ But where the lessee 
 in possession verbally agreed with the lessor to pay him 
 annually during the residue of the term, the sum of £10 
 per cent on the cost of new buildings, if the lessor would 
 erect them, it was held that this agreement was not within 
 the statute, as it was only collateral to the lease, and not a 
 new demise.^ 
 
 SeCs 218. Agreement to Build. — An agreement between 
 occupiers of adjoining lands that one of them should build a 
 boundary wall, the .other to pay his proportionate share of 
 the expense, is not within the statute.^ Nor is an agreement 
 to build a house within the statute, although it implies a 
 license to go on the land.* But an agreement that if A will 
 erect a house upon a certain lot of land belonging to B, A 
 shall have the land, is within the statute, and cannot be en- 
 forced although A erects the house.^ 
 
 Sec. 219. instances of Agreements not Within the Statute. 
 — A verbal agreement to pay for any damage done to the 
 
 49; 2 N. & P. 224; Vaughan v. Han- ^ Smith v. Smith, 28 N. J. L. 208. 
 
 cock, 3 C. B. 766 ; Simmons v. Sim- In a South Carolina case, Jones v. 
 
 mons, 12 Jur. 8. McMichael, 12 Eieh. (S. C.) 176, a 
 
 ' Buttermere v. Hayes; 5 M. & W. parol contract between A and B, 
 455 ; 7 Dowl. 489 ; and see Vaughan v. whereby A agreed to erect a, saw- 
 Hancock, 3 0. B. 766 ; Earl of Fal- mill on B's land and manage it at 
 mouth V. Thomas, 1 Cr. & M. 89. his own cost, B agreeing to deliver 
 
 2 Hoby V. Eoebuck, 7 Taunt. 157 ; at the mill, at his own cost, certain 
 
 2 Marsh. 433 ; and see Donellan v. timber from his land to be sawed by 
 
 Read, 3 B. & Aid. 899, 904 ; Seago v. A, the profits of the sawing to be 
 
 Deane, 1 Moo. & P. 227 ; 4 Bing. 459. equally divided between them, was 
 
 2 Stuart V. Smith, 7 Taunt. 158. held to be within the statute and 
 
 * Wright V. Stavert, 2 E. & E. 721. void. 
 
400 
 
 STATUTE OF FEAUDS. 
 
 [chap. TE. 
 
 surface in working a quarry is not within the statute.^ Nor 
 is an agreement that B may dig and carry away cinders 
 from a cindertip, the property of A, B paying a certain 
 price per ton.^ Nor an agreement to use a dock for the 
 purpose of repairing a ship.^ Nor for damage sustained 
 by the plaintiff in consequence of a road having been 
 made through his land ; such an interest in land within the 
 meaning of the statute as to require that a submission to 
 arbitration to ascertain how much the defendant should pay 
 therefor, should be in writing.* Thus, an agreement not to 
 claim damages for the flowing of lands if another will erect 
 a dam and mill at a certain point on a stream, is not an agree- 
 ment conferring an interest in land, but merely a waiver of 
 a claim for pecuniary damages, which is valid, although by 
 parol ; * and the same rule has also been adopted as to a parol 
 
 1 Grifath V. Jenkins, 10 Jur. (N. S.) 
 207; 3 Bos. & P. N. R. 489. 
 
 2 Smart v. Jones, 15 C. B. (N. S.) 
 717. 
 
 ' Wells V. Kingston-upon-HuU, L. 
 E. 10 C. P. 402. 
 
 * Gillanders v. Lord Eossmore, 1 
 Jones, Ex. E. 504 ; and see Griffith i;. 
 Jenkins, supra ; 8 Ad. & El. 716. 
 
 6 Smithu. Goulding, 6Cush.(Mass.) 
 154. See also Johnson v. Skillman, 
 29 Minn. 95, in which it was held that 
 where one orally promised others that 
 if they would erect a good custom mill 
 at a certain point on their own land, 
 he would give them the privilege of 
 flowing his land so long as they would 
 maintain such mill, and they relying 
 on that promise, and partly induced 
 by it, erected a dam and a mill ac- 
 cordingly, at large expense, the prom- 
 ise was a mere license, and was re- 
 vocable even after it had been acted 
 upon. The court said : " The parol 
 agreement set forth in the decision of 
 the trial court created no easement in 
 the land of plaintiff, but took effect 
 as a parol license only. A license 
 creates no estate in lands. It is a 
 mere power or authority founded on 
 personal confidence, not assignable, 
 and revocable at pleasure, unless 
 subsidiary to a valid grant, to the 
 beneficial enjoyment of which its 
 
 exercise is necessary, or unless exe- 
 cuted under such circumstances as 
 to warrant the interposition of equity. 
 This is the result of the best consi- 
 dered cases. The doctrine of the 
 early cases, which converted an ex- 
 ecuted license into an easement, is 
 now generally discarded as being ' in 
 the teeth of the statute of frauds.' 
 The cases of Eicker v. Kelly, 1 Me. 
 117, and Clement u. Durgin, 5 id. 9, 
 cited by defendants' counsel, have 
 now little following ; and the case of 
 Eerick v. Kern, 14 S. & E. (Penn.) 
 267, also relied on, which was an ac- 
 tion at law for damages in favor of 
 the licensee, is followed in but few 
 States. Houghtaling v. Houghtaling, 
 5 Barb. (N. Y.) 383; Jamieson v. 
 Millemann, 3 Duer (N. Y.) 255 ; "Wash. 
 Easem. 24. 
 
 A simple reference to some of the 
 more important cases, in support of 
 the views herein expressed, will suf- 
 fice. Cook ■!). Stearns, 11 Mass. 333; 
 Mumford v. "Whitney, 15 "Wend. 380 ; 
 Wolfe V. Frost, 4 Sandf. Ch. (N. Y.) 
 72 ; Foot V. New Haven & Northamp- 
 ton Co., 23 Conn. 214 ; Bridges v. Pur- 
 cell, 1 D. & B. (W. C.) L. 492 ; Hazle- 
 ton V. Putnam, 3 Pin. (Wis.) 107; 
 Woodward v. Seely, 11 111. 157 ; Wood 
 17. Leadbitter, 13 M. & W. 838 ; Wise- 
 man V. Lucksinger, 84 N. Y. 31 ; 38 
 
SEC. 219.] 
 
 INTEREST IN LANDS. 
 
 401 
 
 agreement to take a certain sum annually as a compensation 
 for flooding lands,^ although it would seem that in the latter 
 case an easement is created, and the doctrine cannot be sus- 
 tained if the agreement is treated as amounting to anything 
 more than a license to continue the dam, revocable at the 
 pleasure of the owner of the land. An agreement to release 
 damages for the taking of lands under a statute for public 
 purposes ^ is not within the statute, unless the statute con- 
 
 Am. Rep. 479. In cases where the, 
 license is connected with a valid grant, 
 as of chattels or fixtures, upon the 
 land of the licensor, susceptible of 
 being removed, it is subsidiary to the 
 right of property, and irrevocable to 
 the extent necessary to protect the 
 licensee, and save to him the right of 
 entry — the right of possession follow- 
 ing the right of property. Nettleton 
 V. Sikes, 8 Met. (Mass.) 34; Heath v. 
 Randall, 4 Cush. (Mass.) 195 ; Wood 
 Leadbitter, supra. But where it is 
 sought to couple with a license a 
 parol grant of an interest in the realty, 
 the attempted grant being void, the 
 transaction remains a mere license. 
 Wood V. Leadbitter, supra. A license 
 is, of course, always a protection for 
 acts done under it, and before revoca- 
 tion. Pierrepont v. Barnard, 6 N. Y. 
 279. In cases, however, of what are 
 sometimes called negative easements, 
 which are executed on the land of the 
 licensee, a different rule prevails ; as 
 where a man has an easement of light 
 and air upon or over an adjacent lot, 
 he may abandon the same, and license 
 the erection, by his neighbor, of a 
 building which shall extinguish such 
 right, and the license become irre- 
 vocable. Morse v. Copeland, 2 Gray 
 (Mass.) 302; Godd. Easem. 472. Nor 
 is it material that a mere license is or 
 is not in writing, or upon a considera- 
 tion. In Jackson v. Babcock, 4 John. 
 (N. Y.) 418, there was a sealed instru- 
 ment, and in Wiseman v. Lucksinger, 
 84 N. Y. 31 ; 38 Am. Eep. 479, there 
 was both a writing and a considera- 
 tion ; but both were held licenses, and 
 revocable. In such cases the question 
 is one of interpretation as to the in- 
 
 tent of the parties as evidenced by 
 the writing, and as Chancellok Kent 
 remarks, the distinction between an 
 easement and a license is sometimes 
 quite subtle. And so, in a suit in 
 equity brought to confirm rights and 
 assure an interest, as upon a part per- 
 formance of a parol agreement alleged 
 to be taken out of the statute of frauds 
 (and otherwise void as a grant, but 
 valid as a license), the question of in- 
 terpretation of the terms of the agree- 
 ment, and the intent of the parties, 
 becomes a material one in the case. 
 Jackson & Sharp Co. v. Philadelphia 
 &c. R. Co., 11 Am. Law Reg. (N. S.) 
 374," to be reported in 4 Del. Ch. 
 
 Mr. Goddard says (Easements, 
 471 ) : "A license is also irrevocable if 
 the licensee, acting upon the permis- 
 sion granted, has executed a work of 
 a permanent character, and has in- 
 curred expense in its execution. This 
 rule of law appears to be based on the 
 injustice which would be inflicted upon 
 the licensee, if after he had laid out 
 money and executed a permanentwork, 
 the licensor were permitted to revoke 
 his license and make him destroy his 
 work, and so lose the money expended, 
 or if he were allowed to treat him as 
 a wrong-doer, and recover damages 
 for the very act for which he gave 
 permission." 
 
 In the latter American cases stress 
 is laid on the statute of frauds, and 
 the early English cases are distin- 
 guished on the ground that they were 
 decided before the enactment of that 
 statute. 
 
 1 Short V. Woodward, 13 Gray 
 (Mass.) 86. 
 
 2 Fuller V. Plymouth Commission- 
 
402 STATUTE OP FEATJDS. [CHAP. VI. 
 
 templates a contract between the parties, in which case the 
 agreement must, be in writing.^ A parol promise by a 
 municipal corporation to pay a land-owner for damages for 
 illegally appropriating his land for the widening of a street, 
 is not within the statute.^ An agreement, for a valuable 
 consideration, not to use a certain mill after a certain date, 
 is held not to be within the statute ; and this rule would 
 apply to all contracts by which the owner of land agrees not 
 to use it for certain specified purposes,^ where the agreement 
 does not attempt to impose a burden upon the land, but 
 merely to bind the owner thereof, so long as he remains the 
 owner, or retains control over it. 
 
 Sec. 220. Parol Sales of Buildings, Fixtures, Improvements, 
 etc. — An agreement for the sale of a building erected upon 
 the lands of another, and which the person erecting has a 
 right to remove, is valid, alt}iough by parol ; * and the same 
 rule prevails as to any improvements made by a tenant or 
 licensee, or fixtures put by him upon the lands of another, 
 which he has a right to remove, although at the time the 
 agreement is entered into they are annexed to the land, and 
 apparently form a part thereof.^ In such cases the sale is 
 treated as amounting simply to a transfer of the right of the 
 seller to sever certain chattels from the soil, and not as con- 
 ferring any interest to the vendee in the land itself.^ The 
 fact that a chattel is annexed to the freehold by a person 
 
 ers, 15 Pick. (Mass.) 81; Embury ti. defendant their church building, which 
 
 Connor, 3 N. Y. 511; Clement v. Dur- had been severed from the land and 
 
 gin, 5 Me. 14; Fitch v. Seymour, 9 placed upon rollers, for the sum of 
 
 Met. (Mass.) 462. $500. It was held that the sale was 
 
 1 Phillips V. Thompson, 1 John, not within the statute. Lower v. 
 Ch. (K Y.) 131. "Winters, 7 Cow. (N. Y.) 263; Howard 
 
 2 Coleman v. Chester, 14 S. C. 286. v. Easton, 7 John. (N. Y.) 205 ; Thouv- 
 8 Bostwick 1). Leach, 3 Day (Conn.) enin v. Lea, 26 Tex. 612. Such fix- 
 
 476 ; Leinan v. Smart, 11 Humph, tures, while annexed to the land, are 
 
 (Tenn.) 308. not either goods, wares, or merchan- 
 
 * Keyser v. School District, 35 N. dise under the 17th section, nor upon 
 
 H. 477 ; Scoggin v. Slater, 22 Ala. 687. the other hand do they form an in- 
 
 ^ Scoggin V. Slater, 22 Ala. 687 ; terest in land within the 4th section. 
 • Cassell V. Collins, 23 id. 676; Bost- Lee v. Eisdon, 7 Taunt. 188; Primer 
 wick V. Leach, 3 Day (Conn.) 476; v. Donald, Tr. & Gr. 1; Hallen v. 
 Clark V. Shultz, 4 Mo. 235 ; Benedict v. Bunder, 1 C. M. & B. 266. 
 Beebe, 11 John. (N. Y.) 145. In Beach « Keyson v. School District, ante; 
 V. Allen, 7 IJun (N. Y.) 439, the trus- Horsfall v. Hey, 2 Excheq. 778; Hal- 
 tees of a religious society sold to the len v. Rtmder, 1 C. M. & R. 266. 
 
SEC. 220.] INTEREST IN LAKDS. 403 
 
 who has a right to remove it, does not destroy the character 
 of the article so annexed, as a chattel ; and in this country, 
 whatever may be the rule in England, the rule seems to be 
 well settled that improvements put upon land, although 
 incorporated with it, are not necessarily to be regarded as 
 land.i In a New York case,'-* a promise made by the owner 
 of land to an intruder thereon, to pay him for improvements 
 made by him thereon, — as for tillage, and certain buildings 
 erected thereon by him, — it was held by the court that the 
 promise was not within the statute as relating to an interest 
 in land. " This was not," said Spencer, J., " a contract 
 or sale of lands, tenements, or hereditaments, or any interest 
 in or concerning them, but related to the labor only which 
 has been bestowed upon the land under the denomination of 
 improvements." In such cases, the doctrine of constructive 
 severance applies, the same as it does where the owner of the 
 land by a valid contract, sells a thing annexed to his land 
 to a third person, or upon the sale of the land reserves the 
 growing crops, or timber, or fixtures, or buildings thereon.^ 
 In such cases, the crops, timber, or fixtures are treated as 
 constructively severed from the land, and are treated as 
 chattels in the hands of the person severing them, so that 
 a parol sale thereof, answering the requirements of the stat^ 
 ute as to the sale of goods, is valid, and sufficient to convey 
 the title thereto.* But where a chattel is annexed to lands, 
 without authority from the owner, so that no right of removal 
 exists in the person making it, it immediately becomes a part 
 of the land; and a parol sale thereof by the person so annex- 
 ing it to the land would be within the statute, and invalid 
 upon that ground, as well as because of a total lack of title 
 to the thing sold.^ There is also a constructive severance, 
 where the thing annexed to the land has never assumed the 
 character of realty, as where the title to the land, and to the 
 
 1 Green u. Vardiman, 2 Blackf. « barren u.Leland, 2 Barb. (N.Y.) 
 (Ind.) 324; Scoggin o. Slater, ante; 542; Bank of Laneingburg v. Crary, 
 Forbes v. Hamilton, 2 Tyler (Vt.) 1 Barb. (N. Y.) 542; Smith t;. Bryan, 
 356 ; Ziekafosse v. HuUick, 1 Morris 5 Md. 141 ; Teal v. Anty, 2 B. & B. 99. 
 (Iowa) 175; Mitchell v. Bush, 7 Cow. * Kingsley v. Holbrook, 45 N. H. 
 {N. Y.) 185; Benedict v. Beebe, 11 313; Warren v. Leland, ante; Smith 
 John. (N. Y.) 145. v. Bryan, ante. 
 
 2 Prear v. Hardenburgh, 5 John. ^ J'rear v. Hardenburgh, ante. 
 (N. Y.) 272. 
 
404 STATUTE OP FKATJDS. [CHAP. VI. 
 
 thing annexed thereto, were originally, and have always been, 
 distinct and vested in different persons. Thus, where land is 
 demised to be used as a nursery garden, trees and shrubs 
 planted therein are mere chattels,^ as between the lessor 
 and lessee, and the lessee may maintain an action of de 
 bonis exportatis against the lessor, or any other person who 
 wrongfully takes and converts them ; and an oral agreement 
 for their sale while growing or standing in the land, is not 
 an agreement for the sale of an interest in or concerning 
 land.^ But as between the heir and an executor, and a 
 grantor and grantee of the land, the rule would doubtless 
 be otherwise if the title to the trees or shrubs was in the 
 grantor;^ and upon principle we should say that if the 
 nurseryman should buy the land, the trees and shrubs 
 would at once become a part of the realty. 
 
 Sec. 221. Contracts for 'Work to be Done upon or for Land. 
 
 — A contract to do certain work upon the land of another, as 
 to cut a certain number of cords of wood thereon, or certain 
 timber, or to clear up a certain tract, is not a contract con- 
 cerning an interest in land, and, if to be performed within 
 one year, is valid, although by parol;* and the same rule 
 would apply as to a contract to erect a house, build a fence, 
 or perform any other labor upon the land, although when 
 completed the fruits of the labor may become a part of the 
 realty. So, too, it has been held that an agreement to employ 
 a person to dispose of certain lands, and to pay him a com- 
 pensation dependent upon the price obtained therefor, is not 
 
 1 Miller v. Baker, 1 Met. (Mass.) contract was made the roots were in 
 27 ; Wiley v. Bradley, 60 Ind. 62. the ground. See also Smith v. Price, 
 
 2 Whitmarsh v. Walker, 1 Met. 39 111. 28 ; Penton v. Eobert, 2 East, 
 (Mass.) 313. In this case a parol sale 88; Wyndham v. Way, 4 Taunt. 316. 
 of mulberry trees growing in a nursery. In Indiana, Heavilon u. Heavilon, 29 
 and raised to be sold and transplanted, Ind. 509, it has been held that a parol 
 was held not to be within the 4th sec- agreement on the sale of land that the 
 tion of the statute. So in Webster v. crops growing thereon are to be re- 
 Zielly, 52 Barb. (N. Y.) 482, a parol served is valid, and that an execution 
 contract for the sale and delivery of of the deed is a performance of the 
 a certain number of bushels of hop contract by the vendor. 
 
 roots growing on the lands of the ' Lee v. Eisdon, 7 Taunt. 191; 
 
 vendor, was held not to be a con- Miller v. Baker, ante. 
 tract for the sale of an interest in * Forbesu. Hamilton, 2 Tyler (Vt.) 
 
 land, although at the time when the 356. 
 
SEC. 221.J rNTEKBST IN LANDS. 405 
 
 within the statute ;i and in Texas ^ it has been held that 
 an agreement to locate certain land certificates and procure 
 patents therefor in consideration of a good title to one-half 
 of the land patented, is not within the statute ; but this doc- 
 trine is doubtful, as it seems to be quite well settled that 
 a contract to pay for labor in land is within the statute, 
 and invalid as the measure of the laborer's right, unless in 
 writing.* This question has been quite recently considered 
 by the House of Lords in England,* and a doctrine conso- 
 nant with that just stated, held. In that case, an intestate 
 induced a woman to serve him many years as his house- 
 keeper without wages, and to give up other prospects of 
 establishment in life, by a verbal promise to make a will 
 leaving her a life estate in land, and afterwards signed a 
 will, not duly attested, by which he left her such life estate. 
 The court held that there was no contract, and that she could 
 not maintain an action against the heir upon a declaration 
 stating that she was entitled to a life estate in the land. In a 
 recent Ohio case,^ a parol promise to compensate a person 
 for services, by will,- either in land or money, was held to 
 be within the statute. But while no recovery could be had 
 upon the contract for compensation in money, yet a recovery 
 might be had upon a quantum meruit therefor, and the con- 
 tract could be proved, for the purpose solely of showing that 
 the services were rendered at the request of the other party, 
 and were not intended to be gratuitous. But although the 
 contract as to payment in land is void, yet the person ren- 
 dering such service may recover therefor upon a quantum 
 meruit;^ but in order to arrive at the value of the services 
 he will not be permitted to show the value of the land 
 agreed to be given therefor,'^ but is confined to the actual 
 
 1 Fiero v. Fiero, 52 Barb. (N. Y.) « Howard v. Brown, 37 Ohio St. 
 288. 402. 
 
 2 Watkins v. Gilkerson, 10 Tex. * Bannonv.TJrton, 3 Green (Iowa) 
 340. See also Davis v. Walker, 4 228 ; Jack k. McKee, 9 Penn. St. 235 ; 
 Hayw. (Tenn.) 295. Burlingame v. Burlingame, 7 Cow. 
 
 3 Watson V. Watson, 1 Houst. (N. Y. ) 92 ; Watson !.. Brightwell, 60 
 (Del.) 209; Ham v. Goodrich, 37 N. Ga. 212. 
 
 H. 185 ; King v. Brown, 2 Hill (N. Y.) ^ Erben u. Lorrillard, 19 N. Y. 299. 
 
 48&; Lisk k. Sherman, 25 Barb. (N. Y.) In Clarke u. Davidson, 53 Wis. 317, 
 
 433 ; Sutton v. Rowley, 44 Mich. 112. A went into possession of a farm un- 
 
 * Maddison v. Alderson, L. E. 8 der a parol agreement to purchase; 
 
 App. Cas. 465. it was agreed between A and the ad- 
 
406 STATUTE or PEATJDS. [CHAP. VI. 
 
 Talue of his services in view of all the circumstances.^ In 
 a Massachusetts case,^ it was held that if a person agrees 
 to work for another and take his pay in land, while the 
 contract is within the statute and therefore not enforce- 
 able, yet if the person for whom the service is render.ed is 
 ready and willing to perform it by conveying the land, the 
 employee is bound to accept performance, and cannot recover 
 for his services on an account annexed. A parol agreement 
 entered into between a father and son, or between the owner 
 of land and any third person, that if he will carry on a cer- 
 tain farm and support such land-owner and his family during 
 his life, he may have the use of the farm, is valid ; ^ and in 
 Indiana it is held that a parol agreement between a land- 
 owner and another, that if the latter will support such land- 
 owner during his life he will convey his land to him, or de- 
 vise it to him by will, is not within the statute.* Thus, in 
 the latter case, in an action for the partition of certain lands, 
 one of the defendants answered, claiming title thereto, and 
 setting up a verbal contract between himself and the former 
 owner of the lands, who had died intestate, by which said 
 defendant was to board and care for such intestate during 
 her life, and in consideration therefor said intestate was to 
 convey said lands to the defendant, or devise the same to him 
 by will; it was also alleged that the defendant had performed 
 his part of such contract, and that said intestate had put him 
 into possession of the lands under the same, and it was held 
 that such contract was not within the statute of frauds. But 
 it is not believed that at law^ such contracts have any valid- 
 
 ministrator, from whom he purchased, upon the farm and used by him, and 
 
 that, in case A failed to get title to the use of the buildings, pasturage, 
 
 the farm, he should be paid a certain etc., yet the recovery in the case 
 
 sum per day for the work of himself having been based upon the void 
 
 and team thereon, and certain prices agreement, the court would not as- 
 
 per bushel for seed used thereon. He "sume that the amount recovered 
 
 did not acquire title. It was held that would have been the same on a 
 
 the agreement of purchase and that guanium meruit. 
 for payment for A's labor, etc., were i See Wood's Law of Master and 
 
 so connected as considerations for each Servant, 123. 
 
 other as to constitute one indivisible 2 RUey v. Williams, 123 Mass. 506. 
 
 contract, which was void because not " MoCormick v. Drummett, 9 Neb. 
 
 in writing ; and that while A might, 384. 
 
 however, recover on a quantum meruit * Mauck v. Melton, 64 Ind. 414. 
 the fair value of his labor, etc., over ^ In Johns v. Johns, 67 Ind. 440, 
 
 and above that of the crops grown the owner of land agreed verbally 
 
SEC. 222.] INTEREST IN LANDS. 407 
 
 ity ; but in equity, where the contract has been fully performed 
 by the third person, the court would under certain circum- 
 stances direct a specific performance by the executors of the 
 land-owner, by a conveyance of the land. But an agree- 
 ment made by the grantee of lands, in consideration of the 
 grant, that he will support the grantor during the balance of 
 his life, is not a contract relating to an interest in lands, and 
 is valid, although by parol.'' Such a contract merely relates 
 to the mode in which payment for the lands shall be made, 
 and does not require any writing to give it validity. 
 
 Sec. 222. Contract to Fay Taxes on Land. Mortgages. 
 Collateral Agreement, Instances of, etc. — A parol agreement 
 by the vendee of land to pay the taxes then or thereafter to 
 be assessed thereon, is not a contract relating to an interest 
 in land, and is not within the statute ; ^ nor, indeed, is any 
 special agreement to pay the price of land, made either at the 
 time when the conveyance is made, or afterwards,^ or to do 
 any merely collateral act, in consideration of such conveyance, 
 which does not operate as a conveyance of an estate or interest 
 in land. Thus, an agreement to pay an outstanding mort- 
 gage thereon,* or to pay the indebtedness of the grantor to 
 a certain person,^ or to pay the expenses of investigating the 
 title to the land,^ or not to use the premises for the prosecu- 
 tion of a certain trade or business,'' have all been held not 
 to be within the statute. But so far as the validity of a 
 
 with his sons, then living with him. Cow. (N. Y.) 266; McCabe v. Fitz- 
 that if they would support him and patrick, 2 Leg. Gaz. 138; Miller v. 
 his wife, he would convey to them. Roberts, 18 Tex. 16; Geraltney «. 
 They did so, the family continuing to "Wheeler, 26 Ind. 415; Daggett v. 
 reside together. No conyeyance was Patterson, 18 Tex. 158 ; Ford v. Fin- 
 ever made, and the father died in- ney, 35 Ga. 258 ; Evans v. Hardman, 
 testate. It was lield that the verbal 16 Tex. 480; Graves i'. Graves, 45 N. H. 
 contract was not taken out of the 323 ; Natchez v. Vandervelde, 31 Miss. 
 statute by performance on their part. 706; Stark v. Wilson, 3 Bibb. (Ky.) 
 
 1 Lyman v. Lyman, 133 Mass. 414 ; 476. 
 
 Bassford v. Pearson, 9 Allen (Mass.) « Ante, p. ; Ely „. McKnight, 
 
 387 ; Nutting v. Dickinson, 8 id. 541. 30 How. Pr. (N. Y.) 97. 
 
 2 Brackett D.Evans, 1 Cush.(Mass.) ^ Morgan v. Overman Silver Min- 
 79 ; Carr v. Dooley, 119 Mass. 294 ; ing Co., 37 Cal. 534. 
 
 Preble v. Baldwin, 6 Cush. (Mass.) « Jenks v. White, 6 Excheq. 873. 
 
 549. ■ Bostwick v. Leach, 3 Day (Conn.) 
 
 8 Nutting V. Dickinson, 8 Allen 476; Fleming <;. Kamsay, 46 Penn. 
 
 (Mass.) 540; Bassford v. Pearson, 9 St. 252; Linan v. Smart, 11 Humph, 
 
 id. 387; Whitbeck v. Whitbeck, 9 (Tenn.) 308. 
 
408 
 
 STATUTE OP FRAUDS. 
 
 [chap. VI, 
 
 parol agreement not to use the premises for certain purposes 
 is concerned, it seems that no permanent restraint upon the 
 use of the premises can be thus imposed; and it has been 
 held that an agreement not to build upon the premises within 
 a certain distance upon the street, is within the statute,^ as 
 also is an agreement by the vendor to open a street adjacent 
 to his land,2 or any agreement which imposes a permanent 
 burden upon the estate. 
 
 Sec. 223. Agreement to Pay Additional Price, etc. — Where 
 lands are sold by the acre and conveyed by metes and 
 bounds, and described as containing a certain number 
 of acres of land, a parol agreement to discount pro rata 
 for each acre or part of an acre which the premises shall 
 fall short of the number of acres which it is described 
 as containing in the deed, is not a contract relating to 
 an interest in land, but merely relates to the price thereof, 
 and is not within the statute,* because in such a case 
 
 1 Wolfe V. Frost, 4 Sandf. Ch. 
 (IS. Y.) 72; Rice u. Roberts, 24 "Wis. 
 461. 
 
 2 Richter v. Irwin, 28 Ind. 26. 
 
 8 Seward v. Mitchell, 1 Cold. 
 (Tenn.) 87. In Connecticut this 
 question has been decided both ways. 
 Mott V. Hurd, 1 Root (Conn.) 73, hold- 
 ing in conformity with the text ; and 
 Bradley v. Blodgett, Kirby 22, the con- 
 trary. See also Gillett v. Burr, 1 Root 
 (Conn.) 74; Graves v. Dyer, 37 Vt. 
 369; Green v. Vardiman, 2 Blaekf. 
 (Ind.) 324; and Frazer v. Child, 4 E. 
 D. S. (N. Y. C. P.) 153, in the two last 
 of which cases the dofctrine of Mott v. 
 Hurd,an«e, is treated as authoritative. 
 In Green v. Vardiman, ante, A and B 
 jointly purchased a land-oflSce certi- 
 ficate, which was assigned to A alone. 
 They agreed upon a division of the 
 land by which A was to receive a few 
 more acres than B, and was to allow 
 a certain sum for the excess, and each 
 entered upon and held the portion al- 
 lotted him ; and it was held that the 
 agreement was not within the statute. 
 In Eraser v. Child, ante, A procured 
 money of B, and conveyed certain 
 land to him, upon the understanding 
 
 that if, upon a sale of the land B was 
 not reimbursed for the loan, B would 
 make up the deficiency ; and it was 
 held that the contract was not within 
 the statute. In Garrett v. Malone, 8 
 Rich. (S. C.) L. 835, the plaintiff con- 
 veyed to the defendant a tract of land 
 as containing 110 acres, at .$8 per acre ; 
 and it was verbally agreed between 
 them that the land should be sur- 
 veyed, and if it ttirned out that it 
 contained less than the number of 
 acres named, the plaintiff should re- 
 fuse ^jro rata ; and if it contained more, 
 the defendant should pay for the ex- 
 cess at the-rate named. The lot con- 
 tained more than 110 acres ; and in an 
 action to recover for such excess, the 
 court held that the contract was not 
 within the statute, and that the plain- 
 tiff's promise was a good considera- 
 tion for the defendant. In Dyer v. 
 Graves, ante, such an agreement is 
 held to be within the statute. In 
 Schriver v. Eckenrode, 94 Penn. St. 
 456, S purchased from the assignee 
 of E, for the benefit of creditors, a 
 farm which E, by parol, guaranteed 
 to contain a certain number of acres. 
 S paid to the assignor the full amount 
 
SEC. 223.] INTEREST IN LANDS. 409 
 
 the grantor is legally bound to make good the deficiency 
 in an action at law,^ and his promise being merely to do 
 what he was before legally or equitably bound to do, is 
 predicated upon a good consideration, and does not relate 
 to an interest in land ; and this applies as well to an agree- 
 ment on the part of the grantee to pay for any excess of land 
 over the quantity contracted for. In a case previously cited,^ 
 the defendant sold the plaintiff a tract of land described in 
 the deed by metes and bounds, and as containing five hun- 
 dred and twenty-one acres. After the deed was made the 
 parties, differing as to the quantity of land embraced in the 
 tract, entered into a parol agreement that it should be sur- 
 veyed, and if there were more than five hundred and twenty- 
 one acres, the vendee should pay for the excess, and if less, 
 the vendor should pay for the deficiency; and it was held 
 that the agreement did not relate to the sale of an interest 
 in land, and was binding upon the parties. In some of the 
 States, where land is sold hy the acre, and there is no agree- 
 ment relative thereto, equity will give relief upon the ground 
 of mistake, either where the quantity falls short of or exceeds 
 the quantity intended to be conveyed.^ But no liability 
 exists, either at law or in equity, where the sale is in gross ; * 
 consequently in the latter instance, while a promise to make 
 up the deficiency, or pay for the excess of lands conveyed, 
 would not be void because within the statute, yet it would 
 be of no validity because not supported by a consideration. 
 A parol agreement to pay an increased price for land upon a 
 certain contingency, as, if coal is found in it, is held to be 
 within the statute.® So is a contract to reconvey and divide 
 
 of the purchase-money, and received Va. 347 ; Cravens v. Riser, 4 Ind. 512 ; 
 
 a deed of the farm which conveyed a Keytonw. Crawford, 5 Leigh. (Va.) 39; 
 
 less number of acres. In suit by S Metcalf v. Putnam, 9 Allen (Mass.) 
 
 against E on his parol guaranty, it 100. 
 
 was held that he could recover, the * Zeringue v. Williams, 15 La. An. 
 
 statute having no application to such 76 ; Dalton «. Kust, 22 Tex. 133 ; 
 
 a case. Clark v. Carpenter, 19 N. J. Eq. 328. 
 
 1 Cleaveland o. Rogers, 1 A. K. But see Grundy v. Grundy, 12 B. Mon. 
 Mar. (Ky.) 193 ; Bell v. Thompson, (Ky.) 269, where it was held that 
 34 Ala. 633 ; Kelley V.Allen, 34 id. 193. equity would relieve where the defi- 
 
 2 Seward v. Mitchell, 1 Coldw. ciency is great, although the land 
 (Tenn.) 87. was not sold by the acre. 
 
 « Hendricks v. Mosby, 3 Yerg. ^ Heth a. Woolridge,6 Band (Va.) 
 (Tenn.) 74; Nichols «. Cooper, 2 "W. 606. 
 
410 STATUTE OF PEAUDS. [CHAP. VI. 
 
 the increase of price, if the grantor can find a purchase at 
 an increased price within a year.^ But in North Carolinai^ 
 where a debtor conveyed lands to his creditor under a parol 
 agreement that the latter should resell the land, and after 
 reimbursing himself, pay over the balance to the debtor, was 
 held not to be within the statute. 
 
 Sec. 224. Contract to Sell Lands. — A contract to sell lands 
 for another, for a certain sum or upon commission, is not 
 within the statute ; ^ but while it has been held in Tennes- 
 see * that a parol contract between the owner of a land-war- 
 rant and a locator, that the latter shall have a portion of the 
 land for locating the warrant, is not within the statute,* yet 
 the only ground upon which this doctrine can be sustained is 
 that the parties thereto become partners in the land, and that 
 the land was given, not as compensation for the services of 
 the locator, but as his share of the joint venture, and, that 
 an agreement to pay a person in lands for his services in sell- 
 ing other land is within the statute as much as any other 
 contract for services to be so compensated.* In a California 
 case,'' the defendant orally agreed with the plaintiff to give 
 him a certain portion of the purchase-money, and also a cer- 
 tain piece of land, for his services in effecting a sale of the 
 defendant's land. The court held that the portion of the con- 
 tract relating to the land to be given to the plaintiff being 
 within the statute, the whole contract was void, and that no 
 action could be maintained for the money.* 
 
 1 Ballard v. Bond, 32 Vt. 355. See ^ An agreement to procure a con- 
 S. P. Dyer v. Graves, 37 id. 369. veyance of lands is held, in Iowa, not 
 
 2 Massey «. Holland, 3 Ired. (N. C.) to be within the statute. Bannon t. 
 L. 137. Bean, 9 Iowa, 395. In Vermont a 
 
 8 Lesley v. Rosson, 39 Miss. 368; contract by the vendee of lands to 
 
 Watson V. Brightwell, 60 Ga. 212. reconvey and divide the increase of 
 
 * Davis V. Walker,4 Hayw. (Tenn.) price if the vendor can find a pur- 
 
 295. chaser at an increased price within a 
 
 ^ See also Miller v. Roberts, 18 year, is held to be within the statute. 
 Tex. 16, where it was held that an ' Fuller v. Reed, 38 Cal. 99. 
 agreement between A and B that if ^ Holding that a contract partly 
 
 B would remove A and his family within the statute is invalid in toto. 
 
 from Tennessee to Texas, B should See Hobbs v. Wetherwax, 38 How. 
 
 have one-half of all the land which Pr. (N. Y.) 385. 
 A should acquire by such immigra- 
 tion and settlement, was not within 
 the statute. 
 
SEC. 225.] INTEREST IN LANDS. 411 
 
 Sec. 225. Land-Warrants, Possessory Rights, etc. — The sale 
 of an unlocated land-warrant or land-certificate is not within 
 the statute, and may be made by parol ; ^ and the same has 
 also been held as to a parol assignment of a title bond,^ and 
 to the parol transfer of a certificate of the entry of a certain 
 tract of land,* or of a judgment constituting a lien on land.* 
 But a "possessory right," or a right acquired by actual occu- 
 pancy, is an interest in land, and although the party has no 
 legal or equitable title beyond that acquired by being in pos- 
 session, as a "squatter's right "is an interest in land and can- 
 not be sold by parol,^ so is a right to dig and carry away ore 
 from the mine of another,^ as coals,''' or a mining claim,^ or 
 any possessory right in lands.® This is upon the ground that 
 possession in the case of real estate, as in respect to chattels, 
 is prima facie evidence of title, and as is stated in a case pre- 
 viously cited,i° " no title is complete without it." Under this 
 rule it is held in Connecticut ^^ that a verbal agreement made at 
 the delivery of a deed, that the grantee shall not take posses- 
 sion nor record his deed until he has paid the first instalment 
 of the purchase-money, is an agreement relating to an interest 
 in land, and within the statute ; and the same rule prevails 
 in those States where by law the mortgagee may enter before 
 condition broken, as to a verbal agreement on his part not 
 to enter until there has been a breach of the condition,^^ un- 
 less, from the language used, an agreement that the mortgagor 
 shall retain possession until breach of the condition is fairly 
 implied, in which case such verbal agreement is only auxil- 
 
 1 Cox V. Bray, 28 Tex. 247. Supp. {N. Y.) 129 ; Rice v. Eoberts, 
 
 " Bullion V. Campbell, 27 Tex. 653. 24 Wis. 461 ; Sutton v. Sears, 10 Ind. 
 
 8 Reed v. McGrew, 5 Ohio, 275. 223; Whittemore v. Gibbs, 24 N. H. 
 
 < Winbeny o. Koonoe, 83 N. C. 484 ; Smart v. Harding, 15 C. B. 652 ; 
 
 351. But the interest acquired by an MiranviUe v. Silverthorne, 1 Grant's 
 
 execution purchaser cannot be sold Cas. (Penn.) 410. 
 
 verbally. Whiting v. Butler, 29 Mich. i" Howard v. Easton, ante. 
 
 122. " Gilbert v. Bulkley, 5 Conn. 262. 
 
 6 Hayes v. Skldmore, 27 Ohio St. ^ Norton v. Webb, 35 Me. 218 ; 
 
 331. Colman v. Packard, 16 Mass. 39. But 
 
 s Riddle v. Brown, 20 Ala. 412. the latter case was overruled by Wales 
 
 ' Lear v. Chateau, 23 El. 39. v. Mellen, 1 Gray (Mass.) 512, upon the 
 
 * Copper &c. Co. v. Spencer, 25 ground that this rule does not apply 
 
 Cal. 18. where there is an implied agreement 
 
 5 Howard v. Easton, 7 John. (N. Y.) that the mortgagor shall retain posses- 
 
 205 ; Lower ;;. Winters, 7 Cow. (N. Y.) sion imtil breach of the condition. 
 
 263; Onderdonk v. Lord, Hill & D. 
 
412 
 
 STATUTE OF FEAUDS. 
 
 [chap. VT. 
 
 iary to that implied, and gives the latter no additional force.^ 
 In an English case^ there is a dictum to the effect that a mere 
 agreement to relinquish possession might, not amount to a 
 contract for an interest in land ; but as the question did not 
 arise in that case, and as the expression of Paeke, B., did 
 not amount even to an expression of an opinion that such 
 a rule would be adopted if the question was before the 
 court, it cannot be regarded as lending any authority to a 
 doctrine contrary to that expressed swpra.^ Where the title 
 has once passed by the execution and delivery of a valid deed, 
 it is held in some of the States that the title cannot be recon- 
 veyed to the grantor by parol, nor, although the deed has 
 never been recorded, by a destruction or cancellation of the 
 deed.* But the rule is otherwise where the deed is held in 
 escrow, and the condition upon which it was to be delivered 
 to the grantee has not been performed.^ But in some of the 
 
 1 Wales V. Mellen, ante. 
 
 a Buttennere v. Hayes, 5 M. & W. 
 465. 
 
 ' Smart v. Harding, ante; Smith 
 17. Lambs, 3 Jut. 72. 
 
 * Gilbert v. Bulkley, ante; Bats- 
 ford V. Morehouse, 4 Conn. 550 ; Coe 
 V. Turner, 5 id. 86 ; Hine u. Robbins, 
 8 id. 347; "Washington v. Ogden, 1 
 Black. (U. S.) 450; Eaynor u. Wil- 
 son, 6 Hill (¥. Y.)469; Kearsing v. 
 Killian, 18 Cal. 491 ; Girgins v. Van 
 Gorger, 10 Mich. 523; Morgan v. 
 Elam, 4 Yerg. (Tenn.) 375; Chess- 
 man V. Whittemore, 23 Pick. (Mass.) 
 231; Parker v. Kane, 22 How. (U. S.) 
 1; Cravener v. Bowser, 4 Perm. St. 
 257; Holmes u. Trout, 7 Pet. (U. S.) 
 171 ; Rogers v. Rogers, 53 Wis. 36 ; 
 Taliafero «. Ratton, 34 Ark. 503; 
 Jeffers u. JefEers, 35 Ohio St. 119; 
 Schutt V. Large, 6 Barb. (N. Y.) 373. 
 In Orth V. Jennings, 8 Blackf . (Ind. ) 
 420, A sold and conveyed a tract of 
 land to B. Afterwards A purchased 
 back the land from B, paid him for 
 the same, and took possession ; B, at 
 the same time, delivering up to A, to 
 be cancelled, the deed which had been 
 executed to him by A, and which had 
 not been recorded. No conveyance 
 was executed by B to A. It was held 
 
 that the legal title to the land re- 
 mained in B. It was held also that 
 judgment rendered against A, after 
 said deed was delivered up to him to 
 be cancelled, was not a lien on the 
 land. Schaffer v. Fithian, 17 Ind. 463 ; 
 HinchelifE v. Hinman, 18 Wis. 130 ; 
 Bogie V. Bogie, 35 id. 659 ; Parker v. 
 Kane, 4 id. 1 ; Wilke v. Wilke, 28 id, 
 296 ; Hilmart v. Christian, 29 id. 104. 
 The tearing off of the names of the 
 grantors in a deed, with, the mutual con- 
 sent of all the parties, will not operate 
 to revest the title, although done un- 
 der the supposition that such will be 
 the effect. Steel v. Steel, 4 Allen 
 (Mass.) 417. Nor does the cancella- 
 tion of a deed by consent of parties 
 divest the grantee of an estate once 
 vested. Thus, title to lands vested 
 in a married woman by an unrecorded 
 deed cannot be divested by her parol 
 consent that such deed may be can- 
 celled, and a conveyance made by her 
 grantor to her husband. Wilson v. 
 Hill, 13 N. J. Eq. 143. 
 
 6 Shep. Touch. 59; Bushnell v. 
 Passmore, 6 Mod. 217; Jackson t'. 
 Sheldon, 21 Me. 569; White v. Bailey, 
 14 Conn. 271 ; Shirley v. Ayres, 14 
 Ohio, 807 ; Hinman v. Booth, 21 Wend. 
 (N. Y.) 267; Coe v. Turner, 5 Conn. 
 
SEC. 225.] 
 
 INTEREST IK LAIHJS. 
 
 413 
 
 States it is held that where a deed has not been recorded, the 
 grantee by delivering up the deed to the grantor and cancelling it, 
 revests the estate in him,^ where the transaction is fair, and 
 the intent of the parties to revest the estate is clear, 
 and the redelivery and destruction of the deed takes place 
 before the grantee has entered into possession under the deed, as 
 thereby Ids inchoate title is destroyed, and the grantor is left 
 in possession under his former title.^ But where the grantee 
 has entered into possession under the deed, the title cannot 
 be revested in the grantor by a mere redelivery and cancel- 
 lation of the deed to him,^ nor when the rights of third par- 
 ties have intervened,* or a mortgage given for the purchase- 
 money is outstanding.^ Under the rule that an equitable 
 interest in land cannot be conveyed by parol, it is held that 
 an interest in an executory contract for the purchase of a 
 specific piece of land can only be made in writing.® But 
 where a person merely has a refusal of a certain tract of 
 land, an agreement to find a purchaser for it has been held 
 valid although not in writing.'^ 
 
 92 ; Kuggles v. Lawson, 13 John. (N. 
 y.) 285; Russell v. Rowland, 6 Wend. 
 {N. Y.) 666. 
 
 1 Mallory v. Stodder, 6 Ala. 801; 
 Holbrook v. Tirrell, 9 Pick. (Ma^s.) 
 105 ; Foulks v. Burns, 2 N. J. Eq. 250 ; 
 Nason v. Grant, 21 Me. 160 ; Patter- 
 son V. Yeaton, 47 id. 314; Dodge v. 
 t)odge, 33 N. H. 487; Sherburne v. 
 Fuller, 5 Mass. 133 ; Trull v. Skinner, 
 17 Pick. (Mass. ) 213 ; Lamson v. Ward, 
 1 N. H. 9; Parrar o.Parrar, 4 id. 191. 
 
 2 Lamson W.Ward, IN.H. 9. Where 
 the grantee enters into the actual oc- 
 cupation and improvement of the 
 premises under his deed, but does 
 not record it, the title cannot be re- 
 vested in the grantor, by the delivery 
 back of the deed, for one purpose, and 
 yet remain in the grantee for another ; 
 and if the grantee consents to the de- 
 livery back of such unrecorded deed 
 to the grantor, for the purpose of 
 having security given by mortgage 
 for a portion of the consideration 
 money remaining upaid, no author- 
 ity is thereby given to the grantor 
 to make an absolute conveyance of 
 the estate. Hall v. McDuff, 24 Me. 311. 
 
 ' Chessman w.Whittemore, 23 Pick. 
 (Mass.) 231; Steel u. Steel, 4 Allen 
 (Mass.) 417 ; Howe v. Wilder, 11 Gray 
 (Mass.) 267; Garver v. McNulty, 39 
 Penn. St. 473 ; Lawrence v. Stratton, 
 6Cush. (Mass.) 103; Mallory «. Stod- 
 der, 6 Ala. 801 ; Morgan v. Elam, 4 
 Yerg. (Tenu.) 375. But see Cone v. 
 Dudley, 10 Mass. 403, contra. 
 
 * Hall V. McDufE, 24 Me. 311 ; Na- 
 son V. Grant, 20 id. 160. Trull v. 
 Skinner, ante ; Marshall v. Pisk, 6 
 Mass. 24 ; and in any event a man 
 may show his incapacity to vacate 
 his deed. Doe u. Dignowitty, 12 
 Miss. 57. 
 
 ^ Patterson v. Yeaton, 47 Me. 308. 
 
 6 Smiths. Bumham,3 Sum. (U.S.) 
 435; Whiting v. Butler, 29 Mich. 122; 
 Hughes V. Moore, 7 Cranch (U. S.) 
 176; Richards v. Richards, 9 Gray 
 (Mass.) 313; Simms v. IfilUan, 12 
 Ired. (N. C.) 252 ; Toppin v. Lomas, 
 16 C. B. 145; Grover v. Buck, 34 
 Mich. 519; Daniels w. Bailey, 42 Wis. 
 566. 
 
 ' Hosford u. Carter, 10 Abb. Pr. 
 (N. Y.) 452. 
 
414 STATUTE OF FRAUDS. [CHAP. VI. 
 
 Sec. 226. instances of Contracts -which are Within the Stat- 
 ute. — An agreement to establish the title to land,! Qp ^^ 
 release a covenant running with the land, ^ or an agreement 
 to execute an agreement to sell at some future time,^ or a 
 parol agreement to purchase land* are all within the statute. 
 But, unless expressly made so by statute, such contracts are 
 not void, but only voidable, and unless the party against 
 whom it is sought to be enforced sees fit to object upon that 
 ground, the court will not refuse to enforce it simply because 
 it is verbal.^ A contract to abate a tenant's rent is within 
 the statute.^ So is an agreement that an arbitration shall 
 determine as to a lease to be granted,^ and an agreement by a 
 beneficed clergyman to permit the profits of his living to be 
 received by a trustee for the benefit of creditors.^ 
 
 Sec. 227. Eq-ultable Interests. — An agreement to convey an 
 equity of redemption will .not be binding unless in writing, 
 for the equity of redemption is considered to be an interest 
 in land.^ "It must be admitted," said Rolfe, B.,!" "that no 
 agreement to convey an equity of redemption would be bind- 
 ing, unless in writing, because a court of equity treats the 
 equity of redemption as the land itself — at all events, as an 
 interest in land." This rule has been extended to contracts 
 
 1 Bryan v. Johnson, 7 Mo. 106 ; ' O'Connor u. Spaight, 1 Sch. & 
 Duvall V. Peach, 1 Gill. (Md.) 172. Lef. 306. 
 
 2 BUss V. Thompson, 4 Mass. 488. ' Walters v. Morgan, 2 Cox, 369. 
 
 ' Gould V. Mansfield, 103 Mass. ^ Alchin u. Hopkins, 4 M. & Sc. 
 
 408; Sands v. Thompson, 43 Ind. 18; 615; 1 Bing. (N. C.) 99. 
 
 Yates V. Martm, 1 Chand. (Wis.) 118; » Massey v. Johnson, 1 Ex. 255; 
 
 Ledford u. Farrell, 12 Ired. (K C.) Toppin i;. Lomas, 16 0. B. 145; Bur- 
 
 285 ; Lawrence v. Chase, 54 Me. 196 ; net v. Dougherty, 32 Penn. St. 371 ; 
 
 Trammell v. Trammell, 11 Eioh. (S. Eichards v. Richards, 9 Gray (Mass.) 
 
 C.) L. 471; White v. Coomhs, 27 Md. 313; Hogg v. Wilkins, 1 Grant's Cas. 
 
 489. Or a parol agreement to con- (Penn.) 67; Holmes v. Holmes, 86 
 
 vey. Taintor v. Brockway, 1 Root N. C. 205; Eawdon v. Dodge, 40 
 
 (Conn.) 59; MacKuhbin v. Clarkson, Mich. 697; Cowles u. Marble, 37 Mich. 
 
 5 Minn. 247; Thompson w. Elliott, 28 158; Scott v. McFarland, 13 Mass. 
 
 Ind. 55. 309; Marble v. Marble, 5 N. H. 374; 
 
 * Doe V. Cochran, 2 111. 209; Kelley u. Stanberry, 13 Ohio, 408; 
 
 Minus V. Morse, 15 Ohio, 568; Sims Van Keuren v. McLaughlin, 19 N. J. 
 
 V. Hutchins, 16 Miss. 328. Eq. 187; Clark v. Condit, 18 id. 358; 
 
 « Nelson v. Forgey, 4 J. J. Mar. Odellw. Montrose, 68 N. Y. 499; Agate 
 
 (Ky.) 569; Doe f. Cochran, ante. In v. Gignough, 1 Bob. (N. Y.) 278; 
 
 Pennsylvania parol executory con- Hughes «. Moore, 7 Cr. (U. S.) 176. 
 
 tracts for the sale of land, are not But contra, see Danforth v. Lowry, 
 
 void. Abell v. Douglass, 4 Den. (N. 3 Hayw. (Tenn.) 61. 
 
 Y.) 305. 10 Massey v. Johnson, 1 Exchq. 253. 
 
SBC. 229.] INTEREST IK LANDS. 415 
 
 for the sale of executory agreements for the sale of land, 
 because it is a contract for the sale of an equitable interest in 
 land} 
 
 Sec. 228. Agreement to make Mutual 'Wills devising Real 
 Estate. — A devise at common law is considered in the nature 
 of a conveyance by way of appointment ^ of particular lands 
 to a particular devisee, and in this respect differs from the 
 civil law, by which a will is an institution of the heir. A 
 will, devising lands, transfers the title and passes the property 
 of lands or goods as effectually as a deed,* and a person 
 taking lands under a devise is treated as coming under the 
 legal definition of one who takes by purchase ; * consequently 
 a parol agreement between two parties that each will make a 
 will of his or her real estate and personal chattels in favor of 
 the other, and that neither shall alter such will, is within the 
 fourth section of the statute of frauds, and the fact that the 
 wills were executed by both parties in conformity with such 
 agreement, but one of them afterwards made another will, 
 and died, the survivor, however, not changing his will, is not 
 such a part performance as takes the agreement out of the 
 statute so as to warrant a specific performance in equity .^ 
 
 Sec. 229. Agreements for the Exchange or Partition of Lands. 
 
 — An agreement by parol for the exchange of lands is within 
 the statute.^ But where the exchange is carried into effect 
 by a mutual change of possession, and the parties continue 
 in such possession for a long time, making changes and im- 
 provements thereon, a court of equity would hold it to be 
 binding upon the parties ; and in Pennsylvania under such 
 circumstances it is treated as valid at law, the custom in that 
 State being for courts of law to administer equity through 
 
 1 Stoky, J., in Smith v. Burnham, * Gould v. Mansfield, 103 Mass. 
 3 Sum. (TJ. S. C. C.) 435 ; Whitney v. 408 ; Hander v. Hander, 2 Sandf . Ch. 
 Butter, 29 Mich. 122 ; Grover a. Buck, (N. Y.) 17; Caton v. Caton, L. K. 1 
 34 id. 519; Simms v. Killian, 12 Ired. Ch. 137. 
 
 (N. C.) 252; Daniels v. Bailey, 43 « Lane r. Shackford, 5 N. H. 130; 
 
 Wis. 566; Richards v. Richards, 9 Newell u. Newell, 13 Vt. 24 ; Maydwell 
 
 Gray (Mass.) 313; Tappin v. Lomas, v. Carroll, 3 H. & J. (Md.) 361; Clark 
 
 16 C. B. 145. V. Graham, 6 Wheat. (U. S.) 577; 
 
 2 Harwoodt). Goodright, Cowp. 87. Lindsley v. Coates, 1 Ohio, 243; Stark 
 8 Shepherd's Touch, 402. v. Cannady, 3 Litt. (Ky.) 399. 
 
 * Watkins on Descents, 155. 
 
416 STATUTE OF TEAUDS. [CHAP. VI. 
 
 the forms of law.^ Thus in the case first cited in the pre- 
 ceding note,^ the parties by parol mutually agreed to ex- 
 change lands, and in pursuance thereof each party entered 
 into possession, and occupied undisturbed nineteen years, 
 when the plaintiff brought ejectment for the lands so occu- 
 pied by the defendant. The court held that such exchange, 
 accompanied by such a long-continued and exclusive change 
 of possession, operated to transfer the title, and was not within 
 the statute. " It is true," said Agnew, J., " there is no dif- 
 ference between a parol sale and an exchange in regard to 
 the requisites to take it out of the statutes of frauds and 
 perjuries. A clear, explicit, and unambiguous contract, and 
 a taking of possession under and in pursuance of the con- 
 tract, are as much requisites of a parol exchange as of a sale. 
 But there is a marked difference in the evidence which estab- 
 lishes the possession. A sale is confined to a subject coming 
 fi'om a single side. It has no relation to, or dependence on, 
 any other subject. The evidence of possession taken of it is 
 therefore confined to the single subject, and if not taken in a 
 reasonable time, or so as to make it doubtful whether it is 
 attributable to the contract, the parol sale is not taken out of 
 the statute. But an exchange necessarily has a subject on 
 each side which stands related to the other. One is the rep- 
 resentative of the other, so much so that the law implies a 
 contract of warranty by the act of exchanging. If, there- 
 fore, the evidence shows a clear, unequivocal, and complete 
 taking possession of one of the subjects of an exchange, by 
 the party owning the other subject, it strengthens the evi- 
 dence of a possession taken by the opposite party of the 
 correspondiag subject. Evidence of possession that might 
 seem weak and inconclusive in the case of a parol sale, is 
 thus made clear and convincing in the case of an exchange." 
 It must be remembered, however, that the doctrine expressed 
 in this case is peculiar to Pennsylvania and the equitable 
 powers of its courts, and that in the other States, while such a 
 contract under similar circumstances would doubtless be held 
 binding in a court of equity, it would not be treated as valid 
 in a court of law, unless the occupancy had continued for the 
 
 1 Moss V. Culver, 64 Penn. St. 614 ; Reynolds v. Hewett, 27 Penn. St. 176. 
 Miles V. Miles, 8 W. & S. (Penn.) 135; ^ jiqss v. Culver, ante. 
 
SBC. 229.] INTEREST IN LANDS. 417 
 
 period requisite to acquire title by adverse possession.^ In a 
 New York case,^ B and H verbally agreed to exchange real 
 estate, B to pay H 1500 as the difference in value. B gave 
 a check for that amount in payment, receiving therefor a 
 receipt signed by H. In an action on the check, which was 
 lost, there was parol proof that it specified the lands, the 
 price of each piece, and the amount of the mortgages to be 
 executed, but it did not appear that the terms of credit were 
 specified. B refused to enter into the written contract, and 
 stopped payment of the check. It was held that the bur- 
 den was upon B to show a failure of consideration ; that the 
 receipt and check, taken together, showed a good considera- 
 tion for the check, and a sufficient memorandum so that the 
 contract was valid under the statute of frauds, and enforce- 
 able in equity against H. At the common law, partitions 
 of land could be made by joint-tenants only by deed, and 
 by tenants in common only by livery, without deed, and by 
 coparceners by parol only, without deed or livery,^ but by the 
 statute of frauds such partition cannot in any of these cases 
 be effected without writing.* But in several of the States it 
 
 1 Stark V. Cannady, 3 Litt. (Ky.) 2 vol. 324, assigns the reason for the 
 399 ; Roberts on Frauds, 285. validity of a partition at common law, 
 
 2 Raubitschek v. Blank, 80 N. Y. though made by word of mouth alone. 
 478. But the reason given by Hawkins, in 
 
 s Roberts on Frauds, 283; Litt. his Abridgment of Coke Litt. 250, 
 
 250 ; Whaley v. Dawson, 2 Sch. & L. seems to be more satisfactory, " that 
 
 367 ; Johnson v. Wilson, Willes, 248 ; partitions between parceners were 
 
 Ireland v. Rattle, 1 Atk. 541. much favored and privileged, because 
 
 * Porter v. Hill, 9 Mass. 34 ; 4 their undivided estate was created 
 Greenl. Cruise, 77 ; Perkins v. Pitts, and cast on them merely by act of 
 11 Mass. 125. There are some cases law." Partitions, therefore, between 
 in which a different view has been parceners, might at law be made by 
 adopted, and it has been said that parol; and what more particularly 
 a joint-tenancy may be severed marked this favor of the law towards 
 like a tenancy in common. Haugha- them, rent, estovers, and such like in- 
 baugh V. Honald, 1 Tread. (S. C.) 90. corporeal things, might, upon such 
 But this appears to be mere dictum, partition, be reserved or granted for 
 and certainly exhibits a misconception equality of division without deed or 
 of the law by the court. Joint-ten- writing, notwithstanding they lay in 
 ants and tenants in common were not grant only, which was a privilege with- 
 compellable among themselves to out a parallel in the law. But then 
 make partition until the 31 H. 8, c. 10, such reservation or grant ought to be 
 and 32 H. 8, i;. 32, gave a remedy for out of the lands descended, and not 
 enforcing it ; but parceners were al- out of other lands, and the rent so re- 
 ways at common law subject to a served or granted was distrainable of 
 coercive partition by the writ de parti- common right though it was not a 
 tione /acienda ; to which Blackstone, rent-servioe. 
 
418 
 
 STATUTE OF FEAUDS. 
 
 [chap. vr. 
 
 is held that verbal partitions between tenants in common are 
 Valid at law, at least for some purposes, as in New York,i 
 Illinois,^ Mississippi,^ Texas,* Indiana,^ Pennsylvania,^ and 
 
 Joint-tenants, by reason of the par- 
 ticular nature of their estate, which is 
 held by them in perfect unity, each 
 being seized in tlie language of the 
 law per my et per tout, cannot enfeoff 
 each other of their respective parts of 
 the land, for each already holds all 
 the land subject to the interest of his 
 companion, and the conveyance by 
 livery of seizin cannot apply to one 
 who is already in possession ; neither 
 can they surrender to each other, even 
 though he is only tenant for life who 
 attempts to make the surrender, and he 
 who atteoips to take the surrender, be 
 tenant in fee simple of his part. Though 
 it is true that if there are two joint- 
 tenants, and one of them have the 
 particular estate, and the other the 
 fee simple, as where the estate is lim- 
 ited to two, and the heirs of one of 
 them, and he that has the estate for 
 life, aliens his part to a stranger, the 
 alienee may surrender to the other 
 joint-tenant ; or if there are three 
 joint-tenants for life, and the fee sim- 
 ple is limited to the heirs of one of 
 them, and one of the joint-tenants for 
 life releases to the other, and he to 
 whom this release is made surrenders 
 to him who has the fee simple, this- is 
 a good surrender for a third part. Vid. 
 Perk. §§ 586, 587. The proper me- 
 dium of mutual translation of each 
 other's parts is a release, the reason of 
 which easily occurs by adverting to 
 the nature of their estate. But, on 
 the other liand, as tenants in common 
 have several and distinct freeholds, 
 they may enfeoff each other, but can- 
 not release to each other, for a release 
 supposes the party to have the thing 
 in demand, Co. Litt. 193, 200, J., and 
 the estates having come to them by 
 distinct liveries, must pass to each 
 other by distinct liveries. But if one 
 joint-tenant grants, bargains, and sells, 
 or gives, grants, and confirms his es- 
 tate to his companion, either of these 
 may operate in law as a release. 1 
 
 Ven. 78; 1 Sid. 452. And if there are 
 three joint-tenants, and one of them 
 releases to one of the other two, in 
 such cases there is no need of any 
 limitation of the estate, for the release 
 is good without it. Shep. Touch. 324. 
 At common law, therefore, one tenant 
 in common might convey to his com- 
 panion by parol with livery of seizin, 
 but not so a joint-tenant. 
 
 It seems, therefore, to be an inad- 
 vertence upon Blaokstone's part 
 when he says, that in the case of joint- 
 tenants and tenants in common, the 
 conveyance must have been perfected 
 by livery of seizin ; for which he cites 
 the text of Littleton, § 250, and Co. 
 Litt. 169. The words of Lord Coke 
 are: "A partition by joint-tenants is 
 not good without deed, but tenants in 
 common may make partition by parol, 
 and if they execute the same in sever- 
 alty by livery, this is good and suffi- 
 cient in law; and therefore when the 
 books say that Joint-tenants may make 
 partition without deed, it must be intend- 
 ed of tenants in common, and executed 
 by livery." It seems now, however, to 
 be clear that the statute has made it 
 necessary, both with respect to tenants in 
 common and coparceners, that a partition 
 of their lands must be effected by writing, 
 and that among joint-tenants a deed 
 is necessary as it stood at the common 
 law. Roberts on Frauds, 284. 
 
 1 Wood V. Fleet, 36 N. Y. 499; 
 Jackson v. Bradt, 2 Cai. (N. Y.) 169; 
 Ryass ■„. Wheeler, 25 Wend. (N. Y.) 
 434 ; Jackson v. Harder, 11 John. (N. 
 Y.) 202 ; Jackson v. Vosburgh, 9 id. 
 270. 
 
 2 Grimes v. Butts, 65 111. 347; 
 Shepard v. Rinks, 78 id. 188. 
 
 ' Natchez v. Vanderudde, 31 Miss. 
 706 ; Piper v. Buckner, 51 id. 848. 
 
 * Stuart V. Baker, 17 Tex. 417; 
 Dement v. Williams, 44 id. 158. 
 
 6 Moore v. Kerr, 46 Ind. 468. 
 
 ^ Long's Appeal, 77 Penn. St. 151. 
 
SEC. 229.] INTEREST IN LANDS. 419 
 
 Wisconsin,^ but even in these States the partition must be 
 followed by possession, and in most of them by such acts 
 of occupation as would be suificient to secure a decree for 
 specific performance in equity. In Maine,'* North Carolina,^ 
 New Jersey,* Massachusetts,^ New Hampshire,^ and South 
 Carolina,^ such partitions are held to be invalid at law unless 
 followed by an adverse possession for the requisite statutory 
 period, although, even where the possession is for a less 
 period, the parties may acquire an equitable right which 
 will be enforced in equity.® In Missouri it is held that a 
 parol partition between tenants in common is good as be- 
 tween the parties, but that only the equitable title passes, 
 I » and that this does not ripen into a legal title except when 
 followed by adverse possession for the requisite period.^ In 
 California ^^ it is held that a parol partition of lands of such 
 a character that possession cannot follow, is void, and upon 
 the general question practically the same rule exists as in 
 Missouri,!! ^nd such also is the rule in Alabama.!^ Thus, in 
 the case last cited it was held that where A and B make 
 an oral partition of lands, the legal title to which is in B, 
 and take possession accordingly, A has no defence in an 
 action brought by B to recover the land, unless his pos- 
 session has been for such a length of time as to acquire a 
 title by adverse possession, but that he has an equitable right 
 which is not bound by a judgment recovered by B. It has 
 been held that a partition of an equitable estate may be made 
 
 1 Buzzell 0. Gallagher, 28 Wis. 678. Marcy v. Marcy, 6 Met. (Maes.) 360; 
 
 " Duncan u. Sylvester, 16 Me. 388; Dow v. Brown, 5 Cush. (Maes.) 289; 
 
 John V. Sabbatis, 69 Me. 473; Che- Moore ti. Kerr, 46 Ind. 468; Duncan 
 
 nery ». Dole, 39 id. 162. v. Sylvester, 16 Me. 388 ; Hazen v. 
 
 ^ McPherson v. Seguine, 3 Dev. Barnett, 50 Mo. 506 ; Pringle v. Stur- 
 
 (N. C.) L. 153; Medlin v. Steele, 75 geon, Litt. (Ky.) Sel. Cas. 112; Moore 
 
 N. C. 154. V. Kerr, 46 Ind. 468 ; Polhemus v. 
 
 « WoodhuU V. Longstreet, 18 N. Hodson, 19 N. J. Eq. 63. 
 
 J. L. 405; Watson v. Keely, 16 id. » Hazen v. Barnett, 50 Mo. 506. 
 
 517 ; Lloyd v. Conover, 25 id. 47 ; In Bourgeoise v. Blank, 8 Mo. App. 
 
 Richmau u. Baldwin, 20 id. 896. 484, it was held that a parol partition 
 
 * Porter v. Hill, 9 Mass. 34 ; Por- followed by long-continued possession 
 
 ter V. Perkins, 5 id. 233. will not be set aside. 
 
 6 Ballou V. Hale, 47 N. H. 347. i» Lanterman v. Williams, 55 Cal. 
 
 ' Goodhue !>. Barnwell, Eice(S.C.) 60. 
 
 Eq. 198. " Gates v. Salmon, 46 Cal. 361. 
 
 8 Woodhull V. Longstreet, ante; ^^ Yarborough v. Avant, 66 Ala. 
 
 Townsend v. Dawson, 32 Vt. 183; 526. 
 
420 STATUTE OP PEATJDS. [CHAP. VI. 
 
 by parol ; ^ but this doctrine is opposed to that' which holds 
 that an equitable interest is within the statute, and is unten- 
 able, except in those States where courts of law either by- 
 statute or custom administer equity, and then only in those 
 cases where the partition has been followed by such acts as 
 would warrant a decree for a specific performance of the con- 
 tract. Indeed, where a parol partition has been made in any 
 case, and the parties have entered into possession under it, 
 and made extensive improvements, or done other acts which 
 equity regards as sufficient to compel a specific performance, 
 such partitions will be held good in equity.^ In the case of 
 the proprietors of townships, or of common and undivided 
 land, holding by grant from the sovereign, it is held that » 
 they may make partition hy vote merely ; ^ but this doctrine 
 is exceptional, and can only be supported upon the ground 
 of public necessity, and a custom, a departure from which 
 would work great mischief in unsettling and overturning 
 the title to lands in that section of country where this 
 species of grants existed. 
 
 Sec. 230. Disputed Boundaries. — The settlement of dis- 
 puted boundaries by adjoining owners, by parol, followed 
 by the erection and maintenance of fences in accordance 
 therewith, or an actual occupancy by the adjoining owners 
 up to the line as agreed upon, during the period requisite to 
 acquire title hy possession, will be operative to confer an inde- 
 feasible title ; * but at law, in the absence of fraud, it is held 
 in some of the States that such an agreement, though fol- 
 lowed by long-continued occupancy under it, but short of 
 
 1 Maul V. Rider, 51 Penn. St. 377 ; ' Codman v. "Winslow, 10 Mass. 
 Daw V. Jewell, 18 N. H. 340. 146; Springfield v. MiUer, 12 id. 415; 
 
 2 Rhine v. Eobinson, 27 Pcnn. St. Polger v. Mitchell, 3 Pick. (Mass.) 
 30 ; Bussell v. Gallagher, 28 "Wis. 396 ; Cobum v. Elmwood, 4 N. H. 99 ; 
 678 ; Weed v. Terry, 2 Doug. (Mich.) Stiles v. Curtis, 4 Day (Conn.) 328 ; 
 344; Young t). Frost, IMd. 377; Good- Corbett v. Norcross, 35 N. H. 99; 
 hue V. Barnwell, Eice (S. C.) Eq. 198 ; Abbott v. Mills, 3 Vt. 521 ; Thorndike 
 Cummins v. Nutt, Wright (Ohio) 713; v. Barrett, 3 Me. 380; Gary v. Whit- 
 Sweeney «. Miller, 34 Me. 388; Mc- ney, 48 id. 526. 
 
 Mahont). McMahon, 18Penn. St. 376; * Jones v. Smith, 64 N. Y. 180; 
 
 Ehodes v. Prick, 6 Watts (Penn.) 315; Boyd v. Graves, 4Wheat. (TJ. S.) 513; 
 
 Ebert v. Wood, 1 Binn. (Penn.) 216; Davis w. Judge, 46 Vt. 655; Wakefield 
 
 Calhoun v. Hays, 8 W. & S. (Penn.) v. Eoss, 5 Mass. 16 ; Moody w. Mchols, 
 
 127 ; Galbreath v. Galbreath, 5 Watts 16 Me. 23. 
 (Penn.) 146. 
 
SEC. 230.J INTEREST IN LANDS. 421 
 
 the statutory period, has no v<alidity, and although good as a 
 license to protect the parties from liability in trespass, it is 
 no defence in an action of ejectment.^ But the rule is other- 
 wise where the line is settled by referees under a rule of 
 court,^ or under an award of arbitrators when the submis- 
 sion is in writing.* But in some of the States it is held that 
 a parol agreement fixing a dividing lin^j which is in dispute, 
 and ascertaining its position, with poss^gsion immediately fol- 
 lowing, is conclusive upon the parties, and cannot be con- 
 troverted upon the ground that it is' within the statute of 
 frauds,* because in such cases no title is conveyed, but the 
 parties merely fix upon the true limits of their grant, and 
 from that time hold up to such agreed line, under their 
 deeds,* and a line so established cannot be disturbed except 
 upon the ground of fraud or mistake.® But in order to give 
 effect to such an agreement the line must he in dispute^ and 
 if it is a mere attempt to set up a new line in place of the 
 original, which is not in dispute, it will have no validity 
 unless in writing.* The agreement must also be between 
 the owners of the land at the time, and,> an agreement in that 
 respect made by one who at the time was only an occupant 
 is not binding upon him, although he subsequently becomes 
 owner.' Jj 
 
 1 Eaynor «. Timerson, 51 Barb. (N. 25 Ohio St. 115; Blair v. Smith, 16 
 Y.) 517 ; Reed u. Farr, 35 N. Y. 113 ; Mo. 273 ; Turner v. Balcer, 64 id. 218 ; 
 Proprietors &c. v. Prescott, 4 Allen Lindsay v. Springer, 4 Harr. (Del.) 
 (Mass.) 22; Talman i'. Sparhawk, 5 547; McNamara k. Seaton, 82 111. 498. 
 Met. (Mass.) 469; Brewer v. Boston ' Hagey v. Detweiler, 35 Penn. St. 
 &c. R. R. Co., 5 Met. (Mass.) 478; 409. 
 
 Warner v. Fountain, 28 Wis. 405 ; Du- ^ Bailey v. Jones, 14 Ga. 384 ; 
 
 pont V. Starring, 42 Mich. 492. In Houston v. Sneed, 15 Tex. 307 ; Coon 
 
 such cases, however, it is held that v. Smith, 29 N. Y. 392 ; Colby v. Nor- 
 
 the division established is good as a ton, 19 Me. 412 ; Gray v. Convillon, 
 
 license until revoked. Dewey jj. Bard- 12 La. An. 7.S0; Avery v. Baum, 
 
 well, 9 Wend. (N. Y.) 65; Selliek u. Wright (Ohio) 576. 
 Adams, 15 John. (N. Y.) 197 ; Palmer ' Nichols v. Lyth, 4 Yerg. (Tenn.) 
 
 V. Anderson, 63 N. C. 365; Davis v. 456; Wilson v. Hudson, 8 id. 398; 
 
 Townsend, 10 Barb. (N. Y.) 333; Houston u. Matthews, 1 id. 116 ; Boyd 
 
 Whitney v. Holmes, 15 Mass. 152. v. Graves, 4 Wheat. (U. S.) 513 ; Vaa- 
 
 2 Goodridge o. Dustin, 6 Met. burgh v. Teator, 32 N. Y. 561. 
 (Mass.) 363. » Miller v. McGlann, 63 Ga. 435. 
 
 s Davis V. Henry, 121 Mass. 150. » Crowell v. Maugh, 17 111. 419; 
 
 * Grey v. Berry, 9 N. H. 473 ; Orr Lewellen v. Overton, 9 Humph, 
 
 V. Hadley, 36 id. 575; Cutler v. Colli- (Tenn.) 76. 
 son, 72 111. 113 ; Baba v. Richmond, 
 
422 STATUTE OF FEATJDS. [CHAP. VI. 
 
 Sec. 231. Dower, Right of, Interest in Lands. — A widow's 
 right. of dower is an interest in land, within the meaning of 
 the statute, which cannot be waived, discharged, or released 
 by parol.^ Thus an agreement by a widow not to claim 
 dower upon the happening of a certain contingency,^ or of 
 a person to procure the release of a widow's dower, is within 
 the statute ; ^ but it is held that a mere assignment of dower 
 may be made by parol, as the estate is conferred upon the 
 widow by the act of the law.* Thus in the case last cited, 
 an agreement by parol between a widow and the heirs as to 
 the division between them of the rents and profits of a mine, 
 was held to be valid, as it should be regarded as an assign- 
 ment of dower. 
 
 Sec. 232. Pews in churches. — Pews in churches, being 
 regarded as real estate, can only be sold by a contract in 
 writing ; ^ and in the case first cited in the last note it was 
 held that an assignment of a certificate of ownership in the 
 manner provided by the by-laws of the society, if not suf- 
 ficient under the statute of frauds, will not protect the 
 assignee against the attaching creditors of the assignor. 
 
 Sec. 233. Partnership in Lands. — A partnership constituted 
 without writing is as valid as one constituted by writing ; ^ 
 and when the partnership is proved to exist, it may be shown 
 by parol evidence that its property consists of lands,^ and 
 that it was established for the purpose of buying and selling 
 lands for speculation.^ 
 
 1 Wright V. De Graff, 14 Mich. De G. & J. 52; and 1 Lindley on 
 
 164; Gordon v. Gordon, 56 N. H. 170 ; Partnership, 3d ed. 90. 
 Hall V. Hall, 2 McCord ( S. C . ) Eq. 269 ; s Dale w. Hamilton, ante ; Essex v. 
 
 Shotwell V. Sedam, 3 Ohio, 5 ; White Essex, ante ; Gibbons v. Bell, 45 Tex. 
 
 V. White, 16 N. J. L. 202 ; Finney v. 417 ; Chester v. Dickinson, 54 N. Y. 
 
 Finney, 1 Wils. 34 ; Keeler v Tatnall, 1 ; Morrill v. Colehour, 82 111. 618 ; 
 
 23 N. J. L. 62. Henderson u. Hudson, 1 Muni. (Va.) 
 
 ^ Wright t'. De Graff, ante. 510 ; hut see Walker v. Herring, 21 
 
 " Martin v. Wharton, 38 Ala. 637. Gratt. (Va.) 678, contra. Dudley v. 
 
 * Lenfer v. Henke, 73111.406; 24 Littlefield, 21 Me. 418; Claggett v. 
 
 Am. Eep. 263. ICilboume, ante ; TibbettS v. Tibbetts, 
 
 6 Barnard w. Whipple, 29 Vt. 401; 6 McLean (U. S.) 80; Ludlow v. 
 
 Vielew. Osgood, 8 Barb. (N. Y.) 130. Cooper, 4 Ohio St. 1; Kramer u. 
 
 " Essex V. Essex, 20 Beav. 442. Arthurs, 7 Penn. St. 165. In Per- 
 
 ' Forster v. Hale, 5 Ves. 309 ; Dale sonette «. Pryme, 34 N. J. Eq. 26, 
 
 V. Hamilton, 5 Hare, 369; affd. 2 Ph. two owners of land agreed by parol 
 
 266 ; but see Caddick v. Skidmore, 2 that the same should be considered 
 
SEC. 234.] 
 
 INTEEEST IN LANDS. 
 
 423 
 
 Sec. 234. Agreement merely Collateral. — An agreement that 
 is merely collateral to an intended transfer of an interest in 
 land is not witHn the statute.^ Thus, where the defendant, 
 on a negotiation for a mortgage, promised to pay the plain- 
 tiff (the intended mortgagee) his costs of investigating the 
 title, in case the defendant changed his views, or the title 
 proved to be bad, it was held that the contract did not relate 
 to an interest in land.^ So where the plaintiff agreed to hire 
 of the defendant some grass-land on the terms of a lease to 
 be signed at some future time, entered upon the land and , 
 found it overrun with rabbits, and on the lease being pre- 
 sented to him for signature, refused to sign it, unless the 
 rabbits were destroyed, and the plaintiff verbally promised 
 to destroy them, it was held that the parol agreement was 
 collateral to the written lease, and was valid.^ 
 
 Where a contract consists of two collateral agreements, 
 one only of which relates to an interest in land, then, if that 
 part of the contract has been executed, the fact of the whole 
 
 and conducted as partnership prop- 
 erty, each contributing equally to 
 the support of a, widow, whose sup- 
 port was a charge on the land, and to 
 the expenses and taxes ; that an ac- 
 count should he kept of the proceeds 
 derived from the sale of the produce, 
 and from the sale of any sand there- 
 from ; that one owner might lire on 
 the land, and any advancements for 
 her support should be charged against 
 her, and at the death of either a final 
 account should be taken. On a bUl 
 for such an account, filed by the ad- 
 ministrator of one owner, after the 
 widow's death, it was held that the 
 agreement was not within the statute. 
 Evans v. Green, 23 Miss. 294; Bun- 
 nell V. Tainter, 4 Conn. 568 ; Bruce v. 
 Hastings, 41 Vt. 380 ; Brown v'. Morris, 
 83 N. C. 251 ; Trowbridge v. "Wether- 
 bee, 11 Allen (Mass.) 361. 
 
 1 Wetherbee v. Potter, 99 Mass. 
 454; Essex v. Essex, 20 Beav. 442; 
 Jeffreys v. Small, 1 Vern. 217; Boyers 
 V. Elliott, 7 Humph. (Tenn.) 204; 
 Wells V. Stratton, 1 Tenn. Ch. 328; 
 Dyer o. Clark, 5 Met. (Mass.) 562; 
 Howard v. Priest, 5 id. 582 ; Bvirnside 
 
 V. Merrick, 4 id. 437; Fall River 
 Wlialing Co. v. Borden, 10 Cush. 
 (Mass.) 458; Claggett v. Kilbourne, 1 
 Black (U. S.) 348 ; Waugh v. Mitchell, 
 1 Dev. & B. (N. C.) Eq. 510; Mc- 
 Allister V. Montgomery, 3 Hayw. 
 (Tenn.) 94; Moderwell v. MuUison, 21 
 Penn. St. 257 ; Ludlow i.. Cooper, 4 
 Ohio St. 1 ; Coles v. Coles, 15 John. 
 (N. Y.) 159; Galbraith v. Gedge, 16 
 B. Mon. (Ky.) 031 ; Henderson v. 
 Hudson, 1 Munf . (Va.) 510 ; Hauff v. 
 Howard, 3 Jones (N. C.) Eq. 44; 
 Jones V. MeMiehael, 12 Eich. (S. C.) 
 L. 176; Fairchild v. Fairchild, 64 N. 
 Y. 471 ; Crawshay v. Maule, 1 Swanst. 
 495; Smith v. Tarlton, 2 Barb. Ch. 
 (N. T.) 336; Traphagen v. Burt, 67 
 N. Y. 30; Black v. Black, 15 Ga. 449; 
 Shanks v. Klien, 104 (XJ. S.) 18; 
 Wiegander v. Copeland, 7 Sawyer 
 (U. S. C. C.) 442. 
 
 2 Jenks V. White, 6 Exch. 873; 21 
 L. J. Ex. 265. 
 
 s Morgan v. Griffith, L. E. 6 Exch. 
 70 ; and see Angell v. Duke, L. E. 10 
 Q. B. 174 ; Erskine u. Adeane, L. E. 
 8 Ch. 756. 
 
424 STATUTE OP FEAUDS. [CHAP. VI. 
 
 contract not having been in writing will not preclude an 
 action on the other part, founded on a promise to be per- 
 formed after such execution. But one contract founded 
 upon one consideration cannot be bisected, so as to make a 
 new contract and a new consideration out of one-half.^ In 
 Mayfield v. Wadsley,^ the occupier of a farm quitted it in 
 March, and was succeeded in possession by B. A had sown 
 forty acres with wheat, and it appeared that at a meeting 
 between A and B in February in the same year, A asked B 
 if he would take the forty acres of wheat at ^£200, telling 
 him that if he did not he should not have the farm. B said 
 that he would take it ; and a person present then valued the 
 dead stock, and, having so done, asked to whom he was to 
 value it ; B said that it was to be valued to him, and then 
 promised to pay A for the wheat and the dead stock on a 
 given day, and paid a sum of money on account. B after- 
 wards had possession of the farm, the growing wheat, and 
 the dead stock. It was held that the contract for the dead 
 stock was distinct from any contract for the sale of the 
 wheat and the possession of the farm, and therefore that A 
 was entitled to recover to that amount. 
 
 Sec. 235. Actions in Respect of Void Contracts. — Where a 
 void contract directly concerning an interest in land has been 
 executed, an action will lie upon a special promise to be per- 
 formed after such execution? Where a lessee agreed with 
 his lessor that if she would accept another tenant in his 
 place (he being restrained from assigning the lease without 
 her consent) he would pay her £40 out of £100 which he 
 was to receive for the good will, and consent was given, and 
 he received the £100, but refused to pay over the £40, on 
 the ground that there was no written agreement; it was held 
 that the lessor might recover the £40 in an action for money 
 had and received.* Again, where the plaintiff had verbally 
 
 1 Hodgson V. Johnson, E. B. & E. Crane v. Gough, 4 Md. 316 ; McCue 
 689; 28 L. J. Q. B. 88, per Lord v. Smith, 9 Minn. 252; Andrews v. 
 Campbell. Jones, 10 Ala. 400; Watrons v. 
 
 2 3 B. & C. 357. Chalker, 7 Conn. 224 ; Craig v. Van 
 
 " Eyan v. Tomlinson, 39 Cal. 639 
 Stone t). 'Dennison, 13 Pick. (Mass.) 1 
 Mushat V. Brevard, 4 Dev. (N. C.) 73 
 Beal 0. Brown, 13 Allen (Mass.) 114 
 
 Pelt, 3 J. J. Mar. (Ky) 489 ; Shaw «. 
 ■Woodcock, 7 B. & C. 73; Paul v. 
 Gunn, 4Bing. (N. C.) 445. 
 
 « Griffith V. young, 12 East, 513. 
 
SBC. 235.] 
 
 nSTTBREST IN LANDS. 
 
 425 
 
 agreed with J S for the purchase of houses, and the defend- 
 ant agreed to give the plaintiff ^640 for his bargain, and the 
 conveyance was afterwards made by J S to the defendant's 
 wife at her request ; it was held that the defendant was liable 
 to pay the £40.i 
 
 The plaintiff may, after he has performed his part of the 
 contract, sue upon an account stated, if after such performance 
 the defendant has admitted that he is indebted to him in the 
 amount of the consideration.^ If an agent enters into a con- 
 tract for purchase, and pays the purchase-money, and pro- 
 cures a conveyance, his principal cannot, in answer to an 
 action for money paid to his use, object that the contract was 
 not in writing as required by the statute.* This rule is well 
 illustrated in a New York case* in which the plaintiff's 
 
 ^ Seaman v. Price, 10 Moo. 34 ; 2 
 Bing. 437; Ey. &-Moo. 195; and see 
 Cocking V. Ward, 1 C. B. 868 ; 15 L. 
 J. C. P. 245, overruling Price v. Ley- 
 burn, Gow. N. P. E. 109; Kelly v. 
 Webster, 12 C. B. 283 ; Green v. Sad- 
 dington, 7 E. & B. 503; Sanderson v. 
 Graves, L. E. 10 Ex. 234. 
 
 2 Cocking o. Ward, 1 C. B. 858; 
 Kelly V. Webster, 12 C. B. 283 ; Smart 
 V. Harding, 3 C. L. H. 351 ; 15 C. B. 
 652; 24 L. J. C. P. 76. In Lavery v. 
 Turley, 6 H. & N. 239, to an order for 
 goods sold, the defendant pleaded 
 that he was possessed of a public, 
 and it was agreed that, in consider- 
 ation that the defendant would give 
 up possession thereof the plaintiff 
 would pay him £100, and discharge 
 the defendant from the debt. That 
 plaintiff quit the house and paid the 
 defendant the £100. The agreement 
 was not in writing. It was held that 
 the agreement having been executed 
 was receivable as evidence to sustain 
 the plea. Pollock, C. B., said : " The 
 objection is that the agreement is one 
 which, by the statute of frauds, is re- 
 quired to be in writing ; and that 
 would be so if it were sought to en- 
 force it as an agreement. But it is 
 pleaded as a fact that the defendant 
 performed the agreement, and the 
 plaintiff accepted such performance 
 in satisfaction. The objection that 
 the agreement was not in writing is 
 
 got rid of. The 4th section of the 
 statute of frauds does not exclude 
 unwritten proof in the case of exe- 
 cuted contracts. A familiar instance 
 is that of letting land for a period 
 longer than three years, where, if the 
 premises have been occupied, evidence 
 may be given of the terms of the 
 holding." Angell v. Duke, L. E. 10 
 Q. B. 174; Green v. Saddlington, 7 
 CI. & B. 503 ; Souch v. Strawbridge, 
 2 C. B. 814; Price v. Leybum, Gow. 
 109; Leago u. Deane, 4 Bing. 459; 
 Eemington v. Palmer, 62 N. Y. 31; 
 Wetherbee v. Potter, 99 Mass. 360; 
 Jewel V. Bicker, 68 Me. 377 ; Worden 
 V. Sharp, 56 111. 104; Allen v. Aquire, 
 7 N. Y. 543 ; Eastman v. Anderson, 
 119 Mass. '526; Bosford v. Pearson, 
 9 Allen (Mass.) 387 ; Nutting v. Dick- 
 inson, 8 id. 540 ; Whitbeck v. Whit- 
 beck, 9 Cow. (N. Y.) 266; Preble v. 
 Baldwin, 6 Cush. (Mass.) 549; Page 
 V. Monks, 5 Gray (Mass.) 492; 
 Brackett t. Evans, 1 Cush. (Mass.) 
 79; and see Knowles v. Michel, 13 
 East, 249; Highmore v. Primrose, 5 
 M. & Sel. 65. 
 
 » Peacock v. Harris, 10 East, 104 
 Pinchon v. Shilcott, 3 C. & P. 236 
 Dynes v. O'Neil, Crawf . & D. Abr. 329 
 Wilson V. Marshall, 2 Ir. R. Ch. 356 
 Buck V. Hurst, L. E. 1 C. P. 297 
 Savage v. Canning, 1 Irish, C. L. 434. 
 
 * Van Valkenburgh v. Croffut, 15 
 Hun (N. Y.) 145. 
 
426 STATUTE OF FRAUDS. [CHAP. VI. 
 
 father, the plaintiff being then only eleven years old, entered 
 into a contract with the defendant that the plaintiff should 
 live with him until he was twenty-one years old. The plain- 
 tiff was to work for the defendant, and was to be clothed by 
 him, and sent to school. The defendant also was to take a 
 calf belonging to the plaintiff, and when the latter attained 
 his majority, was to deliver him a cow, in lieu of the calf. 
 There was also evidence of a conflicting character that the 
 defendant was also to pay the plaintiff when he became of 
 age, fifty, one hundred, or two hundred dollars, or nothing. 
 When the plaintiff arrived at the age of twenty-one, the de- 
 fendant gave him the cow, but refused to give him any 
 money. The plaintiff thereupon brought an action against 
 the defendant on a quantum meruit, for the value of his ser- 
 vices. The court held that the plaintiff having fully performed 
 the contract on his part, could not repudiate it upon the ground 
 that it was void under the statute of frauds, and maintain an 
 action for the value of his services, but was restricted to Ms remedy 
 upon, and the compensation fixed by, the contract. In speaking of 
 the effect of performance by the plaintiff and the defendant's 
 recognition of his contract liability, Laened, P. J., said: 
 " The contract is no longer liable to any objection under the 
 statute of frauds. The oral contract was void because not 
 to be performed within a year. But the party who contracted 
 to render the service has in fact fully rendered them under 
 the contract, and the other party has fully accepted them. The 
 contract, then, has been actually treated by the parties as 
 valid, until all has been done by the plaintiff which he was 
 bound to do, and this has been done with the consent of the defend- 
 ant. He is then liable to pay for the services rendered, ac- 
 cording to his agreement. The effect of the statute is not 
 to make a new contract between the parties,^ but, when the 
 contract has been fully performed upon one side, and its performance 
 is accepted upon the other, the original contract is re-adopted." 
 But when there has been a full performance upon one side, and a 
 refusal to perform upon the other, or performance by the other party 
 has become impossible, no remedy can be had upon the contract, 
 but the party must bring an action upon a quantum meruit 
 in the case of services, or for money had and received in the 
 
 1 Galvin v. Prentice, 45 N. Y. ^ xhomas v. Dickinson, 12 N. T. 
 162. 364. 
 
SEC. 235.] INTEEEST IN LANDS. 427 
 
 case of expenditures, or must seek his remedy according to 
 the nature of his claim ^ for the value of his performance 
 independent of the contract. Thus in the case last cited 
 the plaintiff brought an action to recover for certain services 
 rendered to the defendant under parol agreement that if the 
 plaintiff would render the services, the defendant would give 
 him a lease of certain premises for the term of twenty-one 
 years, but after the services were rendered, the defendant 
 refused to perform, and the court held that the plaintiff, for 
 the purpose of showing the value of his services, could not 
 show the value of the lease, upon the ground that where, in 
 an action to recover for a complete or partial performance by 
 the purchaser, upon a contract for the purchase of land or 
 other property within the statute of frauds, he is not entitled 
 to recover the value of the land or property contracted for, but 
 only for the actual value of the services rendered or property 
 given towards the performance of the contract.^ Where a 
 person is let into possession of land or other property under a 
 contract to purchase, in an action to recover for expenditures 
 which he has made under the contract, his recovery is limited 
 to the amount of expenditures less the profits he has derived 
 from the use of the property.^ In other words, he is restricted 
 in his recovery to his actual loss,* and the value of the land is 
 not an element to be considered.^ Thus, the plaintiff pur- 
 chased a certain field of growing grass of the defendant for 
 the sum of twenty-five dollars, which he paid to him, and 
 aftei-wards entered upon the land and mowed and carried 
 away a part of the grass, but while he was mowing the re- 
 mainder of the grass, the defendant interfered and prevented 
 him from continuing to cut or harvest it, and the plaintiff 
 brought an action for the money paid by him for the grass ; 
 upon the trial the defendant offered evidence of the value of 
 the grass cut and taken away by the plaintiff, which was re- 
 
 1 Erben v. Lorillard, 19 N. Y. Dlx v. Marcy, 116 Mass. 416; Lock- 
 302. wood V. Barnes, 3 Hill (N. Y.) 128. 
 
 2 Shute V. Dorr, 5 Wend. (N. Y.) * Moore v. Small, 19 Penn. St. 
 204; Bartlett v. Wheeler, 44 Barb. 461; Wilson v. Clark, 1 W. & S. 
 (N. Y.) 165; Jones v. Hay, 52 Barb. (Penn.) 554; EUet a. Paxon, 2 W. & 
 (N. Y.) 165. S. (Penn.) 418. 
 
 8 Shreve v. Grimes, 4 Litt. (Ky.) ^ Herzog v. Herzog, 34 Penn. St. 
 
 220 ; Rucker v. Abell, 8 B. Mon. (Ky.) 418 ; Bash v. Bash, 9 id. 360 ; Malain 
 566; Richards v. Allen, 17 Me. 296; v. Ammon, 1 Grant (Penn.) 123. 
 
428 STATUTE OF FKATJDS. [CHAP. VI. 
 
 jected, but upon appeal the court held that the evidence 
 should have been received. " The plaintiff," said Dwight, 
 J., " had received a portion of the property. He cannot main- 
 tain his action to recover the whole of the purchase-price mthout 
 making restitution or compensating the defendant for the benefit which 
 he has had." i 
 
 A person who has entered into a parol contract for the 
 purchase of lands, and who expends money in investigating 
 the title, cannot recover money so spent.^ But he may re- 
 cover the deposit and auction-duty as money paid upon a 
 consideration that has failed.^ Money paid, labor done, or 
 expenses incurred in the part performance of a contract of a 
 stipulation thereof within the statute of frauds which the 
 other party refuses or is unable to perform, may if made in 
 pursuance of a stipulation of the contract be recovered at law, 
 in a proper action upon the ground of a failure of the considera- 
 tion.* The rule is, that if one pays money, renders services, or 
 delivers property in part or complete performance of a con- 
 tract which is invalid under the statute of frauds, he may re- 
 cover the money so paid, or the value of his services, or the 
 property, delivered in an action upon an implied assumpsit, if 
 the other party has refused, or from any cause become unar 
 ble to perform, the plaintiff being ready and willing to do 
 so.^ Thus, in Wood v. Shultis,® the plaintiff sold the de- 
 
 1 Watkins w. Kush, 2 Lans. (N. Y.) id. 84; Gillett v. Maynard, 5 John. 
 235; Abbott u. Draper, 4 Dev. (N. Y.) (N. Y.) 85; Welsh ^. Welsh, 5 Ohio, 
 51 ; Dix V. Marcy, 116 Mass. 416. See 425 ; Shreve v. Grimes, 4 Litt. (Ky.) 
 also Kosenpaugh v. Vredenburgh, 16 220; KembleB. Dresser, 1 Met. (Mass.) 
 Hun (N. Y.) 60, statement of which is 271 ; Wells v. Bannister, 4 Mass. 514. 
 given post, p. 429. * Dowling v. Mcliinney, 124 Mass. 
 
 2 Pawle V. Gunn, 4 Bing. (N. C.) 478; Williams v. Bemis, 108 id. 91; 
 445. Seymour v. Burnett, 14 Mass. 266; 
 
 8 Gosbell V. Archer, 2 Ad. & El. Kidder .,. Hunt, 1 Pick. (Mass.) 331; 
 
 500; Cookw. Daggett, 2 Allen (Mass.) Sherburne v. Fuller, 5 Mass. 133; 
 
 439. The rule is that no recovery Cook r. Daggett, 2 Allen (Mass.) 439; 
 
 can be had for expenditures made Thompson v. Gould, 20 Pick. (Mass.) 
 
 without any express stipulation that 134; Barrickman v. Kuykendall, 6 
 
 they should be made, but which were Blackf. (Ind.) 21; Goar v. Lockridge, 
 
 made rather for the plaintiff's own 9 Ind. 92; White v. Wieland, 109 
 
 benefit, and in reliance upon, and the Mass. 291 ; Palbrook v. Lawes, 1 Q. 
 
 expectation that the defendant would B. D. 284 ; Gray v. Hill, Ry. & M. 
 
 convey the lands to him. Farnam v. 421 ; Smith v. Smith, 25 N. J. L. 208. 
 
 Davis, 32 N. H. 362 ; Harden v. Hays, ' Day v. New York Cent. R. R. 
 
 9 Penn. St. 151 ; Miller v. Tobie, 41 Co., 51 N. Y. 590 ; Baldwin v. Palmer, 
 
 8 Wood V. Shultis, 4 Hun (N. Y.) 309. 
 
SEC. 235.] INTEREST IN LANDS. 429 
 
 fendant forty-five trees standing upon his land by a verbal 
 sale, in payment for which the defendant agreed to dig a 
 ditch upon his own land to carry off the water from the 
 plaintiff's land. The defendant cut and carried away the 
 trees, but refused to dig the ditch. In an action to recover 
 for the value of the trees the defendant insisted that, inas- 
 much as the contract was within the statute of frauds, no 
 recovery could be had, but the court held that the plaintiff 
 was entitled to recover the value of the trees, the law imply- 
 ing a promise to pay the value of property so received. 
 Gilbert, J., said: "The timber was the consideration for 
 the defendant's part of the contract. He failed to perform 
 the contract and repudiated it altogether. The law affords 
 no sanction to such a mode of appropriating the property of 
 another, but, on the contrary, implies from such circumstances 
 a promise to pay for it. If the contract had not only been 
 void, but illegal, the plaintiff, on that account would have 
 had no remedy, but being invalid only by reason of its not 
 being in writing, the plaintiff has a clear remedy." In another 
 New York case ^ this rule was applied. In that case the 
 plaintiff and one Simmons worked a blue stone quarry be- 
 longing to the defendant, under a verbal agreement with him 
 that, as long as there was any blue stone in a certain direc- 
 tion they should be allowed to quarry it, paying him a certain 
 royalty or rent therefor. The lower end of the quarry filled 
 with water, and the plaintiffs were obliged, in order to get 
 out the stone, to dig a ditch, and they also uncovered a por- 
 tion of the stone at an expense altogether of about five hun- 
 
 10 N. Y. 232; King v. Brown, 2 Hill Greer v. Greer, 18 id. 16; Julison v. 
 
 (N. Y.) 485; Lisk v. Sherman, 25 Jandon, 69 id. 373; Lucy v. Bundy, 
 
 Barb. (N. Y.) 433 ; Erben v. Lorillard, 9 N. H. 298 ; Gray v. Gray, 2 J. J. 
 
 19 N. Y. 299; Harris v. Frink, 49 id. Mar. (Ky.) 21 ; Davenport v. Gentry, 
 
 24; Galvin v. Prentice, 45 id. 162; 9 B. Mon. (Ky.) 927; Humble v. 
 
 Baker v. Scott, 2 T. & C. (N. Y.) 606 ; Hamilton, 3 Dana (Ky.) 501 ; "Wood 
 
 Bosford V. Pearson, 9 Allen (Mass.) v. Shultis, 4 Hun (N. Y.) 309; Bur- 
 
 387; Parker u. Tainter, 123 Mass. lingame ti. Burlingame, 7 Cow. (N. Y. ) 
 
 185; Moody v. Smith, 70 N. Y. 598; 92; Sims v. McEwen, 27 Ala. 184; 
 
 Eaton V. Eaton, 35 N. J. L. 290; Shute o. Dorr, 5 "Wend. (N. Y.)204; 
 
 Keeler v. Tatnell, 23 id. 62 ; Eutan v. King v. Welcome, 5 Gray (Mass.) 41 ; 
 
 Hinchman, 30 id. 255; Kidder v. Souch v. Strawbridge, 2 C. B. 808; 
 
 Hunt, 1 Pick. (Mass.) 328;. Seymour Knowlman v. Bluett, L. K. 9 Exchq. 
 
 I). Bennett, 14 Mass. 266; Rosenpaugh 307. 
 
 V. "Vredenburgh, 16 Hun (N. Y.) 60; i Rosenpaugh v. "Vredenburgh, 16 
 
 lineeland v. Fuller, 51 Me. 618; Hun (N. Y.) 60. 
 
430 STATUTE OP FEAXTDS. [CHAP. VI, 
 
 dred dollars to drain the quarry, and after this had been 
 done, the defendant repudiated the contract and notified 
 them to quit the quarry. The court held that the defendant 
 was liable for the amount of the services rendered and ex- 
 penses so incurred by them. " It is conceded," said Boaed- 
 MAN, J., " that the contract under which plaintiff worked in 
 the defendant's quarry was void by the statute of frauds. 
 So far, however, as such contract had been executed by and 
 between the parties, the terms of the contract would de- 
 termine their respective rights, and the court will not disturb 
 them in relation thereto. The defendant having taken ad- 
 vantage of the invalidity of the contract to discharge the 
 plaintiff, and forbid his performance of further labor under 
 it, becomes liable to plaintiff on a quantum meruit for services 
 rendered and not paid for. To the extent that the contract 
 was performed and plaintiff's services paid for, he may retain 
 such pay or profits.^ But services rendered and not paid for 
 constitute a basis for damages. One who renders services 
 under a contract void by the statute of frauds may recover 
 the value of such services, if he has been ready to perform 
 the contract, and the other party has refused.^ In this case 
 the plaintiff cannot recover damages so far as his services 
 were compensated by the stone taken out under the contract. 
 But for services not thus compensated, he is entitled to re- 
 cover their value. The measure of damages is the value of 
 the services, and not the value of the stone in the quarry, or 
 of the void contract.^ 
 
 The action was tried upon the law as here stated, and we 
 think the rule of damages adopted by the court justified the 
 rulings upon the admission of evidence on that subject. The 
 defendant could not deduct the plaintiff's profits already 
 realized from the value of services thereafter rendered. In 
 regard to the ditch dug to drain the quarry, it is not clear 
 that the jury allowed the plaintiff anything for digging it. 
 But we think he was plainly entitled to make that proof, and 
 to recover some portion of that expense ; such proportion as 
 the stone to be taken out bore to that already removed. There 
 
 1 Harris v. Frink, 49 N. Y. 24. ' King v. Brown, ante ; Brben v. 
 
 2 liing K.Brown, 2 Hill (N.Y.) 485; Lorillard, 19 N. Y. 299, 302, 304; 
 Galvin v. Prentice, 45 N. Y. 162; Day Day v. N. Y. C. K. E. Co., 51 N. Y. 
 V. N. Y. C. K. E. Co., 51 id. 583. 590. 
 
sec' 235.] INTEREST IN LANDS. 431 
 
 is no reason why the whole expense of the ditch should be 
 charged to plaintiff, and the defendant have all its benefits 
 for future works. The plaintiff was allowed to recover for 
 so much of the top removed as was over the stone, which he 
 was not allowed to get out, and which the defendant can 
 now get out without the expense of uncovering. It is evi- 
 dent, therefore, that upon any just rule of damages, the 
 plaintiff recovered no more than a fair compensation for the 
 services rendered and benefits bestowed upon defendant." 
 So where the landlord promised a tenant a lease of the 
 premises, in consideration of which the tenant made repairs 
 upon the building, the landlord having refused to perform, 
 and the contract being within the statute, it was held that 
 the tenant was entitled to recover the cost of the repairs;^ 
 and where buildings are erected upon premises by a person 
 to whom the owner or lessee has promised a lease, but which 
 the latter refuses to give, it has been held that the former is 
 entitled to recover the cost of the buildings notwithstanding 
 the agreement to give the lease is within the statute.^ But 
 no such recovery can be had if the other party is ready and 
 willing to perform.* Thus if a person enters into the pos- 
 
 ^ White V. Wieland, 109 Mass. 291. binding upon him; upon the faith of 
 ^ Parker v. Tainter, 123 Mass. 185. the defendant's agreement the plain- 
 But where the expense is incurred in tiff had done various things towards 
 making repairs or improvements clearing the land from incumbrances, 
 under a promise of a lease or convey- On a bill for specific performance it 
 ance by a lessee, no recovery can be was held that there was such •■ part 
 had at law therefor from the owner of performance as to take the case out 
 the land, although he told the lessee of the statute, and that the defendant 
 he might make such an agreement, was estopped from asserting the legal 
 and the entry and improvements were effect of general provisions of a writ- 
 made with the knowledge of the ten contract, that the stoves shojild 
 owner. • Stone v. Crocker, 19 Pick, be paid for on delivery. Galvin v. 
 (Mass.) 292. Prentice, 45 N. Y. 162 ; Lockwood .,. 
 8 Hawley ^. Moody, 24 Vt. 603; Barnes, 3 ffill (N. Y.) 128. In Green 
 Shaw V. Shaw, 6 id. 69. In Adams v. v. N. C. R. R. Co., 77 N. C. 95, the 
 SmUie, 50 Vt. 1, the defendant sold plamtiff and defendant entered into a 
 and delivered to the plaintiff ninety verbal contract by which the plaintiff 
 stoves for which the plaintiff paid him agreed that the defendant might cut 
 $1,000 cash, and executed and ten- from his land a certain quantity of 
 dered him a deed of certain land wood, in payment Jbr which, the de/end- 
 which the defendant had agreed to ant was to convey to the plaintiff a cer- 
 take in payment for the balance, but tain tract of land. The defendant 
 which he refused to accept, claiming entered under this contract and cut 
 that this part of the agreement was the wood in question, and the plaintiff 
 within the statute of frauds and not brought an action to recover the 
 
432 
 
 STATUTE OP PEAITDS. 
 
 [CHAP; VI. 
 
 session of land under a parol contract to purchase, and after 
 having made improvements thereon, or paid a part of the 
 purchase-money, he voluntarily abandons the contract, without 
 calling upon the other' party to perform, and the other party is 
 in such a situation to the property that he can, and is ready and 
 willing to perform, he cannot recover either for the cost of the 
 improvement, or the purchase-money which he has paid?- In 
 an early New .York case ^ there was an oral contract for the 
 purchase of land, and after the purchaser had made some 
 payments in goods, under the contract he sued the vendee 
 
 value thereof, claiming that he was 
 not bound to apcept the land, as the 
 contract was within the statute of 
 frauds. But the court held that the 
 plaintifE could not recover in assump- 
 sit for the wood cut and taken by the 
 defendant, but was bound by the terms 
 of the original contract, the defendant 
 being ready to perform it. In Galway 
 v.. Shields, 66 Mo. 313, a similar doc- 
 t^ne was held, and where the plaintifE 
 sold and delivered goods to the de- 
 fendant under a verbal agreement 
 that the price thereof should be paid 
 in specified land, to be conveyed by 
 the buyer to the plaintifE, and the 
 buyer had ofEered to convey the land, 
 and was ready and willing to do so, it 
 was held that the plaintiff could not 
 repudiate this part of the contract on 
 the ground that it was within the 
 statute, and sue for the price of the 
 goods in money. See also, to the 
 same effect. Miller v. Tobie, 41 N. H. 
 84; Donaldson v. Waters, 30 Ala. 
 175; Mitchell «. McNab, 1 Brad. (111.) 
 297; Sims v. Hutchins, 16 Miss. 328; 
 Abbott V. Draper, 4 Den. (N. Y.) 51 ; 
 Hummer v. Breckman, 55 Me. 105. 
 In Allis V. Read, 46 N. Y. 142, at 
 the time of making a verbal agree- 
 ment for the sale of goods, no pay- 
 ment of purchase-money or delivery 
 of goods, sufficient to take the case 
 out of the statute of frauds, took 
 place; but at a subsequent time, 
 when, under the agreement, a pay- 
 ment became due, the parties again 
 met, and made a further contract, 
 varying in some respects their original 
 
 agreement, and, in pursuance of this 
 agreement, the purchaser delivered to 
 the sellers a promissory note to be 
 collected and applied by them on the 
 purchase-price of the goods, and also 
 consigned to them merchandise, which 
 they were to sell, the proceeds to be 
 applied to the same purpose. It was 
 held that the minds of the parties met 
 upon all the terms and conditions of 
 this latter agreement, and by the 
 purchaser's transfer of the note and 
 consignment of merchandise, it be- 
 came, under the statute, a binding 
 contract. That it adopted the terms, 
 in part, of the original void contract 
 did not affect its validity. Barrick- 
 man v. Kuykendall, 6 Blackf. (Ind.) 
 21; Richards v. Allen, 17 Me. 290; 
 Bedinger v. Whittemore, 2 J. J. Mar. 
 (Ky.) 652 ; Collier v. Coates, 17 Barb. 
 (N. Y.) 471; Green v. Green, 9 Cow. 
 (N. Y.) 46; Dowdle v. Camp, 12 John. 
 (N. Y.) 451. But in Michigan a con- 
 trary doctrine is held, and money 
 advanced on a verbal contract for the 
 purchase of land may be recovered 
 back at any time before conveyance, 
 at the option of the party advancing 
 it. Scott V. Bush, 26 Mich. 418; 13 
 Am. Rep. 311 ; Grimes v. Van Vechten, 
 20 id. 410; Hall v. Soule, 11 id. 494; 
 and see to the same effect Collins v. 
 Thayer, 74 111. 138 ; and Harriston v. 
 Jordan, 42 Miss. 380. 
 
 1 Day V. Wilson, 83 Ind. 463; 43 
 Am. Rep. 76. 
 
 2 Abbott V. Draper, 4 Den. (N. Y.) 
 51. 
 
SEC. 235.] INTEREST IN LANDS. 433 
 
 for the value of the goods, but the court held that, as long as 
 the vendor was ready to perform the contract on his part, 
 the vendee could not recall the payments which he had made 
 under the agreement. In a Massachusetts case,i Dewey, J., 
 in an able opinion gave expression to the rule, as follows : 
 " The provisions of the statute are not so broad as to entitle 
 a party, who has entered into a verbal contract, by which he 
 is to receive a conveyance of land, and towards payment for 
 which he has made advances in money, to set aside such a 
 contract as a nullity, and reclaim the money so advanced, 
 the other party being in no way in fault, but being both able 
 and ready to make the conveyance in the manner stipulated 
 by the oral agreement. The principle is well settled that no 
 such right exists in the case just supposed, to reclaim the 
 money, upon the ground that the contract is within the 
 statute of frauds." ^ The rule is, that no recovery can be 
 had for money paid, services rendered, or improvements put 
 upon land, until the other party is put in default,^ either 
 by a refusal to convey, or because he is unable to do so.* 
 " The law is," says Caton, J., in the Illinois case last cited,^ 
 " that one who advances money in part payment of a parol 
 purchase of land, cannot recover till he has offered to fulfil 
 the parol agreement, and the other party has repudiated it 
 by refusing to perform. If he repudiates it himself without 
 the default of the other party, he must lose what he has paid." 
 This is said to be put upon the ground that a contract within 
 the statute is not absolutely void, but is voidable only, and 
 is binding upon both parties and may be enforced either at 
 law or in equity, unless the statute is interposed as a defence.® 
 From what has been said, however, it must not for a moment 
 be supposed that part performance of a contract within the 
 statute of frauds, at law, deprives the other party of the 
 defence of the statute, or gives it validity, or that the rules 
 stated or cases cited supra sustain any such doctrine, for such 
 
 1 Coughlin u. Knowles, 7 Met. « Crabtree v. Welles, 19 111. 55; 
 (Mass.) 57. Rhodes v. Starr, 7 Ala. 346, Meredith 
 
 2 Sims V. Hutchins, 16 Miss. 328; v. Naish, 3 Stew. (Ala.) 207. 
 
 Lane v. Shackf ord, 5 N. H. 130 ; Ab- * Bamckman v. Kuykendall, ante. 
 bott V. Draper, 4 Den. (N. Y.) 51; ^ Crabtree w. Welles, onie. 
 
 Shaw V. Shaw, 6 Vt. 69 ; Gammon v. « Philbrook v. Belknap, 6 Vt. 383 ; 
 
 Butler, 48 Me. 344; Cobb v. Hall, 29 Shaw v. Shaw, 6 id. 69; Crabtree v. 
 
 Vt. 510. Welles, ante. 
 
434 STATUTE OF PEAUDS. [CHAP. TI, 
 
 is not tlie law.^ The only effect of part performance of 
 such a contract, according to the rules stated, is to leave it 
 optional with the other party to perform it or not, and to 
 require of the person who has performed as a condition pre- 
 cedent to his right to recover for such performance, that he 
 should put the other party in default, either by requesting 
 him to perform or showing that it had become impossible for 
 him to do so. If the other party refuses to perform, or if it 
 is impossible for him to do so, the person who has performed 
 does not thereby becbme entitled to a remedy upon the con- 
 tract, but only /or what he has paid or done towards perform- 
 ance of the contract. This rule is illustrated by a New York 
 case.^ In that case the defendant received one dollar under 
 an agreement to invest it in sheep and double them every 
 four years until the plaintiff became of age, and then to de- 
 liver them to him. He made the investment according to 
 the agreement, but upon the plaintiff becoming of age re- 
 fused to deliver the sheep to him. The plaintiff brought an 
 action to recover the value of the sheep. The court held 
 that no recovery could be had upon the contract, as it was 
 within the statute of frauds, because not to be performed in 
 one year, but that the plaintiff's recovery was limited to the 
 money received by the defendant for investment. The dis- 
 tinction between the rule in this case and those previously 
 referred to is, that in this case, although the agreement had 
 been performed so upon the plaintiff's part, yet the defendant 
 elected not to perform, but to avail himself of the defence of 
 the statute, while in those cases the defendant was ready and 
 willing to perform, and waived the privilege of the statute. 
 It may be said that part performance of a contract within the 
 statute of frauds rnay render it valid and binding so far as that ex- 
 tends, but it can have no such effect upon the stipulation of the con- 
 tract still remaining executory.^ Where property has been deliv- 
 ered to the defendant in performance of such a contract, he 
 
 1 Hebbard v. Whitney, 13 Vt. 21; 93; Campbell v. Campbell, 11 N. J. 
 
 Norton v. Preston, 16 Me. 14 ; Patton Eq. 268. 
 
 V. McClm'e, 1 M. & Y. (Tenn.) 333; 2 Weir v. Hall, 2 Lans. (N. Y.) 
 
 Kidder v. Hunt, 1 Pick. (Mass.) 328; 278. 
 
 Baldwin v. Palmer, 10 N. Y. 232; » Bartlett u. Wheeler, 44 Barb. (N. 
 
 Adams v. Townsend, 1 Met. (Mass.) Y.) 162; Lockwood v. Barnes, 3 Hill 
 
 483; Jackson v. Pierce, 2 John. (N. (N. Y.) 128; Broadwell v. Getman, 2 
 
 Y.) 221; Box v. Stanford, 21 Miss. Den. (N. Y.) 87. 
 
SEC. 236.] rNTBKBST IN LANDS. 435 
 
 cannot, upon refusing to perform, return the property to the 
 other party, and escape liability for its value in money, in an 
 action for goods sold ; ^ but it seems that the party delivering 
 property in part performance of such a contract, which the 
 other party refuses to perform, may at his election recover 
 its value, or in proper proceedings, the property itself.^ 
 "Where services have been rendered under such a contract, 
 they may be recovered for upon a quantum meruit.^ At 
 equity, even where the part performance is not sufficient to 
 warrant a decree for specific performance, if the party enter- 
 ing under a verbal contract has made improvements which 
 increase the value of the land, the court will compel the 
 other party to make proper remuneration therefor.* In all ' 
 cases where a person has gone into the possession of land 
 under a verbal contract, which the other party refuses to per- 
 form, before he can maintain an action for the purchase-money 
 paid by him, or improvements put by him upon the land, he 
 must surrender the possession ; ® and such also is the rule 
 where he has given a note or other obligation for the pur- 
 chase-money of the land, before he can be permitted to de- 
 fend against the note upon the ground of a failure of the con- 
 sideration, because the payee refuses to convey, he must show 
 that he is not deriving any advantage or benefit from the 
 contract.® 
 
 Sec. 236. Lien for Repayment of PurchaBe-Money. — If the 
 
 vendor of land cannot make a title thereto, and the vendee has 
 paid the whole or only a part of the purchase-money, it is 
 held that he has a lien upon the lands not only for the money 
 paid by him, but also for the cost of improvements put by 
 him thereon,^ even though he has taken a distinct security 
 
 1 Hawley v. Moody, 24 Vt. 693. Draper, ante ; Johnson v. Hanson, 6 
 
 " See note 3, ante, p. 431. Ala. 351. 
 
 s King V. Welcome, 5 Gray (Mass.) « Gillespie v. Battle, 15 Ala. 276; 
 
 41 ,' Williams v. Bemis, 108 Mass. Curnutt v. Roberts, 11 B. Mon. (Ky.) 
 
 91. 42. 
 
 4 Pindley v. Wilson, 3 Litt. (Ky.) ' Busker v. Abell, 8 B. Mon. (Ky.) 
 390; Bellamy t>. Ragsdale, 14 B. Mon. 566; McCampbell v. McCampbell, 5 
 (Ky.) 364; Thompson v. Mason, 4 Litt. (Ky.) 92. But quere, does this 
 ]Bibb. (Ky.) 195 ; Vaughanw. Cravens, lien exist where he refuses to convey, 
 1 Head (Tenn.) 108. although able to do so'! It would 
 
 5 Cope V. Williams, 4 Ala. 362; seem that the rule would extend to 
 Ott V. Garland, 7 Mo. 28 ; Abbott a. such cases, but the point does not 
 
 seem to be covered by the cases. 
 
436 STATUTE OP FEATIDS. [CHAP. VI. 
 
 therefor.^ But in Tennessee it- is held that no such lien exists, 
 and that a court of equity has no authority to direct a sale 
 of the land to reimburse the vendee for the purchase-money, 
 etc., advanced by him.^ 
 
 Sec. 237. Liability on Implied Contract. — If the purchaser 
 of a growing crop, or of growing trees, under a parol con- 
 tract, void by reason of the statute, takes away the crop, or 
 fells and carries away the trees, although he cannot be made 
 liable under the original contract, he will become liable on a 
 new implied contract for goods sold.^ Where the plaintiff 
 repaired certain leasehold premises held by the defendant 
 under a covenant to repair, on a parol promise by the defend- 
 ant to assign him his lease, it was held that the defendant, 
 upon refusal to assign, was liable, on an implied assumpsit, 
 to pay the plaintiff for such repairs.* The statute does not 
 apply to implied contracts or covenants. Thus if A conveys 
 to B certain realty by a deed poll in which specified rents 
 are reserved for periods of time described, and B enters 
 under the deed, by his entry he contracts to pay the rents 
 as reserved, and the contract being an implication of law, is 
 not within the statute. The contract to pay the rent reserved 
 is not an express but an implied contract, or a contract raised 
 by law from the nature of the transaction, and such contracts 
 are not within the statute.^ In Goodwin v. Gilbert, ante, the 
 
 1 Sugden'sVendors and Purchasers, of the plaintiff from year to year, 
 857 ; Turner v. Mariatt, L. E. 3 Eq. upon special terms mentioned in some 
 744. printed rules, and to commence occu- 
 
 2 McNew V. Toby, 6 Humph, pation at a future day ; the plaintiff's 
 (Tenn.) 27. attorney then signed a memorandum 
 
 3 Mayfield v. Wadsley, 3 B. & C. of the hiring at the back of the 
 357 ; Poulter v. Eallingbeck, 1 E. & printed rules. It was held that, after 
 P. 397; Bragg v. Cole, 6 Moo. 114; the tenancy had actually commenced the 
 Teall V. Auty, 4 Moo. 547 ; Knowles terms of the agreement might be 
 V. Michel, 13 East, 249 ; Earl of Fal- shown by reference to the printed 
 mouth V. Thomas, 1 C. & M. 109. rules and memorandum, although as 
 
 * Gray v. Hill, Ky. & Moo. 420. a mere agreement for a lease it was 
 
 6 Goodwins. Gilbert, 9 Mass. 510 ; void under the statute, and that a 
 
 Fletcher v. McParlane, 12 id. 43 ; parol lease for a period admitted by 
 
 Felch V. Taylor, 13 Pick. 133 ; Sage the statute might be as special in its 
 
 V. Wilcox, 6 Conn. 81 ; Allen v. Pryor, terms as a vrritten. " It seems absurd 
 
 3 A. K. Marsh. 305. In Bolton v. to say," said Lord Denman, "that a 
 
 Tomlin, 2 H. & W. 367, the defendant's parol lease shall be good, and that it 
 
 testator agreed by parol with the cannot contain any special stipu- 
 
 plaintiff's steward to hire some land lations or agreements. ... It has 
 
SEC. 238.] INTEREST IN LANDS. 437 
 
 doctrine is broadly laid down that where land is conveyed by 
 deed poll and the grantee enters under the deed, certain 
 duties being reserved to be performed, as no action lies against 
 the grantee on the deed, the grantor may maintain assumpsit 
 for the non-performance of the duties reserved, and the 
 promise being raised by the law is not within the statute of 
 frauds. In a Massachusetts case,^ Shaw, C. J., in delivering 
 the opinion of the court, instances the case of rent reserved 
 in a lease by deed poll as a signal and familiar illustration of 
 the doctrine. Occupation under the lease is not indispensa- 
 ble to the recovery, if the lease has been accepted.^ The 
 court say, it is enough that they accepted the conveyance 
 which gave them the right of immediate and exclusive occu- 
 pation. The law would imply from such acceptance a promise 
 to comply with the terms of the lease, and such a promise is 
 not within the statute of frauds.^ 
 
 Sec. 238. Mortgages. — A mortgage of land is within the 
 statute, and so is an agreement to execute a mortgage.* A. 
 mortgage that has been satisfied, or otherwise become de- 
 funct, or indeed any defunct agreement relating to the pur- 
 chase or sale of land cannot be reinstated by parol,^ nor can 
 a mortgage be extended by parol to cover other indebtedness 
 than that named therein,® or to embrace other lands than 
 those conveyed therein.' Not only is a parol mortgage within 
 the statute, but so also is an agreement to execute a mort- 
 gage,^ or indeed any agreement by which rights in real estate 
 are qualified or enlarged,^ as an agreement to convert a mort- 
 gage into a conditional sale,^" or a defeasance into an absolute 
 conveyance.^^ But while an agreement to foreclose a mort- 
 
 always been assumed that a parol ^ Davis v. Parish, Litt. Sel. Cas. 
 
 lease may be as special in its terms as (Ky.) 153. 
 
 a written one, and we are of the '^ Curie «. Eddy, 24 Mo. 117; Stod- 
 
 opinion that such is the case." dard v. Hart, 23 N. Y. 556 ; Williams 
 
 1 Pike V. Brown, 7 Cush. (Mass.) ti. Hill, 19 How. (IT. S.) 246. 
 133. ' Castro v. lilies, 13 Tex. 229. 
 
 2 Kabley v. Worcester Gas Light » Clabaugh v. Byerly, 7 Gill. (Md.) 
 Co., 102 Mass. 392. 334. 
 
 * Providence Christian Union v. ^ Irwin v. Hubbard, 49 Ind. 350; 
 Elliott, E. I. Sup. Ct. 1833. McEwan v. Ortman, 34 Mich. 325. 
 
 * Marquat v. Marquat, 7 How. Pr. ^o Woods v. Wallace, 22 Penn. St. 
 (N. T.) 417. 171. 
 
 11 Boyd V. Stone, 11 Mass. 342. 
 
438 
 
 STATUTE OP FEAtlDS. 
 
 [chap. VI. 
 
 gage is held to be within the statute,^ yet an agreement to 
 extend the time of payment thereon is not, nor,^ except in 
 those States where a mortgage is treated strictly as a convey- 
 ance of the land, rather than as a mere incident of the 
 debt, is a verbal release of a mortgage within the statute.' 
 
 strict but proper rule relating to real 
 estates, viz., that no interest for any 
 longer than three years should pass 
 in them without writing, nor any trust 
 in them for a longer time, unless the 
 trust arose by operation of the law. 
 That where a mortgage was made of 
 an estate, it was only considered as a 
 security for money due ; the land there 
 was the accident attending upon the 
 money ; and when the debt was dis- 
 charged, the interest in the land fol- 
 lowed, of course. In ejectment, where 
 a title was made under a mortgage, 
 if evidence was given that the debt 
 was satisfied, this was considered as 
 defeating the estate which the mort- 
 gagee had in the land; and in such 
 cases, especially where the mortgage 
 was ancient, the court would presume 
 that the money was paid at the day, 
 and would direct the jury to give their 
 verdict accordingly, unless it clearly 
 appeared that the money could not 
 be paid at the day. No writing was 
 in these cases necessary, wlilch showed 
 that, even at law, the debt was con- 
 sidered as the principal, and the land 
 only as the incident. Equity goes 
 farther, and in all cases holds that 
 when the debt appears to be satisfied, 
 there arises a trust by operation of 
 law for the benefit of the mortgagor ; 
 that the case is within the exception 
 in the statute of frauds as to trusts 
 arising by operation of law, and, in 
 this sort of cases, the court receives 
 any kind of evidence of payment ; 
 therefore, if a mortgage is made by 
 one partner to another, and the mort- 
 gagor agrees with the mortgagee that 
 he shall take a certain part of the 
 profits of the partnership in discharge 
 of the mortgage, that of itself would 
 discharge it. Here was a mortgage 
 made, and a bond at the same time 
 entered into for the performance of 
 covenants. Suppose an obligee deliv- 
 
 1 Cox V. Peeble, 2 Bro. C. C. 334. 
 
 2 GriflSn V. Cofiey, 9 B. Mon. (Ky.) 
 452 ; Hamilton v. Terry, 11 C. B. 954. 
 
 ' Leavitt v. Pratt, 53 Me. 147; 
 Phillips V. Leavitt, 54 id. 405 ; Haven 
 V. Adams, 4 Allen (Mass.) 80. In 
 Hunt V. Maynard, 6 Pick. (Mass.) 
 489, it was held that a court of 
 equity would not prevent a mort- 
 gagee from proceeding at law to re- 
 cover possession, because of a parol 
 agreement made by him with the as- 
 signee of the mortgagor that the as- 
 signee should hold the property dis- 
 charged from the mortgage. See also 
 Parker v. Barker, 2 Met. 423, where it 
 was held that where a morgagee en- 
 tered into a parol agreement with the 
 creditors of the mortgagor to relin- 
 quish his claim to the land mortgaged 
 if they would accept another mort- 
 gage upon the same land and give 
 him time for payment, was within 
 the statute; and that, although the 
 creditors acted upon the faith of 
 such agreement, and took the mort- 
 gage, etc., the mortgagee did not lose 
 his rights under his mortgage, and 
 that the creditors acquired no right 
 against the first mortgage. In Rich- 
 ards u. Sims, Bernard, 90, the mort- 
 gagor went to the house of the mort- 
 gagee with the box of writings, wherein 
 the mortgage and bond were, and of- 
 fered them to the mortgagee, but the 
 mortgagee put the deeds back, saying, 
 "Take back your writings; I freely f oi> 
 give you the debt " ; and then speak- 
 mg to the mortgagor's mother, who 
 was present, said : " I always told you 
 I would be kind to your son ; now you 
 see I am as good as my word." The 
 Lord Chancellob, upon this evi- 
 dence, observed, that the rule on this 
 head was the same, both at law and 
 in equity, and that his opinion was 
 that it might be admitted. That the 
 statute, indeed, had laid down a very 
 
SEC. 238.J 
 
 INTEEEST IN LANDS. 
 
 439 
 
 The discharge of a mortgage may be proved by parol both 
 at law and in equity.^ A parol agreement that if the 
 mortgagor will make no defence to the foreclosure of a 
 mortgage, that his equity of redemption shall not thereby 
 be barred, is not within the statute, but it will only be 
 treated as effective, when the evidence is clear and con- 
 clusive. Thus in a case in the United States Supreme 
 Court,2 A mortgaged land to B, and B foreclosed the same 
 
 ered up a bond, with intent to dis- 
 charge a debt, the debt would be cer- 
 tainly discharged ; and, if the bond 
 was discharged in the present case, 
 the debt would be discharged with it. 
 Accordingly, his lordship directed an 
 issue to inquire whether these expres- 
 sions were used or not, the evidence . 
 as to this point being doubtful. 
 
 When it was said by the Chan- 
 cellor, in the above case, that the 
 rule was the same both at law and in 
 equity, we must suppose him to advert 
 to the presumption of the reconvey- 
 ance or surrender of the interest at 
 law, and the annexation of the trust 
 in equity, as the media, by which the 
 interest in the land is made to follow 
 the debt in those respective judica- 
 tures ; and when his lordship is made 
 to say that equity goes farther, he 
 must be understood to mean that in 
 all cases, and consequently in some 
 where, from certain repelling circum- 
 stances, the presumption at law could 
 not arise to produce the effect of a 
 reconveyance of the legal estate, the - 
 courts of equity would compel the 
 formal transfer of the interest at law, 
 and in the meantime clothe it with a 
 trust for the party entitled. And it 
 seems that we must so understand 
 LoBD Mansfield, when, in speaking 
 on the same subject, his lordship ob- 
 serves : " That whatever will give the 
 money, will carry the estate in the land 
 along with it, to every purpose. The es- 
 tate in the land is the same thing as the 
 money due upon it ; it will be liable to 
 debts ; it will go to executors ; it will 
 pass by will not made and executed with 
 the solemnities required by the statute of 
 frauds. The assignment of the debt, 
 
 or forgiving it, will draw the land af- 
 ter it as a consequence ; nay, it will 
 do it, though the debt were only for- 
 given by parol, for the right to the 
 land would follow, notwithstanding 
 the statute of frauds." Martin o. 
 Mowlin, 2 Burr. 978. 
 
 If the mortgage debt is assigned 
 for valuable consideration, the benefit 
 of all the securities, including the in- 
 terest in the land, will pass from the 
 assignor to the assignee in equity. 
 The assignment is a contract in the 
 view of the courts of equity, which, 
 being grounded on a consideration of 
 value, these courts will carry into full 
 effect. And if such debt is assigned, 
 by parol, by the mortgagee, all the 
 securities for the debt become bene- 
 ficially vested in the assignee, so that 
 in this manner the interest in land may 
 be consequentially transferred, and a 
 contract concerning it be effectuated 
 without writing, notwithstanding the 
 1st, 3d, and 4th sections of the stat- 
 ute of frauds, and, not withstand- 
 ing courts of equity, are as much 
 bound by the statute as courts of 
 law. Green v. Hart, 1 John. (N. Y.) 
 580; Johnson v. Hart, 3 Johns. Cas. 
 (N. Y.) 322 ; Brownson v. Crosby, 2 
 Day (Conn.) 425 ; Austin v. Burbank, 
 2 Day (Conn.) 474; Boberts on 
 Frauds, 273. 
 
 1 Howard v. Gresham, 97 Ga. 347 ; 
 Wentz V. Durhaven, 1 S. & R. (Penn.) 
 312 ; Hemenway v. Bassett, 13 Gray 
 (Mass.) 378; Ackla v. Ackla, 6 Penn. 
 St. 288; Richards v. Sims, Bern, 90; 
 McDaniels v. Lapham, 21 Vt. 222; 
 Baker v. Wimpee, 22 Ga. 69. 
 
 2 Howland v. Blake, 97 U. S. 624. 
 
440 STATUTE OP FEATTDS. [CHAP. VI. 
 
 by a decree of court, and the land was afterwards conveyed 
 to C. Eight years after B's death, A filed a bill against C, 
 alleging an oral agreement whereby A agreed to make no 
 defence to the suit for foreclosure, and B agreed that the 
 equity of redemption should not thereby be barred ; that C 
 took with full knowledge of the agreement, and also agreed 
 that when he, C, was reimbursed out of the rents and profits 
 of the land, he would convey it to A. It was held : 1st. That 
 in order to make out his alleged agreement with B, the bur- 
 den was upon A to produce evidence of such weight and 
 character as would justify a court in reforming a written in- 
 strument which, upon the ground of mistake, did not set 
 forth the intention of the parties thereto. 2d. That such 
 evidence not having been produced to show the alleged 
 agreement, and A's continuing interest in the land, his oral 
 agreement with C was void under the statute of frauds. A 
 question sometimes arises as to whether property covered by 
 a mortgage is real estate or personalty. Thus, a mortgage 
 of growing grass by the owner of the land does not Work a 
 constructive severence of the grass, until the mortgage has 
 become absolute ; therefore, up to that period, at least, it is 
 treated' as a mortgage of realty,^ and the same rule prevails 
 as to trees and growing timber. But where the title of the 
 land is in one and that of the grass or growing timber is in 
 another, it is treated as severed, and as personal property, 
 and may be sold or mortgaged by parol,^ or in any event may 
 be mortgaged as personal property, and the same rule applies 
 as to fixtures.^ 
 
 Sec. 239. Parol Gift of Mortgage. — A mortgage will not 
 pass under a parol gift either of the debt or the security, for 
 the reason that, in order to give effect to a gift, there must 
 be an actual delivery, of which the security is incapable. 
 Mk. Robbets, in his excellent treatise on the statute of frauds, 
 says : " As a mere gift must be effectuated or proved by de- 
 
 1 Bank of Lansingburgh v. Crary, 580 ; Douglass v. Shumery, 13 Gray 
 1 Barb. (N. Y.) 542 ; Smith v. Jenks, (Mass.) 498. 
 
 1 Den. (N. Y.) 586. See also, upon = Thompson u. Pettitt, 10 Q. B. 101. 
 
 this question, Pierce v. Goddard, 22 In New Hampshire, by statute, per- 
 
 Pick. (Mass.) 559; Eastman v. Foster, sonal property and crops are subject 
 
 8 Met. (Mass.) 19, as to buildings. to mortgage. 
 
 2 Claflin!).Carpenter,4Met.(Mass.) 
 
SEC. 240.] INTEREST IN LANDS. 441 
 
 livery, the question seems to be simply this, Is a mortgage 
 a thing capable of being delivered? ... A mortgage is 
 composed of two things, the debt and the security. The 
 debt is a chose in action, and as such, is incapable of delivery, 
 being an incorporeal existence ; and the statute seems very 
 plainly and emphatically to preclude any primary or direct 
 transfer of the interest in land, which, as has been endeavored 
 to be shown, can only pass in equity as consequential to the 
 debt, which assignment takes place in the nature of a con- 
 tract in equity, where it is supported by a valuable consider- 
 ation. But the delivery of the mortgage deed, by way of 
 gift, can only transfer the debt as an accessory, regarding the 
 mortgage as the principal ; but the truth being that the debt 
 is the principal, and the mortgage of the land the accessory, 
 we cannot suppose the debt to follow the gift or delivery of 
 the mortgage deed, without reversing the maxim of law and 
 logic accessorium sequitur principale" ^ But if a bond ac- 
 companied the mortgage, its delivery might be good to per- 
 fect the gift, it being for many purposes considered as goods.^ 
 
 Sec. 240. Equitable Mortgage by Deposit of Title-deeds. — 
 
 Notwithstanding the statute of frauds, it has long beert set- 
 tled that a deposit of title-deeds by the owner of an estate, 
 either for the purpose of securing a debt already due, or a sum 
 of money advanced at the time the deposit is made, operates as 
 a mortgage, and gives the mortgagee not only the right of 
 keeping the deeds until repayment of the money due, but 
 also an interest in the land itself to which the deeds relate, 
 sufficient to enable him to maintain an action for a sale. 
 The leading case on this branch of the law is Russel v. Rus- 
 sel.^ There, a lease having been pledged by a person (who 
 afterwards became a bankrupt) to the plaintiff, as a security 
 for a sum of money lent to the bankrupt, the pledgee filed a 
 bill for a sale of the estate. The assignees contended that 
 the claim was against the law of the land, for that it would 
 be charging land without writing, which is against the fourth 
 clause of the statute of frauds. Loed LoTrGHBOKOTTGH, 
 L. C, said that it was a delivery of the title to the plaintiff 
 
 1 Roberts on Frauds, 279. ' 1 Bro. C. C. 269. 
 
 2 Snelgrow v. Bailey, 3 Atk. 214. 
 
442 STATUTE OP FEAUDS. [CHAP. VI. 
 
 for a valuable consideration, and that the court had nothing 
 to do but to supply the legal formalities; and Ashuest, 
 L. C, that it was open to explanation upon what terms the 
 lease was delivered. An issue was directed to try whether 
 the lease was deposited as a security for the sum advanced 
 hy the plaintiff to the bankrupt, and the jury found that it 
 was. In a marginal note the reporter adds that he was in- 
 formed that the cause came on afterwards before Loed 
 Thuelow on the equity reserved, when his lordship ordered 
 that the lease should be sold and the plaintiff paid his money. 
 
 The doctrine of equitable mortgage by deposit of title^ 
 deeds was much disapproved of by Loed Eldon ; ^ but the 
 case of Russel v. Russel ^ has been uniformly followed, and 
 considered to be of binding authority .^ 
 
 In Lacon v. AUen,* Kindeesley, V.C, said: "Now, since 
 the case of Russel v. Russel, this is well established, that 
 supposing A, owing money to B, deposits the title-deeds of 
 his estates with B for the purpose of a security, even with- 
 out any writing, it is a good equitable mortgage ; it gives B 
 a lien; and notwithstanding the expressions of regret of 
 Loed Eldon that the law should be so, even in his time we 
 find him saying he could not disturb it ; since that time it 
 has been acted upon over and over again. That doctrine 
 cannot now, then, be disturbed." ^ In this country the doc- 
 trine that an equitable mortgage may arise from a deposit 
 of title-deeds, etc., does not generally prevail, although it Is 
 recognized in New York,^ Rhode Island,'^ Wisconsin,* Maine,® 
 South Carolina,!" and in Mississippi," for such a length of time 
 only as a lease of land may be made by parol. In Vermont ^ 
 the question has not been definitely settled. In Pennsyl- 
 
 1 See ex parte Coming, 9 Ves. 117 ; Eockwell t'. Hobby, 2 Sandf. Ch. (N. 
 ex parte Haigh, 11 Ves. 403; ex parte Y.) 9; Mandeville v. Welch, 5 Wheat. 
 Hooper, 1 Mer. 9 ; ex parte Whitbread, (TJ. S. ) 277. 
 
 1 Rose, 299. « Rockwell v. Hobby, 2 Sandf. Ch. 
 
 2 1 Bro. C. C. 269. (N. Y.) 9. 
 
 ' See cases above cited and ex parte ' Hackett v. Keynolds, 4 R. I. 512. 
 
 Wetherell, 11 Ves. 401 ; ex parte Mount- * Jarvis v. Butcher, 16 Wis. 307. 
 
 fort, 14 Ves. 606 ; ex parte Kensington, ^ Hall v. McDufE, 24 Me. 311. 
 
 2 v. & B. 79; 2 Rose, 138. m Welsh ,,.. XJsher, 2 Hill (S. C.) 
 
 4 3 Drew. 582. Eq. 166. 
 
 6 And see National Bank of Aus- " Gothard v. Flynn, 25 Miss. 58. 
 
 tralasia v. Cherry, L. R. 3 P. C. C. ^ Bicknell v. Bicknell, 31 Vt. 498. 
 299; Carey w. Eawson, 8 Mass. 159; 
 
SEC. 242.] INTEBEST IN LANDS. 443 
 
 vania, where the deposit is accompanied hy a certificate under 
 seal, describing the property and the particular debt for the 
 security of which the deposit is made, with a farther agree- 
 ment to convey the land if the debt is not paid within a 
 reasonable time, it is held to amount to a mortgage,^ but 
 the English doctrine relative to the creation of an equitable 
 mortgage by a deposit of the title-deed, is rejected,^ and 
 such also is the case in North Carolina,* Ohio,* Tennessee,® 
 and Kentucky.® 
 
 Sec. 241. Special Agreement not Necessary. — The mere fact 
 of deeds being dqoosited with the intention to create a security is 
 sufficient; it is not necessary that there should have been a special 
 agreement to mortgage, the deposit creates a presumption that such 
 was the intention of the parties,'^ at least as against strangers, in 
 cases where the possession of the title-deeds can be accounted 
 for in no other manner except from their having been depos- 
 ited by way of equitable mortgage, or the holder being other- 
 wise a stranger to the title and to the deeds.^ In Ex parte 
 Moss, Me Davies,^ an equitable mortgagee, by deposit of 
 shares in a public company, without a written memorandum, 
 was held to be entitled to his costs on evidence of a custom 
 not to give a written memorandum. 
 
 Sec. 242. 'What interest Passes. — The deposit of title- 
 deeds prima fade creates an equitable mortgage upon the 
 whole property comprised in them.i** The depositee is only 
 entitled to the depositor's interest in the property, and there- 
 fore an equitable mortgagee from a vendee who has not paid 
 the purchase-money, can only sell the depositor's interest 
 
 1 Luck's Appeal, 44 Penn. St. 579. ' Featherstone u. Fenwick, 1 Bro. 
 But equity will not enforce the return C. 0. 269, n. ; Hurford v. Carpenter, ib.; 
 of deeds so deposited. Sidney v. Ste- Richards o. Borrett, 3 Esp. 102 ; ex 
 venson, 11 Phila. (Penn.) 178. parte Kensington, 2 V. & B. 83; 2 
 
 2 Shitz !). Dieffenbach, 3 Penn. St. Rose, 138 ; Hankey v. Vernon, 2 Cox, 
 233 ; Bowery v. Oyster, 3 Penn. 239. 12 ; ex parte Mountfort, 14 Ves. 606 ; 
 
 3 Harper v. Spainhour, 64 N. C. 629. ex parte Wright, 19 Ves. 258. 
 
 * Probasco v, Johnson, 2 Dis. (Ohio) ' Bozon v. Williams, 3 Y. & J. 150 ; 
 
 96. Rockwell v. Hobby, 2 Sandf . Ch. (N. 
 
 ' Meador v. Meador, 3 Heisk. Y.) 9. 
 
 (Tenn.) 562. « 3 De G. & Sm. 599. 
 
 6 Vanmeter v. McFaddin, 8 B. Mon. '» Ashton v. Dalton, 2 Coll. 565. 
 (Ky.) 435. 
 
444 STATUTE OV FEATTDS. [CHAP. VI. 
 
 unless the vendee consents.-' The charge will extend to an 
 interest accruing after the date of the deposit ; as by ihe dis- 
 charge of an incumbrance,^ or by a partition.^ 
 
 Where the unexpired term in a lease and the good will of 
 a business established in it, were sold in a creditor's suit, 
 with the consent of a person with whom the lease had been 
 deposited as a security, and brought a price less than the 
 amount of his debt, it was held that the equitable mortgagee 
 was entitled to the whole of the purchase-money, whether 
 arising from the value of the good will, or from the value of 
 the lease independently of the good will.* 
 
 Seo. 243. Explanation of Extent of Charge. — The inten- 
 tion to give a general charge upon all the property comprised 
 in the deeds deposited, may be explained when the memo- 
 randum is defective, by other written memoranda of the 
 agreement.* 
 
 Sec. 244. Deposit of Copies of Court Rolls, etc. — An 
 equitable mortgage may be created by the deposit of a 
 copy of court roUs,^ or by the deposit of a contract for 
 a sale of land.'' 
 
 Sec. 245. Deposit of Shares in Joint-Stock Company. — In 
 
 the case of shares in a company, the instrument creating the 
 company usually contains provisions for the transfer of the 
 shares in a particular form. But notwithstandiag such pro- 
 visions, and the provisions in various statutes that no notice 
 of any trust, express, implied, or constructive, shall be en- 
 tered on the register, it is now settled that an equitable 
 mortgage may be created by the deposit of share certificates 
 iu a joint-stock company, such as an insurance,^ mining,® 
 
 1 Ex parte 'Wright, re Watts, 3 M. Pryce v. Bury, 2 Drew. 11 ; ex parte 
 
 & A. 49; and see ex parte Smith, re Warner, re Cooke, 19 Yes. 202; 1 
 
 Hildyard, 2 M. D. & De G. 587. Rose, 286 ; Whithread v. Jordan, 1 Y. 
 
 '2 Ex parte Bisdee, re Baker, 1 M. & C. Exch. Ca. 303. 
 D. & De G. 333. 7 xhe Unity Joint Stock Mutual 
 
 " Ex parte Farley, re New, 1 M. D. Banking Association v. King, 25 Beav. 
 
 and De G. 683. 72. 
 
 * Chissum v. Dewes, 5 Euss. 29. ^ Ex parte Masterman, in re Litt. 2 
 
 ^ Ex parte Glyn, re Medley, 1 M. D. M. & A. 209 ; ex parte Littledale, re 
 
 & De G. 29 ; ex parte Loyd, re Ogden, Pearse, 6 D. M. G. 714. 
 1 M. & A. 494; 3 D. & C. 765. » Ex parte Eichardson, in re Rioh- 
 
 8 Winter v. Lord Anson, 3 Euss. ardson, M. & C. 43. 
 493; Tylee «. "Webb, 6 Beav. 552; 
 
SEC. 247.] INTEKBST IN LANDS. 445 
 
 merchant sliipping,^ railway ,2 or dock company.' The object 
 of the prohibition is simply that the title of the shareholders 
 in the books of the company shall be kept wholly unincum- 
 bered and unaffected by any notice of equitable dealings.* 
 But as the shares are still in the case of traders, in the 
 possession, order, and disposition of the mortgagor, notice 
 of the deposit must be given by the mortgagee to the com- 
 pany, in order to take the property out of the order and 
 disposition of the mortgagor ; otherwise the shares wUl, in 
 case of his bankruptcy, pass to his assignees.^ 
 
 Sec. 246. PoUoy of insurance. — An equitable mortgage 
 may also be created by the deposit of a policy of insurance.^ 
 Formerly it was necessary to give the com-pany notice of the 
 deposit, in order to take the policy out of the reputed owner- 
 ship and disposition of the debt or in case he became bankrupt 
 or insolvent.'^ But in England, since the bankruptcy act,* 
 this is not necessary, as policies of insurance are choses in 
 action, and not within the doctrine of reputed ownership.^ 
 
 Sec. 247. Deeds Relating to Property Abroad. — Where, by 
 the law of a foreign country, no lien or equitable mortgage 
 is created by the deposit of deeds, the mortgage will, if the 
 parties are resident in this country, be enforced to this ex- 
 tent, that, if the property comes into the hands of assignees, 
 they will be compelled to pay the debt out of the proceeds 
 
 1 Ex parte Pooley, in re Atkinson, * Ex parte Lancaster Canal Co., in 
 2 M. D. & De G. 505. re Dilworth, 1 D. & C. 411 ; ex parte 
 
 2 Ex parte Harrison, re Medley, 3 Boulton, in re Sketchley, 1 De G. & J. 
 M. & A. 506 ; ex parte Dobson, re 163 ; ex parte Stevens, in re Stevens, 4 
 Boult, 2 M. D. & De G. 685. D. & C. 117 ; ex parte Pooley, in re At- 
 
 ' Ex parte Littledale, re Pearse, 6 kinson, 2 M. D. & De G. 505 ; Union 
 
 D. M. G. 714. Bank of Manchester, in re Jackson, L. 
 
 * Ex parte Stewart, in re Shelley, E. 12 Eq. 354. 
 11 Jur. (N. S.) 25; 34 L. J. Bkcy. 6; « Ferris v. Mullins, 2 Sm. & Giff. 
 
 13 W. E. 356 ; and see Binney v. Ince 378. 
 
 Hall Coal Co., 35 L. J. Ch. 363 ; over- ' Ex parte Boulton, re Sketchley, 
 
 ruling a doubt raised in ex parte Boul- 1 De G. & J. 163 ; 3 Jur. (N. S.) 425. 
 ton, in re Sketchley, 1 De G. & J. 163, 8 32 & 33 vict, c. 71, § 15, sub § 5. 
 
 as to whether an equitable mortgage ' Edwards v. Martin, L. R. 1 Eq. 
 
 valid against assignees in bankruptcy 121 ; Green v. Ingram, L. R. 2 C. P. 
 
 of the mortgagor could be made of 525; re Webb's Policy, L. R. 2 Eq. 
 
 railway shares, having regard to the 456 ; in re Russell's Policy Trusts, L. 
 
 Companies Clauses Consolidation Act, E. 15 Eq. 26 ; Alletson v, Chichester, 
 
 1845, § 20. L. E. 10 C. P. 328. 
 
446 STATUTE OP FKATTDS. [CHAP. VI. 
 
 of the sale of the property.^ Where an agreement to deposit 
 deeds of a house in Shanghai was begun in Prussia, but con- 
 cluded in England, and the deposit was made in England, it 
 was held that the contract must be governed by English law 
 and that the depositees had a good security on the house.^ 
 
 A deposit of a " minute " of a lease of a house and land, 
 and an agreement to pledge chattels in Scotland, does not 
 require to be registered under the Bills of Sales Act.* 
 Where according to the law in a colony, a deposit of title- 
 deeds would not amount to a mortgage, but the parties con- 
 tract without reference to any particular law, and the general 
 law of the colony is English, an equitable mortgage may be 
 created by the deposit of title-deeds.* 
 
 Sec. 248. whether Mortgagor Bound to Execute Legal 
 Mortgage. — By the deposit the mortgagor contracts that his 
 interest shall be liable to the debt, and that he will make 
 such conveyance, or assurance, as may be necessary to vest 
 his interest in the mortgagee. He does not contract that he 
 will make a perfect title, but he does bind liimself to do all 
 that is necessary to have the effect of vesting in the mort- 
 gagee such interest as he, the mortgagor, has.^ But the 
 mortgagor will not in every instance be entitled to compel 
 the mortgagee to execute a formal mortgage ; the course of 
 dealing between the parties may show that it was never in- 
 tended that there should be anything more than a deposit of 
 the deeds. Thus where title-deeds were deposited by the 
 defendant with the plaintiff as an indemnity against contin- 
 gent payments, but there was no agreement to execute a 
 formal mortgage, and before the plaintiff had made any pay- 
 ment, he filed a bill to have a formal mortgage executed ; it 
 was held that he was not entitled, thereto, but only to a 
 memorandum signed by the defendant, specifying the terms 
 of the deposit.^ 
 
 Sec. 249. Adverse Possession. — Some doubt has been 
 thrown upon Lord Eldon's dictum in Ex parte Coming,^ 
 
 1 Ex parte Pollard, in re Courtney, * Varden Seth Sam v. Luckpathy 
 Mon. & C. 239. Eoyjee Lallah, 9 Moo. Ind. App. 303. 
 
 2 Ex parte Holthausen, re Soheib- ^ pyyce v. Bury, 2 Drew. 42, per 
 ler, L. R. 9 Ch. 722. Kinderslet, V. C. 
 
 8 17 & 18 Vict. c. 36; Coote v. 6 Sporle k. Whayman, 20 Bear. 607. 
 Jecks, L. K. 12 Eq. 597. ' 9 Ves. 115. 
 
SEC. 250.] INTEREST IN LANDS. 447 
 
 that the fact of the adverse possession of the deeds in the 
 person claiming a lien, was a fact that entitled the court to 
 give an interest.^ In the case of Chapman v. Chapman,^ the 
 bill which was filed in 1846 alleged that in 1827 the plaintiff 
 had lent to the testator, Robert Chapman, the sum of £1,900 
 upon his bond and the deposit of the title-deeds of a freehold 
 estate, that the testator died in 1831, and that interest on the 
 debt had been paid by the testator and his executors down 
 to 1843. The only evidence given by the plaintiff was the 
 bond and the production of the title-deeds ; but no evidence 
 whatever was given of the circumstances under which the 
 deeds had come into the plaintiff's possession ; and the equi- 
 table deposit was not admitted by the parties entitled to the 
 estate. It was held that no equitable mortgage had been 
 constituted, and that there was not sufficient ground for an 
 inquiry before the master. But in Smith v. Constant,^ the 
 defence to a claim, seeking the usual order in the case of an 
 equitable mortgage, was, that no money had ever been ad- 
 vanced, but that the deeds were placed in the plaintiff's 
 hands with a view to a future loan ; Knight Beuce, V.C, 
 however, thought that the retention of the deeds was con- 
 sistent with probability if an advance had been made, but 
 utterly inconsistent if it had not.* 
 
 Sec. 250. Subsequent Advances. — An equitable mortgage 
 by deposit of title-deeds will cover subsequent advances by 
 the same person upon evidence that they were made upon 
 the existing security, and it is not necessary that there should 
 be a return and fresh deposit of the deeds in order to take a 
 case out of the statute.* And a deposit of deeds as a secur- 
 
 1 Norris V. Wilkinson, 12 Ves. 197, pointed out that in Chapman v. Chap- 
 
 per Sir W. Grant, " to connect a man, the plaintiff, in the then state of 
 
 debt of long standing with the pos- the law, could not have been allowed 
 
 session of the debtor's deeds, the to give evidence as the plaintiff in the 
 
 creditor must proceed upon a dis- cause ; and the judgment of Lord 
 
 tinct allegation, supported by proper Cairns in the recent case of Shaw v. 
 
 evidence, that they were delivered to Foster, L. E. 5 H. L, 337. 
 him by way of security." 1 Fisher on ^ Ex parte Langston, 17 Ves. 227 ; 
 
 Mortgages, 2d ed.,. p. 32. ex parte Heam, re Hamlyn Buck, 165 ; 
 
 ' 13 Beav. 308. ex parte Nettleship, re Burkhill, 2 M. 
 
 « 4 De G. & Sm. 213. D. & De G. 124 ; Ede v. Knowles, 2 
 
 * And see Burgess v. Moxon, 2 Jur. Y. & C. C. C. 172 ; Baynard v. Wool- 
 
 (N. S.) 1059; Maugham v. Ridley, 8 ley, 20 Beav. 586; Maugham v. Rid- 
 
 L. T. (N. S.) 309, where Wood, V. C, ley, 8 L. T. (N. S.) 309. 
 
448 STATUTE OP FEAXTDS. [CHAP. VI. 
 
 ity for any advance which " may " be made, will extend to 
 past as well as future advances.^ The evidence must be 
 clear that the advance was made upon security of the de- 
 posit.2 
 
 In Hx parte Kensington,^ Loed Eldon said, that where the 
 deposit originally was for a particular purpose, that purpose 
 may be enlarged by a subsequent parol agreement ; and the 
 distinction appeared to him to be too thin, that you should 
 not have the benefit of such an agreement, unless you added 
 to the terms of that agreement the fact that the deeds were 
 put back into the hands of the owner, and a redelivery of 
 them required, on which fact there is no doubt that the de- 
 posit would amount to an equitable lien within the principle 
 of the cases. 
 
 Where money was advanced at £6 per cent on a promis- 
 sory note and a deposit of title-deeds of freehold property as 
 a collateral security, and afterwards it was agreed by parol 
 that a legal mortgage should be executed by the borrower to 
 secure the amount advanced with interest at £5 per cent, 
 but no mortgage was executed, it was held that the parol 
 agreement was sufficient to change the contract to a legal 
 one, and that a return and fresh deposit of the title-deeds 
 was not necessary to take the second contract out of the 
 statute of frauds, Tttener, L. J., saying : " The deeds being 
 in the hands of the plaintiff, and there being a parol agree- 
 ment to give him a legal mortgage, I think the case falls 
 within the principle of Ex parte Kensington,* and that the 
 plaintiff is entitled to a decree." ^ 
 
 Sec. 251. Sub-Mortgage. — To create an equitable sub- 
 mortgage by redeposit of deeds originally deposited by way 
 of equitable mortgage, it is not necessary that the written 
 memorandum accompanying the first transaction should be 
 deposited upon the second.^ Where a debtor deposited his 
 title-deeds with his creditor until such time as his account 
 
 1 Ex parte Parley, re New, 1 M. D. * 2 V. & B. 79 ; 2 Eose, 138. 
 
 & be G. 683 ; ex parte Smith, re Hild- « James v. Rice, 5 D. M. G. 461, 
 
 yard, 2 M. D. & De G. 587 ; Whitworth overruUng S. C. Kay, 231 ; and see 
 
 V. Gaugain, 3 Hare, 416. National Bank of Australasia i>. 
 
 2 Ex parte Whitbread, 19 Ves. 209 ; Cherry, L. E. 3 P. C. 304. 
 
 James v. Bydder, 4 Beav. 600. ^ ^jx parte Smith, re Hildyard, 2 
 
 8 2 V. & B. 84; 2 Rose, 138. M. D. & De G. 587. 
 
SEC. 254.] INTEEEST IN LANDS. 449 
 
 should not exceed jBlOO, at which time they were to be re- 
 stored to him, and died indebted to the creditor in £274, it 
 was held that the creditor's lien extended to the whole 
 £274.1 
 
 Sec. 252. Legal Mortgage not Security for Subsequent Ad- 
 vances. — A legal mortgage will not be considered as a secur- 
 ity for subsequent advances, made on the strength of a parol 
 agreement. The mortgagee is not entitled to say that he 
 holds the conveyance as a deposit; because the contract 
 under which he holds is a contract for conveyance only, and 
 not for deposit.2 But where a trader execiited a mortgage 
 of real estate, with a borrowing clause, and deposited the 
 title-deeds with the mortgagee, and subsequently accepted a 
 bill drawn by third parties, and being unable to pay the bill 
 when at maturity, wrote to the drawer to say that it should 
 be paid out of the produce of the mortgaged premises, and 
 that he would not take his title-deeds out of the mortgagee's 
 hands until the bill was paid, and the mortgagees communi- 
 cated to the drawers their consent to this arrangement, it was 
 held that the drawers were entitled to an equitable mort- 
 gage.* 
 
 Sec. 253. Rectification of Accompanying Instrument. — 
 
 Where an instrument accompanying the deeds has been, by 
 mistake, so prepared as to be illegal, it may be reformed, so 
 as to give effect to the equitable deposit. Thus, where the 
 plaintiff had lent the defendant a sum of , money on his bond 
 and an equitable deposit, and the bond on the face of it was 
 usurious, and the plaintiff (who had failed on this ground in 
 an action at law) came into equity showiag that the bond 
 had been erroneously prepared, and that in fact, the contract 
 was not usurious, and praying that the instrument might be 
 reformed and effect given to his equitable deposit, the court, 
 being satisfied of the error, held that the plauitiff was en- 
 titled to the relief he asked.* 
 
 Sec. 254. 'Whether a Deposit of Deeds for Purpose of Pre- 
 paring a Legal Mortgage Creates an Equitable Mortgage. — Some 
 
 1 Ashton V. Dalton, 2 Coll. 565. ' Ee Henry, ex parte Crossfield, 3 
 
 ^ Ex parte Hooper, re Hewett, 1 Ir. Eq. 67. 
 Mer. 7 ; and see Shepherd h. Titley, * Hodgkinson v. Wyatt, 9 Bear. 
 
 2 Atk. 348. 566. 
 
450 STATUTE OP FKATJDS. [CHAP. VI. 
 
 doubt has been raised as to whether the deposit of title-deeds 
 for the purpose of preparing a legal mortgage creates an 
 equitable mortgage.^- But the later authorities have decided 
 that under these circumstances, a valid equitable mortgage 
 is created. In Edge v. Worthington,^ A offered to give the 
 plaintiff a legal mortgage, and sent the title-deeds to C, the 
 plaintiff's solicitor. The mortgage was prepared and exe- 
 cuted, but it was alleged that before the execution, A had 
 committed an act of bankruptcy. Sir Lloyd Kbnyon, M.R., 
 held that there was a valid equitable mortgage from the time 
 of the deposit. 
 
 In Ux parte Bruce,^ where a petition for a sale was resisted 
 on the ground that the deeds had been delivered to him, not 
 as the security, but in order that a legal mortgage might be 
 prepared, Loed Eldon said: "The principle of equitable 
 mortgage is, that the deposit of the deeds is evidence of the 
 agreement ; but if they are deposited for the express purpose 
 of preparing the security of a legal mortgage, is not that 
 stronger than an implied intention?" and in Ux parte 
 Wright,* his lordship said that the deposit of title-deeds until 
 a mortgage is evidence of an agi'eement for a mortgage, and 
 that an equitable title to a mortgage is in equity as good as 
 a legal title. Again, in Hockley v. Bantock,^ Lord Giffokd 
 held that an agreement to give a legal mortgage, together 
 with the delivery of the title-deeds, for the purpose of having 
 a legal mortgage prepared, constituted, an equitable mort- 
 gage.^ 
 
 Sec. 255. Presumption of Mortgage may be Rebutted by 
 Evidence. — Though a deposit of deeds without any express 
 agreement will create an equitable mortgage, yet, if the cir- 
 cumstances under which they are left raise an inference that 
 such was not the purpose of the party delivering them, the 
 
 1 See Brander u. Boles, Prec. Ch. " 1 Rose, 374. 
 275 ; Brizeck v. Manners, 9 Mod. 284 ; « 19 Ves. 258. 
 ex parte Bulteel, 2 Cox, 243; Norris » 1 Russ. 141. 
 
 V. Wilkinson, 12 Ves. 192 ; R. v. Ben- 6 gge also Keys v. 'WiUiams, 8 Y. 
 
 son, cited 6 Price, 467 ; ex parte Pearse & C. Exch. 62 ; James v. Rice, 5 De 
 
 & Prothero, 1 Buck. 525 ; ex parte G. M. & G. 461 ; Fenwiek v. Potts, 8 
 
 Hooper, 1 Mer. 7 ; 19 Ves. 477 ; Pain ib. 506 ; Lloyd v. Attwood, 3 De G. & 
 
 V. Smith, 2 My. & K. 417. J. 614; Bulfin v. Dunne, 11 Ir. Ch. 
 
 2 1 Cox, 211. 198. 
 
SEC. 256.] INTEKEST IN LANDS. 451 
 
 deposit will not have this effect.^ Thus where A, who was 
 indebted to certain bankers for advances made on sugars, 
 afterwards applied to them with the lease in question, re- 
 questing them to advance money on it, which they declined 
 to do, but he left it with them without making any declara- 
 tion of his reasons for so doing, it was held that the bankers 
 had no lien upon the lease for their debt.* 
 
 Again, the possession of a client's deeds by a solicitor is 
 so usual and so much in the ordinary course of transactions, 
 that where a person purchases an estate, and is informed that 
 the deeds are in the hands of the solicitors of the owner of 
 the estate, there is nothing in that circumstance which ren- 
 ders it necessary for him to inqidre under what circumstances 
 the solicitor holds the deeds.^ 
 
 Where one Oakley by deed mortgaged freeholds to Phil- 
 lips, and at the same time the title-deeds, not only of the 
 freeholds, but of leaseholds belonging to Oakley, were deliv- 
 ered to Phillips, it was held, in the absence of proof to the 
 contrary, that Phillips had no lien on the leaseholds for the 
 money advanced.* 
 
 Sec. 256. Parol Evidence not Admissible to Contradict Mem- 
 orandum. — Parol evidence is not admissible to contradict a 
 memorandum or statement in writing of the circumstances 
 under which a deposit has been made.® But parol evidence 
 is admissible to extend the lien evidenced by a written mem- 
 orandum,^ or to show that the depositee is a trustee for an- 
 other.'' In England it is held that a memorandum in writing 
 accompanying a deposit of title-deed, it seems, requires an 
 
 1 Byth. Free. 3d ed. Ill ; and see Lloyd v. Attwood, 3 De G. & J. 651 ; 
 ex parte Langston, 17 Ves. 227 ; Edge 5 Jur. (N. S.) 1322. 
 
 V. Worthington, 1 Cox, 211 ; Ede v. * Wardle v. Oakley, 36 Beav. 27. 
 Knowlcs, 2 T. & C. C. C. 172; and « Ex parte Coombe, 17 Ves. 369; 
 
 where the mortgagee fails at the ex parte Borrcdaile, re Bucker, 2 M. 
 
 hearing to produce satisfactory eri- & A. 398; Baynard v. WooUey, 20 
 
 dence of the deposit, he will not be Beav. 583, where the document was 
 
 entitled to an inquiry upon the sub- attempted to be contradicted by the 
 
 ject. Holden v. Heam, 1 Beav. 445. answer. 
 
 2 Lucas V. Dorrien, 1 Moo. 29 ; 7 * Ex parte Kensington, 2 V. & B. 
 Taunt. 278. 79 ; 2 Rose, 138 ; ex parte Nettleship, 
 
 3 Bozon V. Williams, 3 T. & J. 150. 2 M. D. & De G. 124. 
 
 As to the solicitor holding the deeds '' Ex parte Whitbread, 19 Ves. 209 ; 
 
 as trustee for another person, see ' 1 Eose, 209. 
 
452 STATUTE OF FRAUDS. [CHAP. VI. 
 
 ad valorem stamp.^ But the fact of the memorandum being 
 inadmissible as an agreement unstamped, does not prevent 
 parol evidenoe, otherwise admissible, being given to prove 
 the mortgage.^ 
 
 Sec. 257. Sale in Bankruptcy. — The common order for 
 sale was refused in bankruptcy where there was no memo- 
 randum, the deeds having been deposited twelve years pre- 
 viously, and the bankrupt being dead.* But where, on the 
 petition of an equitable mortgagee with a memorandum of 
 deposit for the usual order for a sale, it appeared that the 
 space of time between the alleged deposit and the issuing of 
 the fiat was very short, an inquiry as to the nature of the 
 transaction was ordered.* 
 
 Sec. 258. Parol Agreement to Deposit Deeds does not Con- 
 stitute Equitable Mortgage. — A parol agreement to deposit 
 title-deeds as a security for a sum advanced does not consti- 
 tute an equitable mortgage. Thus, where money was ad- 
 vanced on the deposit of a lease, and a further sum was 
 advanced to enable the lessee to obtain a renewal, upon a 
 parol agreement to deposit the renewed lease when obtained, 
 and the lessee became bankrupt before the lease was given 
 up by the lessor's solicitor, it was held that there was no 
 equitable deposit.^ There must be some actual deposit, and 
 therefore an order on a third party to deposit a lease when 
 executed is not sufficient.® 
 
 Sec. 259. Delivery to 'Wife of Depositor. — A delivery of 
 deeds to the wife of the depositor to be held between him 
 and the creditor, was decided in Ex parte Coming,'^ not to be 
 a deposit so as to create a lien, the possession of the wife 
 being in law the possession of the husband. " No case," said 
 his lordship, " has gone the length, though I do not see the 
 reason that, if the deposit is in the hands of a person who 
 could fairly be called a third person, abstracted from both, 
 
 1 Wisew. Charlton, 4 Ad. &E1. 786; 6 Ex parte Coombe, 4 Madd. 249; 
 6 N. & M. 364. ex parte Halifax, re Eidge, 2 M. D. & 
 
 2 Hiem v. Mill, 13 Ves. 114. De G. 544. 
 
 8 Ex parte Jones, re Oliver, 3 M. & ^ jgj; parte Perry, re Collins, 3 M. 
 
 A. 152, 327. D. & De G. 252. 
 
 * Ex parte Clouter, re Lindon, 7 ' 9 Ves. 115. 
 Jur. 135. 
 
SEC. 260.] rNTUBEST IN LANDS. 463 
 
 that can be considered a deposit for the creditor, provided 
 that is proved to be the intention. But it is very delicate, 
 vrhen the deposit remains in the hands of the mortgagee him- 
 self ; and I doubt much whether a mere memorandum, kept 
 in his own possession, and not parted with to the man in 
 whose favor it is expressed, would take it out of the statute. 
 It is very nearly the same where the deeds are put into the 
 hands of the wife of the mortgagor, to keep them as between 
 her husband and the creditor." 
 
 Sec. 260. Deeds Remaining in Possession of Debtor. — An 
 
 equitable mortgage may be created although the deeds re- 
 main in the possession of the debtor, when there is a written 
 memorandum or agreement showing an intention to deposit 
 the deeds or to charge the property comprised in them.^ 
 Thus, an agreement to deposit a lease when granted, and which 
 is granted, creates an equitable mortgage, unless the bona 
 fides of the agreements is questioned.^ In Ferris v. Mullins,* 
 the secretary of a banking company had a credit account 
 with the bank to the extent of ^3,000, secured by a memo- 
 randum specifying certain securities deposited by way of 
 equitable mortgage. On his dying a debtor to the bond in 
 ^4,000, there was found in his office in the banking-house 
 the securites mentioned in the memorandum, with others 
 tied up in a bundle, and indorsed and labelled as securities. 
 There was evidence that he had stated that the bank was 
 secured in ^6 6,000 ; it was held that the bank was equitable 
 mortgagee of all the securities. 
 
 Where freehold title-deeds were intended to be deposited 
 with an equitable mortgagee, together with deeds relating to 
 leasehold property, and were accordingly specified in the 
 memorandum, it was held that the freehold property was in- 
 cluded in the mortgage.* But where the deeds remain in the 
 possession of the debtor, an equitable mortgage wUl not be 
 created by the fact of a memorandum attached to them de- 
 
 ^ Ex parte Smith, re Hildyard, 2 * Ex parte Leathes, re Leathes, 3 
 M. D. & De 6. 587 ; ex parte Sheffield D. & C. 112 ; and see ex parte Ed- 
 Union Banking Co., re Carter, 13 L. wards, re Moore, 1 Dea. 611 ; ex parte 
 T. (N. S.) 477. Heathcote, re Ogbourne, 2 M. D. & 
 
 '' Ex parte Orrett, re Pye, 3 M. & De G. 711 ; Daw v. Terrell, 33 Beav. 
 
 A. 153. 218 ; Eyre v. McDowell, 9 H. L. C. 
 
 » 2 Sm. & G. 378 ; 18 Jur. 718. 619. 
 
454 STATUTE or PEAUDS. [CHAP. VI. 
 
 clariiig that they are appropriated to a particular debt, that 
 not being an assignment.^ 
 
 Sec. 261. Deposit with Firm. — Where deeds have been 
 deposited with a firm, it is necessary, in order that, if any 
 new partners are admitted into the firm, they may have the 
 benefit of the security, that the memorandum accompanying 
 the deposit (if any) should state that such was the intention 
 of the parties when the deposit was made, or that it should 
 be clearly proved by parol evidence.^ But the dealings with 
 the new firm may be such as to recognize their right to the 
 security to cover the original advance as well as subsequent 
 advances by the new firm.^ " The leaving the deeds in the 
 custody of each successive firm is equivalent to a re- 
 deposit." * 
 
 Sec. 262. V7hether all the Title-Deeds Should be Deposited. 
 
 — It was at one time considered doubtful whether it was not 
 necessary that all the deeds relating to the property should 
 be deposited.® But it seems now to be clear that a deposit 
 of part of the deeds only is enough to create a valid equita- 
 ble mortgage, there being evidence that the object was to 
 create a security upon the whole.^ In Lacon v. Allen,'' Sik 
 R. T. KiNDEKSLEY, V. C, said : " The question is, is it neces- 
 sary that every title-deed should be deposited ? Suppose the 
 owner has lost an important deed, could he not deposit the 
 rest ? In each case we must judge whether the instruments 
 deposited are material parts of the title ; and if they are, it 
 is not necessary to say there are other deeds material, if there 
 is sufBcienf evidence to show that the deposit was made for 
 the purpose of creating a mortgage." 
 
 Sec. 263. Good Title Need not be Shown. — To constitute 
 a good equitable mortgage it is not necessary that the deeds 
 deposited should show a good title in the depositor. Thus, 
 
 1 Adams v. Claxton, 6 Ves. 230. 6 Ex parte Wetherell, 11 Ves. 401 ; 
 
 2 Ex parte Kensington, 2 V. & B. ex parte Pearse, Buck, 525. 
 
 79, 83 ; 2 Rose, 138. 6 Ex parte Arkwright, re Daintry, 
 
 8 Ex parte Oakes, re Worters, 2 M. 3 M. D. & De G. 129, sc. nora. ; ex parte 
 
 D. & De G. 234 ; ex parte Smith, re Pott, 7 Jnr. 159 ; ex parte Chippendale, 
 
 Gye, ib. 314 ; ex parte Lloyd, re Ablett, 1 Deac. 67 ; 2 Mont. & A. 299 ; Whit- 
 
 1 Gl. & J. 389 ; ex parte Alexander, re bread u. Jordan, 1 Y. & C. Exch. Ca. 
 
 Till, ib. 409. 303. 
 
 * Pisher on Mortgages, 2d ed. 36. ' 3 Drew. 582. 
 
SEC. 26S.] INTEREST IN LANDS. 455 
 
 where the debtor deposited the title-deeds of his estate, and 
 omitted the conveyance to himself, which he subsequently- 
 deposited with his bankers, it was held that the first depositee 
 had priority over the bankers.^ 
 
 But it seems to be doubtful whether an equitable mortgage 
 will be created by the deposit of an attested copy of a deed, 
 even when the depositor cannot deposit the original, as in 
 the case of a partnership.^ 
 
 Sec. 264. Part of Deeds Deposited ■with One Creditor and 
 Part with Another. — ^Where part of the deeds are deposited 
 with one person, and subsequently the other part with an- 
 other, if the equities between the incumbrancers are equal, 
 the first mortgagee will have priority.^ In the recent case 
 of Dixon V. Mucklestone,* the owner in fee of a farm de- 
 posited deeds of conveyance of the farm dated 1774, by way 
 of security for money then due, writing at the same time a 
 letter which stated that the deeds were the title-deeds of the 
 farm, and were to be a security. He afterwards deposited 
 the subsequent title-deeds of the farm, the earliest being 
 dated 1787, with bankers by way of security for money due 
 to them ; the title was investigated by the bankers, and they 
 had no notice of the prior charge. It was held that the 
 letter created an equitable charge on the farm, and that under 
 the circumstances credit must be taken to have been given 
 by the owner of the prior charge to the statement made by 
 the mortgagor, that the deposited deeds were the Avhole of 
 the title-deeds, and that the owner of the prior charge had 
 therefore not been guilty of negligence, so as to deprive her- 
 self of her priority. 
 
 Sec. 265. Deeds relating to Part of an Estate. — Where 
 deeds are deposited which relate only to a portion of an es- 
 tate, the depositee will only have a charge on the lands in- 
 cluded in the deeds deposited, even though he has been led 
 to believe from the depositor's statement that the whole of 
 the property was comprised. If this were not so, any deed 
 
 1 Roberts v. Croft, 24 Beav. 223 ; » Roberts v. Croft, 24 Beav. 233 ; 
 afEd. 2DeQ.& J. 1. 2 De G. & J. 1. 
 
 2 Ex parte Broadbent, re Borron, 1 * L. R. 8 Ch. 155 ; see also Rat- 
 M. & A. 635 ; 4 D. & C. 3. cliffe v. Barnard, 19 W. B. 340 ; 40 L. 
 
 J. Ch. 147; 24L. T. (N. S.) 215. 
 
456 STATUTE OF FKATTDS. [CHAP. VI. 
 
 might be deposited, with an allegation that it should be held 
 as a deposit to charge any lands which were the property of 
 the depositor.! But the court will, under another head of 
 equity, compel the depositor to make good his words.^ 
 
 Sec. 266. Meraorandum Referring to Different Deeds than 
 those Deposited. — Where certain deeds are deposited with a 
 creditor as security for a loan with a memorandum of charge, 
 and the deeds do not answer the description in the memoran- 
 dum, the creditor has a valid lien upon the deeds so deposited 
 for the amount of his advances. Thus, where certain title- 
 deeds were found among the effects of a deceased person, 
 with a memorandum of charge, and the deeds were not the 
 same as those described in the memorandum, and there was 
 no evidence that others were deposited, the court held that 
 there was a good lien for the amount of the loan, upon the 
 property comprised in the deeds so found.^ But where deeds 
 are deposited relating to two diflferent properties with a mem- 
 orandum pledging only one of them as a security, the lien 
 will only apply to the estate described in the memorandum.* 
 
 Sec. 267. Direction to Third Person to Hand Over Deeds. — 
 An equitable mortgage may be created by a direction to hand 
 over deeds belonging to the depositor to another person. Thus, 
 where A being entitled to three estates, the title-deeds of 
 one of which were held by his bankers as a security, deposited 
 the title-deeds of the other two with B as a security for a 
 debt, and he gave him an order upon his bankers (written by 
 himself, but not signed) to deliver over the deeds of the 
 third estate, when their lien had been satisfied, it was held 
 that this gave B a valid equitable mortgage on the property 
 covered by the deeds deposited with the bankers, subject to 
 their prior lien.^ 
 
 Sec. 268. Sales of Lands by Auction. Judicial Sales. 
 Sheriff's Sales, etc. — Sales of lands by auction are within 
 the statute, ^ and so are sales in bankruptcy,^ and by sheriffs 
 
 1 Jones V. Williams, 24 Beav. 47. ' Buckmaster v. Harrop, 7 Ves. 
 
 2 Eoberts v. Croft, 24 Beav. 230 ; 341 ; ffigginson v. Clowes, 15 Id. 521 ; 
 Eateliffe v. Barnard, 40 L. J. Ch. 147. Blagden v. Brodbear, 15 id. 472. 
 
 « Ex parte Powell, 6 Jur. 490. ' Carroll v. Powell, 48 Ala. 298 
 
 * "Wylde V. Eadford, 9 Jur. (N. S.) Tate v. Greenlee, 4 Dev. (N. C.) 149 
 
 1169. King V. Gunniou, 4 Penn. St. 171 
 
 5 Dow V. Terrell, 33 Beav. 218. Emley v. Drumm, 36 id. 123; "Wolfe 
 
SEC. 268.J INTEREST IN LANDS. 457 
 
 and constables,^ although in some of the cases cited they 
 are held not to be affected by the statute, iipon the ground 
 that they are quasi judicial sales. Sales by loan officers 
 are held to be within the statute,^ and such also is the 
 case as to all sales at auction, except in the case of judicial 
 sales ; and in order to be operative, a memorandum of the 
 sale sufficient in all respects must be made.* But sales under 
 an order of court are not, for the object of the statute being 
 to prevent frauds and perjuries, any agreement in which 
 there is no danger of either is considered as out of the stat- 
 ute,* but in some of the cases it is held that the purchaser 
 must sign.^ 
 
 It was at one time thought that by reason of their pub- 
 licity, sales of land or goods at auction did not come within 
 the statute ; but, whatever may formerly have been the rule, 
 it is now well settled that such sales not only come within 
 the letter, but also within the spirit of the statute.® And no 
 exceptions are made in this respect, except in favor of what 
 are strictly judicial sales. That is, sales made under an order 
 or decree of a court of chancery, or subject to its confirmation 
 and control.^ The first case in which this question arose 
 was Attorney General v. Day, ante, in which Loud Haed- 
 "WICKE held that the statute had no application to chancery 
 sales, or, as he calls them, judicial sales, and this doctrine has 
 
 V. Sharp, 10 Bich. (S. C.)Ii. 60; In- 11 Minn. 220. A sale under fore- 
 gram V. Dowdle, 8 Ired. (N. C.) 455; closure proceedings is not within the 
 Brent v. Green, 6 Leigh. (Va.) 16; statute. Willets r. "Van Alst, 26 How. 
 "Warfield v. Dorsey, 30 Md. 299; Pr. (N. Y.) 325. But see Hutton v. 
 Buckle V. Barbour, 48 Ind. 274 ; Williams, ante, where it is held that 
 Thomas v. Trustees, 3 A. K. Mar. (Ky.) a judicial sale is not taken out of the 
 298; Gratz v. Catlin, 2 John. (N. Y.) statute until after confirmation. 
 248; Catlin v. Gratz, 8 id. 520. « Leroux v. Brown, 12 C. B. 801; 
 
 1 Emleyt). Drumm, an«c; NichoUu. Williams «. Wheeler, 8 id. 299. See 
 Ridley, 6 Yerg. (Tenn.) 68. Chap, on "Memorandum or Note in 
 
 2 Jackson v. Bull, 1 John. Cas. (N. Writing." 
 
 Y.) 81. ' Sir Wm. Geant in Blagden v. 
 
 ■ ' .Ba:;)arte Cutts, 3 Dea. 267. Bradhear, 12 Ves. 466; Attorney 
 
 ^ Atty. Genl. v. Day, 1 Ves. Sr. General v. Day, 1 Ves. Sr. 218 ; Trice 
 
 218; Lord v. Lord, 1 Sim. 503; Blag^ v. Pratt, ID. & B. (N. C.) Eq. 626; 
 
 den V. Brodbear, ante ; Sutton v. Moore, Smith v. Arnold, 5 Mass. (U. S. C. C.) 
 
 25 Penn. St. 468 ; Watson v. Violett, 474. 
 
 2 Duer. (Ky.) 33; Halleck i^. Guy, 9 ' Attorney General v. Day, ante; 
 
 Cal. 181 ; Hutton v. Williams, 35 Ala. KaufCman v. Walker, 9 Md. 240 ; 
 
 503; Smith u. Arnold, 5 Mas. (U. S. Warfleld v. Dorsey, 39 Md. 299. 
 C. C.) 420; Armstrong v. Vroman, 
 
468 
 
 STATUTE OF FEAITDS. 
 
 [chap. TI. 
 
 remained unquestioned, except that, in an early New York 
 case^ in which Chancellor Kekt criticised the ruling of 
 Lord Habdwicke as being too broad, but his remarks were 
 mere dicta, and the question before him was in reference to 
 a sheriff^s sale, which was clearly within the statute, while 
 Lord Haedwicke was disposing of a chancery sale, where 
 the statute did not apply, being a judicial sale, that is, a sale 
 made by the court, or under its direction, and upon the terms 
 and rules provided by a decree or order®; and which it 
 has the power to enforce by order, attachment, or other 
 summary process; and Chancellor Kent himself in 
 a later case,* in which it was sought to coerce a pur- 
 
 1 Simmonds v. Cottin, 2 Cai. {N. 
 Y.) 61. 
 
 2 Jenkins v. Hogg, 2 Const. (S. C.) 
 835 ; Brent v. Green, 6 Leigh ( Va.) 
 16; Barney W.Patterson, 6 H.& J. (Md.) 
 182 ; Harrison v. Harrison, 1 Md. Cli. 
 331 ; Kauffmau v. Walker, 9 Md. MO; 
 Andrews u. Scotten, 2 Bland's Oh. 
 (Md.) 29; Anderson v. Faulke, 2 H. 
 & G. (Md.) 346. 
 
 * Brasher v. Cortland, 2 John. Ch. 
 (N. Y.) 505. See, also, in Warfield v. 
 Dorsey, 39 Md. 299; 17 Am. Rep. 
 562, the appellee was tlie assignee of 
 two mortgages, each of which con- 
 tained a power of sale, as provided by 
 statute, and under the provision of 
 the statute and in all respects com- 
 plying therewith, he advertised the 
 property for sale at public auction, 
 and it was bid in by the appellant, 
 and four days afterwards filed his re- 
 port of the sale in the Circuit Court, 
 for Howard County. Some time 
 afterwards the appellant files excep- 
 tions to the ratification of the sale, 
 not questioning its fairness, but rely- 
 ing specifically upon the statute of 
 frauds. The exceptions were over- 
 ruled, and the sale ratified. Stewart, 
 J., saying : " If there was any irregu- 
 larity or unfairness about the sale 
 reported in this case, to the prejudice 
 of the appellant, he had the right and 
 ample opportunity to have shown it. 
 This has not been done, but he relies 
 upon the statute of frauds, 29th Ch. 
 II, ch. 3, as a sufficient defence for 
 
 his non-compliance with the terms of 
 sale ; and the question now involved 
 is, whether that statute, requiring a 
 memorandum in writing as to certain 
 sales of land, applies to a chancery 
 sale ; or sale under mortgage, as pro- 
 vided by the 64th article of the code. 
 The learned judge of the Circuit 
 Court, in delivering his opinion, has 
 shown much and commendable re- 
 search, and furnished a conclusive 
 argument as to the inapplicability of 
 the statute to sales of this description. 
 Chancery sales are neither within 
 the letter of the statute nor embraced 
 by its policy. In regard to such sales, 
 its provisions are not obligatory upon 
 the court, nor is there any reason why 
 they should be implied upon any 
 principles of analogy. Such sales are 
 conducted under the decrees or orders 
 of the court, which prescribes the 
 terms, and are always guarded by its 
 superintendence, and, therefore, can- 
 not be considered within the mischief 
 intended to be provided against by 
 that celebrated statute. Every in- 
 tendment will be made to support 
 them. The court acts for all the 
 parties through its officer, the trustee, 
 and they look to it for protection 
 against the consequences of his acts 
 or omissions. Kauifman v. Walker, 
 9 Md. 240. Whether the sale is made 
 by a trustee, according to Our practice, 
 or by a master, as in England, we 
 have been referred to no case, where 
 the sale, if made under the authority 
 
SEC. 268.] 
 
 INTEKEST IN LANDS. 
 
 459 
 
 chaser of lands under a sale by a master in chancery, by 
 attachment, to perform his contract, said: "I do not mean at 
 present to lay down any general rule on the subject of co- 
 ercing a purchaser by attachment ; but I ought not to hesi- 
 tate under the circumstances of this case, and I have no doubt 
 the court may in its discretion do it in every case where the 
 previous conditions of the sale have not given the purchaser an 
 alternative. Here it has become necessary, in order to give 
 due effect to the authority and process of the court, and to 
 prevent them from being treated with contempt." In a case 
 involving this question,^ Judge Stoey said : " No doubt is 
 
 of the court, has been set aside upon 
 the ground that the sale was not evi- 
 denced by a memorandum in writing, 
 as provided by the statute. On the 
 contrary, the authorities are all the 
 other way, so far as we have dis- 
 covered. Chancellor Bland, in An- 
 drews V. Scotton, 2 Bland's Ch. (Md.) 
 29, has very fully discussed the sub- 
 ject as to the authority and practice 
 of the court in regard to sales made 
 in pursuance of its decrees or orders, 
 and his rulings have been affirmed by 
 this court in Anderson v. Foulke, 2 H. 
 & G. (Md.) 346. Throughout the 
 extent of his opinion, which displays 
 laborious research, and which is in- 
 corporated at length in the report of 
 that case, there is no allusion by the 
 chancellor or the Court of Appeals to 
 the statute of frauds, as affecting 
 sales made by the court, or under its 
 direction. In such case it is well 
 settled the court is in truth the ven- 
 dor, and not the trustee, who is its 
 mere agent, and there is no sale until 
 its approval. The public auction of 
 the property is a part of the proceed- 
 ing constituting the sale ; and the 
 bidders make themselves parties, and, 
 as such, have the right to interfere in 
 the proceedings ; their bids are propo- 
 sitions, and when accepted by the 
 trustee acting for the court, and when 
 the property is struck off accordingly, 
 they have no power, at their pleasure, 
 to retract them, and thus baffle and 
 defeat the sale. If they fail to com- 
 ply with all or any pf the" terms pro- 
 posed and accepted, the court has 
 
 the power to compel compliance by 
 attachment or other suitable process, 
 according to the nature of the case. 
 Code, art. 16, § 131. The provisions 
 were intended to clothe the court with 
 adequate authority, if there was any 
 doubt of its existence before, to com- 
 pel compliance with the terms pre- 
 scribed by its decree or order for the 
 sale of the property. In the case of 
 Richardson v. Jones, 3 G. & J. 164, 
 before the enactment of the code, 
 these powers of the court were fully 
 recognized. It was distinctly held by 
 this court that, where a sale is made 
 under a decree or order in chancery, 
 and no bond or security is given for 
 the payment of the purchase-money, 
 it was the practice, sanctioned by this 
 court in Anderson o. Foulke, 2 H. & 
 G. 346, to compel the purchaser to 
 compel his purchase by an order on 
 him, in a, summary way, to pay or 
 bring the money into court ; and that 
 from necessity, arising from the 
 peculiar character of the transaction. 
 Before the ratification the trustee 
 cannot sue, because the sale is not 
 complete and binding — the contract 
 is not perfect — nor can he sue at law 
 after the ratification, because it be- 
 comes thereby a sale by the court — 
 a contract with the court, and the 
 whole reasoning of the court is utterly 
 inconsistent with any theory, that the 
 contract of sale was affected by the 
 statute of frauds." 
 
 1 Wood V. Mann, 3 Sum. fU. S. C. 
 C.) 310. 
 
460 STATUTE OP TKAUDS. [CHAP. VI. 
 
 now entertained that a court of equity may, by attachment, 
 compel a purchaser, at a sale by the master, to complete his 
 purchase by paying in the purchase-money. It stands upon 
 the plainest principle of the court, that he who makes himself 
 a party to the proceedings of the court, and undertakes to do 
 a particular act, under the decretal orders of the court, may 
 be compelled to perform what he has undertaken. It is a 
 mere incident to the due exercise of the principal jurisdiction, 
 and indispensable to the enforcement of the orders of the 
 court upon persons who have submitted themselTes to its 
 jurisdiction ; a sale might otherwise become a mere mockery, 
 and give entire immunity to purchasers to speculate upon the 
 chances of the sale. The notion is utterly groundless, that 
 no person but a direct party to the suit can be made subject 
 to the orders or process of the court." In a later case ^ before 
 the same court, under the Rhode Island Statute of Frauds, 
 the same doctrine is reiterated by Stoky, J., who said : " In 
 sales directed by the Court of Chancery, the whole business 
 is transacted by a public officer under the guidance and 
 superintendence of the court itself; the sale is not final until 
 a report is made to the court and approved. Either party 
 may object to the report, and the purchaser himself, who be- 
 comes a party to the sale, may appear before the court, and 
 if any mistake has occurred, may have it corrected. He 
 becomes a party in interest, and may represent and defend 
 his own interests ; and if he acquiesces in the report, he is 
 deemed to adopt it, and is bound by the decree of the court 
 confirming the sale. He may be compelled, by the process 
 of the court, to comply with the terms of the contract. So 
 that the whole proceedings are under the direction of the 
 court ; and the case does not fall within the mischiefs sup- 
 posed by the statute." But in this case the question was 
 whether an administrator's sale was to be regarded as a 
 judicial sale, and therefore not within the statute, and it was 
 held that such sales are not judicial sales, and are within the 
 
 1 Smith V. Arnold, 5 Mas. (TJ. S. 626 ; Hutton v. Williams, 35 Ala. 503 ; 
 
 C. C.) 420. See, also, Jenkins v. Brent v. Green, ante; Watson v. 
 
 Hogg, 2 Treadw. (S. C.) 821; Boykin Violett, 2 Duv. (Ky.) 332; Fulton v. 
 
 V. Smith, 3 Munf. (Va.) 102; Arm- Moore, 25 Penn. St. 468; Halleck v. 
 
 strong V. Vroman, 11 Minn. 220 ; Guy, 9 Cal. 181. 
 Trice v. Pratt, 1 D. & B. (N. C.) Eq. 
 
SEC. 268.] INTEEEST IN LANDS. 461 
 
 statute. "In the case of an administrator," said Stoey, J., 
 " the authority to sell is indeed granted by a court of law. 
 But the court when it has once authorized the administrator to 
 sell, is functus officio. The proceedings of the admuiistrator 
 never come before the court for examination or confirma- 
 tion. They are mere matters in pais over which the court 
 has no control. The administrator is merely accountable to 
 the court of Probate for the proceeds acquired by the sale, in 
 the same manner as for any other assets. But whether he 
 has acted regularly or irregularly in the sale, is not matter 
 into which there is any inquiry by the court granting the 
 license, or by the court of Probate having jurisdiction over 
 the administrator of the estate. So that the present case is 
 not a judicial sale in any just sense, but it is execution of a 
 ministerial power. The sale is not the act of the court, but 
 of the administrator." But if the statute made it obligatory 
 upon the administrator to make a report of the sale to the 
 court, and the court had authority to confirm it or not, the 
 rule would be otherwise.^ Other sales at auction, as we 
 have seen, whether by individuals, town officers or sheriffs, 
 constables or marshals, under executions, or other legal pro- 
 cess, are, as before stated, held to be within the statute* 
 Tinless by statute they are made judicial sales. 
 
 1 See Warfield v. Dorsey, ante, son, 4 Penn. St. 171 ; Wolf t>. Sharp, 
 where a sale vmder a power in a mort- 10 Eich. (S. C.) L. 60; Carroll v. 
 gage, under the provisions of the Powell, 48 Ala. 298 ; Emley w. Drum, 
 statute, was held to be a judicial sale, 36 Penn. St. 123 ; Warfield i<. Dorsey, 
 the seller being required to file a re- ante; Tate v. Greenlee, 4 Der. (N. C.) 
 port of the sale, and the court having 149 ; Buckle v. Barbour, 48 Ind. 274 ; 
 the power to confirm or reject it. Ingram v. Dowdle, 8 Ired. (N. C.) 
 
 2 Barney v. Patterson, ante; Sim- 455. 
 monds v. Cottin, ante ; King v. Gunni- 
 
SECTION VI. 
 
 " No action shall be brought whereby to charge any person upon any 
 agreement, that is not to be performed within the space of one year from 
 the making thereof." 
 
CHAPTER VII. 
 
 COKTKACT NOT PERFORMABLE IN A TEAR. 
 
 BECTIOir. 
 
 269. Contract must be One Not to be Completed within the Year. 
 
 270. Contract which may Possibly be Performed within a Year. 
 
 271. Agreement to be Performed on a Contingency. 
 
 272. Contract for Service to Commence at a Future Day. 
 
 273. Hiring for One Year. 
 
 274. Contracts not to be Performed within a Year. 
 
 275. When Contract may or may not be Performed within a Year. 
 
 276. Contract, when Presumed to Commence at Once. 
 
 277. Performance on one side, Effect of. 
 
 278. Contract Defeasible within a Year. 
 
 279. Contract Executed by one of the Parties. 
 280. ' Agreement not to do Certain Things. 
 
 Section 269. Contract must be One Not to be Completed 
 within the Year. — In order to bring a contract within this clause 
 of the statute it must be one which from its very terms shows that 
 the parties intended that it was not to be completed within the year, 
 and therefore part performance within the year will not take 
 the (5ase out of the statute.^ This was decided in BoydeU v. 
 
 1 Herrin v. Butters, 20 Me. 119 ; may be performed within the year by 
 
 Harris v. Porter, 2 Harr. (Del.) 27; A ceasing to be agent. Roberts v. 
 
 Comstock V. Ward, 22 III. 248. An Rockbottom Co., 7 Met. (Mass.) 46. 
 
 agreement to pay money after the But a contract to work for another 
 
 lapse of a year, for land to be five years in consideration of certain 
 
 presently conveyed, is within the things to be done by him, is within 
 
 statute. Marcy v. Marcy, 9 Allen the statute. Pitcher v. Wilson, 5 Mo. 
 
 (Mass.) 8. An agreement made Dec. 46; Drummond v. Burrell, 13 Wend. 
 
 14, 1856, to rent a house for the (N. Y.)307; so also is an agreement 
 
 year 1857 is within the statute. At- to sell the crops of this and the suc- 
 
 wood V. Norton, 31 Ga. 507. So is a ceeding year at a certain price. At- 
 
 contract to marry within Jive years, wood v. Fox, 30 Mo. 499. See also 
 
 Derby v. Phelps, 2 N. H. 515 ; Paris Emery v. Smith, 46 N. H. 151 ; Hill 
 
 V. Strong, 51 Ind. 339; or to labor for v. Hooper, 1 Gray (Mass.) 131. So a 
 
 another three years. Tuttle v. Swett, contract for board for one year to 
 
 31 Me. 555. But an agreement to begin at a future day is within the 
 
 work for another five years, or so long statute. Spencer v. Halstead, 1 Den. 
 
 as A shall remain agent for the company, (N. Y.) 606. So a contract for a lease 
 
 is not within the statute, because it for more than one year, to commence 
 
464 STATUTE OF FEATJDS. [CHAP. VII. 
 
 Drummond.^ There the defendant subscribed to the " Boy- 
 dell Shakespeare," which it was intended to publish in num- 
 bers, at least one number to be published annually, and it 
 was the intention of the parties that the period of publica- 
 tion should extend over several years. No suiBcient contract 
 was signed by the defendant, and after receiving and paying 
 for several numbers, he refused to continue his subscription. 
 It was held that no action could be maintained against him. 
 LoKD Ellenbokough, C. J., said : " The whole scope of the 
 undertaking shows that it was not to be performed within a 
 year; and if, contrary to all physical probability, it could 
 have been performed within ihat time, yet the whole work 
 could not have been obtruded upon the subscribers at once, 
 so as to have entitled the publishers to demand payment of 
 the whole subscription from them within the j'^ear. It has 
 been argued that an inchoate performance within a year is 
 sufficient to take the case out of the statute ; but the word 
 used in this clause of the statute is ' performed,' which ex vi 
 termini must mean the complete performance or consimima- 
 tion of the work : and that is confirmed by another part of 
 the statute requiring only part performance of an agreement, 
 to supersede the necessity of reducing it to writing ; which 
 shows that when the legislature used the word ' performed ' 
 they meant a complete, and not a partial performance. . . . 
 Here by the very terms of the contract, and clearly in the 
 contemplation of the parties, from the whole scope of it, it 
 was not to be performed within a year ; for the agreement 
 was, to publish at least one number annually, after the de- 
 livery of the first, and according to the number of pictures 
 to be published, at the rate of two for each play, the work 
 would consist of many numbers." And Bayley, J., said : ^ 
 " It was clearly the understanding of all parties that the con- 
 tract was not to be performed within a year, and if the pub- 
 lishers could by possibility have completed the work within 
 that time, they could not have compelled the defendant to 
 
 at a future day, is invalid as being a Tunnell, 3 T. B. Mon. (Ky.) 247 ; 
 
 contract not to be performed in one Wilson v. Martin, 1 Den. (N. Y.) 602; 
 
 year, although by statute a parol Atwood v. Norton, 31 Ga. 507 ; Com- 
 
 lease for a longer period would be stock v. Ward, 22 111. 248. 
 valid if to commence instanter. Streht i 11 East, 142. 
 
 V. D'Evens, 66 111. 77 ; Roberts v. ^ p. 159. 
 
SEC. 269.] CONTEACT NOT PEEFORMABLB IN A YEAK. 465 
 
 have taken and paid for it immediately. I use tlae word 
 ' completed ' because I think that is the true meaning of the 
 word 'performed' used in the statute. The cases have de- 
 cided that in order to bring a contract within this branch of 
 the statute, it must either have been expressly stipulated, or 
 it must appear to have been the understanding of the parties, 
 that it was not to be performed within a year. That does 
 appear in the present case, and I cannot say that a contract 
 is performed, when a part of it remains unperformed within 
 the year ; or in other words, that part performance is per- 
 formance." ^ So where the following memorandum was made 
 between the plaintiff and defendant, and signed with their 
 respective initials: "Diet of Practice £80 per annum, for 
 five years, commencing Michaelmas, 1828 : £60 per annum 
 for the remainder of Mr. Lee's life, if he survive the first five 
 years: payable in either case quarterly, the first payment 
 Michaelmas, 1828. • Mr. Lee to separate the practices K B, 
 and C P ; " it was held that inasmuch as the memorandum 
 appeared to be of a contract that was not to be performed 
 within a year, and no consideration was stated on the face of 
 it, it came within the fourth section of the statute, and was 
 therefore not capable of being enforced by action.^ 
 
 In Eley v. The Positive Assurance Company,^ the articles 
 of association of a company contained a clause in which it 
 was stated that the plaintiff should be solicitor to the com- 
 pany, and should not be removed from his office unless for 
 misconduct. The articles were signed by seven members of 
 the company, and were duly registered. The plaintiff was 
 not appointed solicitor by any instrument under the seal of 
 the company. It was held that the contract was one "not 
 
 1 And see Bracegirdle v. Heald, was held, and the doctrine of this latter 
 
 1 B. & Aid. 726. A parol promise to case is sustainable upon the ground 
 
 pay a father flOO, in four annual in- that the contract is terminable upon a 
 
 stalments of $25 each, if he will name contingency, to wit, the death of the 
 
 his son after the promisor, is within child. See also, to the same effect, 
 
 the statute, as not to be performed Dresser v. Dresser, 35 Barb. (N. Y.) 
 
 within a year. Parks u. Francis, 50 573; Peters v. Westborough, 19 Pick. 
 
 Vt. 626. So in Indiana is an agree- (Mass.) 364. 
 
 ment to support a young child until ^ Sweetw. Lee, 4 Sc. (N. K.) 77-90; 
 
 it attains the age of majority. Good- and see Roberts v. Tucker, 6 Exch. 
 
 rich u. Johnson, 66 Ind. 258. Although 632. 
 in McICinney v. McCloskey, 8 Daly « L. E. 1 Ex. D. 20. 
 (N. Y. C. P.) 368, a different doctrine 
 
466 • STATUTE OF FRAUDS. [CHAP. VII. 
 
 to be performed within a year," and must therefore be in 
 writing, and that the signatures to the articles of association, 
 which were affixed alio intuitu, were not signatures to a 
 memorandum of the contract within the statute so as to 
 bind the company. With great deference to the court, it 
 seems to us that this decision is wrong, according to all the 
 American and English authorities, and upon principle, be- 
 cause the contract might be terminated within a year by the 
 misconduct of the plaintiff, and stands upon the same footing 
 as a contract by which one agrees to serve another as long as 
 they are mutually satisfied,^ or so long as the parties shall 
 respectively please,^ which are held not to be within the 
 statute. 
 
 Where a contract is void by reason of the statute, but ser- 
 vices have been rendered and things actually done in pursu- 
 ance of the contract, the terms upon which the services were 
 rendered and the things done, may be proved by parol evi- 
 dence.^ 
 
 Sec. 270. Contract 'Which may Possibly be Performed within 
 a Year. — But where the contract is such that the whole may be per- 
 formed within a year, and there is no express stipulation to the con- 
 trary, the statute does not apply.* Thus, a contract for the 
 maintenance of a child at the defendant's request, to con- 
 
 1 Greene v. Harris, 9 E. I. 401. man, 10 Wis. 59; Thompson v. Gor- 
 
 2 Beeston v. CoUyer, 4 Bing. 309; don, 3 Strobh. (S. C.) 196; EUicott 
 Giraud v. Richardson, 2 C. B. 835. v. Peterson, 4 Md. 476; Scoggins v. 
 
 » Souch V. Strawbridge, 2 C. B. Heard, 31 Miss. 426; Gladsden v. 
 
 808; 15 L. J. C. P. 172; CoUis v. Lance, 1 McMull. (S.C.) Eq. 87; Peters 
 
 Bothamley, 7 W. R. 87 ; and see Add. v. Westborough, 19 Pick. (Mass.) 364 ; 
 
 on Contrs. 7th ed. 153. Broadwell v. Getman, 2 Den. (N. Y.) 
 
 * Where a contract may or may 87; Moore c. Fox, 10 John. (N. Y.) 
 
 not be performed in a year, it is not 244 ; Lockwood v. Barnes, 3 Hill (N. 
 
 within the statute. In order to bring Y . ) 128 ; Houghton v. Houghton, 14 
 
 it within the statute it must appear Ind. 505; Doyle v. Dixon, 97 Mass. 
 
 from the agreement itself, that it is 208; Scoggin v. Blackwell, 36 Ala. 
 
 not to be performed within a year. 351 ; Dresser v. Dresser, 35 Barb. (N. 
 
 Russell V. Slade, 12 Conn. 455; Blan- Y.) 573; Howard v. Burgen, 4 Dana 
 
 chard v. Weeks, 34 Vt. 589 ; Sherman (Ky.) 137 ; Bull v. McCrea, 8 B. Mon. 
 
 V. Champlain Transn. Co., 31 id. 162; (Ky.) 422 ; Worthy v. Jones, 11 Gray 
 
 Izard V. Middleton, 1 Dessau (S. C.) (Mass.) 168; Richardson v. Pierce, 7 
 
 116; Burney v. Ball, 24 Ga. 505; R. I. 330; Lyon v. ICing, 11 Met. 
 
 Estyu. Aldrich, 46N. H. 127; Bland- (Mass.) 411; Smalley v. Greene, 52 
 
 mg V. Sargent, 83 N. H. 239 ; Wiggins Iowa, 241 ; 35 Am. Rep. 267 ; Blair 
 
 V. Kisser, 6 Ind. 252; Thourwin v. &c. Co. v. Walker, 30 Iowa, 406; 
 
 Lea, 26 Tex, 612 ; Rogers a. Bright- Riddle v. Backus, 38 id. 81. 
 
SEC. 270.] CONTRACT NOT PBRFORMABLE IN A YEAR. 467 
 
 tinue "so long as the defendant shall think proper," is a 
 contract upon a contingency, the performance of which is 
 not necessarily to take place beyond the space of a year, and 
 therefore is not within the statute.^ So where the defend- 
 ant, who was the father of seven illegitimate children of the 
 plaintiff, agreed with her verbally to pay her £300 per annum 
 by equal yearly instalments, for so long as she should main- 
 tain and educate them, the eldest child being then fourteen 
 years old, it was held that the agreement was binding.^ So 
 where a person contracts to support another during his or 
 her life,^ or not to carry on a certain trade in a certain place,* 
 or to work for a person as long as he lives,^ or so long as a 
 certain person remains agent for the employer,® the contracts 
 are not within the statute, because they may be performed 
 within a year. 
 
 And an ag;reement whereby, in consideration of A not 
 taking proceedings against B's son, B agreed to maintain 
 and clothe A, and supply him with the grass for two sheep 
 during his life, was held not to be within the statute, as the 
 life of A was an uncertain event which might determine 
 within a year.'' But an agreement to maintain a child 
 known to be about five years old until she could "do for 
 herself," was held to be within the statute, as it clearly 
 contemplated an event not to be performed within a year, 
 although it might be determined by the death of the child 
 within a year.^ 
 
 So where a testator promised by parol for valuable con- 
 sideration to leave his brother's children a certain amount by 
 will, it was held that a binding obligation was constituted 
 
 1 Souch 17. Strawbridge, 2 C. B. 54 N. H. 518, Blanding v. Sargent, 
 808. 33 id. 239 ; Packet Co. v. Sickles, 5 
 
 2 Knowlmanu.Bluett,L.E. 9Ex.l. Wall (U.S.)580; Somerby w. Buntin, 
 " Bull u. McCrea, 8 B. Mon. (Ky.) 118 Mass. 279; Guerard v. Daudelet, 
 
 422 ; Dresser v. Dresser, 35 Barb. (N. 32 Md. 561. 
 
 Y.) 573; Howard v. Burgen, 4 Dana ^ Updike v. Ten Broeck, 32 N. J. 
 
 (Ky.) 151 ; Hutchinson v. Hutchinson, L. 105. 
 
 46 Me. 154. ^ Roberts v. Bockbottom Co., 7 
 
 * Smalley v. Greene, 52 Iowa, 241 ; Met. (Mass.) 46. 
 .35 Am. Rep. 267; Richardson v. ' Murphy w. O'SuUi van, 11 Ir. Jur. 
 
 Pierce, 7 E.I. 330; Doyle .. Dixon, 111. 
 
 97 Mass. 208 ; Lyon v. King, 11 Met. ^ Farrington v, Donohoe, 1 Ir. Eep. 
 
 (Mass.) 411; Worthy v. Jones, 11 C. L. 675. 
 Gray (Mass.) 168; Perkins v. Clay, 
 
468 
 
 STATUTE OP FRAUDS. 
 
 [chap. vn. 
 
 which could be specifically performed.^ And where a parol 
 promise was made to pay so much money upon the return of 
 such a ship, which ship happened not to return within two 
 years' time after the promise was made, it was held that this 
 was a good promise, and not within the statute, as by possi- 
 bility the ship might have returned within a year.^ 
 
 Sec. 271. Agreement to be Performed on a Contingency. — 
 
 Where an agreement is to he performed on a contingency which may 
 
 1 Ridley v. 'Ridley, 34 Bear. 478 ; 
 6 N. R. 11 ; 34 L. J. Ch. 462 ; and see 
 Fenton v. Emblers, 3 Burr. 1282; 1 
 "W. Bl. 358. 
 
 2 Anon. 1 Salk. 280 ; and see Fran- 
 cam V. Foster, Skin. 326. Tlie statute 
 does not extend to contracts which 
 are to he performed upon the happen- 
 ing of some uncertain event, and 
 which may not consequently be com- 
 pleted within a year. An agreement 
 consequently to pay the plaintiff so 
 many guineas on the day of his mar- 
 riage, was held not within the statute, 
 although the marriage did not take 
 effect for nine years, for" it might 
 hare happened within a year. Peter 
 V. Compton, Skin. 353; Holt, 326; 
 Smith V. Westall, 1 Raym. 316; Souch 
 V. Strawbridge, 2 C. B. 808 ; 15 Law 
 J. C. P. 172.' And where an oral 
 promise was made to pay so much 
 money on return of a ship, which ship 
 happened not to return witliin two 
 years after the time of the making of 
 the promise, it was held that the 
 promise was not within the statute, 
 for that, by possibility, the ship might 
 have returned within the year, though 
 by accident it happened that it did 
 not, and that the clause in the statute 
 only extended to such promises and 
 agreements as were, by the express 
 appomtment of the parties, not to be 
 performed within a year from the 
 time of making thereof. Anon. Salk. 
 280 ; Fenton v. Emblers, 3 Burr. 1282. 
 And it has been laid down, that 
 "where the agreement is to be per- 
 formed upon a contingency, and it 
 does not appear, within the agree- 
 ment, that it is to be performed after 
 
 a year, there a note in writing is not 
 necessary, for the contingent and un- 
 certain event might happen within 
 the year ; but where it appears by the 
 whole tenor of the agreement, that it 
 is to be performed after the year, 
 there a note is necessary, otherwise 
 not." "Wells V. Horton, 12 Moo. 182, 
 183 ; 4 Bing. 43, 44 ; Moore v. Fox, 10 
 John. (N. Y.) 244; Harris v. Porter, 2 
 Harr. (Del.) 27; Broadwell v. Get- 
 man, 2 Den. (IS. T.) 87; Linscott v. 
 Mclntire, 3 Shep. 201; Peters ;;. 
 "Westborough, 19 Pick. (Mass.) 364; 
 Kent V. Kent, 18 Pick. (Mass.) 569; 
 Roberts v. Rockbottom Co., 7 Met. 
 (Mass.) 46; Russel v. Slade, 12 Conn. 
 455; Thompson v. Gordon, 3 Strobh. 
 (S. C.) 196; Ellicott v. Peterson, 4 
 Md. 476. Neither does the statute 
 apply where the contract is wholly 
 executed, or intended to be so, by one 
 of the parties thereto, within the year, 
 although there are some acts to be 
 done by the other party beyond the 
 prescribed limit. Thus, where a land- 
 lord agreed to lay out £50 in improve- 
 ments upon the demised premises, 
 and the tenant agreed to pay £5 per 
 annum for the remainder of his term, 
 of which several years were then un- 
 expired, in addition to the reserved 
 rent, and the £50 was expended with- 
 in the year, and the landlord after- 
 wards brought his action for the 
 arrears of the £5, it was held that he 
 was entitled to recover, though the 
 agreement had not been put into 
 writing and signed. Donellan v. Read, 
 8 B. & Aid. 906; Cherry v. Hemmg, 4 
 Exch. 681; 19 Law J., Exch. 63; 
 Mavor v. Pyne, 11 Moore, 2. 
 
SEC. 271.J CONTRACT PEEFOEMABLE ON CONTINGENCY. 469 
 
 happen witJiin the year after it is made, and it does not appeal' on 
 the face of the agreement that it is to be performed after the year, 
 it does not fall within the statute.^ Where, therefore, a 
 debtor to the plaintiff stated to the plaintiff's solicitor, on 
 being applied to for payment, that he, the debtor, could not 
 pay then or during his lifetime, but that he had provided for 
 payment by his will, and directed his executor to pay, it was 
 held that the promise was binding on the executor, although 
 there was no promise in writing by him to pay.^ 
 
 So where the defendant promised for one guinea to give 
 the plaintiff so many at the day of his marriage, and the 
 marriage did not take place for nine years, it was held that a 
 writing was not necessary, and the court said, that where the 
 agreement is to be performed upon a contingent, and it does 
 not appear within the agreement that it is to be performed 
 after the year, then a note in writing is nat necessary, for the 
 contingent might happen within the year. Under this head 
 is an agreement to pay a certain sum in consideration of 
 acting as an agent for the defendant for "a reasonable 
 time,"* or to pay any excess over the purchase-price of land 
 which may be sold "within five years,"* or a contract of 
 
 1 Doyle ■/. Dixon, 97 Mass. 208; 66 Ala. 162; East Tenn. &O.E.E. Co. 
 Eichardson v. Pierce, 7 E. I. 330; u. Staet, 7 Lea (Tenn.) 397; Parker 
 Dresser v. Dresser, 35 Barb. (N. Y.) v. Siple, 76 Ind. 345; Niagara F. Ins. 
 573 ; Wells v. Horton, 4 Bing. 40 ; Co. v. Greene, 77 id. 590 ; Sherman v. 
 Eidley v. Eidley, 34 Beav. 478 ; Jilson Champlain Transn. Co., 31 Vt. 162 ; 
 V. Gilbert, 26 Wis. 637 ; King v. Knowlman v. Bluett, L. E. 9 Exchq. 
 Hanna, 9 B. Mon. (Ky.) 369; Izard 1; ElUcott v. Turner, 4 Md. 476; 
 V. Middleton, 1 Dessau (S. C.) Eq. Wilhelm v. Hardman, 13 id. 140; 
 116; Clark v. Pendleton, 26 Conn. Erost v. Tarr, 53 Ind. 390; Bull v. 
 495; Eiddle v. Backus, 38 Iowa, 81 ; McCrea, 8 B. Mon. (Ky.) 422; Hutch- 
 Walker V. Metropolitan Ins. Co., 56 inson v. Hutchinson, 46 Me. 154; 
 Me. 371 ; Houghton v. Houghton, 14 Updike v. Ten Broeck, 32 N. J. L. 
 Ind. 505; Esty v. Aldrieh, 46 N. H. 105; Berry v. Doremus, 30 id. 399; 
 127; Greene v. Harris, 9 E. I. 401; Ehodes d. Ehodes, 3 Sanf. Ch. (N. Y.) 
 Abbott V. Inskep, 29 Ohio St. 59; 285; Talley v. Greene, 2 id. 91; Har- 
 Bumey v. Ball, 24 Ga. 505 ; Wiggins per v. Harper, 57 Ind. 347 ; Howard 
 V. Keizer, 6 Ind. 252; Blakeney v. u. Burgen, 4 Dana (Ky.) 137; Blake 
 Goode, 30 Ohio St. 350; Heath v. w. Cole, 22 Pick. (Mass.) 97 ; Sword k. 
 Heath, 31 Wis. 223 ; Trustees v. Keith, 31 Mich. 247. 
 Brooklyn F. Ins. Co., 19 N. Y. 305 ; = Wells v. Horton, 12 Moo. 177 ; 
 Alderman v. Chester, 34 Ga. 162; 4 Bing. 40; and see Smith w. Neale, 2 
 Thompson v. Gordon, 3 Strobh. (S. C. B. (N. S.) 67 ; Smith v. Westall, 
 C.) L. 196; Talmadge v. Eens. & Bar. Ld. Eaym. 316; 3 Salk. 9. 
 E. E. Co., 13 Barb. (N. Y.) 493; Gil- ' Niagara F. las. Co. v. Greene, 77 
 bert V. Sykes, 16 East, 150 ; .lordan v. Ind. 590. 
 Miller, 75 Va. 442; Derrick v. Brown, < Parker v. Siple, 76 Ind. 346. But 
 
470 STATUTE or FRAUDS. . [CHAP. VII. 
 
 partnership without any fixed or definite duration and the 
 business of which may .be terminated within a year,^ or an 
 agreement to employ a person in ill health until he gets 
 well,2 or to pay for lands when a certain pending suit is ter- 
 minated,^ or by a tenant for a term of three years to build a 
 fence during the term,* or to take all the wood a person may 
 cut not exceeding one thousand cords,'' or to print and sell 
 the products of a certain mill until the owner has realized a 
 profit of 150,000,^ or a contract to continue as long as the 
 parties are mutually satisfied,'' or to work for another as long 
 as he lives,^ to educate a child,^ to support a person during 
 his life,^" to pay a debt when a certain person dies,^'^ to marry 
 when a certain voyage is ended, ^^ to pay a certain sum 
 annually during coverture,^^ not to carry on a certain trade 
 in a certain place,^* to pay for services at the death of the 
 employer or by will,^^ or to pay a person a certain sum 
 annually as long as he lives,i^ or so long as another person 
 lives,!^ or, indeed, any contract the duration of which de- 
 pends upon an uncertain event or contingency which may 
 happen within one year, however improbable it may be that 
 it will happen ; hut where it appears by the whole tenor of the 
 agreement that it is to he performed after the year, there a note 
 is necessary?-^ Thus, where a person verbally agreed to work 
 for another, and that he would not leave him for "two years," 
 nor in the summer, nor without two weeks' notice, it was held 
 to be a contract not to be performed within a year, and there- 
 
 see Derby v. Phelps, 2 N. H. 515, i" Bull v. McCrea, 8 B. Mon. (Ky.) 
 
 where a promise to marry "within 422; Hutchinson v. Hutchinson, 46 
 
 five years " was held to be within the Me. 154. 
 
 statute. ^^ Thompson v. Gordon, ante. 
 
 1 Jordan v. Miller, 75 Va. 442. 12 ciark v. Pendleton, 20 Conn. 495. 
 
 ^ East Tenn. &c. R. R. Co. v. See statement of ease ante, p. 313. 
 
 Staub, 7 Lea (Tenn.) 397. " Houghton v. Houghton, 14 Ind. 
 
 8 Derrick v. Brown, 66 Ala. 162. 505. 
 
 * Marley v. Noblett, 42 Ind. 85. " Richardson v. Pierce, 7 R. I. 330 ; 
 
 5 Van Woert v. Albany &e. R. R. Smalley v. Greene, 52 Iowa, 241 ; 35 
 Co., 1 T. & C. (N. Y.) 266. See also Am. Rep. 267. 
 
 S. P. Larimer v. Kelley, 10 Kan. 298. 1= Kent i>. Kent, ante ; Bell v. 
 
 6 Hodges V. Richmond Mf' g Co., 9 Hewitt, 24 Ind. 280. 
 
 R. I. 482. 18 Hutchinson v. Hutchinson, ante. 
 
 ' Greene v. Harris, 9 R. I. 401. " Gilbert v. Sykes, 16 East, 150. 
 
 8 Kent tf. Kent, 62 N. Y. 560 ; Up- " Peter v. Compton, Skin. 353; 
 dike V. Ten Broeck, 32 N. J. L. 116. Holt, 326; and see Gilbert v. Sykes, 
 
 9 EUicott V. Turner, 4 Md. 476. 16 East, 154. 
 
SEC. 272.] CONTRACT TO COMMENCE AT FUTURE DAY. 471 
 
 fore within the statute.^ The rule is that, if the agreement 
 cannot be fully performed within a if ear, the fact that it may 
 be terminated or further performance rendered impossible by 
 the death of one or both the parties, is not sufBcient to take 
 it out of the statute, because the instances in which the death 
 of one of the parties within the year takes the case out of the 
 statute are where the person^s death leaves the contract fully 
 performed? It was upon this rule that the doctrina of Hill 
 V. Hooper ^ was predicated. In that case, an agreement to 
 employ a boy for five years, and to pay his father certain 
 sums at stated periods during that time, was held to be 
 within the statute, for, although by the death of the boy 
 the services which were the consideration of the promise 
 would cease, and the jjromise thereby be determined, yet the 
 contract would not be completely performed. In a California 
 case,* an agreement to pay certain money borrowed when 
 certain nut-bearing trees, about to be planted upon the bor- 
 rower's farm, yield an income sufficient to pay the same over 
 and above the expenses of the borrower's family, being im- 
 possible of performance within one year, was held to be 
 within the statute. A contract to work for another two 
 years, for $100 for the first year and #200 for the second 
 year, is within the statute, because it cannot possibly be 
 fully performed in one year.^ So also is a contract that a 
 horse sold by the promisor shall prove sound for one year, 
 and that if after the expiration of that time it proves un- 
 sound he will take it back and pay the purchaser flOO, 
 because from the very terms of the contract it is not to be 
 operative until after a year has elapsed.^ A contract to 
 deliver a crop of hemp raised the present year, and what 
 may be raised in two succeeding years, is clearly within the 
 statute, because impossible of performance in one year.'' 
 
 Sec 272. Contract for Service to Commence at a Future 
 Day. — A contract for a year's service to commence at a 
 future day, being a contract not to be performed within a 
 
 1 Bemier v. Cabot Mf g Co., 71 ^ Emery v. Smith, 46 N. H. 151. 
 Me. 506 ; 36 Am. Eep. 343. « Shipley v. Patton, 21 Ind. 169. 
 
 2 Doyle V. Dixon, 97 Mass. 212. ' Holloway v. Hampton, 4 B. Mon. 
 8 Hill V. Hooper, 1 Gray (Mass.) (Ky.) 415. See also Kellogg w. Clark, 
 
 131. 23 Hun (N. Y.) 393; Day v. N. Y. 
 
 * Swift V. Swift, 46 Cal. 266. Centl. R. R. Co., 22 id. 412. 
 
472 STATUTE OP FRAUDS. [CHAP. Vn. 
 
 year from the making, is within the statute. In Bracegirdle 
 V. Heald,! Lord Ellenborough said : " If we were to hold 
 that a case which extended one minute beyond the time 
 pointed out by the statute, did not fall within its prohibi- 
 tion, I do not see where we should stop; for in point of 
 reason, an excess of twenty years will equally not be within 
 the act. Such differences rather turn upon the policy than 
 the construction of the act."^ In Cawthorne v. Cawdrey,^ 
 it was held that a contijact of hiring made on the 24th of 
 March for a year's service to commence on the 26th, was not 
 void by the statute ; but that case was decided on the ground 
 that there was evidence upon which the jury were at liberty 
 to find that there was a contract on the 24th for a year's 
 service. Although no action can be brought on the parol 
 agreement, the servant may, in the event of sufficient' service 
 under it, acquire a settlement.* 
 
 Sec. 273. Hiring for One Year. — A general hiring for a 
 year, and so on from year to year, for so long a time as the 
 parties shall respectively please, is not within the statute.^ 
 
 A contract for personal service which by its terms is to 
 continue for a longer period than one year, even to the 
 extent of one minute,^ is within the statute. Thus, a con- 
 tract to labor for another three hundred and sixty-six days 
 would clearly be within the statute : '' so when the master 
 
 ^ 1 B. & Aid. 722. year, and by the statute must be in 
 
 ^ And see Snelling v. Lord Hunt- writing; therefore no action can be 
 
 ingfield, 1 C. M. & R. 20 ; 4 Tyr. 606 ; maintained for the breach of a verbal 
 
 Banks v. Crossland, L. E. 10 Q. B. 97. contract made on the 27th May, for 
 
 ' 18 C. B. (N. S.) 406; Dickson v. a year's service, to commence on the 
 
 Frisbie, 52 Ala. 165 ; Eussell v. Slade, 30th June following. Bracegirdle v, 
 
 12 Conn. 455. Heald, 1 B. & Aid. 722. 
 
 * Bracegirdle t. Heald, 1 B. & In Snelling v. Huntingfield, 1 C. 
 
 Aid. 727, per Baylev, J. M. & E. 20 ; 4 Tyr. 606, A, on the 
 
 6 Beeston v. CoUyer, 12 Moo. 20th of July, made proposals in writ- 
 
 552 ; 4 Bing. 309 ; Giraud v. Rich- ing (unsigned) to B, to enter his ser- 
 
 mond, 2 C. B. 835. viee as bailiff for a year ; B took the 
 
 " Addison on Contracts, 40 ; Brace- proposals and went away, and entered 
 
 girdle v. Heald, 1 B. & Aid. 722 ; into A's service on the 24th of July. 
 
 Snelling v. Lord Huntingford, 1 C. Held, that this was a contract on the 
 
 M. & E. 25. 20th, not to be performed within the 
 
 ' Tuttle V. Sweet, 31 Me. 55. A space of one year from the making, 
 
 contract for a year's service, to com- and within the 4th section of the 
 
 mence at a subsequent day, is a con- statute of frauds, 
 
 tract not to be performed within the In Davenport v. Gentry, 9 B. Mon. 
 
SEC. 273.J CONTRACT OF HIEING FOE A YEAE. 
 
 473 
 
 loans the servant a certain sum, as £100, and the servant 
 agrees to work it out at the rate of j£60 a year;i so where 
 the service is for one year, but part is to be performed in one 
 year and part in another.^ Thus a contract to deliver a crop 
 of hemp raised the present year, and what may be raised the 
 two succeeding years, is an entire contract, and within the 
 statute ; * and, indeed, any contract which by its terms carries 
 the performance beyond one year, for however short a period, 
 is within the statute and cannot be enforced.* A parol agree- 
 
 (Ky.) 427, several slaves agreed with 
 the plaintlfE that if he would purchase 
 their freedom they would work for 
 him five years. He sold his claim to 
 the defendant for §500. In an action 
 to recover the amount, it was held 
 that the contract was within the stat- 
 ute, and that the defendant was only 
 liable for the actual value of the 
 slaves' labor. 
 
 In Hall V. Rowley, 2 Root (Conn.) 
 161, in December, 1787, A made a 
 parol agreement with C, that B, his 
 minor son, should serve C five years. 
 Within those five years B, having 
 attained his majority, left the service 
 of C. In an action on the case, 
 brought by C against A, in January, 
 1793, it was held that the case was 
 within the statute, and as the action 
 was commenced more than three years 
 after the making of the contract, it 
 was not sustainable. 
 
 1 Currie v. McLean, 2 Macph. (Sc.) 
 1076. 
 
 2 Hinckley i>. Southgate, 11 Vt. 
 428; Foote v. Emerson, 10 id. 338. 
 
 * Holloway v. Hampton, 4 B. Mon. 
 (Ky.) 415. 
 
 * Comstock !). Ward, 22 III. 248; 
 llerrin v. Butters, 20 Me. 119; Harris 
 V. Porter, 2 Harr. (Del.) 27. In Nones 
 V. Homer, 2 Hilt. (N. Y.) 116, the 
 court say : " A contract to enter into 
 the employ of another, and remain a 
 day more than a year, is a contract 
 not to be performed within a year, 
 and is therefore void. But," say the 
 court, " the employer having derived 
 a benefit from the servant's part per- 
 formance under such a contract, is 
 liable to an action for the services 
 
 actually rendered." But in such 
 bases the contract does not control, 
 nor generally is it admissible in evi- 
 dence to establish the value of the 
 services. Lang v. Henry, 54 N. H. 
 57; Kelley v. Terrell, 26 Ga. 551; 
 Hearne v. Chadboume, 65 Me. 302; 
 Shipley v. Fatten, 21 Md. 169 ; Klee- 
 man ». Collins, 9 Bush. (Ky.) 460; 
 Sharp V. Ehiel, 55 Mo. 97. 
 
 Where an agreement distinctly 
 shows upon the face of it that the 
 parties contemplated its performance 
 to extend over a greater space of time 
 than one year, it is within the statute ; 
 but where the contract is such that 
 the whole may be performed within a 
 year, and there is no stipulation to 
 the contrary, the statute does not 
 apply. Per Tindal, C. J., Souch v. 
 Strawbridge, 2 C. B. 815; Boydell t>. 
 Drummond, 11 East, 142. The cases 
 on this subject will be found collected 
 in 1 Smith's Lead. Cas., note to Peter v. 
 Compton ; and see Cherry v. Heming, 
 4 Exch. 631. 
 
 Accordingly, where the defendant 
 verbally agreed on the 27th of May, to 
 take the plaintiff into his service, as 
 groom and gardener, for a year, to 
 commence on the 30th of June follow- 
 ing, but afterward refused to receive 
 him, it was held that the plaintiff 
 could not sustain any action for such 
 breach of contract, as there was no 
 written agreement; Lord Ellen- 
 borough, C. J., saying : " If we were 
 to hold that a case which extended 
 one minute beyond the time pointed 
 out by the statute did not fall within 
 its prohibition, I do not see where we 
 should stop ; for, in point of reason, 
 
474' 
 
 STATTJTB OP FBAXnJS. 
 
 [chap. VII. 
 
 ment that the son of A shall serve B four years is void, and 
 a service of five months under it does not take the case out 
 of the statute.^ 
 
 Sec. 274. Contracts not to be Performed 'within a Year. — 
 The rule is, that all contracts which by their express terms are not 
 to be performed within one year,^ or contracts in which perform- 
 ance within one year is impossible, are within the statute : as 
 
 an excess of twenty years will equally 
 not be within the act." Bracegirdle 
 V. Heald, 1 B. & Aid. 722. 
 
 So where the defendant, on the 
 20th of July, proposed to hire the 
 plaintiff as bailiff for one year, to com- 
 mence on the 24th of July, and the 
 defendant at that time wrote a memo- 
 randum (but which was signed by 
 neither of the parties), which was de- 
 livered to the plaintiff and by him 
 taken away, stating the terms on 
 which the plaintiff was to serve ; and 
 the plaintiff entered the defendant's 
 service on the 24th, but before the ex- 
 piration of the year, the defendant 
 being displeased with the plaintiff, 
 gave him a month's warning to quit 
 his service; and the plaintiff left be- 
 fore the expiration of the year ; it was 
 held that he could not maintain an 
 action against the defendant for not 
 continuing the plaintiff for the year, 
 as there was no agreement in writing, 
 in conformity with the statute of 
 frauds. Snelling v. Lord Hunting- 
 field, 1 C. M. & K. 20. In Hearne v. 
 Chadbourne, 65 Me. 302, a contract 
 made on Friday, for one year, to begin 
 the following Monday, was held to be 
 within the statute. See also Kleeman 
 V. Collins, 9 Bush. (Ky.) 460; Wilson 
 V. Martin, 1 Den. (N. Y.) 602; Broad- 
 well V. Getman, 2 id. 87 ; Lewis v. 
 Wilson, 4 E. D. S. (N. Y. C. P.) 422; 
 Amburger v. Marvin, 4 id. 393. 
 
 And where the plaintiff entered 
 into the service of the defendant 
 under the following agreement; "I 
 agree to receive you as clerk or book- 
 keeper in my establishment, in con- 
 sideration of your paying me a 
 premium of £300, and to pay you a 
 salary at the following rates, viz. ; for 
 the first year, £70; for the second, 
 
 £90; for the third, £110; for the 
 fourth, £130 ; and £150 for the fifth 
 and following years that you remain 
 in my employment ; and I also agree, 
 in case of the death of either of us, 
 to return £150." It was held that 
 the agreement was one that, by the 
 statute of frauds, was required to be 
 in' writing; and that, there being a 
 precise stipulation for yearly pay- 
 ments, evidence was not admissible to 
 show a verbal agreement for quarterly 
 payments. Giraud v. Kichmond, 2 C. 
 B. 835. 
 
 1 Squire v. Whipple, 1 Vt. 69. 
 
 2 Herriu v. Butters, 20 Me. 119; 
 Comstock V. Ward, 22 HI. 248 ; Squire 
 V. Whipple, 1 "Vt. 69 ; Drummand v. 
 Burrell, 13 Wend. (N. Y.) 307; Shute 
 t. Dorr, 5 id. 204 ; Broadwell i>. Get- 
 man, 2 Den. (N. Y.) 87; Fenton v. 
 Emblers, 3 Burr. 1281. 
 
 A parol agreement, which is not 
 wholly to be performed within one 
 year, is void, although some of the 
 stipulations are to be executed within 
 the year. And it seems that it is 
 void, although one of the parties is to 
 perform every thing, on his part with- 
 in the year, if a longer time than a 
 year is stipulated for the performance 
 by the other. 
 
 A, in January, agreed by parol to 
 clear a piece of woodland for B, and 
 partly to fence one end of it, which 
 he was to complete, the whole to be 
 done in one year from the ensuing 
 spring, when A was to put in a crop, 
 which, with the wood and timber, ex- 
 cept that used for the fences, he was 
 to have for his compensation. In an 
 action against A for non-performance, 
 it was held that the contract was with- 
 in the statute and void. Broadwell v, 
 Getman, 2 Denio (N. Y.) 87. 
 
SEC. 274.] CONTRACT KOT PEEFOKMABLE IN A YEAE. 475 
 
 ■where a railroad company entered into an arrangement -with 
 an individual to stop their trains at a certain place, as a per- 
 manent arrangement ; ^ or where A contracted with B in 
 January, 1841, that if he would clear a certain piece of land 
 of A's, and make a fence around a part of it, he should have 
 the use of the land for the summer of 1842, it was held that 
 the contract was void, because performance within a year was 
 impossible.^ So where it is the manifest understanding and inten-, 
 tion of the parties that the contract shall not be performed within a 
 year, although it is possible that it may be completed within that time, 
 it is within the statute. The true test as to whether such a 
 contract is within the statute is, not whether it may be per- 
 formed within a year, but whether performance within a year oper- 
 ates as a full and complete performance of the contract according to 
 the true intent and understanding of the parties. The leading case 
 upon this point is Boydell v. Drummond,^ which has been 
 before referred to, in which the court laid down the doctrine 
 that, if it appears to have been the understanding of the parties to a 
 contract that it was not to be completed within a year, though it might 
 be and was in fact in part performed within that time, it is within 
 the statute, and cannot be enforced. In that case the plain- 
 tiffs proposed to publish large prints, illustrative of scenes 
 
 1 Pitken v. L. I. R. E. Co., 2 Barb, tude which was to be binding upon the 
 Ch. (N. Y.) 221. In Day w. N. Y. &c. real property of the defendant, as the 
 E. R. Co., 31 Barb. (N. Y.) 548, an servient tenement, for the benefit of 
 agreement was made between the the plaintiff and his land, and those 
 plaintiff and the defendant, a railroad who should succeed the plaintiff in 
 company, by which the former was to his real estate. That the negative 
 convey to the latter a strip of land easement acquired by the plaintiff in 
 adjoining the railroad, and to erect the lands of the defendant, by virtue 
 on his own lands cattle-pens, a house, of the agreement, was an incorporeal 
 etc., and to provide for feeding the hereditament, the right or title to 
 stock; and the latter was to build a which could only pass by grant, or 
 track on its own land, alongside of the deed under seal, or be acquired by 
 plaintiff's land, and there deliver all prescription ; and that the contract in 
 of certain stock ; to the end that the this case, being by parol, was void, 
 plaintiff might enjoy the profits to That the agreement, being oral, was 
 arise from keeping and feeding the void by the statute of frauds, because, 
 stock. The business contemplated by from its nature and terms, it was not to 
 the contract could not be done with- be performed withiij one year, but 
 out connecting the lands of the plain- was to continue in operation, as a per- 
 tiff with those of the defendant, by manent arrangement, during the ex- 
 means of a platform or bridge resting istence of the corporation, 
 partly upon the land of each party. ^ Broadwell v. Getman, ante. 
 Held, that the contract, if valid, in ' Boydell u, Drummond, 11 East, 
 effect created an easement or servi- 142. 
 
476 STATUTE OP PRAtTDS. [CHAP. VH. 
 
 from Shakspeare, to be issued in numbers at the rate of two 
 to eacli play, and to embrace seventy-two scenes. The defend- 
 ant became a subscriber to the series and paid two guineas in 
 advance. The manner in which the defendant became a sub- 
 scriber was by writing his name in a book entitled " Shak- 
 speare's subscribers, their signatures." The plaintiffs had 
 issued a prospectus of the work, with reference to wMch' 
 the parties appeared to have contracted, but which was not 
 referred to or in any wise made a part of the subscription. 
 In this prospectus it was stated that " one number at least 
 should be published annually, and the proprietors were confi- 
 dent that they should be able to produce two numbers within 
 the course of every year." The defendant received two num- 
 bers, and, declining to take any more, the plaintiffs brought 
 this action to recover the price of the remaining numbers of 
 the series. The court were unanimous in their judgment that 
 the case was within the statute. Loed ' Ellenboeough, 
 C. J., said : " The whole scope of the agreement shows that 
 it was not to be performed within a year, and if, contrary to 
 all physical probability, it could Jiave been performed within 
 that time, yet the whole work could not have been obtruded 
 upon the subscribers at once, so as to have enabled the pub- 
 lishers to demand payment of the whole subscription from them 
 within the year. It has been argued that an inchoate per- 
 formance within a year is sufficient to take the case out of 
 the statute ; but the word used in the clause of the statute is 
 "performed,^ which must mean ex vi termini, complete per- 
 formance, or a consummation of the work. If this were not 
 the true construction of the statute, great inconvenience 
 would ensue in the execution of contracts for large works, 
 which must necessarily require a long time for their comple- 
 tion, as in the case of the Somerset House, which occupied 
 many years in the building. If one stone were laid within a 
 year from the making of the contract by parol, it would, 
 according to the argument, have taken the case out of the 
 statute," and thus have precipitated all the evils which the 
 statute was intended to avoid.^ 
 
 1 Hinckley v. Southgate, 11 Vt. (Ky.) 17; Unsoott v. Mclntlre, 15 
 428; Herrin ». Butters, 20 Me. 119; Me. 201 ; Peters v. "Westborough, 19 
 Saunders v. Kastenbine, 6 B. Mon. Pick. (Mass.) 365. 
 
SBC. 274.J COKTEACT NOT PEEFOEMABLE IN A YBAE. 477 
 
 The performance contemplated by the statute is a full and 
 complete performance, and not a performance that is partial 
 or inchoate, and therefore, where from the stipulations of the 
 contract it is evident that the parties intended that its per- 
 formance should extend over a year, the agreement is within 
 the statute.^ As to whether the parties understood and in- 
 tended that the contract might be performed within a year is 
 to be gathered from the terms of the contract, and the sub- 
 ject-matter to which it relates. Thus, in a Maine case ^ the 
 defendant entered into a contract with the plaintiff to clear 
 eleven acres of his (the plaintiff's) land in three years from 
 date. One acre to be seeded down the present spring, one 
 acre the next spring, and one acre the following spring, for 
 doing which the defendant was to have all the proceeds of .the 
 land during the entire three years, except 'of the two acres 
 first seeded down. It was held that the contract was clearly 
 within the statute, the court observing: "It is urged that the 
 defendant might have cleared up the land and seeded it down 
 in one year, and thereby performed his contract. But we are 
 not to inquire what, by possibility, the defendant might have 
 done by way of fulfilling his contract. We must look at the 
 terms of the contract itself and see what he was bound to 
 do, and what, according to the terms of the contract, it was 
 the understanding of the parties he should do. "Was it the 
 understanding and intention of the parties that the contract 
 might he performed in one year ? If not, the case is clearly 
 with the defendant." 
 
 In all cases, in order to take a contract out of the statute, 
 it must not only be capable of complete performance within 
 the year, but it must also be such a performance as is within 
 the evident understanding and intention of the parties. That 
 is, there must be nothing in the contract to prevent the 
 enforcement of the claim for compensation for such per- 
 formance.^ 
 
 1 Souch V. Strawbridge, 2 C. B. 815. of one year from the making thereof 
 At law nothing short of a full and shall be in writing, means an agree- 
 complete performance by one party of ment expressly stipulated, and so ap- 
 an agreement within the statute of pearing within the instrument not to 
 frauds will take it out of the operation be performed within the year. Thomp- 
 of that statute. Eaton v. Whitaker, son v. Gordon, 3 Strobh. (S. C.) 196. 
 18 Conn. 222. The provision of the ^ Herrin v. Butters, 20 Me. 119. 
 statute, that any agreement that ia ' Boydell v. Drummond, ante ; Her- 
 not to be performed within the space rin v. Butters, ante. 
 
478 
 
 STATUTE OF FRAUDS. 
 
 [chap. VII. 
 
 There seems to be no doubt that in all the States, where a 
 person renders services under a contract within the statute, 
 he may recover for such services what they are reasonably 
 worth, if the defendant himself puts an end to the contract.^ 
 
 1 In White v. Wieland, 109 Mass. 
 291, the defendant was a tenant of 
 certain premises belonging to the 
 plaintiff, paying therefor a monthly 
 rent. In an action to recover the rent 
 he declared in set-ofi for money, work 
 and labor to the plaintiff's use in mak- 
 ing repairs upon the premises, which 
 were made under an oral agreement 
 that the plaintiff should let him the 
 house at $8 a month ; that he (the de- 
 fendant) should make certain repairs 
 on the house, and that the plaintiff 
 should give him a lease for five years, 
 and that the plaintiff, in violation of 
 such agreement, ejected him from the 
 premises and refused to give him the 
 lease. The defendant had a verdict 
 for a balance on his declaration in set- 
 oflE of .$75.10, which was sustained on 
 appeal. Chapman, C. J., remarking: 
 " The plaintiff's contract to give the 
 defendant a lease for five years was 
 within the statute of frauds and could 
 not be enforced. But if he broke it 
 before the defendant had broken the 
 contract on his part, and expelled him 
 from the premises, the defendant 
 would thereby be entitled to recover 
 of him for the repairs which he had 
 made on the premises in conformity 
 with the contract." Williams v. 
 Bemis, 108 Mass. 91. See McElroy v. 
 liUdlum, 32 N. J. Eq. 828. 
 
 In Mavor v. Payne, 2 C. & P. 91, 
 the defendant subscribed for Payne's 
 History of the Royal Residences, 
 which was published in numbers at 
 intervals of two months, at the price 
 of £1 Is. each, and consisted of 
 eighteen numbers. Eight of these 
 were delivered to the defendant, at 
 the plaintiff's residence, but he never 
 called for the remaining numbers. It 
 was objected that the contract was 
 within the statute of frauds, as it was 
 not to be performed within a year, 
 and that, not having been performed, 
 
 no recovery could be had for the 
 numbers delivered. 
 
 Best, C. J., said: "If this case 
 touched upon the principles laid down 
 in Boydell v. Drummond, I should 
 feel myself bound by the authority of 
 that case. And even if I differed in 
 opinion, it would govern me, sitting 
 at nisi prius. But I subscribe to every 
 word of it. If any inference at all 
 can be deduced from that judgment 
 bearing upon this case, it is an infer- 
 ence imfavorable to the objection 
 which has been made to-day. I will 
 state my brother Vaughan's propo- 
 sition, and then he will see how mon- 
 strous a proposition it is, and how 
 inconsistent with common sense and 
 common justice, and how unlikely it 
 is that a court of justice should ever 
 have entertained it. He says, 'it is 
 an entire contract.' I agree with him 
 that it is so. But he says, ' that if 
 there were twenty-four numbers, and 
 twenty-three of them were delivered, 
 and the twenty-fourth was not, the 
 publisher could not recover for the 
 twenty-three.' I am of opinion that 
 there is a subordinate contract; an 
 understanding that each number is to 
 be paid for on delivery. It must be 
 well known to the gentlemen of the 
 jury, that in this city a similar course 
 is constantly adopted in the cases of 
 contracts for the sale of corn. It is 
 necessary that publishers should have 
 the money for each number as it 
 comes out, in order that they may be 
 able to go on with the work. This is 
 always their object, and my brother 
 Vaughan's argument goes to over- 
 throw this. The object of publishers 
 is the same, because it is not con- 
 venient for them to pay for the whole 
 work at once. Taking it to be a con- 
 tract for the whole, yet it is in part 
 executed. But I will put this case on 
 another ground. The evidence is, 
 
SEC. 275.] CONTRACT PBEPOEMABLE IN A YEAR. 479 
 
 But in some of the States, as has been previously observed, 
 is is held that, if a person commences to labor under a con- 
 tract for a term, within the statute of frauds, he cannot 
 recover for part performance if he puts an end to the con- 
 tract without a sufficient legal excuse. The theory upon 
 whioh these cases proceed is, that the contract is not void, 
 but that it is simply non-enforceable at law, hence, in order 
 to entitle the servant to a recovery for any part of his ser- 
 vices upon a quantum meruit even, full performance, or a legal 
 excuse for a failure in that respect, must be shown. But the 
 reasoning upon which this doctrine is predicated is not gen- 
 erally adopted, nor is it believed to be such as commends 
 itself to favorable adoption by the courts. The statute in 
 many of the States, it is true, does not, in express terms, de- 
 clare such contracts void, but it deprives them of all legal 
 validity as contracts, and cuts off any remedy upon the con- 
 tract itself ; but the doctrine of the courts in the cases re- 
 ferred to, practically gives validity to such contracts, permits 
 them to be used in evidence, and measures the rights of par- 
 ties by them.^ 
 
 A contract for services, void under the statute of frauds, 
 cannot be enforced, nor can an action be maintained for wages 
 earned in pursuance of it. The servant must sue upon a 
 quantum meruit, and the contract is not admissible to control 
 the damages.^ 
 
 Sec. 275. when the Contract may or may not be Performed 
 within a Year. — An agreement which may be performed 
 within a year is not within the statute,^ however improbable 
 
 that the defendant agreed to take the i Mack v. Brigga, ante. 
 
 numbers, and actually took and kept ^ Emery v. Smith, 46 N. H. 151 ; 
 
 six, seven, or eight. He said, I shall Galvin v. Prentice, 45 N. Y. 162; Car- 
 
 not pay, because you have not given ter v. Bro?ni, 3 S. C. 298. 
 
 me the whole. To this it was » Esty v. Haldrich, 46 N. H. 127 ; 
 
 answered ? ' You may have the re- Blanding v. Sargent, 33 id. 239 ; Sher- 
 
 mainder ; but we did not agree to de- man v. Champ. Trans. Co., 31 Vt. 
 
 liver.' In common sense can a man 162; Moore ». Fox, 10 Johns. (N. Y.) 
 
 say : ' I will not pay for the eight 244 ; Russell v. Slade, 12 Conn. 455 ; 
 
 which I have had, and I will not take Clark v. Pendleton, 20 id. 508 ; Lins- 
 
 any more ' \ When the first contract cott v. Mclntire, 15 Me. 201 ; Gadsden 
 
 was broken off, when the defendant v. Lance, 1 McMuU (S. C.) 87; 
 
 said: 'I will not take the whole,' I Rogers o. Brightman, 10 Wis. 55; 
 
 think an implied contract was raised, Foster v. McO'Blenis, 18 Mo. 88 ; 
 
 which may be enforced in this form Ellicott v. Peterson, 4 Md. 476 ; Bar- 
 
 of action." ney v. Ball, 24 Ga. 505 ; Soggins v. 
 
480 
 
 STATUTE OP PEATTDS. 
 
 [chap. VII. 
 
 it may be that it will be performed within that period.^ Thus, 
 in Fenton v. Emblers, ante, it was held that an agreement by 
 
 Heard, 31 Miss. 426; Blanchard v. 
 Weeks, 34 Vt. 589. An agreement 
 that a policy of fire insurance shall be 
 renewed from year to year, either 
 party heing at liberty to give notice 
 at any time that the arrangement shall 
 hot be continued, is not within the 
 statute. Trustees of First Baptist 
 Church V. Brooklyn Fire Insurance 
 Co., 19 N. Y. 305. But an agreement 
 by parol to employ a person for the 
 term of one year, to commence in 
 futuro, and to enter into a contract in 
 writing so to employ, is not an agree- 
 ment to be performed within one year 
 from the making of it, and is, there- 
 fore, void by the statute. Amburger 
 V. Marvin, 4 E. D. Smith (N. Y.) 393. 
 Such a contract to employ is void, 
 under the statute of frauds, if not in 
 writing. Little v. Wilson, 4 E. D. 
 S. (N. Y. C. P.) 422. An agreement 
 by an 'infant to work seven years for 
 his board is not within the statute. 
 Wilhelm v. Hardman, 15 Md. 140. 
 When a contract to be performed de- 
 pends upon a contingency which may 
 happen within a year, it is not with- 
 in the statute. Barney v. Ball, 24 Ga. 
 505. 
 
 A contract to work for another as 
 long as they are mutually satisfied, 
 Greene v. Harris, 9 R. I. 401, or to 
 print and sell the products of a fac- 
 tory, to continue two years, if neces- 
 sary, until the contractor has made a 
 profit of 150,000, is not within the 
 statute. Hodges v. Kichmond Manuf. 
 Co., 9 E. I. 482. 
 
 An agreement to support one during 
 his life is not within the statute. 
 Hutchinson v. Hutchinson, 46 Me. 154. 
 See Houghton v. Houghton, 14 Ind. 
 505, as to contracts dependent on » 
 contingency. Also, Rogers v. Bright- 
 man, 10 Wis. 55 ; Atwood v. Pox, 30 
 Mo. 499. Promise to pay for boiler 
 by first forty thousand feet of lumber 
 sawed at defendant's mill, Woodford 
 V. Patterson, 32 Barb. (N. Y.) 630; 
 agreement to furnish and set up a 
 
 monument, Mead v. Case, 33 id. 202 ; 
 agreement to furnish and prepare mar 
 terial for portable houses, are not 
 within the statute, Phipps v. McFar- 
 lane, 3 Minn. 109; as they are not 
 contracts for the sale of articles ex- 
 clusively, but for work. 
 
 1 In Ellicott V. Peterson, 4 Md. 476, 
 it was held that the statute of frauds 
 does not apply to any contract which 
 can, by any possibility, be fulfilled or 
 completed in the space of a year, 
 though the parties may have intended 
 that its operation should extend 
 through a much longer period. Thus, 
 where a grandfather of two minor 
 children agreed, by parol, to pay the 
 plaintiff, their step-father, whatever 
 expense he might incur for their sup- 
 port and education, it was held that 
 the agreement was not within the 
 statute, because the death of the chil- 
 dren might occur within a year and 
 terminate the contract. In Compton 
 V. Martin, 5 Rich. (S. C.) 14, the de- 
 fendant let a negro to the plaintlif for 
 two years, for |140, and put the plain-' 
 tiff in possession. In a few days the 
 negro went back to defendant, and he 
 sold him. Held, that the contract of 
 hiring having been performed by the- 
 defendant, it was not within the 
 statute. In Missouri it is held that 
 only those contracts are intended, 
 which, by express stipulation, are not 
 to be performed within that time. 
 Foster v. McO'Blenis, 18 Mo. (3 Ben- 
 nett) 88. 
 
 A contract by one not to sell, or 
 assist others in selling, musical instru- 
 ments, is not invalid under the statute 
 of frauds, as being a contract not to 
 be finished within one year, as it may 
 be ended by the death of the contrac- 
 tor within that time. Hill u. Jamie- 
 son, 16 Ind. 125. If the thing promised 
 may be performed within the year, 
 the contract is not within the provision 
 of the statute relative to time of per- 
 formance. Linscott V. Melntire, 3 
 Shep. 201. Where the time for the 
 
SEC. 275.] CONTRACT PEEFOEMABLE IN A YEAE. 
 
 481 
 
 which the defendant employed the plamtiff to serve him as 
 his housekeeper as long as it should please him, and to pay 
 
 complete performance of a contract is 
 to be extended beyond a year, the fact 
 that a part performance is to be made 
 within the year by agreement, does 
 not take the contract out of the stat- 
 ute of frauds. To bring a case within 
 the statute of frauds, it must have 
 been expressly stipulated by the 
 parties, or it must, upon a reasonable 
 construction of their contract, appear 
 to have been understood by them, 
 that the contract was not to be per- 
 formed within a year. 
 
 A agreed, in writing, with B to do 
 certain work in three years, a certain 
 part to be done in each year. A ver- 
 bally assigned one-half of his interest 
 in the contract to C, who verbally as- 
 signed to D, C and D respectively 
 agreeing, verbally, to perform one- 
 half of the contract. A and D par- 
 tially performed the contract. B 
 recovered damages of A for non-per- 
 formance. C paid one-half thus re- 
 covered to A, on demand, and then 
 sued D for the same. Held, that the 
 contract between C and D was void 
 by the statute of frauds, and that the 
 plaintiff was not entitled to recover. 
 Herrin v. Butters, 20 Me. 119. 
 
 A contract for work and labor to 
 be begun, but not completed, within 
 one year from the making thereof, is 
 within the statute of frauds, and must 
 be in writing. Hinckley v, Southgate, 
 11 Vt. 428. A and B were co-trustees 
 of the estate of a minor, and it was 
 verbally agreed between them that, 
 in consideration that A should be per- 
 mitted to employ the trust fund in 
 trade, on his own account, for the 
 term of three years, he would pay the 
 interest thereon to the cestui que trust, 
 and would also pay in goods to B 
 $150 per year for three years. Held, 
 that the whole contract was void by 
 force of the statute of frauds, it being 
 to be performed in part within one 
 year, and in part thereafter. Foote v. 
 Emerson, 10 Vt. 338. A parol con- 
 tract is not void, as an agreement not 
 
 to be performed within a year from 
 the making thereof, if the perform- 
 ance of it depends upon a contingency 
 which may happen within the year, 
 although, in fact, it do not happen 
 till after the expiration of the year. 
 Thus, a parol contract to support a 
 person for a certain number of years, 
 is not within the statute ; for, if he dies 
 within one year, having been sup- 
 ported under the contract until his 
 death, the contract will have been 
 fully performed. Peters v. West- 
 borough, 19 Pick. (Mass.) 364; Dres- 
 ser V. Dresser, 35 Barb. (N. Y.) 573. 
 So, where one party agreed that 
 another might cut certain trees on her 
 land at any time within ten years, it 
 was held not to be within the statute, 
 for such an agreement may be per- 
 formed within one year. Kent v. 
 Kent, 18 Pick. (Mass.) 569. In an 
 action by a surety on an administra- 
 tion bond against a co-surety for 
 contribution, it appeared that the 
 defendant signed the bond at the re- 
 quest of the plaintiff, and upon the 
 plaintiff's verbal promise to save him 
 harmless. Held, that, as this promise 
 might be performed within a year, it 
 was not required by the statute of 
 frauds to be in writing. Blake v. 
 Cole, 22 Pick. (Mass.) 97. 
 
 Where a contract within the stat- 
 ute is lawfully rescinded, either party 
 may have an action against the other 
 for the repayment of money advanced, 
 or for labor performed, or the return 
 of anything delivered under the con- 
 tract, and may support such action by 
 parol evidence. Sherburne k. Fuller, 
 5 Mass. 133, 139; Kidder v. Hunt, 1 
 Pick. (Mass.) 328. A, on the sale to 
 B of a share in a patent right for a 
 certain sum paid therefor by B, made 
 an oral agreement with B to repay 
 him said sum, if he should, within 
 three years, not realize said sum out 
 of the profits arising from said', share. 
 Held, that this agreement was within 
 the statute of frauds, as it was not to 
 
482 
 
 STATUTE OP FKATJDS. 
 
 [chap. VII. 
 
 her at the rate of £6 a year, and also to bequeath to her the 
 sum of £16 a year, payable to her yearly for each year of her 
 life after his decease, was held not to be within the statute, 
 although the employment might, and in point of fact did, 
 extend beyond one year. Dennison, J., in passing upon the 
 question, laid down the doctrine which has been generally 
 adopted ever since. He said: "The statute of frauds plainly 
 means an agreement not to be performed within a year, and 
 expressly and specially so agreed. A contingency is not within 
 it, nor any case that depends upon a contingency. It does not 
 extend to cases where the thing only may be performed with- 
 in the year." ^ 
 
 In Peter v. Compton,^ an action was brought upon an 
 agreement by which the defendant, in consideration of one 
 
 be performed within one year from 
 the making thereof. Lapham v. 
 Whipple, 8 Met. (Mass.) 59. A prom- 
 ise which arises by operation of law 
 is not within the statute of frauds. 
 Smith V. Bradley, 1 Root (Conn.) 150. 
 A promise to pay for boarding a son 
 two years is not within the statute of 
 frauds. Ives o. Gilbert. 1 Root 
 (Conn.) 89. A verbal contract, which 
 it was agreed should go into effect on 
 the 1st of April, 1854, and continue 
 " as long as the parties are mutually 
 satisfied " ; held, not to be a contract 
 within the statute of frauds, as it 
 might be performed within one year. 
 Greene v. Harris, 9 R. I. 401. In 
 Hodges i>. Richmond Manuf. Co., 9 
 R. I. 482, the plaintiff alleged that a 
 contract was made between him and 
 the defendant, that the defendant 
 should print and sell, at cost, the pro- 
 ducts of the plaintiff's mill, and that 
 a memorandum of the terms of the 
 contract was made by him, but not 
 signed by the defendant, concluding 
 as follows: ^'This agreement to con- 
 tinue two years, or longer if necessary, 
 until I (plaintiff) have made the net 
 profit of fifty thousand dollars. This 
 contract is to take the place of the 
 one I had previously made to sell 
 them production of my mill for four 
 months, at twenty cents per yard." 
 Held, that, as the consideration of the 
 
 contract was the release of a former 
 contract which might have been dis- 
 advantageous to the defendant, and 
 as the object appeared to be to let the 
 plaintiff make a sum of money from 
 the new one, the money, and not the 
 time, was the principal object of the 
 contract, and, therefore, it might be 
 performed within one year, and was 
 not within the statute of frauds. 
 Held, further, that the contract should 
 be taken as if it was expressed to con- 
 tinue until the plaintiff had made a 
 net profit of fifty thousand dollars, 
 even if it took two years, or longer, 
 to do it. 
 
 ' Fenton v. Emblers, 3 Burr. 1278. 
 
 2 Peter v. Compton, Skin. 353. In 
 Packet Co. <■. Sickles, 5 Wall. (U. S.) 
 580, the coiirt held that an agreement 
 to pay ascertain sum annually for the 
 right to use an invention on a certain 
 steamboat during the term of the 
 patent, which had twelve years to 
 run, if the boat should last so long, was 
 within the statute, notwithstanding it 
 rested upon a contingency. But the 
 doctrine of this case is not reconcil- 
 able with the authorities either of the 
 English or American courts, and 
 cannot be regarded as an authority to 
 overthrow a doctrine sustained by 
 such a mass of unbroken authorities 
 as sustain the opposite doctrine. Its 
 authority was questioned and denied 
 
SBC. 275.] CONTRACT PERFOEMABLE IN A YEAR. 483 
 
 guinea, promised to give the plaintiff so many on the day of 
 his marriage. The marriage did not happen within a year, 
 and it was objected that it was void under the statute of 
 frauds because the marriage did not happen within a year 
 after the agreement was made. Lord Holt said: "Where 
 the agreement is to be performed upon a contingent, and it 
 does not appear by the agreement that it was to be per- 
 formed after the year, then a note in writing is not neces- 
 sary, for the contingent might happen within the year ; but 
 when it appears from the whole tenor of the agreement that 
 it is to be performed after the year, then the note is neces- 
 sary, otherwise not." 
 
 Thus, a contract to pay a certain sum of money on the 
 return of a certain ship, although it does not return within 
 two years ; ^ a contract to employ one so long as he ILves,^ or 
 to work for another as long as he lives ; ^ for five years, or so 
 long as a certain person. remains the agent for the employer;* 
 or so long as the employer shall chose ; ^ or so long as the 
 parties are mutually satisfied ; ® or until the servant attains a 
 certain age, which would involve several years if he lived,^ nor 
 a parol contract not to engage in a particular business witliin 
 a certain district, as a contract not to engage in the staging 
 
 by Gkat, J., in Somerby i;. Buntin, lands, that the tenant move " during 
 
 118 Mass. 286j and an opposite doc- the term" (three years), is not within 
 
 trine announced in a case involving the statute, for it may be performed 
 
 quite similar questions. A contract within the first year. Larimer v. 
 
 for labor to be performed and paid Kelley, 10 Kan. 298. 
 
 for after the death of the employer, ^ Anon., Salk. 280. 
 
 may be proved by parol. Such a con- ' Hutchinson v. Hutchinson, 46 
 
 tract is not within the statute, for the Me. 154. 
 
 death may occur witliin the year. ^ Updike v. Ten Broeck, 32 N. .T. 
 
 Kiddle v. Backus, 38 Iowa, 81. In L. 105. 
 
 Blair &c. Land Co., 39 id. 406, it * Roberts v. Rockbottom Co., 7 
 
 was held that in order to exclude Met. (Mass.) 46. 
 
 parol evidence to prove a contract on ' Souch v. Strawbridge, 2 C. B. 
 
 the ground that it was not to be per- 808. 
 
 formed within a year, it must appear ° Greene v. Harris, 9 R. I. 401. 
 
 either from the express terms of the ' In Wilhelm u. Hardman, 15 Md. 
 
 contract or necessary implication, that 140, a contract made by an infant to 
 
 its performance within the year is work until he should attain the age 
 
 prohibited or impossible. Van Woert of twenty-one, which would not occur 
 
 V. Albany &c. R. R. Co., 1 T. & C. for seven years, for his board, 'was 
 
 (N. T.) 256. In Marley v. Noblett, held not within the statute. Peters 
 
 42 Ind. 85, it was held that an agree- v. Westborough, 19 Pick. (Mass.) 865 
 
 ment connected with the letting of 
 
484 
 
 STAa?UTE OF FEATTDS. 
 
 [chap. VII. 
 
 business;^ or to practise as a physician ;2 or to carry on the 
 butchering business, or sell meat from a cart;^ an agreement 
 not to run a mill or store, are not within the statute,* be- 
 cause in all such cases the contract may be terminated withm 
 the year by the death of the party, or any contract which 
 may be completed within a year by the happening of any 
 event, is not within the statute.* The rule is, that if the 
 time of performance may, although it is highly improbable 
 that it will, arrive within the year, the case is not within the 
 statute.^ The fact that performance within a year is highly 
 improbable does not bring it within the statute. The simple 
 test is, whether it may be performed within the year, and 
 whether such performance, although not expected to occur 
 within that time, answers the contract ; ^ and the important 
 question is, whether the contract, hy its terms, is necessarily 
 incapable of performance within a year? When it may by its 
 
 ^ Lyon V. King, 11 Met. (Mass.) 
 411. 
 
 2 Blanding v. Sargent, 33 N. H. 
 239; Blanchard v. "Weeks, 34 Vt. 589. 
 
 8 Richardson v. Pierce, 7 R. I. 330. 
 
 * Worthy v. Jones, 11 Gray 
 (Mass.) 168. 
 
 6 White V. Hanchett, 21 Wis. 415 ; 
 McLees v. Hale, 10 Wend. (N. Y.) 
 426; Clark o. Pendleton, 20 Conn. 
 495 ; Houghton v. Houghton, 14 Ind. 
 505; Gilbert v. Sykes, 16 East, 150; 
 Alderman u. Chester, 34 Ga. 153; 
 King V. Hanna, 9 B. Mon. (Ky.) 369; 
 Bell J). Hewitt, 24 Ind. 280; Wells j). 
 Horton, 4 Bing. 40. 
 
 ^ Penton u. Emhlers, ante ; Plimp- 
 ton V. Curtiss, 15 Wend. (N. Y.) 336; 
 Lockwood V. Barnes, 3 Hill (N. Y.) 
 128. 
 
 7 Derby v. Phelps, 2 N. H. 515; 
 McLees r. Hale, 10 Wend. (N. Y.) 
 426; Wells u. Horton, 4 Bmg. 10; 
 Lockwood V. Barnes, 3 Hill (N. Y.) 
 128; Blake v. Cole, 22 Pick. (Mass.) 
 97; Fenton v. Emhlers, 3 Burr. 1278; 
 Linscott V. Mclntire, 15 Me. 201. 
 
 8 In Roberts v. Rockbottom Co., 7 
 Met. (Mass.) 46, the plaintifE entered 
 the service of the defendants under 
 an agreement to labor for the fire 
 years, from the 6th day of May, 1839, 
 
 or so long as John A. Leforest should 
 continue their agent, at f 2 a day, pay- 
 able- quarterly. After serving a little 
 more than a year he was discharged. 
 There were two counts in the declar- 
 ation, one for the wages earned and 
 another for damages by being pre- 
 vented from performing. The de- 
 fendant insisted that the contract was 
 within the statute, and that no re- 
 covery could be had for its breach. 
 The jury returned a verdict for the 
 plaintiff upon the first count for 
 $24.88, and upon the second count for 
 $475, but under direction from the 
 court they reversed their verdict as to 
 the second count and found for the 
 defendant, upon the ground that the 
 contract was within the statute of 
 frauds. Upon appeal the verdict was 
 set aside, the court holding that the 
 contract, being dependent upon a con- 
 tingency, was not within the statute, 
 Shaw, C. J., observing : " We think it 
 now settled by recent cases, that 
 where the contract may by its terms 
 be fully performed within the year, it 
 is not void by the statute of frauds, 
 although in some contingencies it may 
 extend beyond a year." Lapham v. 
 Whipple, 8 Met. (Mass.) 59; Blake v. 
 Cole, 22 Pick. 97 ; Artcher v. Zeh, 6 
 
SEC. 275.] CONTBACT PEEFOEMABLE IN A YEAR. 485 
 
 terms be performed within that time, the fact that it is not 
 performed within that period does not bring it within the 
 statute.! Thus, in a New York case,^ the plaintiff entered 
 into a verbal agreement with the trustees of a school district, 
 in October, 1876, to teach its school for the year ending 
 October 1, 1877, at a fixed salary, and to teach the school for 
 another year at the same salary, if no notice to the contrary 
 should he given hy either party, and it was held that the con- 
 tract was not within the statute.^ The fact that performance 
 is to begin within the year, and in fact does begin within that 
 time, does not take the case out of the statute, if it is not to 
 he completely executed within that time.* 
 
 The statute does not apply to a case where a contract of 
 hiring is implied from circumstances, however long con- 
 tinued.^ Nor to a contract when no time for performance 
 is named ; ^ nor when the agreement is by deed.'' But the 
 mere fact that the contract may possihly be performed within 
 a year, if by its terms it is to continue longer than a year, 
 does not save it from the operation of the statute.^ Nor the 
 fact that it in point of fact is performed.^ A verbal contract 
 to labor for another one year, to commence in the future, is 
 void under the statute of frauds, and no action can be main- 
 tained for its breach so long as it remains executory, !" and a 
 
 Hill (N. Y.) 200; Doyle v. Dixon, 97 ' Couch i>. Goodman, 2 Q. B. 580; 
 
 Mass. 208. Cherry v. Hemlng, 4 Ex. 631. 
 
 1 Clarkw.Pendleton, 20Conn. 495; » Roberts v. Tucker, 3 Ex. 632; 
 Penton ' v. Emblers, ante ; Blake v. Herrin v. Butters, 20 Me. 119 ; Harris 
 Cole, 22 Pick. (Mass.) 97. w. Porter, 2 Harr. (Del.) 27; Com- 
 
 2 Smith u. Conlin, 19 Hun (N. Y.) stock v. "Ward, 22 111. 248. 
 
 234. ^ Lapham v. Whipple, 8 Met. 
 
 " Trustees v. B. P. Ins. Co., 19 N. (Mass.) 59; Marcy v. Marcy, 9 Allen 
 
 Y. 305 ; S. C. 28 id. 153 ; Kent v. Kent, (Mass.) 8. 
 
 62 id. 560; Moore v. Pox, 10 John. i" Hinckley v. Southgate, 11 Vt. 
 
 (N. Y.) 244 ; McLees v. Hale, 10 Wend. 429 ; Scoggin v. Blackwell, 36 Ala. 351 ; 
 
 (N. Y.) 426; Kelley v. TerreU, 26 Ga. Nones v. Homer, 2 Hilt. (N. Y.) 116 ; 
 
 561. Little V. Wilson, 4 E. D. S. (N. Y. C. 
 
 * Boydell v. Drummond, 11 East, P.) 422; Amburger v. Marvin, id. 
 
 142 ; Bracegirdle v. Heald, 1 B. & Aid. 393; Squire v. Whipple, 1 Vt. 69. In 
 
 722; Birch v. Liverpool, 9 B. & C. Banks v. Crossland, L. R. 10 Q. B. 
 
 392; Lockwood v. Barnes, 3 Hill (N. 97; 11 Eng. Eep. (Moak's Ed'n) 168, 
 
 Y.) 180; Eeg. v. Lord. 12 Q. B. 762. an information was filed against the 
 
 5 Beeston v. CoUyer, 4 Bing. 309. respondent under section 4 of the 
 
 " Russell V. Slade, 12 Conn. 455; "Master and Servant act," that the 
 
 Adams v. Adams, 26 Ala. 272 ; Sug- respondent, at Howden, on the 11th 
 
 gett V. Cason, 26 Mo. 224; Soggins v. of Nov. 1873., entered into a contract 
 
 Heard, 31 Miss. 426. with the appellant to serve him one 
 
486 
 
 STATUTE OF FRATTDS. 
 
 [chap. vir. 
 
 contract partly in writing and partly by parol is within the 
 statute if required to be in writing, as, in order to take a 
 case out of the statute, all the essential elements, of the con- 
 tract must be in writing,^ and parol evidence is not admissible 
 to supply the defects in the written portion of it.^ 
 
 Sec. 276. Contract, when Presumed to Commence at Once. — 
 
 When a contract for service for one year is entered into, and 
 no time is named when the term is to commence, the pre- 
 sumption is that it was to commence at once, and it is not 
 within the statute.^ But the doctrine of this case is denied 
 
 year for a certain compensation, which 
 time had not expired, and which ser- 
 vice the respondent refused to per- 
 form. It was proved that the hiring 
 was by parol only, entered into Nov. 
 11, to commence Nov. 22. It was 
 held that the contract being for a 
 term to commence in the future, was 
 within the statute of frauds, and 
 therefore not enforceable under the 
 act of 1867. A contract to labor for 
 another a year from the following 
 month, or day, is within the statute. 
 Scoggin V. Blackwell, 36 Ala. 351; 
 Squires v. Whipple, 1 Vt. 67 ; Little 
 V. Wilson, 4 E. D. S. (N. Y. C. P.) 422. 
 As an agreement made before Christ- 
 mas of one year, to serve as overseer 
 for the next year. Kelley v. Terrell, 
 26 Ga. 551. See, also, Taggard v. 
 Koosevelt, 2 E. D. S. (N. Y.) 100. 
 
 1 Frank v. Miller, 38 Md. 450. 
 
 2 Lang V. Henry, 54 N. H. 57. The 
 same principle was adopted in Wilson 
 v. Martin, 1 Den. (N. Y.) 602, when it 
 was held that an agreement made in 
 April for the hire of board and rooms 
 for one year from the 1st of May next 
 ensuing, was within the statute of 
 frauds, and that part performance 
 would not take the case out of the 
 statute. An agreement to employ a 
 person for a term which commences 
 at a future day is within the statute 
 of frauds and void. Lavaux v. Brown, 
 12 C. B. 701 ; Bracegirdle v. Heald, 1 
 B. & Aid. 722 ; Comes v. Lamson, 16 
 Conn. 246; Tuttle v. Sweet, 31 Me. 
 555; Kelly v. Terrell, 26 Ga. 551; 
 Drummond v., Burrell, 13 Wend. (N. 
 
 Y.) 307; Kleeman v. Collins, 9 Bush 
 (Ky.) 460. A parol agreement made 
 by the plaintiff a week prior to August 
 1, 1857, with the defendant, to enter 
 his employment from August 1, 1857, 
 to August 1, 1868, is an agreement 
 which by its terms is not to be per- 
 formed within one year from the 
 making of it, and is therefore void. 
 Nones v. Homer, 2 Hilt. (N. Y. C. 
 P.) 116. A verbal agreement be- 
 tween parties, by which the one agrees 
 to employ the other to work for one 
 year, commencing in futuro, and to 
 enter into a written agreement to that 
 eilect, is void by the statute of frauds. 
 Amburger v. Marvin, 4 E. D. S. (N. 
 Y. C. P.) 398. A verbal contract to 
 employ a party to work for one year, 
 to commence in future, is void, and 
 even if the employment is entered 
 upon, it may be terminated at any 
 time by either party, and the em- 
 ployee is liable for the services ren- 
 dered upon a quantum meruit. Little 
 V. Wilson, 4 E. D. S. (N. Y. C. P.) 
 422. 
 
 s In Eussell ». Slade, 12 Conn. 455, 
 the plaintiff entered into a contract to 
 work for the defendant in his factory 
 one year for one dollar a day. No 
 time was fixed when he should com- 
 mence. In an action against the de- 
 fendant for not furnishing labor under 
 the contract, it was objected that the 
 contract was void under the statute of 
 frauds. The court held that, as the 
 plaintiff had a right to commence at 
 once, the contract was not within the 
 statute, and that the fact that he did . 
 
SEC. 276.] CONTRACT PRESUMED TO COMMENCE AT ONCE. 487 
 
 in a recent case in Rhode Island,^ and it was held that, while 
 the plaintiff under the contract might have commenced at 
 once, but ia point of fact did not commence until a week 
 
 not commence for some days after 
 did not bring it within the statute. So, 
 where a contract was made on Sunday 
 to work one year, commencing the 
 following Monday, it was held not to 
 be within the statute, because it 
 would be presumed that the parties 
 had reference to a service to com- 
 mence at once. Wood «. Benson, 2 
 Cr. & J. 95 ; Chater v. Beckett, 7 T. 
 K. 201 ; Thomas v. Williams, 10 B. & 
 C. 664. 
 
 1 Suteliffe v. Atlantic Mills, 13 E. I. 
 480; 43 Am. Hep. 89. In Levison „. 
 Stix, N. Y. C. P., in June, 1881, it ap- 
 peared that the plaintiff was by verbal 
 contract, made on the 31st of Decem- 
 ber, 1879, engaged by defendant as a 
 clerk for the term of one year, which 
 year was to end December 31, 1880. 
 Before the expiration of this time de- 
 fendant discharged plaintiff from his 
 employment, without cause, as it was 
 alleged. From a judgment in favor 
 of plaintiff the defendant appealed, 
 and the judgment was reversed, the 
 court saying: "In support of the 
 position claimed upon the part of the 
 respondent are cited the cases of 
 Marvin v. Marvin, 75 N. Y. 242 ; Kent 
 V. Kent, 62 id. 560; Smith v. Conlon, 
 19 Hun (N. Y.) 236 ; and certain other 
 cases, holding that where an act is 
 not to be done until a certain length 
 of time has elapsed, that the day 
 upon which the time is set running is 
 to be excluded in the computation of 
 time. The case of Marvin v. Marvin 
 simply decides that where an act is to 
 be done after the expiring of four 
 days from the filing of a decision, the 
 day of the filing of the decision must 
 be excluded, because four full calen- 
 dar days must elapse after the filing 
 of the decision, before the act contem- 
 plated can be done ; and that was all 
 that was decided in that ease. In the 
 case of Kent v. Kent, the principle is 
 recognized which was asserted in the 
 case of Boydell v. Drummond, 11 
 
 East, 141, that a contract which may 
 by its terms be performed within a 
 a year, is not within tlie statute of 
 frauds ; but where the agreement by 
 Its terms is not to be performed with- 
 in one year, it is. To the same 
 effect is the case of Smith u. Con- 
 lon, and in that case the various 
 decisions of this State seem to be 
 carefully collated, which established 
 the proposition above mentioned. It 
 is clear that the employment in the 
 case in question was not to commence 
 until the 1st of January, 1880, and 
 upon precisely such a state of facts 
 in the case of Cawthors v. Garden, 13 
 C. B. (N. S.) 406, it was decided that 
 the contract was witliin the statute. 
 In that case it was held that a eon- 
 tract entered into on the 24th to serve 
 for twelve months, commencing on 
 the 25th, is within the statute; and 
 the case of Bracegirlde v. Heald, 1 B. 
 & Aid. 722, is there cited, in which it 
 was held that a contract for a year's 
 service, to commence at a subsequent 
 day, being a contract not to be per- 
 formed within a year, is within the 
 statute of frauds. In fact it is impos- 
 sible to see, if the term of service is 
 to commence at any time subsequent 
 to the time of making the contract, 
 and the contract is for a full year, 
 how it is possible that it should be per- 
 formed within a year. It is undoubt- 
 edly the intention of the statute to re- 
 quire that all contracts which are not 
 to be performed within the year from 
 the time of making shall be in writing, 
 and in order that they shall be com- 
 pleted within the year it is absolutely 
 necessary that the time of making 
 and the year of performance must be 
 within the same year ; and if the time 
 of making is to be excluded and the 
 time of performance is to be a full 
 year, the contract cannot be performed 
 within the year. See Dickson v. Pris- 
 bie, 52 Ala. 165 ; 23 Am. Eep. 565. 
 
488 STATUTE OF PEATJDS. [CHAP. VH. 
 
 after the contract was made, it was within the statute as 
 a contract not to be performed in one year, and such 
 also was the rule adopted in Snelling v. Lord Hunting- 
 ford.^ In that case A on the 20th of July made proposals 
 in writing, unsigned, to "B to enter his service as bailiff for a 
 year. B took the proposals, and went away and entered A's 
 service on July 24. The court held that the contract was 
 made on the 20th, and that it was not to be performed within 
 a year, and therefore was within the statute. Where there is 
 no evidence when the contract was in fact made, or was to 
 begin, the rule adopted in the Connecticut case would apply ; 
 but where the time when the contract was made, and the 
 time when the performance commenced, are shown, it would 
 seem that the rule adopted in the Rhode Island case is more 
 in conformity with the authorities.^ In the case last cited, 
 which the court in Russell v. Slade relied upon as an author- 
 ity, there was a written contract and an absence of both of 
 these elements, and the court held that it must be treated as 
 a contract commencing in praesenti, and that parol evidence 
 was not admissible to show that it was agreed that it should 
 commence at a future time. It will be observed that in this 
 case there was a contract in writing, and consequently that 
 parol evidence could not be admitted to alter or vary its 
 apparent meaning or intent ; but, on the other hand, had it 
 been a contract by parol, no one can doubt that the evidence 
 would not only have been admissible, but also controlling.*' 
 A contract by which a person agrees to serve another for 
 " twelve months certain, after which time either party may 
 terminate the agreement by giving three months' notice," is 
 held a mere agreement for twelve months, and either party 
 may, at the expiration of such time, put an end to the con- 
 
 1 Snelling v. Lord Huntingford, 1 Dec. 22, 1871, was held not to be 
 C. M. & R. 19. within the statute, because the court 
 
 2 See Williams v. Jones, 5 B. & would presume that the service com- 
 Ald. lOS. menced Dec. 21, and that the con- 
 
 ' See Sharp v. Ehiel, 55 Mo. 97, tract did not contemplate that the 
 
 where it was held that the year must plaintiff should serve on the 22d of 
 
 begin at the date of the contract. In Dec, 1871, but that the term expued 
 
 Dickson v. Frisbiej 52 Ala. 165f it was at the close of the 21st and the com- 
 
 held that a verbal contract entered ing in of the 22d. Upon no other 
 
 into Dec. 21, 1870, to serve the de- ground can the doctrine of this case 
 
 fendant as clerk for one year, ending be supported. 
 
SBC. 276.] CONTEACT PRESUMED TO COMMENCE AT ONCE. 489 
 
 tract without any notice, and that the notice only applies in 
 case the service is prolonged beyond the twelve months.^ 
 
 "When a contract is void under the statute, as when services 
 are to be paid for in land, while the contract cannot be en- 
 forced by compelling a conveyance of the land, yet a i^cov- 
 ery may be had for the actual value of the services, and in 
 such a case, where the services are to be paid for in land or 
 other property, which is fixed and determinate in its nature, 
 and possessed at the time a determinable value, the contract 
 may be referred to as a means of ascertaining the value of 
 the services ; ^ but a contract to give all the property, real 
 and personal, as compensation for services, is void, and the 
 value of the property cannot be shown as the measure of the 
 value of the services.^ 
 
 A parol agreement, with good consideration, that one of 
 the owners of adjoining lands will build and maintain the 
 division fence between them, is not within the statute ; * but 
 an executory agreement between an individual and a railroad 
 company, that the latter shall continue to stop with their cars 
 at a particular place adjacent to the property, as a permanent 
 arrangement, is, in substance, the grant of an easement or 
 servitude, binding upon the property of the company, and is 
 an interest in land, which is required by the statute of frauds 
 to be in writing, and such an agreement by parol would also 
 be void by the statute of frauds, as being an agreement not 
 to be performed within one year from the making thereof.^ 
 
 So, an oral contract to work for another for a year from the 
 following month is void under the statute of frauds, and no 
 action can be founded upon it for its breach or non-perform- 
 ance, so long as it remains executory.® 
 
 An agreement which may or may not be performed within 
 a year is not required by the statute of frauds to be in writing; 
 it must appear from the agreement itself that it is not to be 
 
 1 Langton v. Carleton, L. E. 9 ' Lisk v. Sherman, ante. 
 
 Exch. 57 ; Brovm u. Symons, 8 C. B. * Talmadge v. The Rensselaer & 
 
 (N. S.) 208; Thompson v. Maberly, 2 Saratoga Railroad Co., 12 Barb. (N. 
 
 Camp. 573. Y.) 493. 
 
 2 Lisku. Sherman, 25 Barb. (N. Y.) * Pitkin v. Long Island Railroad 
 433; Burlingame v. Burliugame, 7 Co., 2 Barb. Ch. (N. Y.) 221. 
 
 Cow. (N. Y.) 92; Fort v. Gooding, 9 « Scoggin v. Blackwell, 36 Ala. 
 B. & Aid. (N. Y.) 371; Thomas v. 351. 
 Dickinson, 6 N. Y. 364. 
 
490 
 
 STATUTE OP FBAXTDS. 
 
 [chap. VII. 
 
 performed within a year.^ Thus, where A delivered to B six 
 cows, which, by parol agreement, were to be returned to him 
 at the end of two years, or their value in money, unless A 
 should be dissatisfied with a certain trade or exchange of 
 farms made between them, in which case they were to remain 
 the property of A forever, it was held that the contract was 
 not within the statute, though not in writing, and in part not 
 to be performed within one year.^ 
 
 The fact that a person who has contracted to serve another 
 one year, to commence at a future day, enters upon the per- 
 formance of his contract, does not take the case out of the 
 statute, and the servant may quit at any time during the term 
 and recover the value of the services rendered upon a quantum 
 meruit, without deduction for loss to the employer, and the 
 master may discharge the servant at any time without incur- 
 ring any liability therefor.^ 
 
 1 Russell V. Slade, 12 Conn. 455. 
 
 ^ Holbrookw.Armstrong, lOMe. 31. 
 
 ^ In King v. Welcome, 15 Gray 
 (Mass.) 41, the plaintiffl entered into a 
 contract with the defendant to work 
 for him one year, to commence at a 
 future day. Two or three days after 
 the making of the contract, he quit 
 before his term was ended, without 
 cause, and in an action to recover the 
 value of his services, the defendant 
 set up the damages resulting to him 
 from a breach of the contract by the 
 plaintiff. The court held that the de- 
 fendant could not avail himself of this 
 defence. Thomas, J., in disposing of 
 the question, said: "Looking at the 
 mere letter of the statute, the sugges- 
 tion is obvioiis that no action can be 
 brought upon this contract. But the 
 defendant seeks to charge the plaintiff 
 therewith, to establish it by proof, to 
 enforce it in a court of law and to 
 avail himself of its provisions. . . . 
 A construction of the statute which 
 would sanction this use of the contract 
 would lose sight of the obvious pur- 
 poses of the statute. It would adhere 
 to the letter, at the expense of the 
 spirit. It would operate unequally 
 upon the parties. The weight of au- 
 thority is against it." 
 
 On the 26th of October, 1841, A 
 made a parol contract with B to labor 
 one year for $360, and to commence 
 the service upon A's return from New 
 York, which was to be in the course 
 of a week or ten days thereafter. B, 
 on the 9th of November following, 
 after his return from New York, com- 
 menced his labor under the contract, 
 and so continued _ until the 26th of 
 June, 1842, when . he left B's employ- 
 ment. In an action of book debt 
 brought by A against B for his ser- 
 vices, it was held that the contract, 
 not being one which, by its terms, was 
 to be performed within one year from 
 the making thereof, and not beingre- 
 duced to writing, was within the stat- 
 ute of frauds and perjuries ; that the 
 part performance of this contract by 
 A, by serving under it more than six 
 months, did not take it out of the 
 statute so as to give it validity; that 
 being thus within the statute, it was 
 not available to defeat the claim of 
 A, and that A's entering into B's ser- 
 vice on the 9th of November furnished 
 no presumption, to go to the jury, 
 that the parties recognized the con- 
 tract as one perfected and completed 
 on that day. Comes o. Lamson, 16 
 Conn. 246. 
 
SEC. 276.] CONTEAOT PKESX7MED TO COMMENCE AT ONCE. 491 
 
 A different doctrine is held in Vermont ^ and in Illinois,^ 
 but it is not believed that the doctrine of these courts can be 
 sustained upon any reasonable grounds either of principle or 
 authority. 
 
 There is no validity to such a contract, and it cannot be 
 enforced in any respect. Thus, if the wages are payable 
 monthly, no action upon the contract can be maintained 
 therefor, and the statute would be a complete defence there- 
 to.^ Neither party can enforce its provisions;* but if the 
 servant goes on and performs his contract, he cannot, upon 
 a quantum meruit, recover more than the contract price. The 
 contract executed by him is a complete answer to such a 
 claim.^ Such contracts are not absolutely void unless so 
 declared by the statute, and where they are not, they may 
 be availed of for certain purposes by the parties thereto as 
 evidence.® This is upon the principle that, while such con- 
 tracts, as executory contracts, cannot be enforced, yet, when 
 fully performed, the statute does not apply, following the 
 
 In New Tork an agreement that is 
 not, by its terms, to be completely 
 executed within one year, is void 
 unless in writing. One who refuses to 
 complete an agreement which is void 
 by the statute of frauds, after receiv- 
 ing a benefit from a part performance, 
 must pay for what he has received. 
 Lockwood u. Barnes, 3 ffiU (N. Y.) 
 128. 
 
 When a contract is by parol to 
 work for one year, to commence at a 
 future day, the fact that the servant 
 enters upon the discharge of his duties 
 will not take the contract out of the 
 statute so that a recovery can be had 
 for non-performance ; but the parties 
 will be' at liberty to put an end there- 
 to at any time, and a recovery can 
 only be had upon a quantum meruit 
 for the services actually rendered. 
 Thus in Palmer v. Marquette Rolling 
 Mill Co., 32 Mich. 274, on August 7, 
 1872, the plaintifE entered into the ser- 
 vice of the defendants under a tele- 
 gram : " You may come on at once at 
 salary of two thousand, conditional 
 only upon satisfactory discharge of 
 business." He went into their service 
 
 August 14, 1872, and was discharged 
 January 1, 1873. In an action for 
 breach of. contract, held there coujd 
 be no recovery. 
 
 When a person has begun the per- 
 formance of a contract, void under 
 the statute, if the other party, after 
 having derived a benefit from the con- 
 tract, refuses to perform, he must pay 
 for what benefit he has received, 
 Mavor v. Pyne, 3 Bing. 285 ; Kidder 
 V. Hunt, 1 Pick. (Mass.) 328; Lane v. 
 Shackford, 5 N. H. 133, upon a quan- 
 tum meruit. Stone v. DeUnison, 13 
 Pick. (Mass.) 1; King v. Brown, 2 
 Hill (N. Y.) 485. 
 
 1 Mack V. Bragg, 30 Vt. 571. See 
 King V. Welcome, 15 Gray (Mass.) 
 41, for a contrary, and as we believe, 
 the true rule in such cases. 
 
 2 Swanzey v. Moore^ 22 111. 63. 
 
 ' Hill V. Hooper, 1 Gray (Mass.) 
 131. 
 
 * Comes V. Lamson, 16 Conn. 246 ; 
 Beade v. Lamb, 6 Exch. 130 ; Carring- 
 ton V. Roots, 2 M. & W. 248. 
 
 5 Stone V. Dennison, 13 Pick. 
 (Mass.) 1. 
 
 8 Laroux v. Brown, 12 C. B. 801. 
 
492 STATUTE OP PEATJDS. [CHAP. Vn. 
 
 doctrine announced by Ttndax, C. J., in Souph v. Straw- 
 bridge, ante, that the statute does not apply to an executed 
 consideration, but only to prevent the recovery of damages 
 for its non-performance. 
 
 When a person enters into the employ of another under a 
 valid contract for a year, if he remains beyond the time for 
 which he is employed, he is entitled to recover for such ser- 
 vices pro rata at the price provided in the former contract, 
 and the statute of frauds does not apply to such a case. The 
 continuance of service is not under the provisions of the orig- 
 inal contract, except by inference of law. The original con- 
 tract is merely evidence of the understanding of the parties 
 as to the price, etc., which should be paid for such additional 
 services, and when the original contract is proved, it does not 
 afford conclusive evidence of the rights of the parties, but 
 raises a presumption merely, which the defendant may rebut 
 by any facts or circumstances that tend to show a different 
 understanding.^ 
 
 Sec. 277. Performance on One Side Does not'Take the Con- 
 tract out of the Statute. — The fact that a servant has fully 
 performed a contract for service void under the statute of 
 frauds does not entitle him to recover upon the contract, but 
 his remedy is upon a quantum meruit, and, except in those 
 States where such contracts are declared void, the measure 
 of his recovery would be the contract price, the law implying 
 a promise to pay according to the terms of the agreement.^ 
 But where the contract has been fully performed on both 
 sides, the statute does not apply .^ Full performance by the 
 plaintiff and part performance by the defendant does not take 
 the contract out of the statute, as to what remains to be 
 done, but an action Ues to recover the balance due.* Only 
 the party who has not performed can avail himself of the 
 
 1 Tatterson v. Suffolk Manuf . Co., what the services are reasonahly 
 106 Mass. 60. worth. Annan v. Merritt, 13 Conn. 
 
 2 Carter v. Brown, 3 Rich. (S. C.) 478; Miller w. Hower, 2 Eawle (Penn.) 
 298; Stone i-. Dennison, 13 Pick. 53; Pugh u. Good, 3 W. & S. (Penn.) 
 (Mass.) 1; Schieffelin v. Carpenter, 15 56. 
 
 Wend. (N. Y.) 400; King v. Brown, 2 * Stone v. Dennison, ante; McCue 
 
 Hill (N. Y.) 485. v. Smith, 9 Minn. 262. 
 
 He is not deprived of all remedy * Thomas v. Dickinson, 14 Barb, 
 
 for his services, hut the law implies a (N. Y.) 90. 
 request and promise to pay therefor 
 
SEC. 277.] CONTRACT PEEFOEMED ON ONE SIDE. 493 
 
 statute. One who has voluntd,rily performed cannot allege 
 its invalidity.^ The privilege is personal, and cannot be 
 made available by a third person, a stranger to the con- 
 tract,2 and it may be waived, and is regarded as waived, 
 unless the party avails himself of it either by his pleadings, 
 or under the general issue where advantage may be taken of 
 it without a special plea.^ 
 
 A defendant, demurring to a bill, setting up a parol agree- 
 ment, and admitting the agreement, will, nevertheless, be 
 entitled to the protection of the statute of frauds, if, in his 
 demurrer, he claims such protection. The demurrer will, in 
 this respect, be treated like an answer. If the complainant 
 relies on a part performance, he must allege the facts consti- 
 tuting it in his declaration. These facts are admitted by the 
 demurrer, and it wOl then be the duty of the court to de- 
 termine whether they are sufficient to constitute a part 
 performance.* A defendant can never shelter his fraudulent 
 conduct behind the statute of frauds.^ The courts, of course, 
 take judicial notice of the statute, but they will not take 
 judicial notice that a given contract is void because not in 
 
 ^ Westfall V. Parsons, 16 Barb. (N. be enforced. Patterson v. Ware, 10 
 
 T.) 645. Ala. 444. 
 
 '^ In McCoy v. Williams, 6 111. 584, In New Jersey the statute must be 
 
 the court held that the plea of the relied on; that this, the party must 
 
 statute of frauds is a personal privi- either plead it specially or urge it as 
 
 lege, which the party may waive ; a ground of defence. Thus, a def end- 
 
 another cannot plead it for him, or ant may insist upon the benefit of the 
 
 compel him to plead it. statute of frauds, although he admits 
 
 ' In Vermont, if a plea avers that the parol agreement ; but if he does 
 the promise sued on was a promise to not insist upon the statute, he is not 
 pay the debt of another, to wit, B, a entitled to its benefit. Ashmore v. 
 replication that the promise was not a Evans, 11 N. J. Eq. 151. 
 promise to pay the debt of said B is In Missouri the statute must not 
 good, and the defence of the statute only be pleaded, but the plea must set 
 may be shown under the general issue, forth the grounds that bring the Con- 
 or pleaded specially. Hotchkisa t. tract within the statute. Thus, when 
 Ladd, 36 Vt. 593. the statute of frauds is pleaded in de- 
 
 In Illinois the statute must be fence, it is not sufficient to allege that 
 
 pleaded, if it is to be relied upon by the account stated is void by the stat- 
 
 the defendant. He cannot set it up, ute ; the facts relied upon in defence 
 
 for the first time, in an instruction, under the statute should be set out. 
 
 Warren c. Dickson, 27 111. 115. Dinkel «. Gundelfinger, 35 Mo. 172. 
 
 So in Alabama, the defence arising See, also, Rabsuhl v. Lack, id. 316. 
 
 imder the statute must be pleaded ; * Van Dyne v. Vreeland, 11 N. J. 
 
 and, if waived, and the contract is ad- Eq. 370. 
 
 mitted or established by proof, it will ^ Hidden v. Jordan, 21 Cal. 92. 
 
494 STATUTE OF FKAUDS. [CHAP. VH. 
 
 writing. The party must allege and prove such ground of 
 defence.-' 
 
 Sec. 278. Contract Defeasible within the Year. — The fact 
 that a contract, not to be performed within a year, is defeas- 
 ible within the year, will not take a case out of the statute. 
 Thus it was held that a contract, whereby a coachmaker 
 agreed to let a carriage for a term of five years, in consider- 
 ation of receiving an annual payment for the use of it, but 
 which, by the custom of the trade, was determinable at any 
 time within that period, upon the payment of a year's hire, 
 was an agreement not to be performed within a year, within 
 the meaning of the statute, and must be in writing.^ 
 
 Sec. 279. Contract Executed by One of the Parties. — In 
 
 England, and most of the States of this country, it is held 
 that the statute only applies to contracts which are not to he 
 performed hy either side within a year, and therefore where a 
 contract has been completely performed on one side within the 
 year, the case will not he within the statute.^ The doctrine 
 as stated in the text is adopted in Kentucky,* Missouri,^ 
 Maine,^ Maryland,'' Indiana,^ Illinois,® New Jersey,^" Ala- 
 bama," Georgia,^2 South Carolina,^^ Texas,i* Wisconsin,^^ and 
 
 1 Bumard v. Nerat, 1 C. & P. 578. Clay, 54 N. H. 518; Holbrook v. 
 
 2 Birch V. Earl of LiTerpool, 9 B. Armstrong, 10 Me. 31. 
 
 &C. 392; S. C. nom. Burch B. Earl of * Gully v. Grubbs, 1 J. J. Mar. 
 
 Liverpool, 4 Man. & Ry. 380 ; and see (Ky.) 887; Montague v. Garrett, 3 
 
 Roberts v. Tucker, 3 Ex. 682 ; Dobson Bush. (Ky.) 297. 
 
 V. Collis, 1 H. & N. 81 ; re Pentre- ' Self v. Cordell, 45 Mo. 345 ; Sug- 
 
 guinea Coal Co., 4 De G. E. & J. 54i. gett v. Casson, 26 id. 221 ; Blanton v. 
 
 s Suggett V. Casson, 26 Mo. 212 ; Knox, 3 id. 241. 
 
 Pinney v. Pinney,2 Root (Conn.) 191; ^ Holbrookw. Armstrong, 10 Me. 31. 
 
 Watrous v. Chalker, 7 Conn. 224; ' Hardesty v. Jones, 10 G. & J. 
 
 Cody u. Cadwell, 5 Day (Conn.) 67; (Md.) 404; EUicott v. Turner, 4 Md. 
 
 Berry u. Doremus, 80 N. J. L. 399; 476. 
 
 Curtis V. Sage, 35 Dl. 22 ; McCIellan « Haugh v. Blythe, 20 Ind. 24. 
 
 V. Sandford, 26 Wis. 595 ; Ellicott v. » Curtis v. Sage, 35 III. 22. 
 
 Turner, 4 Md. 476 ; Hardesty u. Jones, i" Berry v. Doremus, 30 N. J. L. 
 
 10 G. & J. (Md.) 404; Haugh a. 399. 
 
 Blythe, 20 Ind. 24; Blanton v. Knox, " Rake v. Pope, 7 Ala, 161. 
 
 3 Mo. 241 ; Suggett v. Casson, 26 Mo. ^^ Johnson v. Watson, 1 Ga. 348. 
 221; Self w. Cordell, 45 id. 845; John- !» Compton v. Martin, 5 Rich. (S. 
 son V. Watson, 1 Ga. 848; Zabel v. C.) L. 14; Bates a. Moore, 2 Bailey 
 Schroder, 85 Tex. 808; Miller v. (S. C.) 614. 
 
 Roberts, 18 id. 16; Rake v. Pope, 7 " Miller v. Roberts, 19 Tex. 16; 
 
 Ala. 161 ; Compton v. Martin, 5 Rich Zabel v. Schroder, 35 id. 308. 
 
 (S. C.) L. 14; HoUoway v. Hampton, " McCIellan o. Sanford, 26 Wis. 
 
 4 B. Mon. (Ky.) 415; Perkins v. 595. 
 
SEC. 279.] CONTEACT PERFORMED ON ONE SIDE. 
 
 495 
 
 New HampsHre,^ while in Massachusetts^ and Vermont ^ 
 the doctrine is distinctly repudiated, and in New York the 
 question does not seem to be definitely settled,* and in 
 Ohio * and Mississippi " it is criticised. It will thus be 
 seen that the tendency of our courts is to sustain the rule 
 as stated, and whatever might be said as to the sound- 
 ness of the rule, it is quite too late to effect a change by any 
 line of argument that might be pursued. The meaning of 
 the section is, that no action shall be brought to recover 
 damages in respect of the non-performance of such con- 
 tracts as are referred to in it; its design was to prevent 
 the setting up, by means of fraud and perjury, of contracts 
 or promises by parol, upon which parties might otherwise 
 have been charged for their whole lives, and for that pur- 
 pose it requires that certain contracts shall be evidenced 
 only by the solemnity of writing, and has no application to 
 actions founded upon an executed consideration.'' Where a 
 
 1 Perkins v. Clay, 54 N. H. 518; 
 Blanding v. Sargent, 33 id. 239. But 
 see Emery v. Smith, 40 id. 151, contra. 
 
 2 Marcy v. Marcy, 9 Allen (Mass.) 
 8; Cabot v. Haskins, 3 Pick. (Mass.) 
 83; Frary v. Sterling, 99 Mass. 46. 
 
 « Pierce v. Paine's Est., 28 Vt. 34. 
 
 4 Dodge V. Crandall, 30 N. Y. 
 294; Bartlett v. Wheeler, 44 Barb. 
 (K Y.) 162; Weir v. Hill, 2 Lans. 
 (N. Y.) 278; Adams u. Honess, 62 
 Barb. (N. Y.) 326. 
 
 * Reinheimer o. Carter, 31 Ohio 
 St. 579. 
 
 6 Duff V. Snider, 54 Miss. 245. 
 
 ' Donellan v. Read, 3 B. & Ad. 899 ; 
 Souch ... Strawbridge, 2 C. B. 814, 
 per TiNDAL, C. J. ; and see re Pentre- 
 guinea Coal Co., 4 De G. F. & J. 541 ; 
 Smith V. Neale, 2 C. B. (N. S.) 67. 
 It was hinted in Bracegirdle v. Heald, 
 and decided in Donellan u. Read, 3 
 B. & Ad. 899, that an agreement is 
 not within the statute, provided that 
 all that is to be done hy one of the parties 
 is to be done within a year. There the 
 defendant was tenant to the plaintiff 
 under a lease of 20 years, and in con- 
 sideration that the plaintiff would lay 
 out i50 in alterations, the defendant 
 promised to pay an additional £b a 
 
 year during the remainder of the term. 
 The alterations were completed with- 
 in the year, and an action brought 
 for the increased rent. It was objected 
 among other things, that the contract 
 could not possibly be performed with- 
 in a year, and therefore ought to have 
 been in writing. The court, however, 
 held that it was not within the statute. 
 "We think," said Littledale, J., 
 delivering the judgment of the court, 
 "that as the contract was entirely 
 executed on one side within the year, 
 and as it was the intention of the 
 parties, founded on a reasonable ex- 
 pectation, that it should be so, the 
 statute of frauds does not extend to 
 such a case. In case of a parol sale 
 of goods, it often happens that they 
 are not to be paid for in full till after 
 the expiration of a longer time than a 
 year; and surely the law would not 
 sanction a defence on that ground, 
 where the buyer had had the full 
 benefit of the goods on his part." See 
 Hoby w. Roebuck, 7 Taunt. 157. 
 
 But the contrary seems to have 
 been taken for granted in Peter v. 
 Compton, Skin. 353, and other of the 
 older cases ; for instance, in Peter v. 
 Compton, there would have been no 
 
496 
 
 STATUTE OF FEATJDS. 
 
 [chap. VII. 
 
 landlord who had demised premises for a term of years at 
 ^50 a year, agreed with his tenant to lay out £60 in making 
 
 occasion to argue the question, 
 whether the possibility that the plain- 
 tiff's marriage might not happen for 
 a year brought the case within the 
 statute or no, if the payment of the 
 guinea, which took place immediately, 
 Tiad been considered suflBcient to ex- 
 empt the agreement from its oper- 
 ation. The decision in Donellan v. 
 Head, ante, makes the word agreement 
 bear two different meanings in the 
 same section of the statute of frauds. 
 But it seems to be qtdte well settled 
 that the word agreement, when lastly 
 used in the section, means what is to 
 be done on both sides ; and it has fre- 
 quently been held upon that very 
 ground, that guaranties are void, if 
 they do not contain the consideration 
 as well as the promise. Wain i;. 
 Warlters, 6 East, 10; Jenkins v. 
 Eeynolds, 3 B. & B. 14 ; Saunders v. 
 "Wakefield, 4 B. & Ad. 595 ; Sykes v. 
 Dixon, 9 Ad. & El. 693 ; but a much 
 more confined sense appears to be be- 
 stowed upon the word agreement when 
 it is held that an agreement is capable 
 of being executed within a year, 
 where one part only of it is capable of 
 being so. In the case put by Little- 
 dale, J., of goods deliyered imme- 
 diately, to be paid for after the ex- 
 piration of a year, great hardship 
 certainly would be inflicted on the 
 Tcndor, if he were to be unpaid be- 
 cause he could not show a written 
 agreement. But it may be worthy of 
 consideration, whether, even if he 
 were to be prevented from availing 
 himself of the special contract under 
 which he sold the goods, he might not 
 still sue on a quantum meruit. See 
 Teal V. Auty, 2 B. & B. 99; Earl of 
 Falmouth v. Thomas, 1 C. & M. 109; 
 Knowles v. Mitchell, 13 East, 249. In 
 Boydell v. Drummond, 11 East, 159, 
 it is expressly settled that part per- 
 formance will not take an agreement 
 out of the statute, and that upon 
 principles which seem not inapplicable 
 to the question in Donellan v. Read. 
 
 "I cannot," said Lord Ellen- 
 borough, "say that a contract is 
 performed, when a great part of it 
 remains wn-performed within the year; 
 in other words, that part performance 
 is performance. The mischief meant 
 to be prevented by the statute was 
 the leaving to memory the terms of a 
 contract for a longer time than a year. 
 The persons might die who were to 
 prove it, or they might lose their 
 faithful recollection of the terms of 
 it." Smith V. Westall, L. Ray. 316. 
 These observations seem applicable 
 to such a case as Donellan v. Read. 
 The performance of one side of the 
 agreement within the year could not 
 be said to be more than part perform- 
 ance of the agreement; and the 
 danger that witnesses may die, or 
 their memories fail, seems to be pretty 
 much the same in every case where 
 an agreement is to be established, 
 after the year is past, hy parol evidence. 
 Indeed, if there is any difference at all 
 in the danger of admitting oral testi- 
 mony after the year, it seems greater 
 in a case where one side of the agree- 
 ment only has been performed, than in 
 such a case as Boydell v. Drummond ; 
 since, where the agreement has been 
 partially performed on both sides, as 
 in the latter case, a witness giving a 
 false or mistaken account of its terms, 
 would have to render his tale con- 
 sistent with what had been done by 
 both the contractors; whereas, if the 
 part performance had been on one 
 side only, the witness would only have 
 to make his tale consistent with what 
 had been done on that side. It is true 
 that in Donellan v. Read there was a 
 part performance on both sides ; but 
 BO there was in Boydell v. Drummond : 
 and the reason assigned for the de- 
 cision in Donellan v. Read, viz., that 
 the whole of one side of the agree- 
 ment was performable within the 
 year, would equally apply in a case 
 where there had been, and could be, 
 no part performance on the other side 
 
SEC. 280.] CONTRACT NOT TO DO CERTAIN THINGS. 497 
 
 certain improvements upon them, the tenant undertaking to 
 pay him an increased rent of £5 a year during the remainder 
 of the term, it was held that the landlord having done the 
 work might recover the arrears of the i£5 a year, although 
 the agreement had not been signed by either party.^ 
 
 Sec. 280. Agreement not to do Certain Things. — An agree- 
 ment to refrain from doing a certain act in a certain locality, 
 for an indefinite period, as we have seen, is not within the 
 statute, although the parties may really have expected that 
 the contract would be in force for many years, because it 
 may be determined within a year by the death of the party 
 contracting.^ But if a definite period is fixed upon, as if the 
 party engages uot to exercise a certain trade at a certain 
 place " for three years," then as the parties do not contem- 
 plate a performance in one year, the contract is within the 
 statute.* But this is only the case when the contract 
 shows that it is not to be performed within a year, or that 
 it is impossible of performance within that time.* If it 
 
 for twenty years. Donellan v. Head 
 is fully confirmed in Cherry v, Hem- 
 ing, 4 Exchq. 631 ; and Bakon Parke 
 there says : " The learned obseryations 
 of Mr. Smith are not sufficient to in- 
 duce me to say that it was wrongly 
 decided." The case of Peter v. Comp- 
 ton, which he relies on, does not sup- 
 port his view. 41 Smith's Leading 
 Case, 433. 
 
 1 Donellan v. Read, 3 B. & Ad. 
 906; Mavor v. Pyne, 3 Bing. 285; 
 Cherry v. Heming, 4 Exchq. 631. 
 
 2 Hill V. Jamieson, 16 Ind. 125 ; 
 Blanchard v. "Weeks, 34 Vt. 384. 
 
 ' Davey </. Shannon, 4 Ex. Div. 
 81. In Wilson v. Martin, 1 Den. (N. 
 Y.) 602, a parol agreement for board 
 and lodging for one year, made before 
 the commencement of the year, is 
 within the statute. See also Spencer 
 V. Halstead, 1 id. 606. So in Kelley v. 
 Terrell, 26 Ga. 551, an oral agreement 
 made before Christmas, 1854, to serve 
 as overseer during the year 1855, was 
 held to be within the statute ; and the 
 same rule was applied to a contract 
 made Dec. 14, 1856, to rent a house 
 for the year 1857. Atwood v. Norton, 
 
 31 Ga. 507. And also to a contract to 
 serve three years, at it certain sum 
 per day. Tuttle v. Sweet, 31 Me. 565. 
 In Bartlett i'. Wheeler, 44 Barb. (N. 
 Y.) 294, A delivered to B four sheep, 
 B agreeing, by parol, to return twenty 
 sheep therefor at the end of four 
 years. At the expiration of four years, 
 the parties entered into another parol 
 agreement by which B, instead of de- 
 livering the twenty sheep, was to deliver 
 forty, of equal quality, at the end of 
 four years. The last contract was 
 held to be within the statute, because 
 not possible of performance within a 
 year. 
 
 * Thomas v. Hammond, 47 Tex. 
 42 ; McPherson v. Cox, 96 U. S. 404 ; 
 Duff t'. Snider, 54 Miss. 247 ; Blakeney 
 V. Goods, 80 Ohio St. 350 ; Walker t'. 
 Johnson, 96 U. S. 424 ; Van Woert v. 
 Albany &c. R. R. Co., 67 N. Y. 538; 
 Paves V. Strong, 51 Ind. 339 ; Rogers 
 V. Brightman, 10 Wis. 55 ; Hodges v. 
 Strong, 3 Greg. 18; Blackburn v. 
 Mann, 85 111. 222 ; Marley v. Noblett, 
 42 Ind. 85 ; Adams v. Adams, 26 Ala. 
 272; Plimpton v. Curtis, 15 Wend. 
 (N. y.) 336; Saunders v. Kastebine,6 
 
498 
 
 STATUTE OF FEATJDS. 
 
 [chap. VII. 
 
 may be performed within that time, the circumstance that 
 it is improbable that it will be so performed does not bring it 
 within the statute,^ nor even although it was not expected hy 
 the parties that it would be performed within the year?' Courts 
 will not weigh probabilities, but simply inquire whether per- 
 formance is possible, and the contract is one which can be 
 fully met and satisfied by a performance within the year.^ 
 But while an agreement to refrain from doing a certain act 
 for an indefinite time is not within the statute, because it 
 maybe fully performed within the year by the death, of one 
 of the parties, a contract not to do a certain act for a definite 
 time, exceeding one year, as for thirteen months, two years, 
 etc., is held to be within the statute because not possible of 
 performance within a year^ and it affirmatively appears in the 
 contract itself that it cannot in law^ or in the common 
 course of nature, be performed within a year.^ Thus in the 
 case last cited the parties orally agreed that the defendant 
 should have a colt at a certain sum agreed upon, and to be 
 paid for on delivery, to be got out of the defendant's mare 
 
 B. Mon. (Ky.) 17 ; Artcher a. Zeh, 5 
 Hill (N. Y.) 200. 
 
 1 Gault V. Brown, 48 N. H. 183. 
 
 2 Kent V. Kent, 62 N. Y. 560 ; Clark 
 V. Pendleton, 20 Conn. 495; Koberts 
 Rockbottom Co., 7 Met. (Mass.) 46 
 Eandall v. Turner, 17 Ohio St. 262 
 Southwell V. Breezeley, 5 Oreg. 143 
 Lockwood (,-. Barnes, 3 Hill (N. Y.) 
 128. In Gault v. Brown, ante, the 
 contract was for the sale of all the 
 cord-wood on a certain lot to be 
 delivered all that was possible that 
 winter, and the rest the next. The 
 court held that it was not within the 
 statute, because it might possibly be 
 completed within the year. 
 
 8 Southwell 0. Breezeley, 5 Oreg. 
 458. In Kent v. Kent, ante, a contract 
 to labor for another, the services to 
 be paid for at the death of the em- 
 ployer, was held not to be within the 
 statute, although the parties did not 
 expect the contract to be performed 
 within the year. It is not what the 
 parties expect, but is performance within 
 a year possible. Southwell v. Breeze- 
 ley, 5 Oreg. 143; S. C. 5 id. 458; Frost 
 
 V. Tarr, 53 Ind. 390. In District &e. 
 V. Moorhead, 43 Iowa, 466, a school- 
 house was erected, and a parol agree- 
 ment made with the owner of the land 
 that the district should have free 
 use of the land as long as the school- 
 house stood thereon; and it was held 
 that as the user depended upon a 
 contingency which might occur within 
 a year, it was not within the statute. 
 See also White v. Smith, 51 Ala. 405, 
 where a parol agreement to give a 
 person the use of land during his life, 
 was held not to be within the statute. 
 
 * Davey v. Shannon, 4 Exchq. Div. 
 81; Perkins v. Clay, 54 N. H. 518; 
 Self V. Cordell, 45 Mo. 345; Gotts- 
 Bchalk V. Wittes, 25 Ohio St. 76. But 
 see Doyle v. Dixon, 97 Mass. 208, 
 where a contract not to engage in a 
 certain trade in a certain place for 
 five years, was held not to be within 
 the statute. 
 
 ^ Lawrence v. Cooke, 56 Me. 187; 
 Walker v. Johnson, 96 U. S. 424. 
 
 •^ Lockwood V. Barnes, 3 Hill (N. 
 Y.) 128. 
 
SEC. 280.] CONTRACT NOT TO DO CERTAIN THINGS. 499 
 
 by the plaintiff's stallion. The latter was to take the mare 
 and keep her in his possession during the period of gestation 
 and until the ordinary weaning time, or until it was four or 
 six months old. In an action upon this contract held that 
 as the usual period of gestation for horses was eleven months, 
 and the common weaning time from four to six months more, 
 the contract could not possibly be performed within the 
 year, and was therefore within the statute. This rule is 
 also illustrated by a California case ^ in which the defendant 
 promised to pay money loaned him by the plaintiff, when 
 certain nut-bearing trees to be set out that season, should 
 bear nuts sufficient so as to yield a sufficient income for that 
 purpose over and above the expenses of the family. The 
 court held that this was clearly within the statute, because 
 in the common course of events the trees would not bear and 
 produce nuts within the year. The rule may be illustrated 
 thus. A contract to labor for another as long "as wood 
 grows and water runs " would clearly be within the statute, 
 because in the common course of nature, wood will continue 
 to grow, and water continue to run until the end of time. 
 But a contract to labor for another as long as he lives, is not 
 within the statute, because although that person may con- 
 tinue to live for many years, yet in the common course of 
 nature he may die within the year, so that however improba- 
 ble the happening of the contingency upon which the dura- 
 tion of the contract depends within a year, may be, yet it is 
 possible, and therefore not within the statute. Therefore it 
 may be said that where in the common course of events it is 
 possible that the contract may he performed within a year, it is 
 not within the statute however improbable it may be that 
 such performance will be accomplished within that period.^ 
 But if performance within a year, either because of the exr 
 press terms of the contract, or in the ordinary course of events 
 is impossible, then the contract is within the statute, and 
 inoperative unless in writing.^ Thus an agreement made 
 
 1 Swift V. Swift, 46 Cal. 266. would take nearly, if not qtiite, two 
 
 2 Gault V. Brown, 48 N. H. 183. years, was held not to be within the 
 In Clark v. Pendleton, 20 Conn. 495, a statute, because, possibly, it might 
 promise by the defendant to marry end within the year. See also Bandall 
 the plaintiff upon his return from a v. Tvimer, 17 Ohio St. 262. 
 
 certain voyage, which it was expected ' Davey v. Shannon, 4 Exchq. Diy. 
 
500 STATUTE - OP PKAUDS. [C HAP. VII. 
 
 March 31, 1883, to pay money April 1, 1884, would clearly 
 come within the statute, or to pay a sum of money in annual 
 instalments,^ or in quarterly or semi-annual instalments, if 
 the whole sum is not to be paid in one year,^ or to pay a 
 mortgage when certain land is sold, which the promisor is 
 bound by his contract not to sell for three years,^ or to sell 
 the product of land for two years,* because they are not capa- 
 ble of performance within a year ; because however ready 
 one party might be to perform, the other party is not bound 
 to accept such performance within the year.^ 
 
 Sec. 281. Venaition of Right. — An agreement entered into 
 by a contractor to share in the profits of an undertaking is 
 not, although the contract is not capable of being performed 
 within a year, required to be in writing, and may be proved 
 by parol. The contract is merely one for the vendition of a 
 right ; it is performed as soon as the agreement is entered into, 
 and from that time the parties have all the mutual rights and 
 liabilities of partners in the concern.^ 
 
 85; Tiernan v. Granger, 65 III. 351; Y.) 307; Giraud v. Eichmond, 2 C. B 
 
 Lower i-. Winters, 7 Cow. (N. Y.) 263 ; 835. 
 
 Lapham v. Whipple, 8 Met. (Mass.) ' Jlill v. Hooper, 1 Gray (Mass.) 
 
 89; Cowles v. Warner, 22 Minn. 449; 131. But see Moore u. Fox, 10 John. 
 
 Curtis V. Sage, 35 111. 22; Frary v. (TS. Y.) 244. 
 
 Sterling, 99 Mass. 461 ; Hill v. Hooper, * Frary v. Sterling, ante. 
 
 1 Gray (Mass.) 131; Lawrence w. ^ HoUoway u. Hampton, 4 B. Mon. 
 
 Woods, 3 Bos. (N. Y.) 354. (Ky.) 415. 
 
 1 Lower v. Winters, 7 Cow. (N. Y.) « McKay v. Rutherford, 6 Moo. P. 
 263. C. 414 ; Essex v. Essex, 20 Beav. 449 ; 
 
 2 Park V. Francis, 50 Vt. 626 ; Hoare v. Hindley, 49 Gal. 274. 
 Drummond v. Burrell, 13 Wend. (N. 
 
SECTION XVII. 
 
 SALE OF GOODS. 
 
 " No contract for the sale of any goods, wares, or merchandises, for the 
 price of ten pounds sterling or upwards, shall be allowed to be good, ex- 
 cept the buyer shall accept part of the goods so sold, and actually receive 
 the same, or give something in earnest to bind the bargain, or in part pay- 
 ment, or that some note or memorandum in writing of the said bargain 
 be made, and signed by the parties to be charged by such contract, or 
 their agents thereunto lawfully authorized." 
 
CHAPTER VIII. 
 
 WHAT IS SALE OP GOODS. 
 
 SECTION. 
 
 282. Exceptions Contained in the Statute. 
 
 283. "What are Goods, etc. 
 
 284. Contracts to Make up Materials and Affix them to Land. 
 
 285. What is a Sale. 
 
 286. Defeasible Contracts of Sale. 
 
 Section 282. Exceptions Contained in the Statute. — The 
 general intention of the statute is that there should be a 
 writing,! ^^^ there are certain instances named, in which a 
 writing may be dispensed with. 
 
 1st. Where the buyer shaU " accept part of the goods so 
 sold, and actually receive the same. 2d. Or give some- 
 thing in earnest to bind the bargain or in part payment.^ 
 3d. Or, that some note or memorandum in writing of the 
 said bargain be made, and signed by the parties to be charged 
 by such contract, or their agents thereunto lawfully author- 
 ized." 
 
 Sec. 283. "What are Goods, Wares, or Merchandise. — The 
 
 question as to whether choses in action, as bills of exchange, 
 promissory notes, bank bills, stocks in corporations, etc., 
 come within this section of the statute, has been variously 
 decided in the courts of this country, as well as in England ; 
 
 ' Bushel 0. Wheeler, 15 Q. B. 445, Iowa the words are "where the pur- 
 ser Denman, C. J. chase-money, or any portion thereof, 
 
 ^ In California, the expression is has been received by the vendor." 
 
 " or pay at the time some part of the The omission of the words " or give 
 
 purchase-money," § 2794, sub-div. 4, something in earnest," in these stat- 
 
 and also in Dakota, Minnesota, § 7 ; utes, is important under this head, 
 
 Mississippi, § 2895; Montana, § 13; and entirely defeats the efficacy of 
 
 Nebraska, § 9 ; Nevada, § 62 ; New " earnest " in giving validity to such 
 
 York, § 2, tit. 2, sub-div. 3 ; Oregon, contracts, except when it is given as a 
 
 § 775, sub-div. 5 ; Utah, §6; Wiscon- part of the purchase-money. 
 sin, § 2308 ; and Wyoming, § 2. In 
 
SEC. 283.] 
 
 WHAT IS SALE OF GOODS. 
 
 603 
 
 but, whatever may formerly have been the rules in England, 
 it is now well settled that choses in action do not come 
 under this head, and contracts for their sale are not within 
 the statute.^ But in this country, so far as the question has 
 been before the courts, there seems to be considerable con- 
 flict. In New Hampshire,^ Indiana,^ Georgia,* and Alabama,^ 
 the English rule seems to prevail. But in Massachusetts,^ 
 Maine,^ Maryland,** Vermont,® and Connecticut,!" choses in 
 
 1 Benjamin on Sales, 3d Eng. ed., 
 § 111. In Powell V. Jessop, 18 C. B. 
 336; and Watson v. Spratley, 10 
 Exchq. 222, a sale of shares in a 
 mining company, on the cost-book 
 plan, was held not to be within the 
 statute ; and the same was held in 
 Humble v. Mitchell, 11 Ad. & El. 205, 
 as to shares in a banking company ; 
 and in Heseltine v. Siggers, 1 Exchq. 
 856, as to stock of a foreign State; 
 and in Duncroft v. Albrecht, 12 Sim. 
 189; Tempest i'. Itilner, 3 C. B. 249; 
 Bradley v. Holdsworth, 3 M. & W. 
 422 ; and Bowlby v. Bell, 3 C. B. 284, 
 as to sales of railway shares. But see 
 CruU V. Dodson, Sel. Cas. in Ch. 41 ; 
 and Mussel v. Cook, Pre. Ch. 538, 
 early cases, holding that shares in a 
 corporation were goods, wares, or mer- 
 chandise within the meaning of the 
 statute. 
 
 2 Whittemore v. Gibb, 24 N. H. 
 484. Promissory notes were held not 
 to be goods, wares, or merchandise 
 within the meaning of the statute. 
 
 8 Vawter v. Griffin, 40 Ind. 593. In 
 this State the statute omits the words 
 " wares or merchandise," and extends 
 only to sales of " goods " ; but the same 
 effect is given to the statute as though 
 those words were included. 
 
 * Beers v. Crowell, Dudley (Ga.) 
 28. An agreement to transfer treasury 
 checks was held not to be within the 
 statute. 
 
 s Hudson V. Weir, 29 Ala. 294. In 
 this case, a contract for the sale of 
 notes, for a price not exceeding $200, 
 was held not to be within the statute. 
 
 6 In Baldwin v. Williams, 3 Met. 
 (Mass.) 365, a contract for the sale of 
 promissory notes ; in Somerby v. Bun- 
 
 tin, 118 Mass. 279, an agreement for 
 the sale of an interest in an invention ; 
 and in Eastern R. R. Co. v, Benedict, 
 10 Gray (Mass.) 212 ; Bffardman v. 
 Cutter, 128 Mass. 390 ; Tisdale v. Ha> 
 ris, 20 Pick. (Mass.) 9, a contract for 
 the sale of shares in a corporation 
 were held to be within the statute, as 
 being contracts for the sale of " goods, 
 wares, or merchandise." 
 
 ' In Gooch V. Holmes, 41 Me. 323, 
 and in Riggs v. Magruder, 2 Cr. (U. 
 S. C. C.) 143, which arose, in that 
 State, a sale of bank bills was held 
 to be a sale of " goods, wares, or mer- 
 chandise." 
 
 8 Calvin v. Williams, 3 H. & J. 
 (Md.) 38. 
 
 9 Fay V. Wheeler, 44 Vt. 292. 
 
 10 North V. Forest, 15 Conn. 400. 
 In this case, a contract for the sale of 
 the plaintiff's stock in a corporation 
 was held to be within the statute, as 
 being a contract for the sale of " goods, 
 wares, or merchandise." But by stat- 
 ute, in Connecticut, the shares of such 
 stock are made personal property ; but 
 from the language of the court, it is 
 evident that this circumstance did not 
 affect the question. Waite, J., said : 
 " In consequence of the great increase 
 in corporations, and the amount of 
 capital invested in them, the stock of 
 such companies has become a large 
 and valuable portion of the personal 
 estate of our citizens. Contracts for 
 the sale of such property are almost 
 daily made, and often to a very large 
 amount. Such contracts fall clearly 
 within the mischiefs which the legis- 
 lature, by the statute, intended to 
 remedy. There is as much danger of 
 fraud and perjury in the parol proof 
 
504 STATUTE OP FEAtTDS. [CHAP. Tin. 
 
 action seem to be regarded as "goods, wares, or merchan- 
 dise " within the meaning of the statute, and contracts for 
 their sale for a price, beyond that fixed in the statute, are 
 required to be in writing. In many of the States, this ques- 
 tion has been decisively put at rest by an express' provision 
 including "things in action" therein, as in California, 
 Dakota, Nebraska, Nevada, New York, Minnesota, Montana, 
 Utah, Wisconsin, and Wyoming; while in Connecticut, 
 Florida, Mississippi, and Oregon, the statute is extended to 
 sales of "personal property." In some of the States, the 
 statute does not extend to contracts for the sale of goods, 
 wares, or merchandise, or other personal property, as in Ala- 
 bama, Delaware, Illinois, Kansas, Kentucky, North Carolina, 
 Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Vir- 
 ginia, and West Virginia. Any species of personal property, 
 subject to the limitations stated in this and the following 
 section, come under the head of goods, wares, and merchan- 
 dise within the meaning of the statute. 
 
 Sec. 284. Contracts to Make Up Materials and AfSz them 
 to Land. — A Contract to make up materials and afSx them 
 to land, as, a contract to build a house or to manufacture 
 an engine to be fixed to realty, is not a contract for the 
 sale of goods, and the contractor cannot recover for the 
 materials in an action for goods sold and delivered, even 
 though by a deviation from the original plan, the con- 
 tract is superseded as to price,^ because, in such a case, 
 as soon as the chattels are annexed to the land, they 
 become a part thereof, but, until they are so annexed, 
 they remain chattels. Thus, in a case cited in the last 
 note,^ B, a builder, contracted with A and others, trustees 
 of a new hotel about to be erected by a company of pro- 
 prietors, to build the hotel, except as to the ironmonger's, 
 plumber's, and glazier's work, for a specified sum, and cove- 
 
 of such contracts as in any other, falls within the letter as well as 
 
 The statute is highly important and within the spirit of the act." 
 beneficial in its operation, and ought ' Cottrell v. Apsey, 6 Taunt. 322 ; 
 
 not to be narrowed by any very rigid Tripp v. Armitage, 4 M. & "W. 687 ; 
 
 construction. Howe v. Palmer, 3 B. Clark v. Bulmer, 11 id. 243. 
 & Ad. 321. And we think it no 2 Tripp v. Armitage, 4 M. & W. 
 
 strained construction of its language 687. 
 to say that the contract in question 
 
SEC. 284.] -WHAT IS SALE OF GOODS. 506 
 
 nanted to complete certain portions of the work within 
 certain specified periods, being paid by instalments at corre- 
 sponding dates ; and that if he should neglect to complete 
 any portion within the time limited, he should forfeit and 
 pay the sum of £250 as liquidated damages. The agreement 
 then contained a clause empowering the trustees, in case 
 (^inter alia) B should become bankrupt, to take possession of 
 the work already done by him, and to put an end to the 
 agreement, which should be altogether null and void ; and 
 that the trustees, in such case, should pay B or his assignees 
 only, so much money as the architect of the company should 
 adjudge to be the value of the work actually done and fixed 
 by B, as compared with the whole work to be done. The 
 course of business during the progress of the work was for 
 the clerk of the works to inspect every article which came in 
 under the contract, and none were received except on his 
 approval. After the works had proceeded some time, B 
 became bankrupt. Before his bankruptcy, certain wooden 
 sash-frames had been delivered by him on the premises of 
 the company, approved by the clerk of the works, and 
 returned to B for the purpose of having iron pulleys, belong- 
 ing to the trustees, affixed to them ; and at the time of the 
 bankruptcy, these frames, with the pulleys attached to them, 
 were at B's shop. He afterwards, but before the issuing of 
 the fiat, redelivered them to the trustees; and the sash- 
 frames being afterwards demanded of them by B's assignees, 
 they gave an unqualified refusal to deliver them up. It was 
 held that the property in the wooden sash-frames had not 
 passed to the trustees at the time of the bankruptcy, and 
 that they were not entitled to hold them under the agree- 
 ment as being work already done, they not having been fixed 
 to the hotel. Lord Abingbr, C. B., said: "This is not a 
 contract for the sale and purchase of goods, as movable chat- 
 tels. It is a contract to make up goods and fix them, and, 
 until they are fixed, by the nature of the contract, the prop- 
 erty will not pass." Upon the same principle a sale of ten- 
 ant's fixtures, while they are still connected with the land, is 
 not a sale of " goods, wares, or merchandise." ^ But a sale of 
 growing crops fructus industriales, is treated as a sale of 
 
 1 Lee V. GaskeU, 1 Q. B. D. 700. 
 
506 
 
 STATUTE OF FEAXJDS. 
 
 [chap. vm. 
 
 goods,^ etc., but as to orops fructus naturales, as we have 
 seen, considerable conflict exists as to whether contracts for 
 their sale come within the fourth or the seventeenth section 
 of the statute, with the weight of authority in favor of the 
 latter.2 
 
 Sec. 285. what is a Sale. — It is not necessary in order to 
 constitute a sale of property, that there should be an agree- 
 ment to pay for it in money, and contracts of barter or for 
 the exchange of one article for another, come clearly within 
 this section of the statute,' and so do contracts for the deliv- 
 ery of certain property in discharge of a previous indebted- 
 ness,* although in one case the Supreme Court of New York^ 
 has held that such a contract is not within the statute. But 
 the latter ground is not sustainable because the agreement of 
 the creditors to take such property is clearly a contract for 
 its purchase, and in no sense can it be said that the previous 
 indebtedness can be regarded as a payment of earnest, or as 
 a part payment within the meaning of the statute.* A mort- 
 
 1 Eoss V. Welch, 11 Gray (Mass.) 
 235 ; Kingsley v. Holbrook, 45 N. H. 
 313; Moreland ,;. Myall, 14 Bush. 
 (Ky.) 474; Purner v. Plercy, 40 Md. 
 212 ; Buck v. Pickwell, 27 Vt. 157 ; 
 Bull V. Griswold, 19 111. 631 ; Howe v. 
 Batchelder, 49 N. H. 204 ; Brittain v. 
 McKay, 1 Ired. (N. C.) 265; White v. 
 Frost, 102 Mass. 375; Miller v. State, 
 39 Ind. 267 ; Cutler v. Pope, 13 Me. 
 377; Bryant v. Crosby, 40 id. 9; 
 Stewart v. Doughty, 9 John. (N. Y.) 
 112; Marshall v. Ferguson, 23 Cal. 65. 
 
 2 See chap. 6. 
 * Dowling V. McKenney, 124 Mass. 
 
 478 ; Rutan v. Hinchman, 30 N. J. L. 
 255 ; and this is the rule both as to 
 personal property and real estate. 
 Maydwell v. Carroll, 3 H. & J. (Md.) 
 361; Newell v. Newell, 13 Vt. 24; 
 Lane v. Shackf ord, 5 N. H. 130 ; Linds- 
 ley V. Cootes, 1 Ohio, 245 ; Clark v. 
 Graham, 6 Wheat. (TJ. S.) 577. 
 
 4 Sawyer v. Ware, 36 Ala. 675. 
 
 ^ Woodford v. Patterson, 32 Barb. 
 (N. Y.) 630. But see Walrath v. 
 Richie, 5 Lans. (N. Y. ) 362, in which 
 a different doctrine was held. In this 
 case, A being the owner of a mowing 
 machine, and being indebted to B in 
 
 the sum of $55, proposed to B, ver- 
 bally, the machine being present, that 
 he should take it t6 satisfy his in- 
 debtedness, to which B assented. The 
 machine remained in the hands of A 
 for sometime, when, without B's re- 
 quest, it was delivered into C's pos- 
 session, from whom it was taken un- 
 der an execution against A. In an 
 action by B to recover the value of 
 the machine from the constable who 
 levied upon it, it was held that there 
 was not a valid sale of the machine to 
 B under the statute of frauds. See 
 also Brabin v. Hyde, 32 N. Y. 519, 
 where there was a sale of property to 
 apply on a previous debt, and the 
 court said : " If the purchase-money 
 is to be applied to pay an open ac- 
 count, in whole or in part, the cred- " 
 itor and purchaser should part with 
 some written application of such ap- 
 plication, which will bind him, and 
 put it in the power of his debtor and 
 vendor to enforce the contract. With- 
 out this, or something like it, the con- 
 tract is a mere collection of words, 
 and the statute is evaded." • 
 ^ See Brabin v, Hyde, ante. 
 
SEC. 286.] WHAT IS SALE OF GOODS. 507 
 
 gage of chattels is not a sale -within the statute, as the stat- 
 ute only applies to an actual or absolute sale ; ^ and conse- 
 quently an agreement to mortgage chattels to secure a debt, 
 is not within the statute,^ nor is any agreement by a pur- 
 chaser of property covered by a valid mortgage, but which 
 does not operate as against him in consequence of the mort- 
 gagee's failure to comply with certain statutory require- 
 ments, to deliver up the property to the mortgagee upon his 
 performing certain conditions, come within the statute; 
 because instead of amounting to a contract of sale, it is a 
 mere agreement to waive his claim to the property and allow 
 the mortgage to take effect.^ 
 
 Sec. 286. Defeasible Contracts of Sale. — The rule seems 
 to be that, where an agreement for the sale of an article is 
 made defeasible upon certain conditions, such conditions form 
 a part of the agreement, and an acceptance of the article by the 
 vendee takes the whole contract out of the statute.^ In other 
 words, where the vendor, at the time the property is sold, 
 agrees with the vendee that he will take the property back, 
 if the vendee is dissatisfied with it, or from any cause desires 
 to return it, and refund the whole or a part of the purchase- 
 money, upon such redelivery, this part of the contract is not 
 affected by the statute, because the contract was taken out 
 of the statute by the delivery and receipt of the property 
 and the payment of the purchase-money by the vendee.^ In 
 an English case,® where the plaintiff entered into a parol 
 agreement to send the defendant a mare for £20, subject to 
 the condition that, if she should prove to be in foal, the 
 defendant should, on receiving £12 from the plaintiff, return 
 it on request; and the plaintiff delivered the mare and 
 received the X20, and on its proving to be in foal, he ten- 
 dered i£12 to the defendant and requested him to return the 
 mare, which the defendant refused to do, it was held that 
 the contract to return it on payment of £12 was not a dis- 
 tinct contract of sale, but one of the conditions of the original 
 
 1 Gleason v. Drew, 9 Me. 79. * Williams v. Burgess, 10 Ad. & El. 
 
 2 Alexander v. Ghislen, 5 Gill. (Md.) 499 ; Callis v. Bothamley, 7 W. K. 87. 
 180. ^ Wooster v. Sage, 9 Hun (N. Y.) 
 
 8 Clark V. Duffy, 24 Ind. 271; 285 ; Fay t;. Wheeler, 44 Vt. 292. 
 Phelps V. Hendrickson, 105 Mass. « Williams k. Burgess, 10 Ad. & 
 106, El. 499. 
 
508 STAl^UTB OF PEATTDS. [CHAP. VIII. 
 
 sale to the defendant, and that the delivery of the mare to the 
 defendant took the whole agreement out of the statute^ so as to 
 enable the plaintiff to sue the defendant for the refusal to 
 return it. The application of this rule is well illustrated by 
 a New York case ^ in which the defendant sold the plaintiff 
 two bonds of the Des Moines Valley R. R. Co. of the par 
 value' of $2,000, for the sum of |1,800, with the agreement that 
 if the plaintiff at any time became sick of the bonds he might 
 redeliver them to the defendant and he would return him 
 the purchase-money therefor. The plaintiff immediately 
 sold the bonds to other parties upon the same terms that he 
 purchased them, and those parties having kept the bonds 
 nearly two years, became dissatisfied with them and returned 
 them to the plaintiff who reimbursed them the purchase- 
 money, and then took the bonds to the defendant and offered 
 to return them to him and demanded a return of the pur- 
 chase-money. The defendant refused to accept the bonds or 
 return the purchase-money, and an action was brought 
 against him therefor. Among other things the defendant 
 insisted that the contract was void under the statute of 
 frauds ; but the court held otherwise, Talcott, J., saying : 
 " We understand the rule to be that such a contract being 
 taken out of the statute by having been consummated by the 
 delivery and receipt of the property and the payment of the 
 price, the statute has no application."^ In such cases the 
 return of the goods does not amount to a resale of them, but 
 merely to a rescission of the contract according to its terms. 
 If, instead of a contract to take the goods back and return 
 the purchase-money, the vendor should agree to buy them 
 of the vendee within a certain time, or whenever he desired 
 to sell them, at another and different price, or even at the 
 same price, there can be no question but that the latter con- 
 tract would come within the statute, because instead of being 
 a contract for the rescission of the original contract of sale, it 
 is an independent agreement to buy the goods. But, so long 
 
 1 Wooster v. Sage, 9 Hun (N. Y.) and the seller agrees to take it back, 
 285. and repay the purchaser for the same, 
 
 2 White V. Knapp, 47 Barb. (N. Y.) or request a tender of the stock, and 
 549 ; Eno v. Woodworth, 4 N. Y. 249. demand for repayment, is such a part 
 In Fay v. Wheeler, 44 Vt, 292, it was performance of the contract as takes 
 held that where one purchases stock it out of the operation of the statute. 
 
SEC. 286.] WHAT IS SALE OF GOODS. 609 
 
 as it is merely an agreement to rescind the original contract, 
 it is not within the statute. And it seems that in equity an 
 agreement to take back goods sold, made after the contract of 
 sale, at the same price, or in discharge of the debt created by 
 their sale, amounts merely to a rescission of the original con- 
 tract and is not within the statute. In a Connecticut case ^ 
 the plaintiff, upon entering into a partnership with the 
 defendants, sold certain goods to the firm. Shortly after 
 the formation of the partnership, it was dissolved by mutual 
 consent, and it was orally agreed between them that the 
 plaintiffs claim for the goods should be cancelled by his 
 taking them back. The plaintiff orally assented to this 
 arrangement, but did not take the goods away, but obtained 
 the consent of the defendants to let them remain where they 
 were for a short time, when he would take them away, but 
 which he did not do. Afterwards he brought a bill in equity 
 to compel the defendants to pd,y their share for these goods, 
 but the court held that the arrangement by which the goods 
 were to be taken back, was not to be regarded as a resale of 
 the goods, or as an independent transaction, but as a mutual 
 rescission of the original contract of sale, and that therefore 
 the agreement on the part of the plaintiff to take back the 
 goods and cancel his debt against the firm therefor, was 
 valid, although not in writing, especially as the dissolution, 
 of which the agreement to take back the goods was a part, 
 was not in writing. "There was nothing written between 
 these parties," said HoTMAN, J., " in respect to the formation 
 of their partnership or its dissolution, or in respect to the 
 sale of these goods or the rescission of the sale, or of any of 
 their transactions between themselves ; and his rescission is 
 not to be viewed in the light of an independent sale or resale 
 of the goods." This was a proceeding in equity, and there 
 were quite strong equitable grounds against the plaintiff's 
 claim, but whether such a transaction at law would be 
 regarded as a rescission of the original contract and therefore 
 not within the statute, or as an agreement for a resale of the 
 goods at the original price, and therefore within the statute, 
 may be regarded as doubtful, with the preponderance of rea- 
 sons strongly in favor of the latter view. 
 
 ^ Dickinson v. Dickinson, 29 Conn. 600. 
 
CHAPTER IX. 
 
 PRICE OK VALUE OF .£10. 
 
 SECTION. 
 
 287. Purchase of Several Articles at Distinct Prices. 
 
 288. Sales at Auction of Distinct Articles. 
 
 289. When Value is Uncertain. 
 
 SeCTIOI^T 287. Purchase of Several Articles at Distinct Prices. 
 
 — Where several articles are purcliased at the same time, so 
 that the contract can be said to be entire, it will, if the aggre- 
 gate price or value exceeds the sum designated in the statute, 
 be within the statute, although the price or value of each 
 particular article is less than that amount.^ Thus, in Baldey 
 V. Parker, ante, the defendant went to the shop of the plain- 
 tiffs, who were linen drapers, and contracted for the purchase 
 of several articles at distinct prices for each, the price of no 
 one of which amounted to ^610, but the aggregate of which 
 was £70. Some were measured in the defendant's presence, 
 others were marked with a pencil, and others he assisted to 
 cut from a larger bulk. He then desired that an account of 
 the whole should be sent to his house, and went away. Upon 
 the goods being sent with the account, the defendant asked 
 for a discount of £20 per cent. This was refused, and there- 
 upon the defendant refused to accept the goods. The court 
 held that this was all one contract, and within the statute. 
 " Looking at the whole transaction," said Abbott, C. J., " I 
 am of the opinion that the parties must be considered to 
 have made one entire contract for the whole of the articles." 
 Said Baylby, J., " It is conceded that on the same day, and 
 indeed at the same meeting, the defendant contracted with 
 the plaintiffs for the purchase of goods to a much greater 
 
 1 Baldey v. Parker, 2 B. & C. 44; (N. Y.) 333; S.C. 20 id. 431; Gault u. 
 
 Gilman v. Hall, 36 N. 11.311; Price Brown, 48 N. H. 183; Doming v. 
 
 B.Lea, lid. 156; AUard v. Greasart, Kemp, 4 Sandf. (N. Y.) 147; Sey- 
 
 61 N. Y. 1 ; Jenness v. Wendell, 51 mour v. Davis, 2 id. 289 ; Aldrich v. 
 
 N. H. 63; Mills v. Hunt, 17 Wend. Pyatt, C4 Barb. (N. Y.) 391. 
 
SBC. 287.] PRICE OR VALUE OF £10. 611 
 
 amount than jElO. Had the entire value been set upon the 
 whole goods together, there cannot be a doubt of its being 
 a contract for a greater amount than £10, within the seven- 
 teenth section ; and I think that the circumstance of a separate 
 price being fixed upon each article makes no such difference 
 as wUl take the case out of tlie operation of that law." "This 
 was all one transaction," said Holkoyd, J., "though com- 
 posed of different parts. At first it appears to have been a 
 contract for goods of less value than £10, but in the course 
 of the dealing it grew intp a contract for a much larger 
 amount. At last, therefore, it was one entire contract with- 
 in the meaning and mischief of the statute of frauds, it being 
 the intention of that statute that where the contract, either 
 at the commencement or the conclusion, amounted to or ex- 
 ceeded the value of £10, it should not bind, miless the requi- 
 sites there mentioned were complied with. The danger of 
 false testimony is quite as great where the bargain is ulti- 
 mately of the value of £10, as if it had been originally of 
 that amount." Said Best, J., "Whatever this might have 
 been at the beginning, it was clearly at the close one bargain 
 for the whole of the articles. The account was all made out 
 together, and the conversation about discount was with refer- 
 ence to the whole account." In New Hampshire,^ it has been 
 held that an acceptance of a part of the articles takes the 
 whole contract out of the statute.^ In Gault v. Brown,^ a 
 contract was made for the sale of wood, part in one winter 
 and part in the winter next following, each winter's lot to be 
 paid for respectively on delivery. It was held that this con- 
 stituted an entire contract of sale of the whole quantity, and 
 that the acceptance of the first lot took the whole contract 
 out of the statute.* But, in a New York case,^ it was held 
 that where there is a purchase of different articles, deliverable 
 at different times, the subsequent delivery of one will not take 
 
 1 Jenness v. "Wendell, 51 N. H. 63. to be performed in one year, as it was 
 
 2 See also Mills v. Hunt, 17 Wend, possible that the whole quantity would 
 (N. Y.) 33-3; S. C. 20 id. 431; Allard be delivered within a year. 
 
 V. Greasart, 61 N. Y. 1. '' Aldrichu. Pyatt, 64 Barb. (N. Y.) 
 
 3 Gault V. Brown, 48 N. H. 183. 391. See also Wells v. Day, 124 Mass. 
 * In this case there was a stipula- 38, where a sale of separate lots of 
 
 tion by the seller to deliver all the real estate at auction constituted sep- 
 wood he could the first winter, so that arate sales, 
 it was held not to be a contract not 
 
512 STATUTE OP FKAUDS. [CHAP. IX. 
 
 the case out of the statute as to the other. The distinction 
 between this and the preceding case consists in the circum- 
 stance that in this case only one article could be delivered at 
 the same time, -wliile in the former it was the privilege of the 
 vendor to deliver the whole at one time if he could. 
 
 Sec. 288. Sales at Auction of Several Articles. — In Eng- 
 land it is held that where several articles are sold at auction 
 to the same person at distinct and separate prices, a distinct 
 contract arises for each lot ; and if the price of no one of the 
 articles amounts to <£10, the fact that the aggregate prices 
 exceed that sum does not bring the case within the statute.^ 
 But in this country the rule is generally otherwise,^ and no 
 distinction is made in this respect between sales at auction 
 and ordinary sales, and the entire transaction is treated as 
 one contract ; and consequently, if the aggregate prices of all 
 the articles bid off in separate and distinct lots exceeds the 
 limit named in the statute, the contract is within the statute.^ 
 "In this country," says Saegbnt, J.,* "where the household 
 furniture, farming tools, and such like articles about a farm 
 or a hotel are sold, or where the sale also includes the stable 
 stock, as in this case, or the farm stock and produce, we think 
 there is ordinarily very little difference, in fact, between sales 
 at an auction and a sale at any other place, or contracted in 
 any other way, of several articles at an agreed price, which 
 are all put together in one amount." 
 
 Sec. 289. Sales, when Value is Uncertain. — Where, at the 
 time when a contract of sale is entered into, the value of the 
 
 1 Emerson v. Heells, 2 Taunt. 38 ; a separate memorandum of the purchase 
 
 Causton v. Chapman, L. R. 2 Sc. Div. of each, which states the price of each, 
 
 250; Eugg K. Minett, 11 East, 218 ; and binds him to the terms of the sale, 
 
 Roots V. Lord Dormer, 4 B. & Ad. 77 ; the purchase of each parcel is a dis- 
 
 Watts V. Friend, 10 B. & C. 446 ; Wells tinct contract, and the failure of the 
 
 V. Hunt, 17 Wend. (N. Y.) 333 ; Lamp- vendor to tender in season, a deed of 
 
 kins V. Hoos, 2 Penn. St. 74 ; Messer one parcel does not discharge the 
 
 V. Woodman, 22 N. II. 172 ; Coffman vendee from his obligation to per- 
 
 V. Hampton, 2 W. & S. (Penn.) 377. form his contract respecting the other 
 
 ^ But see Wells v. Day, 124 Mass. parcels. 
 
 88, in which it was held that, where a ' Messer u.Woodman, 22 N. H. 172 ; 
 
 person, at a sale by auction of distinct Jenness v. Wendell, ante ; Lampkins 
 
 parcels of land, which were separately v. Hoos, 2 Penn. St. 74 ; Coffman v. 
 
 described in the advertisement of the Hampton, 2 W. & S. (Penn.) 377 ; 
 
 sale, and separately sold, purchases a Wells v. Hunt, 17 Wend. (N. Y.) 333. 
 
 certain number of the parcels, signing * Jenness v. Wendell, ante. 
 
SEC. 289.] PRICE OR TALUB OF .£10. 613 
 
 property is uncertain, and, when the property is ready for 
 delivery, its value may be less or more than the statutory 
 limit, the contract will be valid if the value is less than the 
 amount named in the statute, and will be invalid if in point 
 of fact it turns out to be more ; but the burden is upon the 
 vendor to show that the value is not beyond the amount lim- 
 ited in the statute. Thus, in an Indiana case,^ it was held 
 that a verbal agreement to purchase all the mules which may 
 be bred from a certain jack during a certain season, at |46 
 each, is within the statute and cannot be enforced, unless the 
 amount claimed is shown to be less than 150, the statutory 
 limit in that State.^ In a Minnesota case,* a contract for the 
 sale of all the flax straw M'hich might be raised from forty- 
 five bushels of flax seed, at $5 a ton, was held to be within 
 the statute, it appearing that in fact from twenty-five to fifty 
 tons of straw were raised.* 
 
 ^ Carpenter v. Galloway, 73 Ind. ' Brown v. Sanborn, 21 Minn. 402. 
 
 418. * See Watts v. Friend, 10 B. & C. 
 
 " See also Bowman f. Conn, 8 Ind. 446, where a similar doctrine was held 
 
 58, where a contract to sell all the as to a contract for the sale of a future 
 
 broom-corn which might be raised in crop of turnip seed, which might, or 
 
 1853, on twenty-five acres of land, at might not, exceed the value of £10. 
 $60 a ton, was held to be within the 
 statute. 
 
CHAPTER X. 
 
 EARNEST AND PAET PAYMENT. 
 
 BECTION. 
 
 290. Effect of Payment of Earnest before the Statute. 
 
 291. Conditionally, Alters the Property. 
 
 292. Effect of the Statute on Bargains and Sales. 
 
 293. What is Payment of Earnest and Effect of, since the Statute. 
 
 294. Part Payment ; When must be Made ; What is ; Effect of. 
 
 Section 290. Effect of Payment of Earnest before the Statute. 
 — Before, as well as since the statute, payment of earnest 
 was always considered as perfecting the bargain, so as to pre- 
 clude the retraction by the one without the consent of the 
 other, and to give to the buyer an action for the goods, and 
 to the seller an action for his money, the property being 
 changed bj^ such payment of earnest, no matter how small 
 the sum. If I say that I will sell my horse for a certain 
 price, and a person offers to buy it at that price, but does 
 not at once tender the money, it is no contract ; and although 
 he afterwards comes with the money, I am at liberty to 
 accept it, or to refuse to sell it, or to demand a larger sum, 
 according to my pleasure. But if he had proceeded forth- 
 with, upon the price being named, to count out his money, 
 and in the m,eantime I had sold the horse to another, he 
 might take his remedy against me by action upon the case.^ 
 In the language of an old and reputable author, " If a man, 
 by word of mouth, sell to me his horse, or any other thing, 
 and I give or promise him nothing for it, this is void, and 
 will not alter the property of the thing sold. But if one 
 sells me a horse, or any other thing for money, or other valu- 
 able consideration, and the same thing is to be delivered to 
 me at a day certain, and by our agreement a day is appointed 
 for the payment of the money, or all or part of the money 
 
 ■ Noy's Max. c. 42 n. 87 ; Dyer, 30, 76 ; Shep. Touchstone, 222 ; Hob. 41, 42 j 
 Plowd. 432. 
 
SEC. 291.] EARNEST AUp PART PAYMENT. 615 
 
 is paid in hand, or I give earnest money to the seller, or I 
 take the thing bought by agreement into my possession, 
 where no money is paid, earnest given, or day appointed for 
 the payment ; in all these cases there is a good bargain and 
 sale of the thing to alter the property thereof. And in the 
 first case, I may have an action for the thing, or the seller 
 for his money ; in the second case, I may sue for and recover 
 the thing bought ; in the third case, I may sue for the thing 
 bought, and the seller for the residue of his money ; in the 
 fourth case, i.e., where earnest is given, we may have recip- . 
 rocal remedies against each other ; and in the last case, the 
 seller may sue for his money." ^ 
 
 Sec. 291. Payment of Earnest Alters the Property Condition- 
 ally, but does not Give a Right to' the Possession without Pay- 
 ment. — By the payment of earnest the bargain is complete, 
 and the property is conditionally transferred from the vendor 
 to the vendee, and the price to be given for it is vested in the 
 vendor, and the vendee may, upon performance of the condi- 
 tions, bring his action for the goods, and the vendor his 
 action for the price of them. But neither the title nor the 
 absolute right to the immediate possession is so transferred 
 with the property in the thing, as that the vendee may take 
 the goods without first paying or tendering the price agreed 
 upon; 2 but if he tenders the price to the vendor, and he 
 refuses it, the vendee may seize the goods, or have an action 
 against the vendor for detaining them. The rule was stated 
 in Langfort v. Tiler,^ by Holt, C. J., to be that, notwith- 
 standing the earnest, the money must be paid upon fetching 
 away the goods, where no other time for payment was appointed. 
 That earnest only binds the bargain,* and gives the party a 
 
 ' Shep. Touchstone, 222. The « 1 Salk. 113. 
 
 question whether money was paid in * A considerable difference exists 
 
 earnest or not must be determined by between the effect of earnest (arrha) 
 
 the destination expressly given to it in the cirll law and in our own, to 
 
 by the person paying, for quidquid which probably another striking dif- 
 
 solvitur ad modum solventis, Pinnel's ference in the circumstances consti- 
 
 Case, 5 Coke, 117. But then it seems tuting the perfection of the contract 
 
 he ought to declare on what account upon the emptio et venditio and our 
 
 he pays it at the time of paying it. bargain and sale has given birth. A 
 
 See Manning v. Western, 1 Vem. 606 ; bargain and sale, by the common law, 
 
 2 Esp. 666. where no future day is assigned by 
 
 2 Hob. 41. the parties for the payment or de- 
 
516 
 
 STATUTE OP FEAXTDS. 
 
 [chap. 
 
 right to demand ; biit a demand without payment of the pur- 
 chase-money does not give a right of action for the goods, 
 
 livery, nor any earnest given, requires 
 an immediate delivery or payment to 
 fix the contract and make it obligatory 
 upon the parties; and upon ready 
 money contracts (and every contract 
 must be so understood unless the con- 
 trary be expressed), if the buyer 
 makes no payment or tender upon 
 the spot, the owner is at liberty to 
 dispose of the goods to whom he 
 pleases. The dread of perjury, char- 
 acteristic of the earliest legal ordi- 
 nances, required some ostensible act 
 to assure the bargain, and the pay- 
 ment of earnest had this effect given 
 t'o it, the law considering that without 
 this act of confirmation the transac- 
 tion imported not a settled bargain, 
 but only a communication about a 
 bargain. 
 
 But in the civil law neither pay- 
 ment nor delivery nor earnest was 
 necessary to conclude the bargain, 
 but simply the convention of the con- 
 tracting parties. The perfection of 
 the contract was one thing and the 
 consummation or fulfilment another. 
 Agreement concerning the thing pur- 
 chased and the price to be given es- 
 tablished the emptio et venditio, which 
 was consummated by the payment 
 and delivery. As soon as the bargain 
 was struck the obligation of perform- 
 ance reciprocally attached, and a right 
 of action respectively to enforce it. 
 TJt primum de re et pretio convenit, 
 emptio perfecta intelligitur, quamvis 
 nee res traditur, nee pretium numera- 
 tum, nee arrha data sit. Atque in 
 contractibus qui consensu perfici- 
 untur, distinguenda perfectio contrac- 
 tus a consummatione sive implemento. 
 Emptionem et vendltionem perficit 
 solus consensus de re et pretio ; con- 
 summat rei traditio et pretii numera- 
 tio, qui extremus est contrahentium 
 finis ; simul atque autem emptio per- 
 fecta est, nascitur utrinque obligatio, 
 teneturqne emptor actione ex ven- 
 dito, ut nummos, quos pretii nomine 
 pro re vendita promisit, solvat ; ven- 
 
 ditur actione ex empto, ut rem ven- 
 ditam tradat emptor! — Vin. lib. 3, 
 tit. 24. 
 
 But though the perfection of the 
 contract arose upon the agreement 
 without payment, delivery, or earnest, 
 yet this was not a mere loose and cas- 
 ual agreement, but was required to be 
 negotiated in certain stipulatory forms 
 of question and answer, which served 
 to mark a deliberate purpose in the 
 parties, and therefore could better 
 dispense with the circumstances of 
 authentication made necessary by the 
 common law; and though the solem- 
 nia verba, the determinate forms of 
 interrogation and response, as spondes 1 
 spondee ; promittes ? promitto ; fide pro- 
 mittis ? promitto ; fide jubes ? fide ju- 
 beo; dabis? dabo; Jacies? faeio; set- 
 tled by the earlier jurisconsults of the 
 Roman law, were relaxed by the 
 Leonine constitution, their substance 
 and I effect always remained essential 
 to the constitution of a binding bar- 
 gain. Etsi autem scrupulosa haec 
 verborum observatio a Leoni postea 
 sublata est, illud tamen ad vinx atque 
 substantium stipulationis adhuc requi- 
 situr, ut fiat utroque loquente, ac 
 proinde verba ex utraque parte inter- 
 veniant, ut promittens respondeat 
 conguenter interrogatloni, idque sine 
 notabili intervallo, et animo ac pro- 
 posito contrahendae verborum obliga- 
 tionis. — Id. Lib. 3, tit. 16. 
 
 There being no such solemn verbal 
 ratification of a bargain in our law, an 
 effect is given to the earnest which 
 did not belong to it in the civil law, 
 viz., that of specifically binding the 
 bargain. According to the text and 
 commentaries of the civil lawyers, 
 the arrha or earnest is given, not to 
 perfect the contract, which is complete 
 without it by virtue of the stipulation, 
 but it is given for the better manifes- 
 tation of the agreement, quo facilius 
 probari possit convenisse de pretio. It 
 is, say those writers, either symbolical, 
 as where a ring is given, or it may be 
 
SEC. 292.] EARNEST AND PART PAYMENT. 517 
 
 or for a breach of the contract; but after the payment of 
 earnest, the vendor cannot sell the goods to another, -without 
 a default in the vendee ; and, therefore, if the vendee does 
 not pay for and take the goods, the vendor must request him 
 to do so ; and then, if he does not pay for and take them 
 away within a reasonable time, the agreement is dissolved, 
 and the seller is at liberty to sell them to any other person. 
 
 Sec. 292. Effect of the Statute on Bargains and Sales of 
 Goods. — The statute gives no new efficacy to the payment 
 of earnest ; it only excepts cases where earnest has been paid 
 out of the new requisition it has made for written evidence 
 of a contract for the sale of goods above a certain price. In 
 respect to executed bargains, in which the nature of the 
 dealing between the parties implies an immediate delivery of 
 the thing and payment of the price, where there is hardly 
 room to interpose a written contract, the transactions of 
 mankind continue the same ; but their rights and obligations, 
 even in these hourly dealings, are materially varied. If 
 before the statute a man offered to sell his horse for $ 100, 
 and another offered to buy him at that price, and at once 
 tendered the money, the bargain was cancelled, and the party 
 disposing of the horse was not at liberty to dispose of him to 
 
 a part of the purchase ; and if it is in locus penitentiae to both parties if the 
 part payment, yet this is not consid- bargain has been otherwise left in- 
 ered as a part execution of the con- complete ; but it does not give or 
 tract ; so that if the agreement be not create any locus penitentiae, as seems 
 otherwise perfected, as for example, if by some commentators to have been 
 it was part of the agreement that the erroneously conceired, so that if the 
 contract should be reduced into writ- bargain has been by other means rcn- 
 ing, which is not yet done, whereby dered perfect, by the payment of 
 the perfection of the contract is sus- earnest the remedy is doubled to the 
 pended, the anticipated payment of a parties, who may either sue upon 
 part of the price by way of earnest their rights reciprocally to have the 
 will not prevent the contract from bargain completed, or may resort to 
 being integral, as it is called ; the con- the compensation afforded them re- 
 sequence whereof is that either party spectively by the payment of earnest, 
 may recede from the bargain. But the seller to the forfeiture thereof, 
 such refusal after earnest given must, and the buyer to his action for com- 
 if made on the part of the buyer, he pelling the restoration of what he has 
 followed by the forfeiture of the earn- so paid, with a duplication of its 
 est so paid, and if on the part of the amount. See Dig. lib. 18, 19, tit. 1, 
 seller, by a return of the earnest with C. lib. 4, tit. 38, 40 ; and see the Com- 
 a duplication of its value. With this mentary of Vinnius thereon, lib. 24, 
 consequence the payment of earnest, tit. De emptione et venditione. 
 according to the civil law, leaves a 
 
618 STATTJTE OF FRAUDS. [CHAP. X. 
 
 another. But since the statute, the owner of the horse would 
 be at liberty to sell the horse to another, unless the person 
 first offering to purchase at the price named could substan- 
 tiate the first bargain by the production of a note or memo- 
 randum in writing, signed by the seller, of the terms of such 
 bargain ; and the same rule would prevail, even though the 
 owner of the horse had agreed to keep it for a day or two, 
 to enable the first purchaser to get the money. The statute, 
 in such cases, affords a locus penitentiae, and without a note 
 in writing, signed by the seller, the buyer would lose his 
 bargain by the delay, as under the statute, there being neither 
 earnest, delivery, nor agreement in writing, the title to the 
 property does not vest in the purchaser.^ 
 
 Sec. 293. ■what is Payment of Earnest. — The words of the 
 statute, — "give something in earnest to bind the bargain or 
 in part payment," — clearly indicate that it was intended 
 by the legislature that the thing given should be something 
 of value, as money or its equivalent, although the amount may 
 be merely nominal.^ It must be given to bind the bargain, 
 and consequently it must he accepted and received by the ven- 
 dor of the goods for that purpose, because, being a substitute 
 for the written evidence required by the statute, it must afford 
 evidence of a complete contract between the parties, which is 
 not the case unless it is shown that the minds of the parties 
 met. Therefore, proof that the vendee tendered money in 
 earnest, or part payment, which the vendor refused to accept, 
 is of no value to take the sale out of the statute.^ Not only 
 must the thing given in earnest be accepted and received as 
 
 ' Alexander v. Combes, 1 H. Bl. 54. In Shep. Touch. 224, the giving 
 
 20; Roberts on Frauds, 165-170. of one penny Is said to be suflScient. 
 
 2 Artcher v. Zeb, 6 Hill (N. Y.) See also Noy's Maxims, 87 ; and even 
 200; Combs v. Bateman, 10 Barb, a half-penny is sufficient; Bach v. 
 (N. Y.) 573; Goodall v. Skelton, 2 Owen, 5 T. R. 409 ; or indeed anything 
 H. Bl. 316 ; Blakey v. Dinsdale, 2 of value, however small the value 
 Cowp. 664 ; Bach v. Owen, 5 T. R. may be, if the value is real. 
 409. Money deposited with a third 8 Edgerton v. Hodges, 41 Vt. 676. 
 person by the parties to an oral con- Thus, in this case the vendee sent to 
 tract, to be by him paid to either of the vendor in a letter a sum of money 
 them as a forfeiture, if the other to bind a bargain, and the court held 
 should neglect to fulfil his part of the that upon its receipt the vendee was 
 contract, is not given in earnest to at liberty to keep it to bind the bar- 
 bind the bargain within the statute of gain, or to return it and repudiate the 
 frauds. Howe v. Hayward, 108 Mass. verbal agreement. 
 
SEC. 293.] EARNEST AND PART PAYMENT. 519 
 
 such, but it must be actually handed over to the vendor, and 
 merely giving it and taking it back again, or, in other words, 
 " crossing the hand " with it, is held insufficient.^ Thus, in 
 the case last cited, the purchaser drew the edge of a shilling 
 over the hand of the vendor, and returned the money to his 
 own pocket, which in the north of England is called " strik- 
 ing off a bargain " ; and it was held insufficient. If a bargain 
 is made, and bound by the giving of earnest, without any 
 agreement as to the time of payment, the money must be 
 paid before the goods can be removed, and a demand of 
 the goods without a tender of the money is void, because 
 it is not according to the intent of the bargain, which the 
 only effect of the tender was to bind ; ^ and, as before stated, 
 if the vendee does not take the goods within a reasonable 
 time, the vendor should request him to do so, and if he then 
 fails to take and pay for them, the bargain is dissolved.* 
 Where a contract is taken out of the statute by the payment 
 of earnest, it is held not to contravene the spirit or policy of 
 the statute to permit parol evidence to vary its terms as to 
 the time of performance.* The distinction between the giv- 
 ing of earnest and a part payment is marked. A part pay- 
 ment, in its very nature, presupposes a previous contract or 
 
 1 Blenkinsop v. Clayton, 7 Taunt, tain, and by our agreement a day is 
 597. That the money or other valua- set for the payment of the money ; or 
 ble thing must be actually handed all or part of the money is paid in 
 over to the vendor is shown by several hand ; or I give earnest money, albeit it 
 cases, and is a necessary inference is only a penny, to the seller, or I take 
 from the language of the statute, the thing bought by agreement into 
 Thus it has been held that the deposit my possession, where no money is 
 of the money with a third person, to paid, earnest given, or day set for the 
 be handed over when the goods are payment ; in all these cases there is a, 
 delivered, is not a giving of earnest, good bargain and sale of the thing to 
 and does not take the case out of the alter the property thereof, and in the 
 statute. Noakes v. Morey, 30 Ind. first case I may take an action for the 
 103 ; Howe v. Hayward, 108 Mass. 54. thing and the seller for his money. In 
 
 2 Langford v. Tyler, 6 Mass. 162. the second case I may sue for and 
 In a work of high authority the author recover the thing bought. In the 
 says : " If a man, by word of mouth, third I may sue for the thing bought, 
 sell to me his horse or any other thing, and the seller for the residue of his 
 and I give him or promise him noth- money ; and in the fourth case, where 
 ing for it, this is void, and will not earnest is given, we may have recip- 
 alter the property of the thing sold, rocal remedies one against another." 
 But if one sell me a horse or any other Shep. Touch. 224. 
 
 thing for money or any other valuable ' Langford v. Tyler, ante ; Blakey 
 
 consideration, and the same thing is v. Dinsdale, 2 Cowp. 604. 
 
 to be delivered to me at a day cer- * Parker v. Steward, 34 Vt. 127. 
 
520 STATUTE OF FRAUDS. [CHAP. X. 
 
 liability, while the giving of earnest merely shows that at 
 that time the minds of the parties met, and a contract was 
 entered into and concluded by the giving of earnest.^ As 
 previously stated, the giving of earnest does not in all cases 
 change the title to the property, but only vests in the person 
 giving it ,the right to have it, upon performance of the con- 
 ditions of the bargain. If the sale is upon credit, and the 
 articles are ready for delivery, and nothing remains to he done 
 to complete the transaction, as between the parties, the title to 
 the property passes to the purchaser by the giving of the 
 earnest ;^ hut, if no mode or time of payment is agreed upon, or 
 anything remains to he done to the property,^ the title to the 
 property is not changed by the payment of earnest, hut only 
 a right to have it when it is ready, upon payment of the price, 
 or performance of any other conditions of the contract. Me. 
 Benjamin, in his excellent treatise upon Sales,* expresses 
 the opinion which we believe is well sustained by the princi- 
 ples upon which the effect of contracts is based, that the title 
 to the property in such cases does not pass, where the " com- 
 pleted bargain, if proved in writing, or any other sufficient 
 manner, would not equally have altered the property," . . . 
 and " that the inquiry whether the property has passed in 
 such cases is to be tested, not by the fact that earnest was 
 given, hut hy the true nature of the contract concluded by the 
 giving of earnest." 
 
 Sec. 294. Part Payment; 'Wlien Must Be Made; 'What Is; 
 Effect Of. — The statute evidently contemplates that the part 
 payment shall he made at the time when the contract is entered 
 into, and shall he in money or something of value which is 
 accepted as its equivalent, and must be such as amounts to a 
 payment in other transactions, and it must be a payment of 
 part of the purchase-money of the ver-y goods purchased.* 
 
 1 Groot V. Gile, 51 N. Y. 481 ; Jen- ^ In Organ v. Stewart, 60 N. Y. 
 
 nings u..Flanagan, 4 Dana (Ky.) 217 ; 413, the defendant being the owner 
 
 Nesbitt u. Barry, 25 Penn. St. 208; of threi lots of wool, the plaintiffs 
 
 Joyce V. Adams, 8 N. Y. 291. entered into a verbal agreement with 
 
 ' Bach V. Owen, 5 T. R. 409. him for their purchase, in pursuance 
 
 8 Acraman v. Morris, 8 C. B. 449; of which two lots were delivered, and 
 
 Logan V. Le Mesuvier, Mas. P. C. 116. payment therefor demanded by the 
 
 * Benjamin on Sales, 4th Am. Ed. defendant, and was refused by the 
 
 (Bennett's), § 357. plaintiffs, who claimed that the third 
 
SEC. 294.J EARNEST ANB PABT PAYMENT. 521 
 
 In New York, the statute in express terms provides that ear- 
 nest or part payment shall be made at the time the contract 
 is entered into. But in that State, a part payment made at 
 a subsequent time, and accepted hy the vendor, the contract 
 being re- stated, is held to be sufficient to validate the con- 
 tract ; ^ and in all the States, while a payment subsequently 
 made and accepted will be sufficient to take the sale out of 
 the operation of the statute, yet it must be shown to have been 
 understandingly made and accepted with reference to such pre- 
 vious contract, so that it can be said to operate as a payment 
 upon a present contract, and not upon a past void transac- 
 tion.2 If goods are sold for a certain price, and the vendor 
 agrees to accept from the vendee a horse at a certain price, 
 in part payment, the delivery of the horse by the vendee 
 operates as a part payment under the statute to take the 
 contract out of its operation, and the same may be said as to 
 any kind of property.^ So the delivery and acceptance of a 
 check, drawn against funds deposited in a bank, by the 
 vendee, which is paid upon presentation, has been held suffi- 
 cient as a part payment, even in New York under its pecu- 
 liar statute, although it was not, in fact, presented and paid 
 
 lot was included in the sale, but which \ Hunter v. Wetzell, 84 N. Y. 549 ; 
 the defendant denied. Subsequently 38 Am. Rep. 544; Bissell v. Balcom, 
 a further agreement was entered into 39 N. Y. 275 ; Webster v. Zeilley, 52 
 by the parties, embracing the third Barb. (N. Y.) 482. But see Thompson 
 lot of wool, which was to be delivered u. Alger, 12 Met. (Mass.) 428, in which 
 at the store of one Eankin in May, the construction of this clause of the 
 and assorted and shrunk by the as- New York statute was involved, and 
 sorters of said Rankin, and delivered it was held that a part payment made 
 to the plaintiffs, who were to accept ajler the contract was entered into, 
 the same at the shrinkage as made by and the contract was expressly re- 
 them at the price originally agreed newed, was not sufficient to vali- 
 upon. The plaintiffs thereupon sued date the contract. But it is evident 
 the defendant for the two lots of that the New York cases are not 
 wool delivered. The defendant re- open to criticism, because the con- 
 fused to deliver the third lot of wool, tract, being re-stated at the time of 
 and the plaintiff brought this action such part payment, may well be 
 to recover damages therefor. The treated as a contract made at that time. 
 defendant set up the statute of frauds, Artcher v. Zeb, ante ; Hawley v. Keeler, 
 and the court held, reversing the 53 id. 114. ' 
 judgment at General Term, 1 Hun '^ "Whitwell o. Wyer, 11 Mass. 6 ; 
 (N. Y.) 411, that the payment could Gault u. Brown, 48 N. H. 183 ; Sprague 
 not be said to have been made in v. Blake, 20 Wend. (N. Y.) 01; Vin- 
 part payment for the third lot of cent v. Germond, 11 John. (N. Y.) 
 wool, and consequently that the con- 283. 
 
 tract, as to that, was within the stat- ' Bates v. Chesboro, 36 Wis. 636 ; 
 
 ute and void. Paine v. Fulton, 34 id. 83. 
 
522 STATUTE OP PKAUDS. [CHAP. X. 
 
 for two or three days afterwards.^ In the case last cited, 
 the parties entered into a verbal contract for a lot of hops, 
 which were to be delivered where the defendants determined 
 and requested, and even to be paid for within a few weeks, 
 upon such delivery at the rate of fifty cents a pound, with 
 $10 additional on the whole lot. No part of the purchase- 
 money was paid at the time, but subsequently the defend- 
 ant delivered to the plaintiff in part payment for the hops a 
 check for 1200, which the plaintiff accepted, the contract on 
 that occasion being re-stated. Finch, J., said : " It is now 
 objected that, conceding the fact of such re-statement, there 
 was no payment of any part of the purchase-money at that 
 time. It is admitted that the check was then given, and it 
 cannot be denied that it was both delivered and received as a 
 payment upon the contract price of the hops, but it is claimed 
 that the check was not in and of itself payment, and, having 
 been drawn upon a bank, could not have been in fact paid 
 until afterwards, and so there was no payment "at the 
 time " ^ to satisfy the requirements of the statute. It is quite 
 true, that a check, in and of itself, is not payment, but it may become 
 so when accepted as such and in due course actually paid. While 
 not money, it is a thing of value, and is money's worth when 
 drawn against an existing deposit, which remains until the 
 check is presented. We must assume that the check of the 
 vendee in this case was good when drawn, and was duly 
 paid upon presentation in the usual and regular way, for it 
 appears in the possession of the drawers, and they practically 
 assert the fact of its payment by their counter-claim in the 
 action, by which they seek to recover back the money so 
 paid. There was, therefore, an actual and real payment 
 made by the vendees to the vendor, upon the purchase-price 
 of the hops." 
 
 So, too, the delivery of the note of a third person to a 
 vendor in part payment under such a contract which is re- 
 ceived and accepted by him as a part payment, and not as merely 
 collateral, has been held sufficient under the statute,^ but 
 
 1 Hunter v. Wetsell, 84 N. Y. 549 ; statute, see Hunter v. Wetsell, 57 
 38 Am. Rep. 544. N. Y. 375; 15 Am. Rep. 508. 
 
 2 As required by the New York = Coombs v. Bateman, 10 Barb. 
 
 (N. Y.) 573. 
 
SEC. 294.J EARNEST AND PART PAYMENT. 623 
 
 the giving of the vendee's own note is not,' at least unless 
 it is expressly agreed between the parties that it shall be 
 accepted as a payment, so as to merge the vendor's claim for 
 the property sold pro tanto, so that he cannot sue upon the 
 original claim for that portion of it represented by the note. 
 An agreement to apply or set ofP a debt due from the vendor 
 to the vendee, in part payment for the goods, is not a suffi- 
 cient part payment to take a contract out of the statute, 
 unless the debt is then discharged and a receipt or other evidence of 
 its satisfaction is given therefor.^ In the words of CowEN, J.,^ 
 the object of the statute is to have something pass between 
 the parties besides mere words ; some symbol, like earnest- 
 money, and not leave everything resting in parol. Until a 
 receipt for the debt is given, or it is actually endorsed or 
 credited, the agreement amounts to no more than a contract 
 to pay in that mode ; and, so far as the statute is concei-ned, it 
 no more aids to prove the contract valid than does an agree- 
 ment to pay the price in an ordinary sale, where actual pay- 
 ment is expected.* In an English case,^ which seems to be 
 the only case involving that question which has been before 
 the English courts, it was held that a mei* agreement of the 
 vendee that a debt due to him from the vendor should be 
 deducted from the price of the goods purchased, made at the 
 time when the contract of purchase was entered into, no 
 
 ' Ireland v. Jackson, 18 Abb. Pr. also stating that the defendant ac- 
 
 (N. T.) 392; Coombs v. Bateman, cepted the barrel of flour upon the 
 
 ante. But see Phillips v. Ocmulgee butter. It was held not a sufficient 
 
 Mills, 55 Ga. 633, where it was held part payment to take the case out of 
 
 that the giving of the buyer's own the statute of frauds. In Mattia v. 
 
 note takes the sale out of the statute. Allen, 33 id. 543, the seller borrowed 
 
 2 Matthieson Refining Co. v. Mc- money, agreeing that if a proposed 
 
 Mahon, 38 N. J. L. 537 ; Gaddis v. sale should be made it should be ap- 
 
 Leeson, 55 111. 83. plied in payment. A few days after- 
 
 ' Artcher v. Zeb, 5 Hill (N. Y.) wards the parties agreed to make the 
 
 205. sale and that the money should be 
 
 * Clarke v. Tucker, 2 Sandf. (N. Y.) applied thereto. It was held that this 
 
 157; Brabin v. Hyde, 32 N. Y. 519; was a payment at the time of the 
 
 Gilman v. Hill, 36 N. H. 319. In Leed agreement, under the New York stat- 
 
 V. Leed, 44 Barb. (N. Y.) 96, the de- ute, and therefore operative to take 
 
 fendant agreed orally to deliver a the case out of the statute. But this 
 
 quantity of butter to the plaintiff, and was reversed by the Court of Appeals, 
 
 to apply, in part payment therefor, a 3 Keyes (N. Y.) 492, and the doctrine 
 
 sum due from himself to the plaintiff stated in the text was applied, 
 
 for a barrel of flour charged in ac- ^ Walker v. Nussey, 16 M. & W. 
 
 count. The plaintiff entered the sale 302. 
 in his memorandum-book ; the entry 
 
624 STATUTE OF FRAUDS. [CHAP. X. 
 
 receipt or other discharge of the debt being given, did not 
 amount to a part payment within the meaning of the statute. 
 In that case, the plaintiff owed the defendant a debt, and, 
 while it remained due, sold him goods by sample, to a larger 
 amount, and exceeding JEIO, without a -note or a memoran- 
 dum in writing. Part of the bargain was that the debt due 
 from the plaintiff was to go in part payment by the defend- 
 ant to him, but no actual payment of money was made nor 
 was any receipt given by the defendant for the plaintiff's 
 debt due to him. The goods were supplied to the defend- 
 ant, who returned them as inferior to the sample, and the 
 jury found that he never accepted them. It was held that 
 nothing had been given in part payment to make the con- 
 tract binding on the defendant.^ When the plaintiff sent 
 the goods to the defendant, he sent with them an invoice 
 charging him with the price, under which was an entry as 
 follows: "By your account against me, £4: 14s. lid." 
 Platt, B., said : " You rely on a part of the contract itself 
 as being part performance of it." Pollock, C. B., said: 
 "Here was nothing but one contract, whereas the statute 
 requires a contrac*, and if it be not in writing, something 
 besides." Pakke, B., said : " Had there been a bargain to 
 sell the leather at a certain price, and subsequently au agree- 
 ment that the sum due from the plaintiff was to be wiped off 
 from the amount of that price, or that the goods delivered 
 should be taken in satisfaction of the debt due from the 
 plaintiff, either might have been equivalent to payment of 
 money. But as the stipulation respecting the plaintiff's debt 
 was merely a portion of the contemporaneous contract, it was 
 not a giving something to the plaintiff by way of earnest or 
 in part payment, then or subsequently." Aldbeson, B., 
 said : " The seventeenth section of the statute of frauds 
 implies that to bind a buyer of goods of £10 value, without 
 writing, he must have done two things : first, made a con- 
 tract ; and next, he must have given something as earnest, 
 or in part payment or discharge of his liability." The doc- 
 trine of this case is substantially that the contract to sell, and 
 the contract to set-off, must be distinct contracts made in the 
 
 1 See also Hart v. Nash, 2 C. M. & R. 337 ; Hopper v. Stephens, 4 Ad. & 
 El. 71. 
 
SEC. 294.] EARNEST AND PART PAYMENT. 525 
 
 order given, and that the set-off should have been completed 
 by the extinguishment of the debt by the giving of a receipt 
 or other discharge therefor. But our courts adopt a more 
 sensible rule, and one much more in the interest of the com- 
 mercial world, by holding that such contracts, although con- 
 temporaneous, are sufficient, if the debt or obligation is at that 
 time discharged. In other words, if the set-off is actually 
 made ; and this certainly seems fairly to meet the require- 
 ments of the statute, and to be the most sensible and satis- 
 factory doctrine. 
 
 The same rules apply where there is an agreement to apply 
 the price of the goods or a part thereof in liquidation of a 
 debt due from the vendor to a third person. In such a case, 
 the third person must not only assent to the arrangement, but 
 must also, at the time, discharge the indebtedness of the vendor, 
 by the giving of a receipt for the amount, or other evidence that 
 the vendor is released from the debt. It is not enough that 
 there is an express agreement to that effect between the par- 
 ties, unless this agreement is in some manner evidenced in 
 writing. Thus, in a New York case,i which is regarded as a 
 leading case upon this point, the defendant was indebted to 
 a third party, who was in turn indebted to the plaintiff in a 
 larger sum, upon a promissory note, and it was mutually 
 agreed between the three that the defendant should pay to 
 the plaintiff directly the amount he owed to the third party, 
 and that the plaintiff should credit the amount upon such 
 third party's note. The agreement was by parol, and the 
 statute of frauds, which in New York extends to the sale of 
 choses in action as well as goods, was relied on. It was 
 insisted upon the trial that the terms of the agreement were 
 such as to extinguish pro tanto the debt due from the third 
 party, and consequently that there was a part payment. 
 But it was held by the court that so long as the matter 
 merely rested in agreement, however well understood by the 
 parties, it was not sufficient to take the case out of the stat- 
 ute, because no endorsement or receipt was ever acttially made. 
 CowBN, J., said : " The object of the statute was to have 
 something pass between the parties besides mere words; 
 some symbol like earnest-money. Here everything lies in 
 
 1 Artcher v. Zeb, 5 HUl (N. Y.) 205. 
 
526 
 
 STATITTE OP FBATJDS. 
 
 [chap. X. 
 
 parol." ^ But where the creditor of the vendor under such 
 an agreement discharges the debt against him, and accepts 
 the vendee as debtor in his place and stead, it is held to be 
 a part payment within the meaning of the statute,^ and the 
 question is for the jury whether there was an actual transfer 
 of money or money's worth, from the buyer to the seller, 
 made in pursuance of the agreement.^ 
 
 ' This doctrine is sustained by the 
 later cases. Brabin v. Hyde, 32 N. Y. 
 519, reversing S. C. 30 Barb. (TS. Y.) 
 265 ; Mattice v. Allen, 3 Keyes (N. Y. ) 
 492, reversing S. C. 33 Barb. (N. Y.) 
 343; Walrath v. Richie, 5 Lans. (N. 
 Y.) 362; Buskirk o. Cleaveland, 41 
 Barb. (N. Y.) 610 ; Leed v. Leed, 44 
 id. 96; Paine v. Fulton, 34 Wis. 83; 
 Geddis v. Leeson, ante ; Gilman v. Hall, 
 ante; Walrath v. Ingles, 64 Barb. 
 
 (IS. Y.) 265. In Canada it has been 
 held that an actual payment made by 
 the vendee subsequent to the contract 
 to such third person takes the case 
 out of the statute. Brady v. Hanahy, 
 21 N. C. Q. B. 340 ; Fumiss v. Sawers, 
 3 id. 77. 
 
 2 Cotterell v. Stevens, 10 Wis. 422. 
 
 ' Cotterell w. Stevens, a«<e ; Worthen 
 V. Dow, 37 Vt. 108; Organ v. Stewart, 
 ante. 
 
CHAPTER XI. 
 
 EXECUTOEY SALES. 
 
 BXCTION. 
 
 295. What Contracts are within the Statute. 
 
 296. When for Sale of Goods, and when for Work, etc. English Bule. 
 
 297. American Rule, as to Purely Executory Sales. 
 
 298. Contracts of Sale or for Work and Labor. Rule in New Hampshire. 
 
 299. Rule in New York. 
 
 300. Rule in Maine. 
 
 301. Rule in Massachusetts, New Jersey, and Wisconsin. 
 
 302. The Essence Rule. 
 
 303. Contracts to Produce and Deliver. 
 
 304. Wlien the Property Vests in the Vendee. 
 
 Section 295. 'What Contracts are within the Statute. — In 
 England, before Lord Tenterden's Act^ was passed in 1829, the 
 decisions were conflicting as to whether or not an executory 
 agreement was within the statute of frauds.'^ By the seventh 
 section of Lord Tenterden's Act, after reciting that it had 
 been held that the provisions of the seventeenth section of 
 the statute of frauds "do not extend to certain executory 
 contracts for the sale of goods, which nevertheless are within 
 the mischief therebj'^ intended to be remedied," it was enacted 
 that the provisions of the seventeenth section " shall extend 
 to all contracts for the sale of goods of the value of ten pounds 
 sterling and upwards, notwithstanding the goods may be in- 
 tended to be delivered at some future time, or may not at the 
 time of such contract be actually made, procured, or provided, 
 or fit or ready for delivery, or some act may be requisite for 
 the making or completing thereof, or rendering the same fit 
 for delivery." 
 
 These two sections are construed as incorporated together, 
 
 1 9 Geo. rv. c. 14. v. Wyatt, 2 H. Bl. 63; Cooper v. Els- 
 
 2 In Towers v. Osborne, 1 Str.506; ton, 7 T. R. 14; and Garbutt v. Wat- 
 Clayton V. Andrews, 4 Burr. 2101 ; son, 5 B. & Aid. 613, in which case 
 and Groves v. Buck, 3 M. & Sel. 178, Clayton v. Andrews was expressly 
 it was held that such agreements were overruled, it was held that such 
 not within the statute. In Rondeau agreements were within the statute. 
 
528 STATUTE OF FEAtTDS. [CHAP. XI. 
 
 the word " value " being substituted for " price." ^ In Arkan- 
 sas, the word " price " is retained,^ so in California,* Dakota,* 
 Indiana,* Massachusetts,® Michigan,'^ Minnesota,^ Mississippi,^ 
 Missouri,^" Montana,^i Nebraska,^ Nevada,^* New Hampshire,^* 
 New Jersey,^* New York,^® Oregon,^^ Vermont,^^ Utah,!^ Wis- 
 consin,^'' and Wyoming.^^ In Connecticut,^ neither the word 
 "price" nor "value" is used, but "an agreement for the sale 
 of personal property for fifty dollars or upwards " is declared 
 not to be good " unless, etc." ; such also is the case in Florida^ 
 and Maine.^ In Iowa the words are, "when no part of the 
 property is delivered, and no part of the price is paid " ; ^ and 
 the statute applies to all contracts for the sale of personal 
 property, without reference to the price. By section 3,665, 
 it is provided that this section shall not apply in cases where 
 the personal property at the time of the contract is not owned 
 by the vendor, and ready for delivery, "but labor, skill, or 
 money are necessarily to be expended in producing or pro- 
 curing the same." In Georgia, Maryland, and South Caro- 
 lina, the statute is substantially the same as the English 
 statute. In Alabama, this clause of the statute does not 
 exist, having been repealed in 1862, nor is there any provi- 
 sion in this respect in the statute of Delaware, Illinois, Kan- 
 sas, Kentucky, North Carolina, Ohio, Pennsylvania, Rhode 
 Island, Tennessee, Texas, Virginia, West Virginia, and Wy- 
 oming. Thus it will be seen that in twenty-nine of the 
 States and Territories of this country the seventeenth sec- 
 tion of the statute is in force, while in fourteen of them it 
 has no application whatever. 
 
 1 Scott V. Eastern Counties Rail- i" § 6. 
 way Co., 12 M. & "W. 38 ; Harman v. " § 13. 
 Eeeve, 18 C. B. 587 ; 25 L. J. C. P. 12 § 9. 
 257. M § 62. 
 
 2 § 2952. " § 14. 
 ' § 2794, sub-div. 4. ^ § 6. 
 
 * § 626. M § 3, tit. 2. 
 
 5 § 7. But the words " accept and " § 775, sub-div. 5. , 
 actually receive " are not contained in ^^ § 982. 
 
 the statute of this State, but the words w § 6. 
 
 " shall receive part of such property " 20 g 2307. 
 
 are substituted. 21 § 2. 
 
 6 § 5. =2 § 41. 
 
 ' § 3. 28 § 2, c. 29. 
 
 8 § 7. 24 § 4. 
 
 9 § 2895. 26 § 3664, sub-div. 1. 
 
SEC. 296.] EXECT7T0EY SALES. 529 
 
 Sec. 296. When Contract is for Sale of Goods, and iivhen for 
 Work and Labor done, and Materials Furnished. English Rule. — 
 It is often a question as to whether a contract is for the sale 
 of goods, wares, and merchandises, or whether it is for work 
 and labor done, and materials furnished.^ 
 
 In England the rule now appears to be, that if the subject- 
 matter of the contract is such that it will result in the sale of a 
 chattel to be afterwards delivered, then the action must be for 
 goods sold and delivered; if, however, the subject-matter of the 
 contract is such that when completed it will not result in any- 
 thing which can properly be said to be the subject of a sale, 
 then the action must be for work and labor done, and materials 
 furnished? Thus, it has been held that a contract to print 
 so many copies of a treatise at a certain price per sheet is 
 not a contract for the sale of goods within the statute, but a 
 contract for work, labor, and materials.^ In the case in which 
 this rule was adopted,* the defendant entered into a contract 
 with the plaintiff, a printer, to print for him a second edition 
 of a work previously published by the defendant, the plain- 
 tiff to find materials, including paper. The court held that 
 the contract was for work, labor, and materials, and not for 
 goods to be delivered at a future time within Lord Tenter- 
 den's Act. Pollock, C. B., said: "As to the first point, 
 whether this is an action for goods sold and delivered, and 
 requiring a memorandum in writing within the seventeenth 
 section of the statute of frauds, I am of opinion that this is 
 properly an action for work and labor and materials found. 
 I believe that it is laid down in the commencement of Chitty 
 on Pleading, that that is the count that may be resorted to 
 by farmers, by medical men, by apothecaries, and I think he 
 mentions surveyors, distinctly, and that is the form in which 
 they are in the habit of suing. The point made in the case,^ 
 
 1 See Towers v. Osborne, 1 Str. burn, J., in Lee v. Griffin, 1 B. & S. 
 506 ; Clayton o. Andrews, 4 Burr. 272, was approved. 
 
 2101 ; Groves v. Buck, 3 M. & S. 178 ; » Clay v. Yates, 1 H. & N. 73 ; 25 
 
 Rondeau v. Wyatt, 2 H. BI, 63; Gar- L. J. Ex. 237, approving of Grafton v. 
 
 butt V. Watson, 5 B. & Aid. 613; and Annitage, 2 C. B. 336 ; 15 L. J. C. P. 
 
 Benj.onSales,4thAm.Ed.(Bennett's) 20; and dissenting from a dictum of 
 
 § 90, et seq. Batley, J., in Atkinson u. Bell, 8 B. 
 
 2 In Prescott v. Locke, 51 N. H. & C. 277 ; 2 M. & B. 301. 
 
 •98, this rule, as laid down by Black- * Clay v. Yates, 1 H. & N. 73. 
 
 6 Atkinson v. Bell, 8 B. & C. 277. 
 
630 STATUTE OF FEATJDS. [CHAP. XI. 
 
 in which Baylby, J., gave an opinion, I think may be an- 
 swered by the opinion of Maule, J., in the court of com- 
 mon pleas,^ and then we have to decide the matter as if it 
 were now without any authority at all. It may be that In 
 all these cases part of the materials is found by the party for 
 whom the work is done, and the other part found by the 
 person who is to do the work. There may be the case 
 where the paper is to be found by the one and the printing 
 by the other, and so on ; the ink, no doubt, is always found 
 by the printer. But it seems to me the true rule is this: 
 whether the work and labor is of the essence of the contract, 
 or whether it is the materials that are found, my impression is 
 that in a case of a work of art, whether it be silver or gold, 
 or marble or common plaster, that is a case of the application 
 of labor the highest description, and the material is of no sort 
 of importance compared with the labor,^ and therefore that all 
 this would be recoverable as work and labor, and materials 
 found. I do not mean to say the price might not be recov- 
 ered as goods sold and delivered, if the work were completed 
 and sent home. No doubt it is a chattel that was bargained 
 for and delivered, and it might be recovered as goods sold 
 and delivered ; but still it would not prevent the price being 
 recovered as wofk and labor, and materials found. It appears 
 to me, therefore, that this was properly sued for as work and 
 labor, and materials found, and that the statute of frauds 
 does not apply ; and / am rather inclined to think that it is 
 only where the bargain is merely for goods thereafter to be made, 
 and not where it is a mixed contract of work and labor, and 
 materials found, that the act of Lord Tenterden applies ; and " 
 
 1 Grafton v. Armitage, 2 C. B. 336. a chattel, and not one for work and 
 
 ^ But in Wolfenden v. Wilson, 33 labor, and waa therefore within the 
 
 U. C. Q. B. 442, where the materials statute. The text thus stated byPoL- 
 
 formed the principal value, and the lock, C. B., was rejected by Ceamp- 
 
 labor was only a small element of the ton and Blackburk, JJ., in Lee v. 
 
 value, it was held that the contract Griffin, 1 B. & S. 272, but it has been 
 
 must be treated as for a chattel. In followed and applied in several of the 
 
 this case, a tombstone was verbally States of this country. Edwards v. 
 
 ordered by the defendant to be put up Grand Trunk E. R. Co., 48 Me. 379 ; 
 
 at her husband's grave, and work was 54 id. 105 ; Prescott v. Locke, 51 N. 
 
 commenced upon it before the hus- H. 94; Pitkin v. Noyes, 48 N. H. 294; 
 
 band's death, and was put up after Passaic Manuf. Co. v. Hoffman, 3 
 
 his death arid burial. The court held Daly (N. Y. C. P.) 495. 
 that the contract was for the sale of 
 
SEC. 296.] EXECUTORY SALES. 531 
 
 oue of the reasons why you can find no cases on this subject 
 in the books is, that before Lord Tenterden's Act passed, the 
 statute of frauds did not apply to the case of a thing begun, 
 whatever it might be." Alderson, B., concurred, and Mar- 
 tin, B., said : " There are three matters of charge well known 
 in the law: for labor simply, for work and materials, and 
 another for goods sold and delivered. And I apprehend 
 every case must be judged of by itself. What is the pres- 
 ent case ? The defendant, having written a manuscript, 
 takes it to the printer to have it printed for him. What 
 does he intend to be done? He intends that the printer 
 shall use his types, and that he shall set them up by put- 
 ting them in a frame ; that he shall print the work on paper, 
 and that the paper shall be submitted to the author ; that the 
 author shall correct it and send it back to the printer, and 
 then the latter shall exercise labor again, and make it into a 
 perfect and complete thing, in the shape of a book. I think 
 the plaintiff was employed to do work and labor, and supply 
 materials for it, and he is to be paid for it, and it really seems 
 to me that the true criterion is this : Supposing there was no 
 contract as to payment, and the plaintiff had brought an action, 
 and sought to recover the value of that which he had delivered, 
 would that be the value of the book as a book ? I apprehend 
 not, for the book might not be worth half the value of the 
 paper it was written on. It is clear the printer would be 
 entitled to be paid for his work and labor, and for the mate- 
 rials he had used upon the work; and, therefore, this is a 
 case of work, labor, and materials, done and provided by the 
 printer for the defendant." The learned baron also put this 
 case : " Suppose an artist paints a portrait for 300 guineas, 
 and supplies the canvas for it worth 10 «., surely he might re- 
 cover on a count for work and labor." 
 
 The case which may be considered to have settled the law 
 on this point is that of Lee v. Griffin.^ There the action wae 
 brought against an executor to recover a sum of money for 
 two sets of artificial teeth ordered by his testatrix. It was 
 held that the contract was for the sale of goods, wares, or 
 merchandises, and that the plaintiff could not recover in 
 an action for work and labor done, and materials provided. 
 
 1 1 B. & S. 272 ; 30 L. J. Q. B. 262. 
 
532 
 
 STATUTE OF FEATJDS. 
 
 [chap. XI. 
 
 Ceompton, J., said : " The main question which arose at the 
 trial was, whether the contract in the second count could be 
 treated as one for work and labor, or whether it was a con- 
 tract for goods sold and delivered. The distinction between 
 these two causes of action is sometimes very fine ; but, where 
 the contract is for a chattel to he made and delivered, it clearly 
 is a contract for the sale of goods.^ There are some cases in 
 
 1 The doctrine relative to this sec- 
 tion of the statute has undergone many 
 changes in the English courts as well 
 as our own. It was formerly so nar- 
 row as to regard executory contracts 
 for goods as entirely out of its reach. 
 Towers v. Osborne, 1 Str. 506 ; Clay- 
 ton V. Andrews, 4 Burr. 2101 ; Groves 
 V. Buck, 3 M. & S. 178. Thus, in 
 Towers v. Osborne, 
 '^'"'"'im.'*°"^'«»'«. decided in 1722, 
 the defendant, in the 
 quaint language of the reporter, be- 
 spoke a chariot, and when it was com- 
 pleted, refused to accept it ; and in an 
 action for its value, the statute was 
 pleaded, no note in writing or earnest 
 having been given. Pkatt, C. J., hold- 
 ing that the statute applied only to 
 contracts for the actual sale of goods 
 where the buyer is immediately liable^ 
 without time given him by special agree- 
 ment, and the seller was to deliver the 
 goods immediately. Upon the author- 
 ity of this case, the nisi prius case of 
 Clayton v. Andrews, 
 Clayton !>. Andrews, 4 b„„ glOl, was de- 
 termined, in 1767, by 
 LoKD Mansfield, C. J. In this case, 
 the defendant agreed to deliver a cer- 
 tain quantity of wheat to the plaintiff 
 within three weeks or a month from 
 the time of the agreement, at a cer- 
 tain rate, to be paid on delivery, which 
 wheat was understood by both parties 
 tj be at that time unthrashed. No 
 part of the wheat so sold was deliv- 
 ered, nor any money paid by way of 
 earnest for the same, nor any memo- 
 randum thereof made in writing, and 
 the question for the opinion of the 
 court was, whether this agreement was 
 within the statute of frauds. Lord 
 Mansfield held, upon the authority 
 of the case in Strange, that it was not. 
 
 And Yates, .1., observed that the clause 
 of the statute relates only to executed 
 contracts. Here wheat was sold to be 
 delivered at a future time. It was un- 
 thrashed at the time when the con- 
 tract was made ; therefore, it could 
 not be delivered at that time. See 
 Eichelberger v. McCauley, 5 H. & J. 
 (Md.) 213; and Brown ^. Wiman, 10 
 Barb. (N. Y.) 406, to same effect. In 
 Eondeau v. Wyatt, 2 H. Bl. 63, decided 
 in 1792, and Cooper v. Elston, 7 T. R. 
 14, in 1796, this doctrine was practi- 
 cally denied; but in 
 *^™™?8li^°°''' Groves V. Buck, 8 M. 
 & S. 178, the doctrine 
 of Towers v. Osborne and Clayton v. 
 Andrews was reiterated. In that case 
 the defendant agreed to purchase of 
 the plaintiff a quantity of oak pins 
 not then in existence, but which were to 
 be thereafter cut by the plaintiff out 
 of slabs owned by him, and to be deliv- 
 ered at a future time. The case was 
 tried before Giebs, C. J., who cited 
 and followed Towers o. Osborne, ante, 
 and a verdict having been found for 
 the plaintiff, it was sustained on ap- 
 peal to the King's Bench. Lord El- 
 LENBOROUGH saying: "The subject- 
 matter of this contract did not exist 
 in rerum natura ; it was incapable of 
 delivery and part-acceptance ; and 
 where that is the case, the contract 
 has been considered as not within the 
 statute." 
 
 As previously stated, the doctrine 
 of the first two cases cited, so far as 
 it exempted all executory contracts from 
 the operation of the statute, was not 
 merely shaken, but decisively over- 
 thrown by Eondeau u. Wyatt and 
 Cooper V. Elston, ante ; but in Buck 
 V. Groves, ante, the court treated the 
 doctrine of the first two cases as not 
 
SEC. 296.] 
 
 EXECUTORY SALES. 
 
 533 
 
 which the supply of the materials is ancillary' to the contract, 
 as in the case of a printer supplying the paper on which a 
 book is printed. In such a case an action might perhaps be 
 brought for work and labor done, and materials provided, as 
 
 having been impugned by the two last- 
 named cases, because the court, in 
 those cases, attempted to distinguish 
 them from those under consideration, 
 upon the ground that in the former 
 there was some work to be done before 
 the goods were ready f&r delivery ^ while 
 in Rondeau v. Wyatt, 
 Rondeau ».Wyatt. „„(,^ the contract was 
 
 simply for the deliv- 
 ery of articles already existing. In 
 this case the contract was for the sale 
 of 3,000 sacks of flour, to be delivered 
 at a future day, at a certain price per 
 sack. LoKD Loughborough, in com- 
 menting upon the doctrine of Towers 
 r. Osborne, and Clayton v. Andrews, 
 ante, while disapproving that portion 
 of it which held that executory con- 
 tracts were not within the operation of 
 the statute, nevertheless said : " The 
 case of Towers v. Osborne was clearly 
 out of the statute, because it was for 
 work and labor to be done, and materials 
 and other necessary things to be found, 
 which is different from a mere contract 
 of sale, to which alone the statute is 
 applicable." 
 
 In Cooper u. Els- 
 Cooper^v^^lBlou, j^j,^ „„(^_ ^1,^ contract 
 
 was by parol for fifty 
 quarters of wheat at four guineas per 
 quarter, to be thereafter delivered by 
 the defendant. No earnest was paid, 
 nor was any part of the goods de- 
 livered. The defendant refused to 
 deliver the wheat, and in an action to 
 recover damages for this breach of 
 the contract, it was held that the con- 
 tsact was within the statute, the coiu-t 
 following Rondeau v. Wyatt, and dis- 
 tinguishing between merely executory 
 contracts of sale, and those where 
 work and labor were to be performed 
 to bring the goods into existence. 
 Opinions were given by Lokd Kenyon, 
 C. J., and by Grose and Lawrence, 
 JJ., and this point of distinction was 
 observed by all of them. 
 
 In Garbutt v. Wat- 
 Garbutt^j.. Wat«on,go„_ 53^ ^^,j g^g^ 
 
 a verbal contract for 
 the sale of 100 sacks of flour, to be 
 manufactured by the plaintiffs, who 
 were millers, and thereafter delivered 
 to the defendant, was held to be with- 
 in the statute, notwithstanding the 
 flour, at the time the contract was 
 entered into, had not been manufac- 
 tured, the court proceeding upon a 
 distinction not before noticed between 
 articles to be manufactured, in the regu- 
 lar course of the vendor's business, and 
 those which would not have been manu- 
 factured except for the order of the 
 party desiring to acquire it. " This," 
 said Bayley, J., " was substantially a 
 contract for the sale of flour, and it 
 seems to me immaterial whether the 
 flour was, at the time, ground or not. 
 The question is, whether this was a 
 contract for goods, or for work and 
 labor and materials found. I think it 
 was the former, and if so, it falls 
 within the statute of 
 '^■^"Tsm''" ■^''"' frauds." In Atkin- 
 son V. Bell, 8 B. &C. 
 277, decided in 1828, the action was 
 for goods ^old and delivered, and 
 work and labor and materials fur- 
 nished. The facts were, that one Kay 
 had patented a. certain pinning ma- 
 chine, and the defendants, who were 
 thread manufacturers, desired to try 
 it, and wrote him ordering him to 
 procure to be made for him as soon 
 as possible some spinning frames, in 
 the manner he most approved of. Kay 
 employed one Sleddon to make them 
 for the defendants, informing him of 
 the order received by him, and he 
 superintended the work. After the 
 frames 'were made, they lay for a 
 month on Sleddon's premises, while 
 he was doing some other work for the 
 defendants under Kay's superintend- 
 ence. Kay then ordered Sleddon to 
 make some changes in the frames, 
 
534 
 
 STATtriE or TEADDS. 
 
 [chap. XI. 
 
 it could hardly be said that the subject-matter of the contract 
 was the sale of a chattel ; perhaps it is more in the nature of 
 
 ajj'd after this was done, the frames 
 were put into boxes by Kay's direc- 
 tions, and remained in the boxes for 
 some time on Sleddon's premises. On 
 the 23d June, Sleddon wrote to the 
 defendants that the machines had 
 been ready for three weeks, and asked 
 how they were to be sent. On the 
 8th August, Sleddon became bank- 
 rupt, and his assignees required the 
 defendants to take the machines ; 
 but they refused, whereupon action 
 brought. The judges were all of 
 opinion that the property in the goods 
 had not vested in the defendants : 
 Hazeltine v. Rice, 62 Barb. (N. Y.) 
 593-8; Mixer v. Howarth, 21 Pick. 
 (Mass.) 205; and that a count for 
 goods bargained and sold could not be 
 maintained; but Batlet and Hol- 
 ROYD, JJ., expressed the opinion that 
 a count for not accepting would have 
 supported the verdict in the plaintiff's 
 favor. On the count for work and 
 materials, the judges were also unani- 
 mous that these had been furnished 
 by Sleddon for his own benefit, and 
 not for the defendants', that is to say, 
 that the contract was an executory 
 agreement for sale, and not one for 
 work, etc. Bayley, J., said : " If you 
 employ a man to build a house on 
 your land, or to make a chattel with 
 your materials, the party who does 
 the work has no power to appropriate 
 the produce of his labor and your 
 materials to any other person. Hav- 
 ing bestowed his labor at your request, 
 on your materials, he may maintain 
 an action against you for work and 
 labor done. But if you employ 
 another to work up his own materials 
 in making a chattel, then he may ap- 
 propriate the produce of that labor 
 and materials to any other person. 
 No right to maintain any action vests 
 in him during the progress of the 
 work; but when the chattel has as- 
 sumed the character bargained for, 
 and the employer has accepted it, the 
 party employed may maintain an 
 
 action for goods sold and delivered. 
 Gooderham v. Dash, 9 U. C. C. P. 418. 
 Or if the employer refuses to accept, 
 a special action on the case for such 
 refusal; but he cannot maintain an 
 action for work and labor, because his 
 labor was bestowed on his own materials, 
 and for himself, and not for the per- 
 son who employed him." Mb. Ben- 
 jamin, in his work on Sales, says in 
 reference to this case: "The con- 
 eluding passage of this opinion is no 
 doubt too broadly expressed ; for, 
 although true generally, it is not uni- 
 versally the case that an action for 
 work and labor will not lie when per- 
 formed on materials that are the 
 property of the workman. This in- 
 accurate dictum had the efiect for a 
 time of weakening the authority of 
 Atkinson ;;. Bell, subjecting it to the 
 criticism of Maule and Eble, JJ., in 
 Grafton v. Armitage, ante, and of 
 Pollock, C. B., in Clay v. Yates, 1 
 H. & N. 73 ; but it was fully recognized 
 in the subsequent case of Lee v. Grif- 
 fin, 1 B. & S. 270. In Smith v. Sur- 
 nam, 9 B. & C. 561, the question arose 
 as to whether executory contracts 
 were within the statute, and the doc- 
 trine of Towers v. Osborne, ante, was 
 distinguished, but not questioned. 
 This was the state of the law in Eng- 
 land upon the question whether 
 executory contracts are within the 
 statute or not, down to the passage of 
 what is known as Lord Tenterden's 
 Act in 1829, being Stat. 9 Geo. 4 c. 
 1487, by which it was expressly pro- 
 vided that the act " shall extend to all 
 contracts for the sale of goods of the 
 value of £10 sterling and upwards, 
 notwithstanding the goods may be in- 
 tended to be delivered at some future 
 time or may not at the time of such con- 
 tract be actually made, procured, or pro- 
 vided, or Jit or ready for delivery, or 
 some set way be requisite for the making 
 or completing thereof, or rendering the 
 same fit for delivery," thus forever 
 putting this question at rest, and put- 
 
SEC. 296.] BXECUTOEY SALES. 535 
 
 a contract merely to exercise skill and labor. Clay v. Yates 
 turned on its own peculiar circumstances. I entertain some 
 doubt as to the correctness of that decision ; but I certainly 
 do not agree to the proposition that the value of the skill and 
 labor, as compared to that of the material supplied, is a crite- 
 rion by which to decide whether the contract be for work and 
 labor, or for the sale of a chattel. Here, however, the sub- 
 ject-matter of the contract was the supply of goods. The 
 case bears a strong resemblance to that of a tailor supplying 
 a coat, the measurement of the mouth and fitting of the teeth 
 being analogous to the measurement and fitting of the gar- 
 ment." Hill, J., said : " I think that the decision in Clay v. 
 Yates is perfectly right. That was not a case in which a 
 party ordered a chattel of another which was afterwards 
 to be made and delivered, but a case in which the subject- 
 matter of the contract was the exercise of skill and labor. 
 Wherever a contract is entered into for the manufacture of 
 a chattel, there the subject-matter of the contract is the sale 
 and delivery of the chattel, and the party supplying it cannot 
 recover for work and labor. Atkinson v. Bell is, in my opinion, 
 good law, with the exception of the dictum of Bayley, J., 
 which is repudiated by Maitlb, J., in Grafton, v. Armitage." 
 And Blackbuen, J., said : " I think that in all cases, in order 
 to ascertain whether the action ought to be brought for goods 
 sold and delivered, or for work and labor done and materials 
 provided, we must look at the particular contract entered into 
 between the parties. If the contract be such that when car- 
 ried out it would result in the sale of a chattel, the party can- 
 not sue for work and labor ; but if the result of the contract 
 is that the party has done work and labor which ends in noth- 
 ing that can become the subject of a sale, the party cannot 
 sue for goods sold and delivered. ... In the present case, 
 the contract was to deliver a thing which, when completed, 
 would have resulted in the sale of a chattel ; in other words, 
 the substance of the contract was for goods sold and deliv- 
 ered. I do not think that the test to apply to these cases is 
 
 ting an end to the vacillating ten- question open to judicial construction, 
 
 dency of the court upon the question, which has given rise to the rule stated 
 
 But this statute did not affect the in the text, which now seems to be 
 
 question as to contracts for the manu- firmly established in the English 
 
 facture of articles, and leaves the courts. 
 
536 STATUTE OF FRAITDS. [CHAP. XI. 
 
 whether the value of the work exceeds that of the materials 
 used in its execution, for if a sculptor were employed to exe- 
 cute a work of art, greatly as his skill and labor, supposing 
 it to be of the highest description, might exceed the value of 
 the marble on which he worked, the contract would, in my 
 opinion, nevertheless be a contract for the sale of a chattel." 
 In Grafton v. Armitage,i the plaintiff was a working engi- 
 neer, and the defendant was the inventor of a life-buoy, ia 
 the construction of which curved metal tubes were used. 
 The defendant employed the plaintiff to devise some plan 
 for a machine for curving the tubes. The plaintiff made 
 drawings and experiments, and ultimately produced a drum 
 or mandrel, which effected the object required. His action 
 was deht for work, labor, and materials, and for money due 
 on accounts stated. The particulars were : " for scheming 
 and experimenting for, and making a plan-drawing of a 
 machine, etc., engaged three days, at one guinea per day, 
 £3 38. ; for workman's time in making, etc., and experiment- 
 ing therewith, £1 5 s.; for use of lathe for one week, 12 «. ; 
 for wood and iron to make the drum, and for brass tubing 
 for the experiments, 5 s." The defendant insisted, on. the 
 authority of Atkinson v. Bell, that the action should have 
 been case for not accepting the goods, not debt for work and 
 labor, etc., citing the dictum at the close of Baylby J.'s 
 opinion. But Mattlb, J., said : " In order to sustain a count 
 for work and labor, it is not necessary that the work and 
 labor should be performed upon materials that are the prop- 
 erty pf the defendant, or that are to be handed over to him." 
 Ekle, J., said : " Suppose an attorney were employed to pre- 
 pare a partnership or other deed, the draft would be upon 
 his own paper, and made with his own pen and ink. Might 
 he not maintain an action for work and labor in preparing 
 it ? " In delivering the decision, Tindal, C. J., pointed out 
 as the distinction, that in Atkinson v. Bell the substance of 
 the contract was that the machines to be manufactured were 
 to be sold to the defendant, but that in the case before the 
 court, the substance of the contract was not that plaintiff 
 should manufacture the article for sale to the defendant, but 
 that he should employ his skill, labor, and materials in devis- 
 
 1 Grafton v. Armitage, 2 C. B. 336. 
 
SEC. 297.] EXECUTORY SALES. 537 
 
 ing for the use of the defendant a mode of attaining a given 
 object. CoLTMAN, J., concurred, and said that the opinion 
 of Bayley, J., was on precisely the same ground as the Lord 
 Chief Justice put this case. The claim of a tailor or a shoe- 
 maker is for the price of goods when delivered, and not for 
 the work and labor bestowed by him in the fabrication of 
 them. In this ease, it will be observed, the contract was for 
 the exercise of the plaintiff's skill and ingenuity in produc- 
 ing something out of his usual line of business, and the 
 plaintiff's right to compensation did not depend upon the 
 successful result of his labor. But being successful, and the 
 article invented and produced by him being suitable for the 
 purpose for which it was ordered, there can be no reason to 
 doubt that a recovery could be had for the material fur- 
 nished, as well as the labor, whether the person ordering it 
 took it or not ; and, in view of the grounds upon which the 
 doctrine of the case was put by Tijstdal, C. J., it cannot be 
 said to be seriously at variance with that of the subsequent 
 cases of Clay v. Yates, or Lee v. Grrififin, post, as the contract 
 was in no sense for the sale of an article, but purely one for 
 work and labor, which must be paid for, whether any useful 
 result or product ensued or not. 
 
 Sec. 297. Rule in this Country. — In all the States of this 
 country it is held that merely executory contracts are within 
 the statute, and are not taken out of it hy the mere circum- 
 stance that the goods are not ready for delivery, or that some- 
 thing remains to he done before they will he} Thus, in a New 
 
 * Casson v. Cheeley, 6 Ga. 554; the yeniorihut the payment and delivery 
 
 Edwards v. Grand Trunk E. K. Co., are postponed to a future day, it is no 
 
 48 Me. 379 ; Crookshank is Burrell, sale within the statute of frauds. In 
 
 18 John. (N. Y.) 58. In Waterman u. Reutch v. Long, 27 Md. 188, a parol 
 
 Meigs, 4 Cush. (Mass.) 497, a contract sale of corn, to be gathered and husked, 
 
 for the delivery of a quantity of was held not to amount to a sale of 
 
 planks for ship-building, at a future goods within the statute. But see 
 
 time, and at a specified price, was Downs v. Ross, 23 Wend. (N. Y.) 270, 
 
 held to be within the statute. In and Jackson v. Covert, 5 id. 139, where 
 
 Kirby v. Johnson, 22 Mo. 354, it was it was held that a sale of wheat not 
 
 held that if a bargain be made be- then threshed was a sale of goods, 
 
 tween two for the sale of cattle which In Bennett v. Nye, 4 Greene (Iowa) 
 
 they are looking at in the field, and it 410, it was held that a parol contract 
 
 is agreed that the cattle shall be from to deliver hogs at a future day might 
 
 that time the property of the pur- be taken out of the statute on the 
 
 chaser, and be kept at his expense by ground that " labor, skill, or money," 
 
538 STATUTE OF FEAUDS. [CHAP. XI. 
 
 York case,^ the plaintiff had in his warehouse sofas and chairs 
 already manufactured, but not upholstered, but left uncov- 
 ered, in order that the purchaser might have a covering 
 according to his taste. The defendant selected a sofa and 
 some chairs, and gave orders to have them covered with a 
 certain material. The price was agreed upon, amounting to 
 jnore than |50. It was held to be a contract for the sale of 
 goods within the statute .^ In a later New York ease,^ the 
 doctrine stated supra-, that the mere circumstance that some- 
 thing remains to be done to the article contracted for, and 
 although it is done hy the order and direction of the vendee, 
 does not change the character of the transaction from a sale 
 to a mere contract for skill and labor, is well illustrated. In 
 that case, the defendant being desirous of purchasing a stal- 
 lion colt owned by the plaintiffs, verbally agreed that, if they 
 would castrate him, and keep him until he got well, he would 
 give them $1,000 for him. To this the plaintiffs assented, 
 and afterwards caused the colt to be castrated, and after his 
 recovery tendered him to the defendant, who refused to 
 receive him. The court held that the contract was essen- 
 tially one of sale, and therefore within the statute. Bockes, 
 J., in a very able opinion, said: "When the subject of the 
 contract exists in solido, hut something is agreed to he done to 
 
 was to be expended in producing the 115 Mass. 450, yet it is entirely incon- 
 same, within the meaning of tlie pe- sistent with the doctrine of the later 
 culiar provisions of the statute of that cases, and has partially been over- 
 State, ruled, and is clearly opposed to the 
 
 1 Flint V. Corbitt, 6 Daly (N. Y. C. rule established in qiark v. Nichols, 
 P. ) 429. 107 Mass. 507, where a verbal contract 
 
 2 In a Massachusetts case. Mixer v. for the delivery of a certain quantity 
 Howarth, 21 Pick. (Mass.) 407, the of planks, to be sawed from the logs into 
 defendant went to the plaintiff's car- various dimensions under the defendant's 
 riage shop, where the plaintiff had the directions, was held to be within the 
 unfinished body of a carriage, and statute as being a contract for the 
 gave him directions to finish it and trim sale of goods. In Goddard v. Binney, 
 it with a certain lining, selected by him. ante, it was held, however, that where 
 The carriage was to be finished in a person ordered a buggy to be built 
 about a fortnight. The court held for him by the plaintiff, to be painted 
 that this was not a contract of sale and lined in a certain way, and pro- 
 within the statute, but rather an agree- vided with a seat to be made of certain 
 ment on the part of the plaintiff to build materials, and marked with the defend- 
 a carriage, and upon the defendant's ant's initials, was not a contract for the 
 part to take and pay for it when fln- sale of goods, and consequently not 
 ished. But, while the court of that within the statute. 
 
 State seemed to recognize the author- s Bates v. Coster, 1 Hun (N, T.) 
 ity of this case, Goddard v. Binney, 400. 
 
SEC. 297.] 
 
 EXECUTOKY SALES. 
 
 539 
 
 it, to put it in condition for use, or to make it marketable, the 
 contract is held to be one of sale, and void within the stat- 
 ute.i ... It is said in many of the cases when this question 
 has been considered, that the true test for determining 
 whether the contract was one of sale, or for work and labor, 
 is to inquire whether the work to be performed, in order to 
 prepare the property for delivery, was to be done for the 
 vendor or the vendee. If for the former, the contract is one 
 of sale, and void under the statute. According to the above 
 cases, it must be quite obvious, I think, that the contract 
 here under consideration was one of sale, not one for work 
 and labor. It was a simple contract for the sale of the colt, 
 to be delivered at a future time, gelded and well, at the price 
 of i 1,000. The animal was present before the contracting 
 parties, and was the precise property agreed to be delivered. 
 True, an operation was to be performed of great hazard, 
 involving however little labor and trifling expense. The 
 plaintiffs assumed the expense and risk, for they were to 
 deliver the colt gelded and well. It was the animal that 
 
 1 The court referred to Mead v. 
 Case, 33 Barb. (N. Y.) 202, in which 
 it was held that a contract for a 
 marble monument, which was then com- 
 plete in form, but was to be polished, 
 lettered, finished, and set up, for |200, 
 was held to be a contract for the 
 manufacture of a monument, and not 
 within the statute. But Bockes, J. 
 (in Bates v. Coster, ante), says: "The 
 decision was by a divided court, and 
 is of doubtful authority on the facts 
 proved." In Fitzsimmons v. Wood- 
 ruff, 1 N. Y. Superior Ct. 3, a contract 
 for a marble mantle was entered into, 
 the defendant selecting a mantle which 
 was to he altered in certain respects, and 
 set up by the plaintiff in the defend- 
 ant's house in another town, for the 
 price of $80. The court held that the 
 contract was one of sale, and within 
 the statute. In Cooke v. Millard, 5 
 Lans. (N. Y.) 243, the defendants 
 verbally ordered, at a price exceeding 
 $50, from the yard of the plaintiffs, 
 who were lumber dealers, and also had 
 a planing mill at which they cut and 
 dressed lumber for sale, certain lum- 
 
 ber to be cut and dressed from lots 
 examined by the defendants according 
 to certain directions given by them, 
 and when ready the lumber was di- 
 rected to be placed on the plaintiff's 
 dock, and to notify one P, a forwarder, 
 who would send a boat for it. The 
 lumber was prepared and placed on 
 the dock according to the instructions 
 given by the defendants, and the for- 
 warder notified to send a boat for it. 
 The next day the lumber still remain- 
 ing on the dock was consumed by fire, 
 and in an action for the price agreed 
 upon, it was held that the contract 
 was one of sale, and void within the 
 statute. In Smith v. N. Y. Cent. E. 
 E. Co., 4 Keyes (N. Y.) 180, a contract 
 was entered into for the sale of a 
 quantity of wood which at the time 
 was growing upon the plaintiff's land. 
 The wood was to be cut by the plain- 
 tiff. The court held that it was a 
 contract for the sale of goods, and 
 within the statute. See also Downs 
 V. Boss, 23 Wend. (N. Y.) 270; Gar- 
 butt V. Watson, 5 B. & Aid. 613. 
 
540 STATUTE OP FEATTDS. [CHAP. XI. 
 
 was contracted for, not the incident of castration. The 
 labor, expense, and risk of the operation were for the plain- 
 tiffs. The animal was the subject of the purchase and sale, 
 to be gelded before deliyery. The language of Bayley, J., 
 in Smith v. Surman,i well applies here ; he says : ' the vendor, 
 so long as he was felling it (the timber) and preparing it for 
 delivery, was doing work for himself, and not for the defend- 
 ant ; ' and he adds : ' it was a contract for the future sale of 
 the timber when it should be in a fit state for delivery.' 
 There was not, certainly, any idea of manufacture involved 
 in the agreement in this case ; no idea of compensation for 
 work and labor, as such. In no fair and just sense can this 
 contract be deemed one for work and labor ; it was mani- 
 festly a contract of sale for the price of fl,O0O, and, not 
 being in writing, was void by the statute of frauds." 
 
 Sec. 298. Contracts of Sale, or for 'Work and Labor. Rule 
 in New Hampshire. — We have previously stated that it is held 
 in all the States, that a contract for the sale of goods which 
 is purely executory is as much within the statute as one to 
 be executed in praesenti ;^ but when we get beyond that, and 
 look for the rule in cases where work and labor enter into 
 the contract as an element, or rather where goods contracted 
 for are to be manufactured, we enter a field where the con- 
 flict is sharp, and where much inconsistency is evinced, even 
 in the same courts. It may be stated here that, as a matter 
 of course, where a person furnishes materials, and procures 
 another to manufacture them into a chattel, or even furnishes 
 any considerable part of the materials, although not all, the 
 cases all agree that the contract is for work and labor, and 
 not of sale. But when a chattel is ordered from a manufac- 
 turer, which, at the time, does not exist in solido, and for the 
 construction of which he furnishes the materials, the ques- 
 tion as to whether the contract is one of sale or for work and 
 labor is of grave importance, upon which there is consider- 
 able conflict in our courts. As we have seen, the question is 
 decisively settled in England, partly by 9 Geo. 4, Cap. 14, 
 and partly by the case of Lee v. GrifiSn.* It is proper to 
 state here that the doctrine of the English case last cited 
 
 1 9 B, & C. 561. 2 Finney v. Apgar, 31 N. J. L. 270. » 2 B. & S. 272. 
 
SEC. 298.] EXECUTORY SALES. 541 
 
 does not prevail in any of our courts, as applied in that case. 
 In New Hampshire,! the rule as stated in Lee v. Griffin, by 
 Blackburn, J., was applied to the facts of that case, Foster, 
 J., saying : " "Where the contract is for a chattel to be made 
 and delivered, it clearly is a contract for the sal« of goods. 
 In such case, the party supplying the chattel cannot recover 
 for the- labor in making it." In that case, the defendant 
 entered into a verbal Contract with the plaintiff, to purchase 
 of him such walnut spokes as the plaintiff should saw at 
 his mill, not exceeding 100,000, at #40 a thousand, in lots 
 of 10,000 each, subject to the defendant's selection. It is 
 true that Foster, J., in the course of his opinion, says, 
 that the rule stated by him supra applies "even where 
 the peculiar skill of the maker is considered to be an im- 
 portant element in the consideration of the contract ; for," 
 he adds, " the value of the skill and labor, as compared with 
 that of the material supplied, is not a criterion to deter- 
 mine what the contract is." And this language would seem 
 to involve a repudiation of the rule known as the " essence 
 test," which had previously been adopted and acted upon in 
 that State.^ But the language thus used by him, and the doc- 
 trine expressed therein, are mere dicta, and have no real appli- 
 cation to the facts of the case, and the actual judgment in the 
 case is consistent with the rule as adopted in the cases cited in 
 the last note; and it is believed that, in that State, the rule as ex- 
 pressed by Bellows, J.,^ still prevails. In that case, the defend- 
 ant verbally contracted with the plaintiff to raise three acres 
 of potatoes, and deliver them to the plaintiffs, who were starch 
 manufacturers, at a certain price per bushel, and the court 
 left it to the jury to say whether, in view of all the circum- 
 stances, the work and labor of the vendor was of the essence 
 of the contract, and upon appeal this was held not to be 
 erroneous, Bellows, J., saying : " If a person contracts to 
 manufacture and deliver at a future time certain goods, at 
 prices then fixed, or at reasonable prices, the essence of the 
 agreement being that he will bestow his own labor and skill 
 upon the manufacture, it is held not to be within the statute. 
 
 1 Prescott V. Locke, 51 N. H. 98. " In Pitkin v. Noyes, 48 N. H. 
 
 2 Pitkin V. Noyes, 48 N. H. 294; 294. 
 Oilman v. Hill, 3(3 id. 311. 
 
542 
 
 STATUTE OP KEAUDS. 
 
 [chap. XI. 
 
 If, on the other hand, the bargain be to deliver goods of a 
 certain description at a future time, and they are not exist- 
 ing at the time of the contract, hut the seller does not stipvr 
 late to manufacture them himself, or procure a particular- per- 
 son to do so, the contract is within the statute. The distinc- 
 tion is, that in the one case the party stipulates that he wHl 
 himself manufacture the article, and the buyer has the right 
 to require him to do it, and cannot be compelled to take one 
 as good, or even better, if made by another ; while in the 
 other case the seller only agrees to sell and deliver the article, 
 and is under no obligation to make it himself, but may pur- 
 chase it of another." 
 
 Sec. 299. Rule in New York. — In New York, in a recent 
 case,^ the court speaks approvingly of the rule adopted in 
 Lee V. Griffin, ante, but admits that it is too late to adopt it, 
 and virtually adopts the " essence test," and states the rule 
 in that State to be that when the chattel is in existence, so as 
 not to be governed by Parson v. Loucks,^ the contract should 
 
 1 Cooke V. Millard, 65 N. Y.359; 
 22 Am. Rep. 619. 
 
 2 In Parsons v. Loucks, 48 N. Y. 
 17; 8 Am. Rep. 517, an action was 
 brought for an alleged breach of a 
 yerbal contract to manufacture and de- 
 liver a quantity of paper, and the con- 
 tract was held not to be within the 
 statute. The distinction is stated in 
 that case to be between the sale of 
 goods in existence at the time when 
 the contract is made, and an agreement 
 to manufacture goods. The former is 
 within the prohibition of the statute, 
 and void unless it is in writing, or 
 there has been a delivery of a portion 
 of the goods sold, or a payment of the 
 purchase-price. This case follows the 
 doctrine of Crookshank v. Burrell, 18 
 John. (N. Y.) 58; Sewall i-. Fitch, 8 
 Cow. (N. Y.) 215 ; Robertson v. 
 Vaughan, 5 Sandf . (N. Y.) 1 ; Donno- 
 van V. Wilson, 26 Barb. (N. Y.) 138; 
 Parker d. Schenck, 28 id. 38, and 
 Mead v. Case, 33 id. 202. In Crook- 
 shank V. Burrell, ante, a contract for 
 the woodwork of a wagon, to be manu- 
 factured by the plaintiff by the special 
 order of the defendant, was held not 
 
 to be within the statute. Spencer, 
 C. J., said : " In Bennett ,;. Hull, 10 
 John. (N. Y.) 364, we declared that 
 the statute applied to executory as 
 well as other contracts, and we recog- 
 nized the cases of Rondeau v. Wyatt, 
 and Cooper v. Elston (ante), as con- 
 taining a just and sound construction 
 of the statute. In giving the opinions 
 in those cases, the judges referred to 
 the case of Towers v. Osborne with 
 approbation. . . . The distinction 
 taken by Lohd LouGHBOROuon in 
 Rondeau v. "Wyatt, ante, and by the 
 judges who gave opinions sereatim in 
 Cooper V. Elston, was between a con- 
 tract for a thing existing in solido and 
 an agreement for a thing not yet 
 made, to be delivered at a future day. 
 The contract in the latter case they 
 consider not to be a contract for the 
 sale and purchase of goods, but a con- 
 tract for work and labor merely. 
 However refined this distinction may 
 be, it is well settled, and it is now too 
 late to question it." In Sewall v. 
 Eitoh, ante, a contract for nails, to be 
 thereafter manufactured; in Mead 
 V. Case, ante, a contract for a monu- 
 
SEC. 299.] 
 
 EXECUTORy SALES. 
 
 548 
 
 he deemed to he one of sale, even though it may have been 
 ordered from the seller, who is to do some work upon it to adapt 
 it to the uses of the purchaser. This rule makes but a single 
 distinction, and that is between existing and non-existing chat- 
 tels.^ In the case in question," the rule was applied to a ver- 
 bal contract for the purchase of lumber exceeding fifty dol- 
 lars in value, which was to be dressed and cut by the plain- 
 tiffs, according to directions given by the defendants, and 
 then to be placed on the plaintiffs' dock, to be taken away 
 by a boat to be sent for that purpose by the defendants. 
 The lumber was dressed, cut, and delivered on the dock as 
 directed; but the next day, and before the defendants had an 
 
 ment to be made from blocks of 
 marble then in the yard to be polished, 
 lettered, and finished ; in Robertson 
 u. Vaughan, 5 Sandf. (N. Y.) 1, a con- 
 tract to make and deliver one thou- 
 sand molasses shooks; in Wright v. 
 O'Brien, 5 Daly (N. Y. C. P.), a 
 contract to make a crayon drawing 
 from a photograph; in Webster v. 
 ZeUley, 62 Barb. (N. Y.) 482, a con- 
 tract to furnish the defendant with 
 hop roots, to be thereafter purchased 
 by the plaintiff, and dug; and in 
 Stephens v. Santee, 51 id. 532, a con- 
 tract to cut and deliver railroad ties 
 at a certain price, were all held not to 
 be within the statute. But in Downs 
 V. Ross, 23 Wend. (N. Y.) 270, a con- 
 tract for wheat to be thereafter 
 threshed ; in Flint v. Corbett, 6 Daly 
 (N. T. C. P.) 529, a contract for fur- 
 niture to be thereafter upholstered; 
 and in Bates v. Coster, 1 Hun (N. Y.) 
 400, a contract for a colt to be cas- 
 trated by the vendor, and kept until 
 he recovered from the effects thereof, 
 were held to be within the statute. 
 See also Miller v. Fitzgibbons, 9 Daly 
 {N. Y. C. P.) 505 ; Seymour v. Davis, 
 2 Sandf. (N. Y.) 239; Bronson v. 
 Wyman, 10 Barb. (N. Y.) 406 ; Court- 
 wright V. Stewart, 19 id. 455 ; Kellogg 
 V. Wetherhead, 4 Hun (N. Y.) 273. 
 
 1 Downs V. Ross, 23 Wend. (N. Y.) 
 270; Deal u. Maxwell, 51 N. Y. 652; 
 Bates V. Coster, 1 Hun (N. Y.) 400. 
 
 2 Cooke V. Millard, ante. In this 
 case at General Term, see 5 Lans, 
 
 (N. Y.) 246, Pakker, J., said: "The 
 work to be done upon the lumber, 
 was not work which the defendants 
 had hired the plaintiffs to do for them, 
 but was manifestly work which the 
 plaintiffs were to do for themselves, 
 in putting their lumber in condition 
 for sale to the defendants. Defend- 
 ants did not hire the plaintiffs to slit 
 and plane the lumber. They agreed 
 for the lumber in such a condition, 
 and though it was to be lumber from 
 certain piles in the plaintiffs' yard, 
 yet it was no less a purchasing of 
 lumber, and not a hiring of the plain- 
 tiffs to manufacture it. There is a 
 marked distinction between such a, 
 transaction and an agreement for the 
 manufacture of an article. This was 
 not a manufacture of lumber. That 
 existed in solido, and what was to be 
 done was to put it into marketable 
 condition. It was part of it in the 
 rough, and this was to be planed and 
 matched. It was not of the desired 
 size, and it was to be slit. It was in 
 this respect like the unthreshed wheat, 
 a sale of which by parol, with an 
 agreement that it should be threshed 
 by the vendors, was held to be within 
 the statute. Downs v. Ross, 23 Wend. 
 (N. Y.) 270. The doctrine stated in 
 that case is, that if the thing sold 
 exists in solido, the mere fact that 
 something remains to be done to put it 
 in a, marketable condition will not 
 take the contract out of the operation 
 of the statute." 
 
544 STATUTE OF FRAUDS. [CHAP. XI. 
 
 opportunity to take it away, it was burned; and the court 
 held that the contract was within the statute, and that the 
 loss fell upon the plaintiffs. From this case, and those pre- 
 viously cited, it will be seen that after all, in New York, in 
 effect, the question as to whether a contract of sale is within 
 the statute or not, depends upon the circumstance whether 
 the work, labor, and skill to he bestowed upon the article by the 
 vendor is the essence of the contract, or whether the contract is 
 essentially for a chattel. If the former, the statute does not 
 apply ; if the latter, it does.^ The language of the judges in 
 the different cases cited might be construed to support a 
 multitude of rules, but the actual decision of the cases, 
 applied to the facts in hand, invariably supports the rule as 
 stated supra. This is well illustrated by a recent case,^ in 
 which the defendant contracted verbally for the purchase of 
 a sofa, two arm-chairs, and four other chairs. The articles 
 in question were selected by the defendant from patterns 
 shown him, which were not covered, or only in part. The 
 defendant selected the material with which they were to be 
 covered, selecting brocatelle, which was not a usual cover- 
 ing. When the chairs were covered and varnished, and 
 ready for delivery, the defendant refused to take them ; and 
 in an action therefor, he set up the statute of frauds in 
 defence. The court held that the contract was within the 
 statute,^ Daly, C. J., saying: "When the contract is for the 
 
 1 Downs V. Ross, 23 Wend. (N. Y.) in the statute. In Passaic Manufac- 
 270 ; Flint v. Corbitt, 6 Daly (N. Y. turing Co. v. Hoffman, 3 Daly (N. Y. 
 C. P.) 429. C. P.) 495, the court attempted to 
 
 2 Flint V. Corbitt, ante. establish the rule that a contract for 
 ^ In Kilmore v. Hewlett, 48 N. the manufacture of an article of goods, 
 
 Y. 569, a contract to cut trees grow- such as the vendor usually makes and 
 ing upon the contractor's laud into sells in the course of his business, is 
 cordwood, and deliver them at so within the statute, but that, where it 
 much a cord, was held to be with- is manufactured under a special order, 
 in the statute. See also Smith and when produced is unfitted for 
 V. N. Y. Central R. R. Co., 4 general sale, it is not within the 
 Keyes (N. Y.) 180, where the same statute, thus attempting to overrule 
 doctrine was held. In Courtwright Donovan v. Wilson, 26 Barb. (N. Y.) 
 V. Stewart, 19 Barb. (N. Y.) 455, a 138, and Ferren v. 0'Har|i, 67 id. 517. 
 contract with a mechanic, to furnish But this doctrine is cleai<ly opposed 
 materials and do the carpenter work to that held by the Court of Appeals 
 and turning for a building to be in Cooke v. Millard, ante; Deal o. 
 erected upon the land of another, was Maxwell, 51 N. Y. 652 (where a con- 
 held to be a contract for work, labor, tract to make and deliver a certain 
 and materials, and therefore not with- quantity of paper at a future day was 
 
SEC. 300.] EXEODTORY SALES. 546 
 
 purchase of an article which the vendor usually has for sale 
 in the course of his business, which he keeps in his ware- 
 house substantially made, but not entirely finished, that the 
 taste or wish of the customer may be consulted as to the 
 final finish, the finishing of it in the way that the purchaser 
 prefers does not change it from a contract of sale into a con- 
 tract for work and labor. What is in contemplation of the 
 parties is the purchase and sale of an article which is exam- 
 ined and selected, but upon which something more is to be 
 done, which, as a matter of taste, choice, or expense, is left 
 to the purchaser." , 
 
 Sec. 300. Rule in Maine. — In Maine, the rule appears to 
 be that a contract for an article to be thereafter manufactured 
 hy the vendor, where the work, labor, and skill of the vendor or 
 those in his employ, or the peculiar mode and manner or mate- 
 rial is of the essence of the contract, is a contract for work 
 and labor rather than of sale, and so not within the statute.^ 
 In Hight V. Ripley, ante, which was the case of a verbal con- 
 tract by the defendants to furnish the plaintiff as soon as 
 practicable 1,000 to 1,200 pounds of malleable hoe-shanks, 
 agreeably to certain patterns left with them by the plaintiff, 
 and to furnish a larger amount, if required, at a diminished 
 price, it was held that the contract must be treated as one 
 
 held not to be within the statute), and recovery In Deal v. Maxwell, ante, and 
 Parsons v. Loucks, 48 id. 17, where a the plaintiff should have been per- 
 contract quite similar to that in Deal mitted to recover in Cooke v. Millard, 
 V. Maxwell, ante, except that the paper ante, because, by the special direction 
 was to be of such a description, sizes, of the defendant the vendor changed 
 and weights, as directed by the the character of the lumber, and fitted 
 vendee ; and also held not to come it for the special use of the defendant, 
 within the operation of the statute, and presumably rendered it unfit for 
 In these last two cases, there was no the general trade, and under this rule 
 evidence that the paper, wlien pro- there should have been a recovery in 
 duced, was, by reason of the quality, Flint v. Corbett, ante, because it ap- 
 sizes, or weights, unfit for the general peared in that case that by the direc- 
 trade, but the doctrine was rested tion of the defendant the vendor 
 upon the broad ground that the con- covered the furniture with brocatelle, 
 tract was for work, labor, and skill in which the ease shows was not usually 
 the making of the paper, and for employed for that purpose, 
 materials used in the manufacture, i Edwards v. Grand Trunk R. R. 
 under the rule as stated in Passaic Co., 48 Me. 379; S. C. 54 id. 105; 
 Manufacturing Co. v. Hoffman, ante, Pickett v. Swift, 41 id. 68 ; Hight v. 
 while it might be held that there could Ripley, 19 id. 137 ; Abbott v. Gil- 
 be a recovery in Parsons v. Loucks, christ, 38 id. 260 ; Cummings v. Den- 
 ante ; yet there could have been no nett, 26 id. 397. 
 
546 STATUTE OP FKATIDS. [CHAP. XI. 
 
 for the manufacture of the hoe-shanks, and therefore not 
 within the statute. Shipley, J., in the course of the opin- 
 ion delivered by him, 'said: "A contract for the manufacture 
 of an article differs from a contract of sale, in this : the per- 
 son ordering the article to be made is under no obligation to 
 receive as good or even a better one of the like kind pur- 
 chased from another, and not made for him. It is the pecu- 
 liar skill and labor of the other party, combined with the mate- 
 rial, for which he contracted, and to which he is entitled. 
 This rule was reiterated and reaffirmed in a later case.^ In 
 that case the defendants verbally contracted to take all the 
 wood the plaintiffs should cut and put on the line of their 
 road during the season, at the same price they had paid him 
 before for wood, or more, if better. The court held that the 
 contract was within the statute, saying : " The fact that the 
 article contracted for does not exist at the time of the con- 
 tract, but is to be made or manufactured, will not necessa- 
 rily take the case out of the statute. It must also appear 
 that the particular person who is to manufacture it, or the 
 mode and manner or material, enter into and make a part of 
 the contract.^ A test, in some cases, is whether the person 
 contracting to take the article is bound to receive one which 
 may be bought or procured by the other party after the con- 
 tract. If he is, then it is a case of sale." In a later case,^ it 
 was held that a contract to manufacture an article out of a 
 particular lot of timber already cut for the purpose, and belong- 
 ing to the manufacturer, was not within the statute. Under 
 this rule, it will be observed that three elements are 
 embraced: first, the skill or labor of the vendor;* second, the 
 mode or method of manufacture ; ^ and third, the materials^ 
 either one of which may be sufficient, when shown to be an 
 element of the contract, to take it out of the statute. 
 
 Sec. 801. Rule in Massachusetts, New Jersey, and 'Wiscon- 
 sin. — In Massachusetts and the other' States named in the 
 head-line, a mere contract to manufacture an article and fur- 
 
 1 Edwards v. Grand Trunk R. E. * Hight v. Ripley, ante; Edwards 
 Co., 48 Me. 879; S. C. 54 id. 105. v. Grand Trunk R. R. Co., ante. 
 
 2 Hight V. Ripley, 19 Me. 137 ; 6 Abbott v. Gilman, 38 Me. 260. 
 Eickett V. Swift, 41 id. 68. 8 Crockett v. Scribner, ante. 
 
 8 Crockett v. Scribner, 64 Me. 447. 
 
SEC. 301.J EXECUTORY SALES. 547 
 
 nish materials,, such as are usually manufactured hy the vendor^ 
 is treated as a sale of a chattel, rather than as a contract for 
 work and labor ; hut where a special order is given for the man- 
 ufacture of an article, to be made from materials furnished hy 
 the manufacturer according to directions given, or a model 
 selected hy the purchaser, and not for the general market, the 
 contract is treated as one for labor and materials, and not of 
 sale, and therefore not within the statute.^ TJie cases com- 
 ing under the iirst head are illustrated by Gardner v. Joy,^ 
 in which the plaintiff verbally contracted with the defendant 
 to manufacture and deliver to him, at a future day, one hun- 
 dred boxes of candles at twenty-one cents a pound. The 
 contract was held to be one of sale, and within the statute. 
 In Lamb v. Crafts * a similar doctrine was held as to a verbal 
 contract to furnish at a future day a certain quantity of pre- 
 pared tallow, the business of the seller being to gather tallow 
 in the rough and prepare it for the market. In a later case,^ 
 the same rule was applied to a contract to saw certain logs 
 into plank of various dimensions under the plaintiff's direc- 
 tions, Chapman, C. J., saying : " We think this was a con- 
 tract to sell and deliver the bending stuff and plank, and not 
 a contract for labor in manufacturing the articles." 
 
 The rule itself is illustrated by Mixer v. Howarth,^ which 
 has been referred to in a previous section, in which the 
 defendant selected from the plaintiffs stock the body of a 
 carriage which was nearly completed, and selected the lining 
 for it, and which he agreed to take at a certain price when 
 finished, and which the plaintiff agreed to have finished in a 
 fortnight. The plaintiff finished the carriage accordingly, 
 and notified the defendant thereof, and requested him to take 
 it away, which he refused to do. The court held that the 
 contract was not within the statute, Shaw, C. J., saying : 
 " It is very clear, we think, that by the contract no property 
 
 1 Lamb v. Crafts, 12 Met. (Mass.) » Gardner «. Joy, 9 Met. (Mass.) 
 356 ; Gardner v. Joy, 9 id. 177 ; Water- 177. 
 
 man v. Meigs, 4 Gush. (Mass.) 497; * Lamb v. Crafts, 12 Met. (Mass.) 
 
 Clark f. Nichols, 107 Mass. 547. 356. 
 
 2 Goddard v. Binney, 115 Mass. « Clark v. Nichols, 107 Mass. 547. 
 450; 15 Am. Rep. 112; Mixers. How- 'Mixer v. Howarth, 21 Pick. 
 arth, 21 Pick. (Mass.) 207 ; Pinney v. (Mass.) 205. 
 
 Apgar, 31 N. J. L. 270; Meincke v. 
 Talk, 55 Wis. 427 ; 42 Am. Kep. 722. 
 
548 STATUTK OF FKAUDS. [CHAP. XI. 
 
 passed to the defendant. The carriage contemplated to be 
 sold by the plaintiff to the defendant did not then exist. It 
 was to be constructed from materials partly wrought indeed, 
 but not put together. It was therefore essentially an agree- 
 ment by the defendant with the plaintiff to build a carriage 
 for him, and on his part to take it when finished, and pay for 
 it, at an agreed or at the reasonable value. This is a valid 
 contract, and made on a good consideration, and therefore 
 binding on the defendant. But it was not a contract of sale 
 within the meaning of the statute of frauds, and therefore 
 need not be proved by a note in writing ; when the contract 
 is a contract of sale, either of an article then existing, or of 
 articles which the vendor usually has for sale in the course of 
 his business, the statute applies to the contract, as well where 
 it is to be executed at a future time, as where it is to be 
 executed immediately. But where it is an agreement with a 
 workman to put material together and construct an article for 
 the employer, whether at an agreed price or not, though in 
 common parlance it may be called a purchase and sale of the 
 article to be completed in futuro, it is not a sale until an 
 actual or constructive delivery and acceptance, and the 
 remedy for not accepting is on the agreement."^ In God- 
 dard v. Binney^ the plaintiff and defendant entered into a 
 verbal contract by which the plaintiff was to build a buggy 
 for the defendant, and deliver it at a certain time. The 
 defendant gave directions as to the style and finish of the 
 buggy, and it was built in conformity with his directions and 
 marked with his monogram. When the buggy was com- 
 pleted, the plaintiff sent the defendant a bill therefor, and he 
 retained the bill and promised to see the plaintiff about it. 
 The buggy was destroyed by fire while in the plaintiff's pos- 
 session, and in an action for its price, the court held that the 
 contract was not one of sale within the statute, and that the 
 property in the buggy had passed to the defendant. Ames, 
 J., said : " The carriage was not only built for the defendant, 
 but in conformity, in some respects, with his directions, and 
 at his request was marked with his initials. It was neither 
 intended nor adapted for the general market." ^ In New Jer- 
 
 1 See Spencer v. Cone, 1 Met. (Mass.) 283. 
 
 2 Goddard v. Binney, 115 Mass. 450. 
 
 8 See also May v. AVard, 134 Mass. 84. 
 
SEC. 302.] EXECUTOKY SALES. 549 
 
 sey,^ the same rule is adopted, and in the case last cited, the 
 court states the rule to be that "whpre a contract is made 
 for an article not existing in soUdo, and when such article is 
 to be made according to order and as a thing distinguished 
 from the general business of the maker, then such contract is 
 in substance and effect not for a sale, but for work and mate- 
 rial." And in Wisconsin,^ the court, after a verj' full and able 
 review of the authorities, adopts this rule. In that case the 
 defendant, through his agent, ordered from the plaintiff, who 
 was a carriage maker, a carriage to be manufactured by the 
 plaintiff according to the description given and model 
 selected by such agent, the carriage to be completed about 
 May 1, 1879, and the cost not to exceed |900. The car- 
 riage was completed according to the model selected, and 
 ready for delivery at the time stated. The jury found spe- 
 cially the facts as stated supra, also that, in giving such order, 
 Louis Folk (the defendant's agent) intended to procure a car- 
 riage of the plaintiff's manufacture, and his skill, labor, and 
 workmanship on it were the special inducements for giving the 
 order, and that without such order such carriage would not 
 have been manufactured by the plaintiff and kept by him for 
 sale as a part of his general stock. The court held that the 
 contract was not within the statute.^ 
 
 Sec. 302. The " Essence Rule." — In the other States, so far 
 as the question has been decided, the rule seems to be that 
 where the work, labor, and skill to he bestowed upon an article 
 is of the essence of the contract, that is, the inducement 
 
 1 Finney v. Apgar, 31 N. J. L. 270. must have regarded the circumstance 
 
 2 Meincke v. Falli, 55 Wis. 427 ; that the. buggy was marked with the 
 42 Am. Rep. 722. defendant's initials as sufficient to take 
 
 ' The doctrine of this case, under the case out of the statute, or must 
 the special verdict, is much better have held that the simple fact that 
 sustained than tliat applied in God- the buggy was made in pursuance of 
 dard v. Binney, 115 Mass. 450. lu a, special order was sufficient for that 
 that case there was nothing beyond purpose, and in either view we are In- 
 the mere circumstance that the buggy clined to regard the doctrine as 
 was marked with the defendant's applied in that case not sustainable, 
 initials (which of itself was a trivial But in Meincke u. Falk, ante, the 
 matter, and could be readily changed special verdict covered not only every 
 at slight expense) to show that the requirement of the rule usually called 
 buggy was not in all respects such as the Massachusetts rule, but also the 
 the plaintiff was in the habit of mak- Maine rule, and is in all respects con- 
 ing, so that in order to arrive at their sistent with both, whereas the former 
 judgment under the rule, the court case is consistent with neither. 
 
550 STATUTE OF FEATJDS. [CHAP. XI. 
 
 thereto, the contract is one for work and labor, and not of 
 sale, and not within the statute,-^ whether the article is or is 
 not such as is usually manufactured by the vendor, or kept 
 by him in stock. But, under this rule, as under all the others 
 referred to, the contract must he for the manufacture of an 
 article hy the vendor, or those in his employ, or under his super- 
 vision; and a contract for an article to he manufactured hy 
 another than the seller is a contract of sale, and within the 
 statute.^ It will be observed that this is substantially the 
 rule in all the States, and that whatever may be said by the 
 courts, the only ground upon which this class of contracts 
 can, with any show of reason, be excepted from the operation 
 of the statute is, that they are essentially contracts for the 
 labor and skill of the seller in making the article, rather than 
 for an article of the kind contracted for. That is, that the 
 labor and skill of the seller, combined with the materials is the 
 principal consideration which the purchaser had in view.^ 
 The point of distinction is, that in the States where this, rule 
 prevails, the circumstance that the article is not in esse, but 
 is to be thereafter manufactured hy the seller, is conclusive 
 upon the question;* while in others* something more is re- 
 
 ' Gorham v. Fisher, 30 Vt. 428 ; the statute has no application. Brown 
 
 Ellison V. Brigham, 38 id. 64 ; Phipps v. Allen, 35 Iowa, 306 ; Patridge v. 
 
 V. McFarlane, 3 Minn. 109; Bird v. Wilsey, 8 id. 459. 
 
 Muhlinbrink, 1 Rich. (S. C.) L. 199; 2 Millar v. Fitzgibhons, 9 Daly 
 
 Suter V. Pullin, 1 S. C. 273; Cason v. (N. Y. C. P.) 505; Cason v. Chesley, 
 
 Chesley, 6 Ga. 554; Eichelberger v. 6 Ga. 554; Hight i-. Ripley, 19 Me, 
 
 McCauley, 5 H. & J. (Md.) 213; 137 ; Edwards u. Grand Trunk E. R. 
 
 Eeutch V. Long, 27 Md. 188 ; Atwater Co., 48 Me. 379. 
 
 V. Hough, 29 Conn. 508; Allen .,. » pitkin v. Noyes, 48 K H. 94; 
 
 Jarvis, 20 id. 38. In Story on Sales, Edwards v. Grand Trunk E. E. Co., 
 
 § 260 c, it is said that, where the labor 48 Me. 379; Fickett v. Swift, 41 id, 
 
 and seryice are the essential consid- 68; Flint o. Corbitt, 6 Daly (N. Y. 
 
 erations, as in the case of the manu- C. P.) 429; Deal v. Maxwell, 51 N. Y. 
 
 f acturer of a thing not in esse, the 652 ; Parsons v, Loucks, 48 id. 17 ; 
 
 statute does not apply, but that where Cooke v. Millard, 65 N. Y. 352 ; O'Neil 
 
 the labor and services are only inci- v. N. Y. Mining Co., 3 Nev. 141. 
 
 dental to a subject-matter in esse, the * Millard v. Cooke, 65 N. Y. 352 ; 
 
 statute does apply. See also Clay v. Deal o. Maxwell, ante ; Gorham v. 
 
 Yates, ante. In Iowa, under the Fisher, ante ; Suter v. Pullin, 1 S. C. 
 
 peculiar provisions of the statute, in 273 ; Phipps v. McFarlane, 3 Minn, 
 
 all cases where the article sold is not 109 ; Atwater v. Hough, ante. 
 
 at the time owned by the vendor, and ^ Mixar v, Howorth, ante ; Goddard 
 
 ready for delivery, and labor, skill, v. Binney, ante; Apgar u. Finney, 
 
 or money is necessary to be expended ante ; Meincke v. Falk, ante. 
 in producing or procuring the same, 
 
SEC. 302.] EXECUTORY SALES. 551 
 
 quired to warrant this irrebuttable presumption ; to wit, that 
 the article is to be, in some of its features, of a character not manu- 
 factured or kept by the seller as a part of his general stock. That 
 is, it must be a contract for the production of an article which, when 
 completed, as it then exists, would not have been manufactured in 
 that form, except for the special order given by the purchaser, and is 
 not adapted to the sellers general trade,^ and the rule applies as 
 well where the article is in part manufactured, but is finished 
 according to special directions given by the purchaser, as 
 where the article is to be wholly made.^ To attempt to 
 ascertain the principles upon which these rules rest would be 
 a useless task, as they are all of them without any apparent 
 foundation in reason, and merely expedients for evading the 
 statute. Indeed, the courts do not, . in any of the cases, 
 attempt to give any reason for the rule, beyond the circum- 
 stance that a similar doctrine had been held in some English 
 case. In Eichelberger v. McCauley,* the court simply say 
 that the rule has been too long settled to be changed. In 
 Spencer v. Cone,* the contract was for ten stave machines, at 
 $150, to be made by the plaintiff, and paid for by the defend- 
 ant on delivery. The opinion is per curiam, and simply 
 " the agreement was essentially a contract for work and labor 
 and materials, and not a contract of sale " ; and so through 
 all the cases the court seems satisfied to let the doctrine go 
 upon the ground of precedent, without attempting to give 
 any reason therefor, and often with an intimation that they 
 do not regard the rule favorably.^ In Cason v. Chesley,® the 
 court seem to proceed upon the most reasonable ground, con- 
 fining the application of the rule to that class of cases where 
 the article to be produced is of such a character as not to be 
 marketable, as a portrait, and articles of that character, for 
 which there is no sale ; and in such cases there is some pro- 
 priety in saying, as Nesbitt, J., does, in that case, that such 
 contracts are for work and labor, and that the work, labor, and 
 skill of the person employed is the prime consideration. In 
 such cases, the value of the article is limited to the immedi- 
 ate friends of the person whose portrait is painted, and even 
 
 ' Meincke v. Ealk, ante. * Spencer v. Cone, 1 Met. (Mass.) 
 
 2 Mixer v. Ho worth, ante. 283. 
 
 ' Eichelberger u. McCauley, 5 H. ^ Cooke r. Millard, ante. 
 
 & J. (Md.) 213. « Cason v. Chesley, 6 Ga. 554. 
 
552 STATUTE OF FRAUDS. [CHAP. XI. 
 
 to them is dependent upon the skill of the painter. , Gene- 
 rally, there is no value whatever in the article produced 
 beyond the persons named, and to them the value is intrin- 
 sic ; and if the rule was narrowed down to this extent, and 
 held only to apply to cases where the article produced had 
 no marketable value, but was specially adapted for use by 
 the person ordering it, it might with some reason be said 
 that the contract was one for the work, labor, and skill of 
 the seller, rather than of sale. But no such restriction is 
 imposed, and in the case referred to, the statements of the 
 court are mere dieta, as the only pretence for taking the case 
 out of the statute was, that the cotton was to be gathered by 
 the seller, and prepared for market, a service which would 
 have been performed,' althouglj no contract for its sale had 
 been made. But the court suggested a rule, as stated supra, 
 which has a fail' support in reason, and is quite similar to 
 that adopted in Lee v. Griffin, although it would not have 
 been applied to defeat a recovery under the facts of that 
 case, but would defeat a recovery in most of the cases which 
 are now excepted from the operation of the statute. When 
 the courts say that a contract for a chattel, to be thereafter 
 manufactured, is a contract for the work, labor, and skill of 
 the seller, and not a contract of sale, the statement is nothing 
 more nor less than a legal fiction, and justifiable upon no 
 other ground than that it opens up a method of avoiding the 
 operation of the statute as to a class of contracts which are 
 clearly within the mischiefs sought to be avoided by it, and 
 are included in its letter and spirit. I do not say this with 
 any expectation that it will produce any change in the doc- 
 trine, because it is evident that the inconsistency of the 
 doctrine has often suggested itself to the courts ; ^ but, being 
 hampered by precedents, they do not feel justified in chang- 
 ing it ; but my purpose is merely to suggest legislative action, 
 with a view to relieve the courts from the inconsistent and 
 groundless rules which have grown up under this clause of 
 the statute. 
 
 1 See Cooke v. Millard, 63 N. Y. State has been so long settled the 
 
 859 ; 22 Am. Rep. 619, where the rule other way as to require legislation to 
 
 in Lee v. Griffin is recognized as the that end. Eichelberger v. MoCaulej, 
 
 true rule, but the court does not ante. 
 adopt it because the rule in that 
 
SEC. 304.] BXECUTOEY SALES. 553 
 
 Sec. 303. Contracts to Procure and Deliver. — If a person 
 engages an article from a person, which is to be afterwards 
 manufactured by some person other than the seller, the con- 
 tract, as we have seen, is treated as one of sale. But the 
 question as to whether a contract to procure and deliver cer- 
 tain articles is a contract of sale or not, is one which has 
 been variously decided, and the solution of which must 
 largely depend upon the language of the contract itself. In 
 Cobold V. Caxton,^ the master of a vessel agreed to carry cer- 
 tain corn belonging to the plaintiff to a certain port, and 
 then go to another, and procure and fetch back a cargo of 
 coal, and deliver it to the plaintiff at the first port, at a cer- 
 tain sum per chaldron. The court held that this was not a 
 contract of sale, but simply a contract to procure and deliver 
 the coals. " It is clear," said Giffoed, C. J., " that if no 
 coals could be found at the port specified, the plaintiff could 
 not have maintained an action against the defendant for 
 goods bargained and sold, or for the breach of the contract 
 in not delivering them." In a New York case,^ the plaintiff 
 agreed to procure and deliver to the defendant a certain 
 quantity of hop roots, at a certain price per bushel, and it 
 was held to be a contract for the sale of goods, etc. So, in a 
 later case,^ a contract to supply the plaintiff with milk for 
 one year was held not to be within the statute. But in an 
 earlier case,* a contract for cider to he obtained by the seller 
 from farmers, and refined before delivery, was held to be a 
 contract of sale. In cases of this character, if the contract 
 contemplates the performance of certain services by the seller 
 in procuring the article, for which he is to be paid in such 
 profits as he can make by procuring the article at a less 
 price, the contract is fairly one for work and labor, rather 
 than of sale, and an action for work and labor and money 
 paid would lie, notwithstanding the statute.^ 
 
 Sec. 304. when Property vests in the Vendee. — In cases 
 of this character, the contract being held to be for work, 
 
 1 Cobold V. Caxton, 8 Moo. 460. < Seymour v. Davis, 2 Sandf. (N. Y.) 
 
 2 Webster .-. Zeilley, 52 Barb. 239. 
 
 (N. Y.) 482. ' See Bird v. Muhlenbrink, 1 Rich. 
 
 8 Baumgarten v. Fowler, 19 Law (S. C.) L. 199; Crockett v. Scribner, 
 
 Rep. (N. Y.) 38. 64 Me. 447; Atwater u. Hough, 29 
 
 Conn. 508. 
 
554 STATUTE OF FRAUDS. [CHAP. XI, 
 
 labor, and materials, neither acceptance nor receipt on the 
 part of the vendee is necessary to vest the property in him ; ^ 
 but when the article is finished, and the vendee is notified 
 thereof, or some equivalent act is done, the seller is entitled 
 to the price, and may sue for and recover it, although the 
 article has not in fact been delivered to the vendee,^ even 
 though no price is specified, or time fixed for its completion,^ 
 and the seller's lien thereon for the price has not been waived,* 
 or even though after such notice the article is destroyed by 
 fire or other casualty, so that delivery becomes impossible.^ 
 In such cases the only question is, had the seller completed 
 the work when the loss occurred?® In the ease last cited, 
 the plaintiff had printed some books for the defendant, which 
 were destroyed by fire while they were in the printer's pos- 
 session, and the question was submitted to the jury to find 
 whether the printer had completed the work before the fire 
 occurred; and they having fouild that he had not, the defend- 
 ant had the verdict. In Hunter v. Murray,'^ the plaintiff 
 made some circus tents for the defendant, and completed 
 them in all respects according to the order, and while they 
 were in transit to the defendant, they were destroyed by fire. 
 The tents were sent with a bill of lading, which required 
 payment to be made for the tents before delivery to the 
 defendant. The court held that the plaintiff was entitled to 
 recover the value of the tents of the defendant.^ But until 
 
 1 Goddard v. Binney, 115 Mass. ° Adlard v. Booth, ante. 
 450 ; Higgins v. Murray, 4 Hun (N. Y.) ' Hunter v. Murray, ante. 
 
 565; Muckey v. Howenstine, 3 N. Y. ^ Daniels, J., said: "The- agree- 
 
 Superior Ct. 28. ment for the manufacture of the tent 
 
 2 Crookshank v. Burrill, 18 John, not being within the statute of frauds, 
 (N. Y.) 58; Mixer v. Howorth, 21 it was valid -and binding on the par- 
 Pick. (Mass.) 205; Forsyth v. Dick- ties althougli no note or memorandum 
 son, Grant (Penn.) Cas. 26 ; Schneider was made of it in writing, and conse- 
 V. Westerman, 25 111. 514; Comfort quently bound the defendant to re- 
 V. Kierstead, 26 Barb. (N. Y.) 472; ceive and pay for the tent. When it 
 Pettingill v. Merrill, 47 Me. 109 ; West was completed and he had notice of 
 Jersey &c. R. R. Co. v. Trenton &c. that fact, the plaintiff's right accrued 
 R. R. Co., 22 N. J. L. 517. for the recovery of the price, and 
 
 ' Mixer v. Howorth, ante; Crook- from that time the property was at 
 
 shank v. Burrell, ante. the risk of the defendant. That re- 
 
 * Hunter v. Murray, 4 Hun (N.Y.) suited from the fact that the contract 
 
 565. was valid and had been fully per- 
 
 ' Goddard v. Binney, ante ; Adlard formed by the plaintiff. What he 
 
 V. Booth, 7 C. & P. 108 ; Hunter v. afterward retained was simply a lien 
 
 Murray, ante. for the price, which was not incon- 
 
SEC. 304.] 
 
 EXECUTORY SALES. 
 
 555 
 
 notice of completion is given, the property and the conse- 
 quent risk remains in the maker,^ except possibly where a 
 time for its completion is specially agreed upon, and it is 
 completed accordingly. 
 
 slstent with its recovery by action. 
 And all that he did by eliippiug it, 
 subject to the payment of the price, 
 was to retain and preserve that lien 
 as his security upon the property. 
 By the fair import of the agreement, 
 delivery and payment were to be 
 simultaneous acts, and that was all 
 which the bill of lading secured. 
 The defendant could have his prop- 
 erty by making that payment. And 
 the plaintiff had the right to maintain 
 his possession until such payment 
 should be made, as long as no credit 
 was to be given by the agreement. 
 
 At common law, a mere agreement 
 to sell specified articles of personal 
 property at once, and without deliv- 
 ery of actual possessionj vested the 
 title in the vendee, and the right to 
 the price in the vendor; but the 
 former could not take the goods with- 
 out either payment or tender of the 
 price. This principle is quite analo- 
 gous to the one which governs the 
 rights and liabilities of the parties 
 under a contract for the manufacture 
 of a specified article. As soon as the 
 article has been completed and notice 
 given to the other party of that fact, 
 the latter becomes obligated to take 
 it and pay the price for it. If he 
 
 does not do so, a right of action ac- 
 crues to the manufacturer for the re- 
 covery of the amount due to him. 
 And that right cannot be lost by 
 sending it according to the direction 
 of the person for whom it has been 
 made, merely by subjecting it to the 
 payment which the manufacturer may 
 insist shall be made before the prop- 
 erty passes beyond his control. 
 
 The shipment in the manner it was 
 made, was no more than a continuance 
 of the previous relations existing be- 
 tween the parties. The plaintiff held 
 the possession of the property as the 
 bailee of the defendant, to be deliv- 
 ered over to him whenever the price 
 was paid. And in securing the preser- 
 vation of that right, while he complied 
 with the defendant's directions to send 
 it to him, he did nothing more than 
 he was entitled to insist upon. The 
 property has been subject to the defend- 
 ant's risk from the time he had notice 
 of its completion, and that was not 
 transferred to the plaintiff by ship- 
 ping it, as he did conformably to the 
 defendant's directions and his own 
 lien for the price of it." See also 
 Goddard v. Binney, ante. 
 
 1 Baker v. Bourcicault, 1 Daly 
 (N. Y. C. P.) 23. 
 
CHAPTER XII. 
 
 ACCEPTANCE AND RECEIPT. 
 
 SECTIOIf. 
 
 305. Acceptance and Keceipt must be Shown. 
 
 306. Acceptance may be before Receipt. 
 
 307. After Action Brouglit. 
 
 308. Test of. 
 
 309. Acceptance of Sample Amounts to, When. 
 
 310. When not. 
 
 311. Constructive Acceptance, etc.. What is. 
 
 312. Must be Acta of Acceptance. 
 
 313. Acts of Ownership Amounting to. 
 
 314. Need not be Express Acceptance. 
 
 315. Instances of Constructive Acceptance, etc. 
 
 316. Using Goods as Owner. 
 
 317. Morton v. Tibbetts. 
 
 318. Taylor v. Mueller. 
 
 319. Marking Goods in Name of Vendee. 
 
 320. Acceptance of One of Several Articles is Acceptance of All, When. 
 
 321. When not. 
 
 322. Goods not Made. 
 
 323. Goods Sold by Principal, as if Agent. 
 
 324. Mixed Contract. 
 
 325. "Vendee must have Opportunity to Judge Whether Goods Correspond 
 
 with Order. 
 
 326. User or Experiments to Ascertain Quality. 
 
 327. Goods Need not be Eeturned. 
 
 328. Delay in Rejecting, May be Evidence of Acceptance. 
 
 329. Acceptance Cannot be Withdrawn. 
 
 330. Acceptance by Agents. Eule in Eodgers v. Jones. 
 
 331. Carriers have no Authority to Accept. 
 
 332. Disputed Terms, Though Acceptance. 
 
 333. What is an Actual Receipt. 
 
 334. Special Lien or Interest. 
 
 335. Goods in Possession of Vendee at Time of Sale. 
 
 336. Goods in Hands of Third Person. 
 
 387. Receipt by Acceptance of Delivery Order, etc. 
 
 338. Possession Taken by Vendee. 
 
 339. Symbolical Delivery. What is. When Valid. 
 
 340. Delivery to Carrier may be Delivery to Vendee. 
 
 341. Executory Contract Partly Executed. 
 
SEC. 305.] ACCEPTANCE AND RECEIPT. 557 
 
 Section 305. Acceptance and Receipt Must be Shown. — 
 The statute 29, Car. 2, provides that no contract for the sale 
 of goods, etc., shall be allowed to be good, unless the buyer 
 shall accept part of the goods so sold, and actually receive the 
 same, or etc., and this is the language generally used in the 
 statute of the several States of this country. Thus it will be 
 seen that acceptance without receipt or receipt without accept- 
 ance is not sufficient, but, where this is the ground upon which 
 a contract of sale is to be taken out of the statute, both must 
 be shown to exist. That is, neither an acceptance without 
 receipt of the goods, nor a receipt without an acceptance 
 thereof, will satisfy the statute.^ Mk. BiyACKBUEN, in his 
 work on Sales,^ says: "If we seek for the meaning of the 
 enactment, judging merely from its words, and without refer- 
 ence to decisions, it seems that this provision is not com- 
 plied with unless the two things concur: the buyer must 
 accept, and he must- actually receive part of the goods ; and 
 the contract will not be good unless he does both. And this 
 is to be borne in mind, for as there may be an actual receipt 
 without any acceptance, so may there be an acceptance with- 
 out any receipt.^ In the absence of authority, and judging 
 merely from the ordinary meaning of language, one would 
 say that an acceptance of part of the goods is an assent by 
 the buyer, meant to be final, that this part of the goods is to 
 be taken by him as his property under the contract, and as so 
 far satisfying the contract. So long as the buyer can, with- 
 out self-contradiction, declare that the goods are not to be 
 taken in fulfilment of the contract, he has not accepted them. 
 
 1 Blackburn on Sales, 22, 23. But Jordan, 39 Md. 472 ; Maxwell v 
 in Indiana the statute makes a receipt Brown, 39 Sle. 101 ; Edward r. Grand 
 of the property sufficient ; so also in Trunk E. R. Co., 54 Me. Ill ; Denny 
 Mississippi. In California, Dakota, v. Williams, 5 Allen (Mass.) 3; John- 
 Montana, Nevada, and Utah the stat- son v. Cuttle, 105 Mass. 449 ; Prescott 
 ute makes either an acceptance or v. Locke, 51 N. H. 94; Boardman t. 
 receipt of a part of the goods suffi- Spooner, 13 Allen (Mass.) 357 ; Rem- 
 cient. In Iowa the contract isinoper- ick v. Sandford, 120 Mass. 309; Dole 
 atlve unless a part of the property is v. Stimpson, 21 Pick. (Mass.) 384; 
 delivered or a part of the price paid, see Ross v. Welch, 11 Gray (Mass.) 
 In all the other States acceptance and 235 ; SafEord u. McDonough, 120 
 receipt is required. The fact that the Mass. 211. 
 property has been delivered is not ^ Blackburn on Sales, 22. 
 enough, but an acceptance and receipt ' Foster, J., in Prescott v. Locke, 
 6y the purchaser must be shown. Gibbs 61 N. H. 94. 
 V. Benjamin, 46 Vt. 124; Hewes v. 
 
558 STATUTE OP FKAITDS. [CHAP. XII. 
 
 And it is immaterial whether his refusal to take the goods be 
 reasonable or not. If he refuses the goods, assigning grounds 
 false or frivolous, or assigning no reasons at all, it is still clear 
 that he does not accept the goods, and the question is not 
 whether he ought to accept, but whether he has accepted 
 them.^ The question of acceptance or not is a question' as 
 to what was the intention of the buyer as signified by his 
 outward acts. 
 
 Tlie receipt of part of the goods is the taking possession of them. 
 When the seller gives to the buyer the actual control of the goods, and 
 the buyer accepts such control, he has actually received them. Such 
 a receipt is often evidence of an acceptance, but it is not the 
 same thing; indeed, the receipt by the buyer may be, and 
 often is, for the express purpose of seeing whether he will 
 accept or not. If goods of a particular description are 
 ordered to be sent by a carrier, the buyer must in every case 
 receive the package to see whetheir it answers his order or 
 not ; it may even be reasonable to try part of the goods by 
 using them ; but though this is a very actual receipt, it is no 
 acceptance so long as the buyer can consistently object to the 
 goods as not answering his order. It follows from this that 
 a receipt of goods by a carrier or on board ship, though a 
 sufficient delivery to the purchaser, is not an acceptance hy 
 him so as to bind the contract, for the carrier, if he be an 
 agent to receivp, is clearly not one to accept the goods.^ 
 
 On the whole the cases are pretty consistent with these 
 suggestions, and with each other, as to what forms an accept- 
 ance within the statute, though not as to the strength of the 
 proof required to establish it. On the question of what con- 
 stitutes an actual receipt there is some difficulty in reconciling 
 the cases, which will be considered hereafter." 
 
 1 Redfield, J., in Gibbs v. Benjar nated by him is a receipt by him. 
 
 min, 45 Vt. 124 ; Hill v. Heller, 27 Cross v. O'Donnell, 44 N. Y. 661 ; 4 
 
 Hun (N. Y.) 416 ; Knight .,. Mann, Am. Rep. 721 ; Spencer v. Hale, 30 
 
 118 Mass. 143. Vt. 314 ; Cutwater v. Dodge, 6 Wend. 
 
 2 Rodgers v. Jones, 129 Mass. 420 
 Atherton v. Newhall, 123 Mass. 141 
 Rodgers v. Phillips, 40 N. Y. 519 
 Caulkins i>. Hellman, 47 N. Y. 449 
 
 (N. Y.) 897; Maxwell v. Brown, 39 
 Me. 98; People v. Haynes, 14 Wend. 
 (N. Y.) 546; Glen v. Whitaker, 51 
 Barb. (N. Y.) 451; Hanson v. Armi- 
 
 Frostburgh Mining Co. v. N. E. Glass tage, 5 B. & Aid. 657 ; Morton v. Tib- 
 Co., 9 Cush. (Mass.) 115. But when bets, 15 Q. B. 441 ; Coats u. Chaplin, 
 there has been an acceptance by the 3 B. & C. 483 ; Acebal v. Levi, 10 
 vendee, a deliyery to a carriOT desig- Bing. 876. 
 
SEC. 306.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 659 
 
 Sec 306. Acceptance may be before Receipt. — It is not 
 necessary that the acceptance of the goods should follow or 
 even be contemporaneous with the receipt of them,i and an 
 
 ' It is sufficient if they take place 
 within a reasonable time of each other. 
 Van Woert <•. Albany &c. R. E. Co., 
 67 N. Y. 538; McKnight v. Dunlop, 6 
 id. 537 ; Vincent v. Gerraond, 11 John. 
 (N. Y.) 283; Sprague v. Blake, 20 
 "Wend. (N. Y.) 61 ; Sale o. Darrah, 2 
 Hilt. (N. Y. C. P.) 184; Chapin .,. 
 Potter, 1 id. 366. In Buckingham v. 
 Osborn, 4i Conn. 133, Parke, C. J., 
 says : " Where a contract of sale of 
 personal property is inoperatiye under 
 the statute of frauds for want of de- 
 liyery, a tender made afterwards and 
 an unconditional acceptance have the 
 same effect between the parties as if the 
 delivery had been made at the time of the 
 sale." Bush v. Holmes, 53 Me. 417 ; 
 Phillips V. Ocmulgee Mills, 55 Ga. 
 633; Danforth v. Walker, 37 Vt. 239; 
 Richardson i>. Squires, 37 id. 640 ; 
 Amson ;'. Dreber, 35 Wis. 615 ; Pink- 
 ham V. Mattox, 53 N. H. 604 ; McCar- 
 thy u. Knapp, 14 Minn. 127. In 
 Hewes v. Jordan, 39 Md. 484, Al- 
 VEY, J., says: "The act of accept- 
 ance is not confined to any particular 
 order of time in reference to the actual 
 receipt of the goods. On the contrary, 
 acceptance may precede, as in cases 
 where the vendee has inspected and ap- 
 proved the specific goods purchased, as 
 well as be contemporaneous with or 
 subsequent to the actual receipt of 
 the goods." Davis v. Moore, 13 Me. 
 424; Thompson v. Alger, 12 Met. 
 (Mass.) 435; Damon i. Osborn, 1 
 Pick. (Mass.) 480; Morse v. Chis- 
 holm, 7 U. C. C. P. 131. 
 
 In Marsh v. Hyde, 3 Gray (Mass.) 
 331, BiGELOw, J., in commenting upon 
 the time when acceptance might be 
 made, said : " There is nothing in the 
 statute which fixes or limits the time 
 within which a purchaser is to accept 
 and receive part of the goods sold, or 
 give something in earnest to bind the 
 bargain, or in part payment. It would 
 fully satisfy its terms if the delivery 
 or part payment were made in pursu- 
 
 ance of a contract previously entered 
 into. . . . The great purpose of the 
 enactments, commonly known as the 
 statute of frauds, is to guard against 
 the commission of perjury in the 
 proof of certain contracts. This is 
 effected by providing that mere parol 
 proof of such contracts shall be in- 
 sufficient to establish them in a court 
 of justice. In regard to contracts for 
 sales of goods, one mode of proof 
 which the statute adopts to secure 
 this object is the delivery of part of 
 the goods sold. But this provision 
 does not effectually prevent the com- 
 mission of perjury ; it only renders it 
 less probable, by rendering proof in 
 support of the contract more difiicult. 
 So in regard to other provisions of 
 the same statute ; perjury is not en- 
 tirely prevented by them ; the hand- 
 writing of the party to be charged, or 
 the agency of the person acting in his 
 behalf, may still be proved by the 
 testimony of witnesses who swear 
 falsely. Absolute prevention of per- 
 jury is not possible. In carrying this 
 great purpose of the statute into prac- 
 tical operation, it can add no security 
 against the danger of perjury, that 
 the act, proof of which is necessary 
 to render a contract operative, is not 
 contemporaneous with the verbal 
 agreement. A memorandum in writ- 
 ing will be as effectual against per- 
 jury, although signed subsequently to 
 the making of a verbal contract, as if 
 it had been executed at the moment 
 when the parties consummated their 
 agreement by word of mouth. So 
 proof of the delivery of goods, in pur- 
 suance of an agreement for their sale 
 previously made, will be as efficacious 
 to secure parties against false swear- 
 ing as if the delivery had accom- 
 panied the verbal contract. It is the 
 fact of delivery under and in pursu- 
 ance of an agreement of sale, not the 
 time when the delivery is made, 1hat 
 the statute renders essential to the 
 
560 , STATUTE OP FEATJDS. [CHAP. XII. 
 
 acceptance prior to their receipt will he sufficient wJiere it applies to 
 the specific articles received, and nothing remains to he done except 
 to deliver the articles. This qxiestion was raised in an English 
 case,i in which the defendant verbally agreed to buy some 
 sheep which he selected from the plaintiff's flock, and di- 
 rected them to be sent to a field of his, which was. accord- 
 ingly done. Two days afterwards he sent his man to remove 
 the sheep from the field to his farm, which was some miles 
 distant, and on their arrival he counted them over and said, 
 "It is all right." The court considered that it was not neces- 
 sary to decide whether there could be an acceptance before 
 receipt, but held that there was evidence for the jury of 
 acceptance by the defendant of the sheep. But in a later 
 English case,^ it appeared that the defendant went with one 
 of the plaintiffs to the cellar of the firm, where he was shown 
 a lot of 156 firkins of butter, six of which he opened and 
 inspected. Afterwards, on the same day, the defendant 
 agreed to buy that specific lot. The plaintiffs, by the direc- 
 tions of the defendant's agent, forwarded the butter by car- 
 rier to an address given. It was held that there was nothing in 
 the statute to imply an intention that an acceptance prior to the re- 
 ceipt would not suffice. BLACKBtTRN, J., in delivering the judg- 
 
 prool of a valid contract. It is to be and acceptance, whenever they took 
 
 borne in mind that, in all cases where place, were in persuance of a previous 
 
 there is no memorandum or note in agreement. If the verbal contract is 
 
 writing of the bargain, the verbal proved, and a delivery in pursuance 
 
 agreement of the parties must be of it is shown, the requisites of the 
 
 proved. The statute does not pro- statute are fulfilled." Townsend v. 
 
 hibit verbal contracts. On the con- Hargraves, 118 Mass. 336; also. Sale 
 
 trary, it presupposes that the terms v. Darragh, 2 Hilt. (N. Y. C. P.) 184; 
 
 of the contract rest in parol proof, Chapin i-. Potter, 1 Hilt. (N. Y. C. P.) 
 
 and only requires, in addition to the 366 ; Walker v. Nussey, 16 Mees. & 
 
 proof of such verbal agreement, evi- W. 302 ; Field v. Eunk, 22 N. J. L. 
 
 dence of a delivery or part payment 525; McKnight v. Dunlop, 5 N.Y. 
 
 under it. It does not, therefore, 537; Davis v. Moore, 13 Me. 424; 
 
 change the nature of the evidence to Sprague v. Blake, 20 Wend. (N. Y.) 
 
 be offered in support of the contract. 61 ; Buckingham v. Osborne, 44 Conn. 
 
 It merely renders it necessary for the 133. See Whitwell v. Wyer, 11 Mass. 
 
 party claiming under it to show an 6; Damon u. Osborne, 1 Pick. (Mass.) 
 
 additional fact in order to make it 476. 
 
 'good and valid.' ... In all cases i Saunders t. Topp, 4 Exchq. 390; 
 
 like the present, a single inquiry oper- Hewes v. Jordan, 39 Md, 472 ; 17 Am. 
 
 ates as a test by which to ascertain Eep. 478. 
 
 whether a contract is binding upon ^ Cusack u. Eobinson, 1 B. & S. 
 
 the parties under the statute of 209. 
 frauds. It is whether the delivery 
 
SEC. 306.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 561 
 
 ment of the court, distinguished the case from Nicholson v. 
 Bower,! where 141 quarters of wheat, sent by railway, ad- 
 dressed to the vendees, arrived at their destination, and were 
 there warehoused by the company under circumstances that 
 might have been held to put an end to the unpaid vendors' 
 rights, saying: " Tlie contract was not originally a sale of specific 
 wheat, and the vendees had never agreed to take those particular 
 quarters of wheat; on the contrary, it was shown to be usual, 
 before accepting them warehoused, to compare a sample of 
 the wheat with the sample by which it was sold; and it 
 appeared that the vendees, knowing they were in embar- 
 rassed circumstances, purposely abstained from accepting 
 the goods." 2 But in order that an acceptance prior to the 
 receipt of the goods shall be good, the goods must be ascer- 
 tained and identified, and it is not enough that there is a con- 
 tract for unascertained goods to answer a particular description. 
 The vendee must have had an opportunity to examine all the goods, 
 so that no right of rejection remains.^ WlLLES, J., in the case 
 
 1 Nicholson o. Bower, 1 E. & E. 
 172. 
 
 2 See Bog Lead Mining Co. v. 
 Montague, 10 C. B. N. S. 481, where 
 the doctrine of this case was a£Srmed. 
 
 ' Bog Lead Mining Co. i: Mon- 
 tague, 10 C. B. N. S. 481 ; Knight v. 
 Mann, 118 Mass. 143; Lloyd v. Wright, 
 25 Ga. 215. In Heermance v. Taylor, 
 14 Hun (N. T.) 149, an action was 
 brought to recover the agreed price 
 of a quantity of butter alleged to have 
 been sold by the plaintiff to the de- 
 fendant. The price of the butter ex- 
 ceeded fifty dollars, and the contract 
 was not reduced to writing. At the 
 close of the evidence the court dis- 
 missed the complaint on the ground 
 that there was no proof of the accept- 
 ance of the butter by the defendant. 
 The plaintiff and the defendant went 
 into the cellar of the store in the city 
 of New York, where several firkins of 
 butter were bored into and examined 
 by the parties, after which the defend- 
 ant said he would take, at the price 
 named (which was twenty-three cents 
 per pound), twenty firkins out of the 
 lot of forty from which the firkins ex- 
 amined had been taken, and directed 
 
 them to be sent as above stated. The 
 firkins actually examined, and enough 
 more to make up twenty, were taken 
 from the lot of forty and delivered to 
 the carman, who delivered them to the 
 boat of the Peoyle's Line. The Peo- 
 ple's Line delivered them to the car- 
 man in Albany, who carried them to 
 the defendant's store. They were re- 
 ceived and placed in the defendant's 
 cellar in a pile by themselves. The 
 defendant was still absent in the city 
 of New York, and returned home two 
 or three days thereafter; and on the 
 morning following his return, having 
 an application for the purchase of 
 butter, took his customer down to the 
 cellar and showed him this lot, and 
 bored into one of the firkins ; but on 
 examination said, "This will not suit," 
 and went to another lot of buttet in 
 the cellar, from which he made a sale, 
 and then and within half an hour 
 thereafter shipped the butter back to 
 the plaintiff at New York, notifying 
 him in substance that he should not 
 accept it because it was not the butter 
 he had purchased. The court at 
 General Term said : " It is well set- 
 tled by authority that a more delivery 
 
662 
 
 STATUTE OP FRAUDS. 
 
 [chap. XII. 
 
 first cited in the last note, says: "It may be that in the case 
 of unascertained property to answer a particular description, no 
 acceptance can properly be said to take place before the purchaser 
 has had an opportunity of rejection.^ In such a case the offer to 
 purchase is subject not only to the assent or dissent of the 
 seller, but also to the condition that the property to be deliv- 
 ered to him shall answer the particular description. A right 
 of inspection to ascertain whether such condition has been 
 complied with is in the contemplation of both parties to such 
 a contract ; and no complete arid final acceptance, so as irrevocably 
 to vest the property in the buyer, can take place before he has exer- 
 cised or ivaived tliat right.^ In order to constitute such a final 
 and complete acceptance, the assent of the buyer should fol- 
 low and not precede that of the seller. But where the con- 
 tract is for a specific ascertained chattel, the reasoning is 
 altogether different. Equally where the offer to sell and 
 deliver has been first made by the seller and afterwards 
 assented to by the buyer, and where the offer to buy and 
 
 is not sufficient to take the case out of 
 the statute of frauds. The delivery, 
 therefore, to the carman, and to the 
 carrier, and by the carrier to the 
 carman at Albany, and by him at the 
 store of the defendant, do not in 
 themselves amount to the acceptance 
 required by law. In Stone o. Brown- 
 ing, 51 N. Y. 211, when first before 
 the Court of Appeals, it was held that 
 ' It is not enough that the goods were 
 delivered to the purchasers ; they must 
 also have accepted them. A delivery 
 of property, to satisfy the requirement 
 of the statute of frauds, must be a 
 delivery by the vendor with the intent 
 of vesting the right of possession in 
 the vendee, and there must be an 
 actual acceptance by the latter, with 
 the intention of taking possession as 
 owner.' That case was again before 
 the Court of Appeals, and a new trial 
 was granted, although the jury had 
 found as a question of fact that there 
 had been an acceptance. It was held 
 that ' it was necessari/ that the defendant 
 should have made the examination and 
 pronounced the goods satisfactory, or that 
 they should have dealt with them, or done 
 some unequivocal act, showing that they 
 
 intended to accept them unconditionally 
 as their own property,' in order to supply 
 the place of a written contract. Per- 
 formance by plaintiffs of their part of 
 the contract was not enough. Stone 
 V. Browning, 51 N. Y. 211 ; Caulkins 
 V. Hellman, 47 id. 449. Evidence that 
 the goods were as represented, and cor- 
 responded with the samples, was not 
 material upon the question of accept- 
 ance. It was immaterial whether the 
 defendant's refusal to take the goods 
 was reasonable or not." It will be 
 observed that this case differs from 
 Cusack V. Robinson in the circum- 
 stance that the specific property had 
 not been identified. 
 
 1 In Shepherd v. Pressley, 32 N. H. 
 55, Bell, J., says : " There is no ac- 
 ceptance unless the purchaser has exer- 
 cised his option to receive the goods sold 
 or not, or has done something to de- 
 prive him of this option." See also 
 Clark V. Tucker, 2 Sandf . (N. Y.) 157 ; 
 Gilman v. Hill, 36 N. H. 311 ; Belt v. 
 Marriott, 9 Gill. (Md.) 831 ; Messer v. 
 Woodman, 22 N. H. 181 ; Gorham v. 
 Fisher, 30 Vt. 428. 
 
 " Cusack V. Robinson, 1 B. & S. 
 299. 
 
SEC. 306.] ACCEPTANCE AND BBCEIPT. 563 
 
 accept has been first made by the buyer and afterwards 
 assented to by the seller, the contract is complete by the 
 consent of both parties, and it is a contract the expression of 
 which testifies that the seller has agreed to sell and the buyer 
 to buy and accept the chattel ; and, indeed, it has been ex- 
 pressly decided that in the latter case the statute of frauds 
 may be satisfied by an acceptance preceding the delivery." 
 In Kershaw v. Ogden,^ the defendants purchased four specific 
 stacks of cotton waste at a certain sum per pound, and agreed 
 to send their own packer, sacks, and cart to remove it. The 
 packer and eightj'-one sacks were sent, and he, with the aid 
 of the plaintiff's men, packed the four stacks into the sacks 
 sent. Two days afterwards, twenty-one of the sacks were 
 weighed and sent to the defendant's premises, and were re- 
 turned the same day by the defendant, who objected to the 
 quality. The rest of the sacks wei-e not weighed. The cart, 
 loaded with the waste returned, was left at the plaintiff's 
 warehouse, and he put the waste into the warehouse to prevent 
 its spoiling. In an action for not accepting, and for goods 
 bargained and sold, and goods sold and delivered, that the 
 plaintiff was entitled to recover. Pollock, C. J., saying: 
 "The property in the four stacks (under the facts found) 
 became the property of the buyers, and the plaintiff became 
 entitled to an action for the price in an action for goods bar- 
 gained and sold." ^ The rule that there can he no acceptance 
 and actual receipt of goods unless the vendee has an opportunity of 
 judging whether the goods correspond with the order, is illustrated 
 by an English case ^ in which the plaintiff agreed to purchase 
 bones- of a particular kind, to be separated from a heap of various 
 bones of oxen, cows, and other inferior bones, and gave to the 
 plaintiff a note addressed to a wharfinger, to receive and ship 
 the bones. The plaintiff sent fifty bags of the bones to the 
 wharf, which the wharfinger received, but the defendant was 
 not aware that they had been sent until the next day, when 
 the invoice was received. The defendant then examined the 
 bones, and refused to accept them on the ground that they 
 
 1 Kershaw v. Ogden, 3 H. & C. 717. of those weighed, and upon this ground 
 
 2 The plaintiffs in this case were the case is distinguishable from Sim- 
 excused from weighing the balance of mens v. Swift, 5 B. & C. 857. 
 
 the sacks by the refusal of the de- ' Hunt v. Hecht, 8 Exchq. 814. 
 f endants to receive ant/, and the return 
 
564 STATUTE OF FEAUDS. [CHAP. XII. 
 
 were not what he bargained for. In an action for goods sold 
 and delivered, it was objected on the part of the defendant 
 that there was no evidence of an acceptance and receipt, and 
 Martin, B., being of that opinion, non-suited the plaintiff, 
 and upon a hearings in Exchequer the non-suit was sustained. 
 Pollock, C. B., said: "I am of opinion that there was no 
 evidence of an acceptance and receipt to satisfy the requi- 
 sites of the statute. All that the defendant agreed to buy- 
 was a quantity of bones of a particular description, to be 
 separated from others in the heap. He afterwards sent to 
 the plaintiff a note addressed to a wharfinger, authorizing the 
 latter to receive and ship the bones; but when the defendant 
 saw them at the wharf, he found that they did not corre- 
 spond with his order, and refused to accept them. There- 
 fore, although there was a receipt of the goods by a person 
 who had authority from the defendant to receive them, there 
 was no acceptance. A person cannot accept a commodity 
 which is not in a condition to be accepted, by reason of its 
 requiring to be separated from a larger bulk. If the con- 
 tract be for the purchase of a certain quantity of flour or 
 wheat, part of a larger quantity, there can be no acceptance 
 until it is measured and set apart. It seems to me that the 
 requisites of the statute have not been complied with, and 
 the rule must be discharged." Aldeeson, B., said : " I am 
 of the same opinion. If a person agrees to buy a quantity 
 of goods to be taken from the bulk, he does not purchase 
 the particular part bargained for until it is separated from 
 the rest; and he cannot be said to accept that which he 
 knows nothing of, otherwise it would make him the acceptor 
 of whatever the vendor chose to send him, whereas he has 
 a right to see whether in his judgment the goods sent corre- 
 spond with the order. The statute requires an acceptance 
 and actual receipt of the goods ; here there has been a de- 
 livery, but no acceptance." Platt, B., said: "I am of the 
 same opinion. Until a separation took place, the thing bar- 
 gained for was incapable of being accepted." Martin, B., 
 said : " The question is, whether the defendant has accepted 
 and actually received the goods bargained for. The contract 
 was to buy such bones as were ordinary merchantable bones. 
 It appears that there were various sorts of bones intermixed 
 
SBC. 306.] ACCEPTAKCB AND EECEIPT. 665 
 
 in a heap, and that there was no purchase of the bulk, but of 
 a certain article to be selected from it. The defendant was 
 only bound to accept merchantable bones ; and an order is 
 given to a wharfinger to receive those bones. No doubt in 
 one sense the goods were received by the defendant, because 
 they were received by a wharfinger directed by him to re- 
 ceive them. But the question is, whether there has been an 
 acceptance to satisfy the statute. There are various authori- 
 ties to show that, for the purpose of an acceptance within the 
 statute, the vendee must have had the opportunity of exer- 
 cising his judgment with respect to the article sent. Morton 
 V. Tibbett has been cited as an authority to the contrary ; 
 but, in reality, that case decides no more than this, that 
 where the purchaser of goods takes upon himself to exercise 
 a dominion over them, and deals with them in a manner in- 
 consistent with the right of property being in the vendor, 
 that is evidence to justify the jury in finding that the vendee 
 has accepted the goods, and actually received the same. The 
 court indeed there say, that there may be an acceptance and 
 receipt within the statute, although the vendee has had no 
 opportunity of examining the goods, and although he has 
 done nothing to preclude himself from objecting that they 
 do not correspond with the contract. But, in my opinion, 
 an acceptance, to satisfy the statute, nrvust he something more than a 
 mere receipt; it means some act done after the vendee has exercised, 
 or had the means of exercising, his right of rejection." 
 
 In a carefully considered American case ^ this doctrine is 
 well illustrated. In that case, the defendent went to the 
 plaintiff's store to purchase some rough calf-skins. The 
 plaintiff had a large quantity of them in stock, and the de- 
 fendant, after examining thirty or forty skins, entered into a 
 verbal agreement for the purchase of six hundred and thirty- 
 nine of them,_at a certain price per pound, which he directed 
 the plaintiff to count oiit, weigh, and set apart for him, but 
 did not himself afterwards see. The sale was on time, and 
 the defendant was to send for the skins and take them away. 
 In the defendant's absence the plaintiff counted out and set 
 apart the number of skins, corresponding in quality and value 
 to those seen by the defendant, and, according to a usage of 
 
 1 Knight V. Mann, 118 Mass. 143; S. C, 120 id. 219. 
 
566 STATUTE OF FRAUDS. [CHAP. XII. 
 
 the trade, selected one in twenty as " trials," the weight of 
 
 which, before and after exposure to the air, determined the 
 
 percentage of shrinkage to be deducted from the gross 
 
 weights, and thus fixed the number of pounds to be paid 
 
 for by the defendant. The defendant afterwards called at 
 
 the plaintiff's store, and asked if the skins he had bought 
 
 were ready, to which the plaintiff replied,," Yes, all except 
 
 weighing the trials " ; and the defendant said he would send 
 
 for them immediately. The plaintiff weighed the trials 
 
 and placed all the skins in the doorway of his store, ready to 
 
 be taken awaj' by the defendant, who returned later in the 
 
 day for a biU of the skins, which was given him, and he was 
 
 then told that they were all ready for him. The plaintiff did 
 
 all that was required of him by the contract. The skins were 
 
 not sent for, and were destroyed by fire the following night. 
 
 It was held, reversing the judgment below, that there was not 
 
 an acceptance within the statute, and that the court below 
 
 was not warranted in finding that the plaintiffs held the skins 
 
 as bailee for the defendant, Endioott, J., very clearly stating 
 
 the grounds upon which the reversal was based. He said : 
 
 " In this case, the contract was not for the purchase of a spedfic, 
 
 ascertained chattel, which the buyer injected and examined at the 
 
 time of the agreement, but for skins to be selected by the seller from 
 
 a larger number of similar skins lying in bales, and to be set 
 
 aside, and sent for by the buyer. In such case there can be 
 
 no acceptance before the goods are delivered, and the buyer 
 
 has had an opportunity to examine them." ^ In a New York 
 
 case,^ the defendant went into the plaintiffs' store and selected 
 
 four chandeliers, and agreed to pay for them on delivery. The 
 
 chandeliers were delivered, but not paid for, the defendant at 
 
 1 He cited in support of this prop- Hill, 3 N. H. 382 ; Gllman v. Hill, 36 
 osition Cusack v. Robinson, 1 B. & S. N. H. 311 ; Fuller v. Bean, 34 id. 290 ; 
 299; Bog Lead Mining Co. ^. Mon- Eapelyw. Maekle, 6 Cow. (N. Y.) 250; 
 tague, 10 C. B. N. S. 480; Coombs v. Beller „. Black, 19 Ark. 566; Cun- 
 Bristol & Exeter Railway, 3 H. & N. ningham o. Ashbrook, 20 Mo. 553 ; 
 510. See also supporting the proposi- Moffat v. Green, 9 Ind. 198 ; Martin 
 tion that if there is anything remain- v. Hurlburt, 9 Minn. 142 ; Stone v. 
 ing to be done to identify the goods. Peacock, 35 Me. 385 ; Haudlette v. 
 or the quantity, or price, the title Tallman, 14 Me. 400; Stone v. Pea- 
 does not vest in the purchaser until cock, 35 id. 285 ; Riddle v. Varnum, 
 such things are done. Hudson c. 20 Pick. (Mass.) 280; Davone v. Fin- 
 Wier, 22 Ala. 294 ; Lester v. McDow- nell, 2 Ired. (N. C.) L. 36. 
 ell, 18 Penn. St. 91 ; Andrews v. Die- 2 United States Reflector Co. v. 
 trlch, 14 Wend. (N. Y.) 31 ; Davis v. Rushton, 7 Daly (N. Y. C. P.) 410. 
 
SEC. 306.] ACCEPTANCE AND RECEII>T. 567 
 
 the time making no objection. The court held that accept- 
 ance must be presumed. Daly, C. J., said : " If a man goes 
 into a store and selects a particular article of household fur- 
 niture, at a certain price, which he agrees to pay for on deliv- 
 ery, and the proof is that that particular article was delivered, 
 it is, in the absence of any objection on his part, to be assumed 
 that there was both a delivery and acceptance of the article, 
 within the meaning of the statute." If the article contracted 
 for is not complete, although the vendee has inspected and approved 
 it, and even has furnished some of the materials for it, yet, his right 
 of rejection still remaining, his acts do not operate as an acceptance, 
 although they tvould have liad that effect if the article had been com- 
 plete. Thus, in an English case,i in an action for goods sold 
 and delivered, it was proved that the defendant ordered a 
 wagon to be made for him by the plaintiff, and during the 
 progress of the work furnished the iroro^ork and sent it to 
 the plaintiff, and sent a man to help the plaintiff in fitting the 
 iron to the wagon, and afterwards bought a tilt and sent it 
 to the plaintiff to be put on the wagon. It was insisted by 
 the plaintiff that the defendant had thereby exercised such 
 dominion over the goods sold as amounted to an acceptance. 
 The plaintiff was non-suited, and the non-suit was sustained, 
 upon the ground that the acts of the defendant had not been 
 done after the wagon was finished, and capable of delivery, but 
 merely while it was in progress ; so that it still remained in 
 the plaintiff's yard for further work till it was finished. "-5^," 
 said TiNDAL, C. J., " the wagon had been completed and ready for 
 delivery, and the defendant had then sent a workman of his own to 
 perform any additional work upon it, such contract on the part 
 of the defendant might have amounted to an acceptance." ^ 
 In all cases where anything remains to be done to the property by the 
 vendor before it is ready for delivery, the title does not pass ; * 
 
 1 Maberly v. Sheppard, 10 Bing. Wend. (N. Y.) 135; Eussell «. NicoU, 
 99. 3 Wend. (N. Y.) 112. A sale of goods 
 
 2 See Wegg v. Drake, 16 U. C. Q. " to arrive," even though paid for, 
 B. 252. In Halterline v. Rice, 62 does not pass the title until they actu- 
 Barb. (N. Y.) 593, it was held that the ally arrive: Russell ■/. NicoU, ante; 
 purchase of an article before it is com- Fay v. Smith, 3 Daly (N. Y. C. P.) 
 pleted, and a payment of the price, does 186. But if the contract is otherwise 
 not pass the title until delivery. executed, the fact that the vendor is 
 
 » Evans v. Harris, 19 Barb. (N. Y.) to deliver the property at a certain 
 416 ; McDowell v. Hewett, 15 John, place aoes not prevent the title pass- 
 (N. Y.) 349; Johnson v. Hunt, 11 tag. Terry w. Wheeler, 25 N. Y. 520. 
 
568 STATUTE OF FRAUDS. [CHAP. Xn. 
 
 and this is the case where the article is complete, but has not 
 been identified, being a part of a number of similar articles, 
 to be selected by the vendor ; ^ or where something remains 
 to be done by the parties for the purpose of ascertaining the 
 quantity or price.^ But if the goods are identified, and are sold 
 at a designated price each, and nothing remains to he done except to 
 ascertain the exact number, so as to ascertain the total value, it has 
 been held that this circumstance does not prevent the title 
 from passing.^ 
 
 Sec. 307. Acceptance after Action Brought. — In an English 
 case,* it was held that an acceptance of the whole or a part of 
 goods under a contract void under the statute, would be opera- 
 tive to take the contract out of the statute, although occurring 
 after action brought. But this doctrine was exploded by a 
 later case.^ In that case, the defendant ordered goods of H, 
 the del credere agent of the plaintiff, at a fixed price, to be 
 paid for on delivery, and, on receiving notice that the goods 
 had arrived at H's warehouse, directed a boy whom he saw 
 there to put a certain mark on them. A dispute about the 
 price having occurred, the defendant refused to receive the 
 goods, and an action was commenced against the defendant 
 for the price, after which, thef defendant, at H's request, wrote 
 in H's ledger at the bottom of a page containing the state- 
 ment of the goods in question, and headed with the plain- 
 tiff's name, the words, "Received the above," which he 
 signed. The court held that this afforded no evidence to 
 
 And if there is a valid sale of a part a judicial sale. Stevens v. Houghta- 
 of grain in bulk, as 1,000 bushels out ling, 10 Barb. (N. Y.) 95. 
 of a mass, the title passes without ^ Groat v. Gile, 51 N. Y. 431 ; 
 separation, because in such a case no Bradley v. "Wheeler, 44 id. 495; Tyler 
 choice can be exercised, and the ven- v. Strong, 21 Barb. (N. Y.) 198. In 
 dee could derive no possible benefit Iron ClifE's Co. v. Buhl, 42 Mich. 86, a 
 from the exercise of his choice. Eus- quantity of ore was sold to the plain- 
 sell V. Carrington, 42 N. Y. 118. But tiff and paid for. It was, at the time 
 see Gardiner v. Snydam, 7 N. Y. 357, of sale, piled in a mass larger than 
 where it was held that a warehouse- that contracted for, and nothing re- 
 man's receipt for a quantity of flour mained to be done except for them to 
 does not pass the title until it is actu- take the quantity purchased. The 
 ally separated from the mass. court held that the title passed, and 
 
 1 Rapelye v. Mackie,6 Cow. (N. Y.) that the ore was delivered to them. 
 250. * Fricker v. Tomlinson, 1 M. & G. 
 
 2 Stephens v. Sauter, 49 N. Y. 35 ; 722. 
 
 Gibbs V. Benjamin, ante ; and this has ^ Bill v. Baraent, 9 M. & W. 36. 
 been held to apply even in the case of 
 
SEC. 308.] ACCEPTANCE AND RECEIPT. 669 
 
 go to the jury to establish an acceptance to satisfy the stat- 
 ute. Paeke, B., said: "I concur in thinking that there was 
 no evidence to go to the jury to satisfy the statute of frauds. 
 With regard to the point which has been made by Mr. Mar- 
 tin, that a memorandum in writing after action brouglit is 
 sufficient, it is certainly quite a new point, but / am clearly of 
 opinion that it is untenable. There must, in order to sustain 
 the action, be a good contract in existence at the tim.e 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. Then, to take the case out of the seventeenth sec- 
 tion, there must be both delivery and acceptance; and the 
 question is, whether they have been proved in the present 
 case. I think they have not. I agree that there was evi- 
 dence for the jury of acceptance, or rather of intended accept- 
 ance. The direction to mark the goods was evidence to go 
 to the jury quo animo the defendant took possession of them ; 
 so, also, the receipt was some evidence of an acceptance. But 
 there must also be a delivery ; and to constitute that, the 
 possession must have been parted with by the owner, so as 
 to deprive him of the right of lien. Harvey might have 
 agreed to hold the goods as the warehouseman of the de- 
 fendant, so as to deprive himself of the right to refuse to 
 deliver them without payment of the price; but of that 
 there was no proof. There was no evidence of actual 
 marking of the goods, or that the order to mark was 
 assented to by Harvey. I am of opinion, therefore, that 
 there was no sufficient proof of acceptance to satisfy the 
 statute."^ But an acceptance made of goods after the time 
 has expired when they were to have been delivered, is oper- 
 ative to validate the contract,^ as such acceptance operates 
 as a waiver of such objection.^ 
 
 Sec. 308. Test of Acceptance. — In order to constitute an 
 acceptance under the statute, there must be a delivery of the 
 
 1 See remarks of Colt, J., in ^ Marsh v. Hyde, 3 Gray (Mass.) 
 Townsend v. Hargreaves, 118 Mass. 331 ; Knight v. Mann, 118 Mass. 145. 
 336 8 Bock V. Healy, 8 Daly (N. Y. C. 
 
 P.) 156. 
 
570 STATUTE or FRAUDS. [CHAP. XII. 
 
 goods by the vendor, with an intention of vesting the right of pos- 
 session in the vendee ; and there must be an aottial acceptance by 
 the latter, with an intention of taking possession as owner, by virtue 
 of a contract of sale, which intention is to be gathered from his out- 
 ward acts.^ Something more than mere words is necessary. 
 Tliere must be some act of the parties amounting to a tfansfer of the 
 possession, and an acceptance thereof by the buyer;, and the case 
 of cumbrous articles is not an exception to this rule. Thus, 
 A and B bargained respecting the sale, by A to B, of a quan- 
 tity of lumber, piled apart from other lumber, on a dock in 
 view of the parties at the time of the bargain, and which 
 had before that time been measured and inspected. The 
 parties having agreed as to the price, A said to B, "The 
 lumbei is yours." B then told A to get the inspector's bill, 
 and take it to one C, who would pay the amount. This was 
 done the next day, but payment was refused. The price was 
 over fifty dollars. In an action by A against B to recover the 
 price, it was held that there was no delivery and acceptance 
 of the lumber, within the meaning of the statute of frauds, 
 and that the sale was therefore void.^ 
 
 The doctrine of the New York case ^ does not preclude evi- 
 dence of what was said by the parties, but requires that there 
 should be some act of the vendee, in connection therewith, which 
 evinces a purpose to accept the goods, thus carrying out the pur- 
 pose and intent of the statute by requiring evidence of some- 
 
 1 Rodgers v. Jones, 129 Mass. 420 ; Railway, 54 Me. 105, the court says 
 
 Agnew's Statute of Frauds, 193 ; Dole that tliere must be some act of the par- 
 
 V. Stimpson, 21 Pick. (Mass.) 384; ties which amounts to a transfer of 
 
 Knight V. Mann, 118 Mass. 143 ; Rem- possession, and an actual receipt by the 
 
 icl? V. Sanford, 120 id. 316; Safford v. vendee depriving the seller of his lien ft>r 
 
 McDonough, 120 id. 290 ; Marsh v. the price, to constitute an acceptance. 
 
 Rouse, 44 N. Y. 643 ; Gray v. Davis, In Shepherd v. Pressey, 34 N. H. 57, 
 
 10 id. 285; Brand ». Focht, 3 Keyes Bell, J., says: "Mere words consti- 
 
 (N. Y.) 409; Stone v. Browning, 51 tuting a part of the original contract 
 
 N. Y. 211 ; Hewes v. Jordan, 39 Md. do not constitute an acceptance," and 
 
 479; 17 Am. Rep. 578; Jones u. Me- this is so as to mere words afterwards 
 
 chanics Bank, 29 Md. 293 ; Shepherd used, looking to the future, to acts 
 
 V. Pressey, 32 N. H. 49. afterwards to be done by the pur- 
 
 2 Shindler v. Houston, 1 N. Y. 261 
 Moore r. Bixby, 4 Hun (N. Y.) 802 
 Good V. Curtis, 31 How. Pr. (N. Y.) 4 
 Caulkins i;. Hellman, 47 N. Y. 449 
 
 chaser towards carrying out the con- 
 tract : id. ; Gorham u. Fisher, 30 Vt. 
 428; Clark ;>. Tucker, 2 Sandf. (N. 
 Y.) 157 ; Gilman v. Hill, 36 N. H. 311 j 
 
 Ham t' Van Orden, 4 Hun (N. Y.) Dole k. Stimpson, 21 Pick. (Mass.) 
 
 709 ; Rodgers v Phillips, 40 N. Y. 884. 
 
 509. In Edwards v. Grand Trunk ' Shindler v. Houston, ante. 
 
SEC. 308.] ACCEPTANCE AND RECEIPT. 571 
 
 thing more than mere words to give validity to the contract ; 
 and this is the doctrine generally held by the courts. In the 
 case of ponderous articles, not susceptible of manual delivery, 
 slight acts, in connection with words evincing an intention to 
 accept the property, will be sufficient. Thus, in a Connecticut 
 case,^ the subject of sale was ninety-three tons of iron, lying 
 by itself. The parties met at the place where the iron was, 
 and agreed upon the price and mode of payment ; they then 
 stepped up to the iron, and the vendee said, " / deliver you this iron 
 at that price " ; and the vendee then stepped up and claimed 
 the iron. And the court held that this amounted to an actual 
 delivery by the vendor, and an actual acceptance by the ven- 
 dee. Here it will be noticed that the words of the parties were 
 affirmed by their acts, which, although slight, were decisive of 
 the vendee's intention, particularly when coupled with the 
 circumstance that he soon afterwards removed the ore.^ The 
 statute is silent as to the delivery of the goods sold, which 
 is the act of the seller,^ consequently no act of the vendor alone 
 is sufficient to take the contract out of the statute;* but there must 
 also be an actual acceptance and receipt by the purchaser, by some 
 act which not only transfers the possession, but which, in fact or in 
 law, operates to vest the title to the goods in him.^ In other words, 
 he must accept and receive the goods with the intention of talcing 
 possession as owner.^ Thus, where the defendant purchased 
 
 1 Calkins v. Lockwood, 17 Conn. Brabin v. Hyde, 35 N. Y. 615. Neither 
 155. acceptance or receit alone will be 
 
 2 See Green v. Merriam, 28 Vt. suflBcient, but both must be shown. 
 301 ; "Wylie v. Kelley, 41 Barb. (N. Y.) The words of the statute are " accept 
 594 ; Garfield v. Paris, 96 U. S. 557 ; and receive." Caulkins v. Hellman, 
 Bass V. Walsh, 39 Mo. 192. 47 N. Y. 449 ; Ham o. Van Orden, 4 
 
 » Foster, J., in Boardman v. Hun (N. Y.) 709. But they need not 
 
 Spooner, 13 Allen (Mass.) 357. concur in point of time. Cross v. 
 
 * Shepherd J). Fressey, 32 N.H. 49; O'Donnell, 44 N. Y. 661. An agree- 
 
 Prescott V. Locke, 51 id. 94 ; Gibbs v. ment to accept does not amount to an 
 
 Benjamin, 45 Vt. 122 ; Johnson u. acceptance : Brabin v. Hyde, 32 N. Y. 
 
 Cuttle, 105 Mass. 449 ; Bowens v. An- 519; Brandt v. Focht, 3 Keyes (N. Y.) 
 
 derson, 49 Ga. 143 ; Hawley v. Keeler, 409. In Castle v. Sworder, G Exchq. 
 
 53 N. Y. 114 ; and the mere intention 831, Cockburn, C. J., said that he 
 
 of the vendor to vest the title in the doubted whether there was much dis- 
 
 vendee does not operate to do so. tinction between an acceptance and a 
 
 The Francis, 8 Cranch (U. S.) 359; receipt, but it seems the courts think 
 
 Rider v. Kelley, 32 Vt. 268. otherwise. 
 
 5 Maxwell v. Brown, 39 Me. 101 ; « Shindler v. Houston, ante ; Caulk- 
 
 Brewster v. Taylor, 63 N. Y. 587; ins v. Hellman, ante; Dooley v. Eil- 
 
 Denny ti, Williams, 5 Allen (Mass.) 3 ; bert, 47 Mich. 615. 
 
672 STATUTE OF FRATJDS. [CHAP. XH. 
 
 some earrings at an auction, and they were immediately de- 
 livered to him, and he received them without making any 
 objection, hjit after they had been in his hands a few minutes 
 he stated that he had been mistaken in the price, and refused 
 to keep them, the court set aside a verdict for the plaintiff 
 and granted a new trial,^ the court observing : " To satisfy 
 the statute there must be a delivery of the goods by the 
 vendor, with the intention of vesting the right of possession 
 in the vendee ; and there must he an actual acceptance hy the 
 latter, with an intention of taking to the possession."^ But 
 where the vendee of several hogsheads of sugar, upon re- 
 ceiving notice from the carrier of their arrival, took samples 
 from them, and for his own convenience desired the carrier 
 to let them remain in his warehouse until he should receive 
 further directions, and before they were removed he became 
 bankrupt, it was held that the transaction was at an end as 
 soon as the samples were taken from the hogsheads, as that 
 was a complete act of ownership, and that the vendor was 
 not entitled to stop the goods.^ In this case it will be ob- 
 served that the vendee not only drew samples from the bulk, 
 but assumed dominion over the goods, and made the carrier 
 bailee of the goods for him. But where the defendant gave 
 a written order for ten firkins of butter, which were to be 
 sent to him by a particular carrier, and the plaintiff sent by 
 that carrier twelve firkins instead of ten, and the defendant 
 refused to receive more than ten firkins, and as the carrier 
 could not deliver less than the whole number sent, he refused 
 to take the butter at all, but, however, drew a sample from 
 one of the firkins, it was held that there had been no accept- 
 ance,* because in such a case the act could not be regarded 
 as one of ownership, or as done with a view to taking pos- 
 session of a part of the bulk. 
 
 Sec. 309. Acceptance of Sample Amounts to Acceptance of 
 the Goods, When. — When a sample accepted hy the vendee 
 
 1 Phillips V. BistoUi, 2 B.&C. 511. 428; Nicholson v. Bower, 1 E. & E. 
 
 2 See also Bowes v. Pontifex, 3 F. 172 ; Gardner v. Grout, 2 C. B. N. S. 
 & F. 739 ; CunUfEe ti. Harrison, 12 W. 340 ; Klinitz v. Surry, 5 Esp. 267 ; 
 R. 748 J Smith v. Hudson, 6 B. & S. Talver ». West, Holt. 178. 
 
 431. * Gorman v. Boddy, 2 C. & K. 145 ; 
 
 8 Foster v. Frampton, 6 B. & C. Cunliefe v. Harrison, 6 Exchq. 903; 
 107 ! Heinekey v, Earle, 8 E. & E. Bacon v. Eccles, 42 Wis. 227. 
 
SEC. 309.] ACCEPTANCE AND RECEIPT. 573 
 
 forms a part of the bulk of the goods, and was taken hy him 
 to make up the whole amount, it amounts to an acceptance of 
 the goods themselves.! Thus, in Hinde v. Whitehouse, ante, 
 which is the leading case on this point, sugar was sold by- 
 samples drawn from the bulk, and after the sale the samples 
 were delivered to, and accepted hy the purchaser, to make up the 
 quantity purchased ; and it was held that such acceptance was 
 sufficient to take the sale out of the statute,'' Lord Ellen- 
 borough saying, " Inasmuch as the half-pound sample out of 
 each hogshead, in this case, is hy the terms and conditions of 
 sale so far treated as part of the entire hulk to he delivered that 
 it is considered in the original weighing as constituting a part 
 of the hulk actually weighed out to the huyer, and to he allowed 
 for specifically if he should choose to have the commodity 
 reweighed, I cannot hut consider it as a part of the goods sold 
 under the terms of the sale, accepted, and actually received as 
 such hy the huyer ; and although it be delivered partly alio 
 intuitu, namely, as a sample of quality, it does not therefore 
 prevent its operating to another consistent intent ; also, in 
 pursuance of the purposes of the parties as expressed in the 
 condition of sale, namely, as a part delivery of the thing it- 
 self, as soon as, in virtue of the bargain, the huyer should be 
 entitled to retain, and should retain it accordingly." In a later 
 English case,^ the defendant agreed to buy one hundred quar- 
 ters of wheat, " not to weigh less than nine and a half stone 
 neat imperial measure, to be made up eighteen stone neat," 
 from the plaintiff, and sent his servant for three sacks of the 
 wheat, which were accordingly delivered; on that occasion 
 these sacks weighed eighteen stone neat, but the weight was 
 not then tested according to the imperial measure, nor had 
 it received a final dressing, which it is usual for wheat to re- 
 ceive before it is delivered to the buyer. The huyer did not 
 return the sacks; and it was held that there was only one 
 contract between the parties, that the defendant had received 
 
 1 Hinde v. Whitehouse, 7 East, in amount, it is suffleient. Garfield v. 
 
 558 ; Atwood v. Lucas, 53 Mc. 508 ; Paris, 96 U. S. 557 ; Smith v. MilU- 
 
 Daris v. Eastman, 1 Allen (Mass.) ken, 7 Lans. (N. Y.) 326. 
 422 ; Danforth v. Walker, 40 Vt. 257 ; " Klintz v. Surry, 5 Esp. 207 ; Tal- 
 
 Bush e. Holmes, 53 Me. 417. The ver v. West, Holt, 178. 
 statute makes a receipt of a part of ' Gallairt v. Eoberts, 19 L. J. 
 
 the goods sufficient, consequently if a Exchq. 410. 
 part of them is received, however small 
 
574 STATUTE or FEAtTDS. [CHAP. XII. 
 
 the three sacks, which were a portion of the hulk, and that this 
 was a part acceptance within the statute. In another case,i 
 the contract was for certain sacks and bags. Four days after 
 the sale, the plaintiff, who was the buyer, went ttf the defend- 
 ant's warehouse and asked for samples of the goods, which 
 were given him by the defendant's foreman, and lohich he 
 promised to pay for when the bulk — which was all there — was 
 taken away. The samples so given to the plaintiff were, by the 
 defendant's order, weighed, and entered in his order hook. It 
 was held that under this state of facts the plaintiff had re- 
 ceived a part of the bulk, and that there was a sufficient 
 acceptance. 
 
 Sec. 310. "When Receipt of Sample Is not an Acceptance. — 
 
 If the sample delivered is not a part of the hulk, hut is merely 
 a collateral thing, a specimen of what the seller is endeavoring 
 to dispose of, then the acceptance of it is not sufficient to take 
 the case out of the statute,^ and the question as to whether the 
 sample was accepted and received as a part of the bulk or as 
 a mere specimen of the goods, not to be accounted for in the 
 final settlement, is for the jury.^ In an English case,* the 
 plaintiff showed the defendant samples of wine, which 
 the latter agreed to buy; and after the bargain was com- 
 pleted, the buyer asked to have the samples handed over to 
 him, and wrote upon the labels the price agreed upon. An 
 action having been brought against him for not accepting 
 the wine, the taking of the samples was relied upon by the 
 plaintiff as a part acceptance to take the case out of the stat- 
 ute. But WiGHTMAN, J., directed a non-suit. In Gardner 
 V. Grout,^ this case was distinguished, Cockbuen, C. J., 
 saying : " That is a very different case from this. There, the 
 buyer never saw the bulk, the things handed to him, really 
 
 1 Gardner v. Grout, 2 C. B. N. S. » Dawesw.Eastman.l Allen (Mass.) 
 340. But it must appear that the ac- 422 ; Atwood u. Luoas, 58 Me. 508 ; 
 ceptance and receipt of a part of the Bush v. Holmes, 53 Me. 417 ; Dan- 
 hulk was in recognition of the con- forth v. Walker, 40 Vt. 257 ; Pratt v. 
 tract sought to he enforced. Ather- Chase, 40 Me. 269. 
 
 ton V. Newhall, 123 Mass. 141. i Simonds v. Fisher, cited in 
 
 2 Carver v. Lane, 4 E. D. S. (TS. Y. Gardner v. Grout, 2 C. B. N. S. 342. 
 C. P.) 168; Klintz v. Surry, 5 Esp. » Gardner v. Grout, 2 C. B. N. S. 
 267; Talver v. West.Holt, 178; Coop- 349. 
 
 er V. Elston, 7 T. E. 14; Moore v. 
 Love, 57 Miss. 565. 
 
SEC. 311.J 
 
 ACCEPTANCE AND EECEIPT. 
 
 675 
 
 were mere samples. But here, the plaintiff receives part of the 
 very things which he had already bought" Where goods are 
 sold by sample, and subsequently are received by the vendee, 
 proof that the goods received were equal to the sample does 
 not establish an acceptance.-' 
 
 Sec. 311. Constructive Acceptance and Receipt ; Whether is, 
 or not, Question for Jury. — It is well settled that there may be 
 a constructive acceptance" of either the whole or a part of the 
 goods sold under a verbal contract, which will be sufficient 
 to take the case out of the statute, and that the question as 
 to whether the facts proved amount to a constructive deliv- 
 ery or not, is one wholly within the province of the jury.^ 
 Lord Denman, C. J., in a leading case^upon this head, said, 
 in substance, that the evidence of the acceptance in such 
 cases must be unequivocal, but that the question whether it 
 is so or not, under all the circumstances of the case, is ordi- 
 narily one of fact for the jury, and not a matter of law for 
 the court; or, in the language of Coleridge, J.,* "it is a 
 
 ' Bemick v. Sandford, 120 Mass. 
 309. 
 
 2 Simpson v. Krumdick, 28 Minn. 
 352; Pinkham o. Mattox, 53 N. H. 
 605; Frostburly Mining Co. v. N. E. 
 Glass Co., 9 Cush. (Mass.) 118; Edan 
 c. Dudfield, 1 Q. B. 306. 
 
 3 Edan v. Dudfield, ante, 
 
 * Tibbett v. Morton, 15 Q. B. 442 ; 
 Parker v. Wallis, 6 E. & E. 21 ; Clark 
 V. Wright, 11 Irish, C. L. 402 ; Mar- 
 shall V. Green, 1 0. P. Div. 41 ; Healey 
 V. Tenant, 13 Irish, C. L. 394 ; Houd- 
 lettew. Tallman, 14 Me. 400; Nicholls 
 V. Plume, 1 C. & P. 272 ; Simmonds v. 
 Humble, 13 C. B. N. S. 258. In 
 Baines ». Jevons, 7 C. & P. 288, it 
 appeared that the defendant had 
 bought of the plaintiff a fire-engine, 
 at the price of £25 ; and to prove the 
 acceptance of it by the defendant, a 
 witness was called, who stated that 
 the defendant took him into a yard 
 where the fire-engine stood, to show 
 it to him ; and that, on his asking the 
 defendant what he meant to do with 
 it, as no one would want it, the de- 
 fendant replied, that the parish of 
 Dudley would want an engine, as 
 
 well as two other persons, whom he 
 named. It was also proved, that, on 
 another person asking the defendant 
 what he meant to do with it, he re- 
 plied, " I know what I am going to do 
 with it " ; and it further appeared, 
 that on Mr. Neal asking if the plain- 
 tiff would sell the engine, the defend- 
 ant said, " Never mind that, I have a 
 concern in thut engine." Aldekson, 
 B., in summing up, said : " The ques- 
 tion here is, whether the defendant 
 has accepted this fire-engine 1 We 
 find that the defendant takes a person 
 to look at it, and says who is likely 
 to want it. You will say whether 
 that is not a dealing with it as his 
 own ; and when another witness asks 
 him what he is going to do with it, 
 the defendant does not say that it is 
 not his ; but he replies, ' I know what 
 I am going to do with it.' And in his 
 observations to Mr. Neal, he speaks 
 as if it were his own. You will con- 
 sider whether this convinces you that 
 the defendant treated this fire-engine 
 as his own, and dealt with it as such ; 
 for, if so, the plaintiff is entitled to a 
 verdict." See also Saunders u. Topp, 
 
576 
 
 STATUTE OP FKAI7DS. 
 
 [chap. XII. 
 
 question for the jury, whether, under all the circumstances, 
 the acts which the buyer does or forbears to do, amount to 
 an acceptance." ^ But when the facts are not disputed, the 
 question whether or not they amount to an acceptance, is 
 for the court.2 So too it is the province of the court to 
 decide upon the competency of the evidence, and to withhold 
 it from the jury when its legal effect, although tending to do 
 so, is not sufficient to establish an acceptance ; ^ and, as an 
 acceptance is required to be established hy some clear and 
 unequivocal act of the purchaser, it follows that, even though 
 there might be some evidence tending to show it, yet if it is 
 on the whole insufficient, the court would be at liberty, and 
 are bound to set aside a verdict finding an acceptance there- 
 from.* 
 
 4 Exchq. 390; Vanderbukgh, J., in 
 Taylor v. Mueller, 30 Minn. 343; 44 
 Am. Eep. 203. 
 
 1 Bushel V. Wheeler, 15 Q. B. 442. 
 Houghtating u. Ball, 19 Mo. 84; 
 Wylie V. Kelly, 41 Barb. (N. Y.) 594; 
 "Williams v. Evans, 39 Mo. 201 ; Lilly- 
 white V. Devereux, 15 M. & W. 285; 
 Hunt V. Hecht, 8 Exchq. 814 ; Chap- 
 lin V. Rogers, 1 East, 192; Edan v. 
 Dudfield, 1 Q. B. 302. In Garfield v. 
 Paris, 96 U. S. 557, A contracted by 
 parol in New York, for the purchase of 
 a large quantity of spirituous liquor 
 of B, who, by the agreement, was to 
 furnish certain labels. B delivered 
 them, pursuant to instruction, to A in 
 New York, and shipped the liquor to 
 A in Michigan, where he resided. A, 
 when sued for the price of the liquor, 
 no part of which had been paid, in- 
 sisted that the contract was not com- 
 pleted until the delivery of the liquor 
 in Michigan, and he relied upon the 
 prohibitory liquor law of that State 
 which declares that all such contracts 
 are null and void. The jury found 
 that the labels added to the value of 
 the liquor, and formed part of the 
 price, and that A accepted them in 
 New York as a part of the goods sold. 
 It was held that, the finding of the jury 
 upon the question of acceptance being 
 final and conclusive, the contract was 
 executed in New York, and was by the 
 laws thereof valid. 
 
 2 Wartman v. Breed, 117 Mass. 18 ; 
 Rappalye v. Adee, 65 Barb. (N. Y.) 
 589; Bailey v. Ogden, 3 John. (N. Y.) 
 339; Borrowscale v. Bosworth, 99 
 Mass. 381 ; Sawyer v. Nichols, 40 Me. 
 212. 
 
 8 Bell, J., in Shepherd v. Pressey, 
 32 N. H. 56; Howard v. Borden, 13 
 Allen (Mass.) 299. In Houdlette v. 
 Tallman, 13 Me. 400, the court held 
 that where the law can pronounce on 
 a state of facts relative to a sale of 
 goods, that there is not a delivery 
 and acceptance, it is a question of 
 law to be decided by the court ; but 
 where there may be uncertainty and 
 difliculty in determining the true in- 
 terest of the parties respecting the 
 delivery and acceptance, from the 
 facts proved, the question of accept- 
 ance is to be passed upon by the 
 jury. " Where the undisputed facts," 
 says Vandekbukgh, J., in Taylor v. 
 Mueller, 30 Minn. 343 ; 44 Am. Eep. 
 203, " are insufficient, as in this case, 
 to warrant such a finding, the ques- 
 tion would not be submitted to the- 
 jury." Stone v. Browning, 68 N. Y. 
 598; Ham v. Van Orden, 4 Hun 
 (N. Y.) 709; Denny .;. Williams, 5 
 Allen (Mass.) 1; Norman v. Phillips, 
 
 14 M. & W. 277 ; Bushel o. Wheeler, 
 
 15 Q. B. 442. 
 * Dennyt).Williams,5 Allen (Mass.) 
 
 1. In Holmes v. Hoskins, 9 Exchq. 
 152, the defendant verbally agreed to 
 
SEC. 312.] 
 
 ACCEPTANCE AND BECEIPT. 
 
 577 
 
 Sec. 312. Must be Act3 of Acceptance. — An acceptance 
 cannot be found /toto the mere words of the vendee} hut there 
 must be some act in reference to the property, or dealing there- 
 with, which he would only have authority to do as owner^ or the 
 vendee must have exercised such dominion over the property 
 as owner as would deprive the seller of his lien for the price.^ 
 
 purchase of the plaintifE some cattle 
 then in his field. After the bargain 
 was completed, the defendant felt in 
 his pocket for his check-book, in order 
 to pay for the cattle, but finding he 
 had not got it, he told the plaintiff to 
 come to his house in the evening for 
 the money. It was agreed tliat the 
 cattle should remain in the ' plaintiff's 
 field a few days, and that the defend- 
 ant should feed them with the plain- 
 tiff's hay, which was accordingly done. 
 The defendant, upon being afterward 
 asked for the money, said he had 
 offered too much for the cattle, and 
 would not have them. It was held 
 that there was no evidence of an ac- 
 ceptance, and that the plaintifE was 
 properly non-suited. It was insisted 
 by the plaintiff's counsel that there 
 was some evidence of an acceptance, 
 upon which Pollock, C. B., said : 
 " Assuming that there is a scintilla of 
 evidence, tliat is not enough. The 
 general rule is, that where the evi- 
 dence is so slight that, supposing the 
 jury found one way, the court would 
 set aside the verdict; if in such case 
 the judge directs anew suit; the court 
 will not interfere." See also Taylor 
 V. Mueller, 30 Minn. 343; 44 Am. 
 Eep. 199. 
 
 1 Denny v. Williams, ante ; Haward 
 V. Borden, ante; Pollock, C. B., in 
 Holmes v. Hoskins, 9 Exchq. 754. 
 
 2 In Shindler v. Houston, 1 K Y. 
 261, it is said that the acts of part 
 payment, of delivery and acceptance, 
 mentioned in the statute, are something 
 over and bei/ond the agreement, of which 
 they are a past performance, and 
 which they assume as already exist- 
 ing. In Rogers v. Phillips, 40 N. Y. 
 519, it is said th.at acceptance, requires 
 "" that the vendee should act, and that 
 his act should be of such a nature as 
 
 to indicate that he received and ac- 
 cepted the goods delivered as his 
 property." Ham o. Van Orden, 4 
 Hun (N. Y.) 709; Moore v. Bixby, 
 4 id. 802; Good v. Curtiss, 31 How. 
 Pr. (N. Y.) 4. In Hallenback u. 
 Cochran, 20 Hun (N. Y.) 416, H 
 and C, when near two stacks of H'a 
 hay, and in sight of one, orally con- 
 tracted for a sale of the hay, C agree- 
 ing to pay H §190 therefor, and §10 
 more if he should do well with it. H 
 then said to C : " Tlie hay is yours ; " 
 and C said: "Yes." Afterwards H 
 called on C for payment for " that 
 hay," and C promised to see B and 
 obtain money with which to make the 
 payment. The day following, C beck- 
 oned H to him, and handed him •'525, 
 saying he had not seen B, and adding, 
 " If hay does not do better than it is 
 doing now, I don't know but I shall 
 have a pretty tough bargain." It was 
 held, 1. That there was no delivery 
 or acceptance to take the case out of 
 the statute of frauds. 2. That the 
 payment was not made at the time of 
 the oral contract, and did not render 
 it valid. But as to the last proposi- 
 tion, it must be remembered that the 
 peculiar doctrine in this respect in 
 New York is due to the fact that the 
 statute only gives eflicacy to part 
 payment where it is made at the time 
 the contract is entered into. As to 
 the rule that there may be a symboli- 
 cal delivery when the goods are pon- 
 derous, and a constructive acceptance, 
 it will be observed that no act of the 
 parties at the time was done which 
 would make the rule applicable in 
 this case. 
 
 ' Benjamin on Sales, § 145 (4th 
 Am. Edn. Bennetts) ; Ekle, J., in 
 Parker v. Wallis, 5 E. & B. 21 ; 
 Shindler v. Houston, 1 N. Y. 261. In 
 
578 
 
 STATUTE OF FEATJDS. 
 
 [chap. XII. 
 
 Therefore, it must be shown that the aets of the vendor and 
 vendee have concurred, that is, that the vendor has delivered 
 the property, and that the vendee by some decisive act, has 
 accepted it, and waived all right of objection thereto^ Alvey, 
 J., very clearly states the rule ^ as follows. He said: "From 
 
 Caulkins v. Hellman, 47 N. Y. 449, 
 the court say: "Even the receipt of 
 goods without an acceptance is not 
 sufficient. Some act or conduct on the 
 part of the vendee or his authorized 
 agent manifesting an intention to accept 
 the goods in part performance of the 
 oontractj and to appropriate them, is re- 
 quired." Phillips V. Ocmulgee Mills, 
 55 Ga. 633. 
 
 1 Pabke, B., in Holmes v. Haskins, 
 9 Exchq. 755. In Castle v. Sworder, 
 6 Exchq. 832, Welsbt, in the course 
 of his argument, said : " It is a good 
 test whether there has been a receipt 
 of the goods, whether the seller's 
 right of lien remains," to which Cock- 
 BUEu, C. J., said: "That is another 
 way of putting the question, wheth- 
 er he has parted with the posses- 
 sion." 
 
 2 Alvey, J., in Hewes v. Jordan, 39 
 Md. 472. In this case the defendants 
 purchased of the plaintiff, verbally, 
 3148 pounds of butter grease at eight 
 cents a pound under a representation 
 of the plaintiff that it was all right 
 and free from dirt and salt. On the 
 day of the sale the defendants gave a 
 written order directing the plaintiff 
 to deliver the grease to their dray- 
 man, upon which the grease was de- 
 livered to the drayman and taken to 
 the store of the defendants, who, upon 
 examination, immediately notified the 
 plaintiff that the grease was not as 
 represented, and that they declined to 
 accept the same, and tendered the 
 grease to him. The court held that 
 the grease was not accepted by the 
 defendants so as to take the case out 
 of the statute. Brawell, B., in 
 Coombs V. Bristol & Exeter Railway 
 Co., 3 H. & N. 517, says, " the party 
 must have done something to waive his 
 right to reject the goods." In Phillips 
 V. BistoUi, 2 B. & C. 513, the court 
 
 held that, "in order to satisfy the 
 statute there must be a delivery of 
 the goods by the vendor with an in- 
 tention of vesting the right of possession 
 in the vendee; and there must be an 
 actual acceptance by the latter with an 
 intention of talcing possession as owner." 
 In Smith v. Roots, 9 C. & P. 405, it 
 appeared that the defendant, being 
 about to paper his house, called at 
 the plaintiff's premises, and was shown 
 some paper, and the party who showed 
 it him, wrote on the back of the pat- 
 tern piece the following words as a 
 memorandum of the terms agreed 
 upon : " The paper 2s. 8d., at Is. 4d. 
 per piece to put up." The plaintiffs 
 only claimed the 2s. 8d. for the paper 
 itself, which had been delivered at 
 the defendant's premises, but not put 
 up. Maule, J., told the jury that 
 there were two questions for their 
 consideration : First, was there in fact 
 an order given by the defendant for 
 the goods in question 'i Secondly, if 
 such order was given, then was there 
 an acceptance by him of the goods with 
 an intent to take them as owner ? The 
 jury found for the defendant. In 
 Clarke v. Marriatt, 9 Gill (Md.) 331, 
 the court held, adopting the rule laid 
 down by Stakkie, in the 2d Vol. p. 
 490, of his work on Evidence, that 
 in order to satisfy the statute, there 
 must be a delivery of the goods with 
 intent to vest the right of possession 
 in the vendee, and there must be an 
 actual acceptance by the latter with intent 
 to take possession as owner. See also 
 Jones V. Mechanics' Bank, 29 Md. 
 293, where this rule is re-adopted; 
 also Hewes v. Jordan, ante. This rule, 
 of course, contemplates that the ven- 
 dee's right to reject the goods under 
 the contract is gone. That he has so 
 dealt with them as to waive this right, 
 and that the property in the goods 
 
SEd 312.] ACCEPTANCE AND RECEIPT. 579 
 
 the plain meaning of the terms of the statute itself, independ- 
 ent of all authority, the concurrence of two distinct acts on 
 the part of the vendee would seem to be required ; he must 
 accept, and he must actually receive part of the goods, in 
 order to render the contract binding on him. There may he 
 an actual receipt without any acceptance, and there may be an 
 acceptance without any receipt. But if both these acts concur 
 with the intention of the parties that the vendee shall take 
 possession of the goods under the contract as owner, then the 
 latter must be taken as having made a final election to accept 
 the goods, or such part of them as he may have actually 
 received, as his property, and, at the same time, assent to 
 their being such as will gratify the contra.ct; and acceptance 
 and receipt being thus complete, to bind the contract, the 
 vendee cannot afterward withdraw his acceptance and reject 
 the goods, except it be on the ground of fraud." " So long, 
 however," says Blackburn, J., in his work on Sales, " as the 
 buyer can, without self-contradiction, declare that the goods 
 are not to be taken in fulfilment of the contract, he has not 
 accepted them. And it is immaterial whether his refusal to 
 take the goods be reasonable or not. If he refuses the goods, 
 assigning grounds false or frivolous, or assigning no reasons 
 at all, it is still clear that he does not accept the goods, and 
 the question is not whether he ought to accept, but whether 
 he has accepted them. The question of acceptance or not is a 
 question as to what was the intention of the buyer as signified by his 
 outward acts." Where goods are delivered subject to exami- 
 nation, the receipt thereof by the vendor is not an acceptance 
 which will take the case out of the operation of the statute. 
 To constitute an acceptance giving validity to the contract, 
 it is requisite that the purchaser shall have made the exami- 
 nation and pronounced it satisfactory, or shall have dealt 
 with the goods, or done some unequivocal act evincing his 
 intent to accept them unconditionally as his own, and the 
 fact that the goods are as represented by the vendor, and 
 that the contract on his part has been fully performed, does 
 not affect the question of acceptance. Although the refusal 
 to accept be unreasonable, without an acceptance the con- 
 
 haa vested in him, and that his only deficiency in quantity, is upon the 
 remedy, for any defect in quality, or contract. 
 
580 
 
 STATUTE OF FEATJDS. 
 
 [chap. XII. 
 
 tract is not validated. By reposing upon a contract void 
 under the statute, the vendor exposes himself to the risk of 
 an unjust refusal.'^ 
 
 Sec. 313. Acts of O-wnersMp by Vendee, Evidence of Accept- 
 ance; When, Unpacking Goods, etc., are. — "The receipt of part 
 of the goods is the taking possession of them. WJien the seller 
 gives to the buyer the actual control of the goods, and the buyer 
 accepts such control, he has actually received them.^ Such a receipt 
 is often evidence of an acceptance, but it is not the same 
 thing ; indeed, the receipt by the buyer may be, and often is, 
 for the express purpose of seeing whether he will accept or 
 not." ^ The delivery, therefore, of the goods to the intended 
 purchaser, and the unpacking of them by him, although it 
 may to a certain extent injure the goods, are not sufficient, 
 if it appears that he has taken them and had them in his possession 
 for no greater time than was reasonably necessary to enable him to 
 examine their quantity and quality, and to declare Ms approval or 
 disapproval of them.* Nor does the fact that the buyer has used 
 
 1 Stone V. Browning, 68 K Y. 598. 
 The rule is that taking possession of 
 goods for examination, followed by a 
 refusal to accept them communicated 
 within a reasonable time, is not an 
 acceptance within the statute. Bacon 
 V. Eccles, 43 Wis. 227. Where goods 
 are sold by sample, proof that they 
 are equal to the sample, and went into 
 the possession of the vendee, is not 
 sufficient to show acceptance. Eemiok 
 V. Sandford, 120 Mass. 309. 
 
 ^ Damon v. Osborn, 1 Pick. (Mass.) 
 476. But according to this case an 
 acceptance and delivery of part after 
 the time stipulated, will not take the 
 contract out of the statute as to the 
 remainder, unless the vendee then ex- 
 pressly agrees to take the remainder. 
 
 * Blackbukn on Sales, 22. 
 
 « In Curtis v. Pugh, 10 Ad. & El. 
 Ill, the defendant ordered of the 
 plaintiff, orally, three hogsheads of 
 Scotch glue, which was to be of the 
 description called " Cox's best." The 
 plaintiff, on Oct. 31, sent two hogs- 
 heads {which were all he was able to 
 supply at the time) to a wharf in 
 London, from which the defendant 
 
 removed them to his own warehouse, 
 and there unpacked the whole of the 
 glue and put it into twenty bags. On 
 examination, the defendant consid- 
 ered the glue inferior in quality to 
 "Cox's best glue"; and this was 
 communicated to the plaintiff's agent 
 on Nov. 1. The plaintiff's brother, on 
 his behalf, inspected the glue on 
 Monday, Nov. 3, and admitted that 
 some part of the glue (but not an 
 unusual proportion) was of inferior 
 quality ; and, on the plaintiff's part, 
 he offered to make an allowance in 
 the price, but refused to take the 
 glue back, because it had been un- 
 packed and put into bags; and he 
 stated in evidence that -it was quite 
 unnecessary to do more than take a 
 cake or two out for the purpose of 
 examining the contents of the hogs- 
 heads. The defendant repacked the 
 whole, and sent it back to the plain- 
 tiff, who declined to receive it. It 
 was stated in evidence, that glue, it 
 taken out of the barrels in which it is 
 packed, cannot be replaced there in 
 the same condition. Upon the argu- 
 ment, it was insisted by CKOWDBB,ion 
 
SEC. 313.] 
 
 ACCEPTANCE AND EECEIPT. 
 
 581 
 
 more of the goods than was necessary for ascertaining whether they 
 are fit for his use, amount to an acceptance.^ The question in 
 all such cases is, whether the acts done by the buyer were 
 done for the purpose of examining the goods, to ascertain 
 whether they corresponded in quantity and quality with 
 those ordered, or whether they were acts of ownership, 
 which would be wrongful if he had not accepted ; and the 
 question of acceptance or not, where the facts are in dispute, 
 is for the jury, and it is error for the court to non-suit the 
 
 behalf of the plaintiff, that the plain- 
 tiff had done more than was necessary 
 for a fair examination, and thereby 
 altered the condition of the goods, 
 and therefore had in effect accepted 
 them. Phillips v. BistoUi, 2 B. & C. 
 511, was cited as showing that it is a 
 question for the jury whether there 
 was a deliTcry or not. Lord Den- 
 MAN, C. J., said : " There must be both 
 a delivery and an acceptance proved. 
 Here the evidence showed a rejection. 
 I thought at the trial that if there 
 had been any unnecessary alteration 
 in the state of the thing while in the 
 defendant's hands, he must be taken to 
 have accepted it. But in that I think 
 I went too far." Pattesost, J., said : 
 " A confusion sometimes arises in ap- 
 plying the statute of frauds to the 
 case of goods sold and delivered. If 
 the purchaser actually takes the goods 
 into his possession, that is an accept- 
 ance independent of the statute. But 
 there may be an acceptance sufficient 
 to satisfy the statute, which may yet 
 not support an action for goods sold 
 and delivered." Crowder continued : 
 " The plaintiff here does not rely on 
 an acceptance of part. The whole 
 quantity oi goods is put into his 
 hands ; and he is to explain why he 
 does not pay for them." Patteson, 
 J. : " If he had looked them over and 
 selected them long before, and, when 
 they came to his warehouse, had re- 
 fused to have them, that would not 
 be a case of goods sold and delivered." 
 Wightman, J. : " When do you say 
 the delivery here was complete ? " 
 Crowder : " On the 31st of October. 
 A«party must not have an unlimited 
 
 time to decide whether he will accept 
 goods or not ; and here the defendant 
 had so dealt with them that they 
 could not be restored in the state in 
 which they were sent." Patteson, 
 J. : " Was not it for the jury to say 
 whether the acts of the defendant 
 were done with the intention of tak- 
 ing the goods t " Lord Denmax, C. 
 J. : " The strongest way of putting 
 the case, for you, would have been that 
 his conduct amounted to a provisional 
 acceptance if the glue should prove 
 to be ' Cox's best glue.' " Crow- 
 der : " After taking the whole out 
 and putting into bags, it was too late 
 to insist on that proviso." Wight- 
 man, J. : " According to you the de- 
 fendant was bound, whether the glue 
 turned out to be ' Cox's best ' or not." 
 Coleridge, J. : " If the party examines 
 the goods, bona fide, with a view of as- 
 certaining the quality, hut so carelessly 
 as to do them great harm, can you say 
 that that amounts to an acceptance, what- 
 ever be the result of the examination ? " 
 Wightman, J. : "Elliott v. Thomas, 3 
 M. & W. 170, was cited in moving." 
 That case, as to the point decided, is 
 rather in favor of the plaintiff here 
 than of the defendant. If the pur- 
 chaser takes goods professedly for 
 the purpose of examination, and keeps 
 them a month, can it be said that he 
 does not accept them? Wightman, 
 J. ; "If the time were quite unreasonable, 
 the plaintiff might perhaps treat the de- 
 tention as an acceptance." See also 
 Lucy V. Mouflet, 5 H. & N. 229. 
 
 1 Alderson, B., in Elliott v. 
 Thomas, 3 M. & W. 174. 
 
582 STATUTE OF FEAUDS. [CHAP. XH. 
 
 plaintiff wliere there is any evidence from which an accept- 
 ance might be found. This rule is well illustrated by Parker 
 V. Wallis,^ in which the facts were that the defendant re- 
 ceived some turnip seed under a verbal contract of sale, but 
 at once sent word to the plaintiff that it was " out of condi- 
 tion " ; which the plaintiff denied, and refused to receive it 
 back. The defendant then took the seed out of the bags, 
 and spread it out thin, alleging that it was hot and mouldy, 
 claiming that the plaintiff had given him authority to do so. 
 The plaintiff denied both these facts. The plaintiff was non- 
 suited by WiGHTMAN, J., with leave to enter a verdict for 
 iG140, the price of the seed, if the evidence was deemed sufS- 
 cient to show an acceptance and actual receipt of any part of 
 the goods. The court made the rule absolute for a new trial, 
 but refused to enter a verdict for the plaintiff for the price of 
 the seed, upon the ground that the act of taking the seed out 
 of the bags was susceptible of various constructions. It might 
 have been because the seed was hot, or because the plaintiff 
 authorized it. But that as the evidence stood when the non- 
 suit was entered, these were not the facts. There remained 
 a third construction, namely, that spreading out the seed 
 was an act of ownership, a wrongful act, if the defendant had 
 not accepted as owner, and that this wa,& a question for the 
 jury. The court, Lord Campbell, C. J., Ekle and Ceomp- 
 TON, JJ., WiGHTMAN, J., dissenting, thought that, although 
 the evidence was too slight to warrant entering up a verdict 
 for the price, under the rule, yet regarded it as sufficient to 
 go the jury upon the question whether the seed was spread 
 out thin by the defendant, as an act of acceptance, or because 
 it was out of condition, or by the plaintiff's authority. In 
 this case, it will be observed that the act of spreading out 
 the seed was done after the defendant had notified the plain- 
 tiff of his refusal to accept, so that, unless done in pursuance 
 of authority from the plaintiff, the act was wrongful, and 
 afforded evidence from Avhich the jury might find that the 
 defendant had waived his objections and accepted the seed. 
 Having declared his disapproval of the goods, by dealing with 
 them afterwards, as owner, he must be treated as having 
 reconsidered his rejection of the goods, unless authorized to 
 
 1 Parker v. ■Wallis, 5 B. & B. 21. 
 
SEC. 313.J ACCEPTANCE AND RECEIPT. 583 
 
 SO deal with them by the buyer, or necessarily done to save 
 them from deterioration or damage. In Kent v. Huskinson,^ 
 the subject of the action was a bale of sponge sent by the plain- 
 tiff, a wholesale dealer in that article, residing in London, to 
 the defendant,- a retail dealer residing in Staffordshire. A 
 short time before the sponge was sent by the plaintiff, he had 
 been at the place where the defendant resided, and received 
 from him a verbal order, under which he had acted in send- 
 ing the sponge, and the price charged was lis. per pound. 
 Soon after the sponge had been sent, the defendant wrote 
 the following letter to the plaintiff: "After receiving a 
 letter from your house in town, stating that the bale of 
 sponge was sent by your direction, I called in a friend or two 
 who are competent judges of the article, and asked them to 
 say, according to the present price of sponge, what it was 
 worth ; the answer was, not more than 68. per pound : I have 
 therefore returned it to you by the same conveyance it was 
 forwarded by to this place. In future, I will select what 
 sponge I may want, personally ; otherwise will appoint some 
 confidential friend for that purpose." The plaintiffs sou 
 being at the defendant's house soon after the sponge was 
 returned, was told by him that he had resolved not to keep 
 the article, because it was not so good as was expected. It 
 was objected for the defendant, that as this was a contract 
 for the sale of goods of more than j£10 value, the case fell 
 within the seventeenth section of the statute of frauds, and 
 Lord Alvanley, who tried the cause, was of that opinion ; 
 and, upon a motion to set aside this non-suit, declared that 
 he still continued of opinion, that the evidence did not take 
 the case out of the statute ; for how was any judgment to be 
 formed as to the nature of the contract between the parties : 
 possibly the order was for the best, possibly for the second 
 best sponge, or for sponge of some peculiar quality; all 
 which circumstances are left in a state of uncertainty. It 
 was this very uncertainty, and the frauds to which it might 
 lead, that the statute was meant to guard against. The only 
 affirmance of any contract to be collected from the evidence, 
 was an affirmance of some sort of order for some sort of 
 sponge, and it appeared, that the moment the article reached 
 
 1 Kent V. Huskinson, 3 B. & P. 233. 
 
684 STATUTE OF FKAXTDS. [CHAP. XII. 
 
 the defendant, and was examined, he sent it back to the 
 plaintiff, saying that it was not that sort of sponge which he 
 wanted and had ordered. The defendant's letter, therefore. 
 Lord Alvanley said, could not be construed into an 
 acceptance ; and Chambeb, J., said that certainly there was 
 no acceptance of the goods by the defendant, unless a refusal 
 could be considered as amounting to an acceptance. 
 
 There must he an acceptance which completely affirms the 
 contract?- 
 
 Sec. 314. Weed not be Express Acceptance. — But, as we 
 have previously stated, this acceptance need not be express, 
 but may arise constructively out of the acts of the vendee, espe- 
 cially where the goods are ponderous and incapable of being 
 handed over one to another, but it may be done by that 
 which is tantamount, such as the delivery of the hey of a ware- 
 house in which the goods are lodged, or by the delivery of other 
 indicia of property, or the performance of some act of owner- 
 ship by the vendee ; ^ for the larger the bulk, the more im- 
 practicable it is that there should be a manual receipt ; some- 
 thing there must be in the nature of constructive receipt, as 
 there is constructive delivery.^ And therefore the question 
 as to whether there has been acceptance or not is one of 
 "fact for the jury, not matter of law for the judge."* The 
 acceptance required by the statute must be very clear and 
 unequivocal ; and it is a question for the jury whether, under 
 all the circumstances, the acts which the buyer does, or for- 
 bears to do, are an acceptance or otherwise.^ 
 
 Sec. 315. instances of Constructive Acceptance and Receipt. 
 — The acceptance and retention of a bill of lading by the consignee 
 may be equivalent to an actual acceptance of the goods, if lie exer- 
 cises dominion and ownership over it, or deals with it so as to trans- 
 fer the right of property in the goods to a third party. ^ So, if after 
 
 ' 1 Chaplin v. Kogers, 1 East, 194, 14 Jur. 6G9; 19 L. J. Q. B. 382, per 
 
 per Lord Kenyon, C. J. Lord Campbell citing Bushel u. 
 
 2 Packard v. Dunsmore, 11 Cush. Wheeler, ib. 442 n. ; and see Parker 
 
 (Mass.) 282; Gray o. Davis, 10 N. Y. v. Wallis, 5 E. & B. 21; Nicholle ^. 
 
 285. Plume, 1 C. & P. 272; Simmonds v. 
 
 8 Bushel V. Wheeler, 15 Q. B. 442, Humble, 13 C. B. (N. S.) 258. 
 per Williams, J. ; see also Marshall ' Meredith v. Meigh, 2 E. & B. 
 
 ;;. Green, L. K. 1 C. P. D. 35. 364; 22 L. J. Q. B. 401 ; Currie v. 
 
 * Edan v. Dudfleld, 1 Q. B. 306, Anderson, 2 E. & E. 592; 29 L. J. 
 
 307, per Denman, C. J. Q. B. 87. See Quintard v. Bacon, 99 
 
 5 Morton a. Tibbett, 15 Q. B. 441 ; Mass. 185 ; Erostburgh Mining Co. v. 
 
SEC. 315.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 585 
 
 goods have arrived the vendee does any act to the goods, of wrong if 
 he is not owner of the goods, and of right if he is owner, the doing 
 of that act is evidence that he has accepted them;^ as, for instance, 
 if he sells or attempts to sell the goods, or if he disposes absolutely 
 of the whole or any part of them, or attempts to do so, or alters the 
 nature of the property.^ Thus, in Chaplin v. Rogers,* the par- 
 
 1 Parker v. Wallis, 5 E. & B. 28, 
 per Ekle, J. 
 
 ^ Lillywhite u. Devereux, 15 M. & 
 W. 291, per Aldekson, B. In Blin- 
 kinsop v. Clayton, 7 Taunt. 597, the 
 defendant bought a horse and took a 
 third person to the vendor's stable, 
 where the horse then was, and offered 
 it to him. Held, an- acceptance. See 
 
 N. E. Glass Co., 9 Cush. (Mass.) 118, 
 where the retention of the bill of 
 lading by the vendee was held under 
 the circumstances not to amount to 
 an acceptance. To satisfy the statute 
 there must be both a delivery to and 
 acceptance by the buyer of the goods. 
 In Bill V. Bament, 9 M. & W. 36, the 
 defendant ordered goods of the plain- 
 tiff's agent, and went to the agent's 
 warehouse, where the goods were de- 
 posited, and directed a mark to be 
 placed upon them ; but having subse- 
 quently refused to receive the goods, 
 and an action having been commenced 
 against him, he wrote in the agent's 
 ledger, at the bottom of a page con- 
 taining the statement of the goods, 
 and headed with the plaintiff's name, 
 the words "Received the above," 
 which he signed. The court held, 
 that this was no evidence of a de- 
 livery and acceptance. Parke, B., 
 there says, after observing that the 
 written receipt was some evidence of 
 an acceptance, "But there must also 
 be a delivery ; and to constitute that, 
 the possession must have been parted 
 with by the owner, so as to deprive him 
 of the right of lien." In Hanson v. 
 Armitage, 5 B. & Aid. 557, the evi- 
 dence was, that a party resident in 
 the country had been in the habit of 
 biiying goods of a London merchant, 
 whose habit it was to deliver them to 
 a wharfinger in London, to be for- 
 warded to the buyer by the first ship. 
 
 also Chapman v. Morton, 11 M. & W. 
 534 ; Harnor v. Groves, 15 C. B. 667. 
 See also Baines v. Jevons, 7 C. & P. 
 288, the facts of which are given, 
 ante. 
 
 » Chaplin v. Rogers, 1 East, 192. 
 The acceptance in this case was sus- 
 tained because the defendant had re- 
 sold a part of the hay. 
 
 It was held that the receipt of such 
 goods by the wharfinger was not an 
 acceptance by the buyer, sufficient to 
 satisfy the statute of frauds; and 
 Abbott, C. J., in giving judgment, 
 referred to Howe u. Palmer, 3 B. & 
 Aid. 321, where it was held that there 
 could be no actual acceptance, so 
 long as the buyer retained the right 
 to object to either the quantum or 
 the quality of the goods. And in 
 Bentall v. Burn, 3 B. & Cr. 428, it 
 was held, that a vendee's acceptance 
 of a delivery order of the London 
 Dock Company was not an accept- 
 ance of the goods themselves, within 
 the statute of frauds. See also 
 Zwinger v. Samuda, 7 Taunt. 265. 
 In Farina t>. Home, 16 M. & W. 119, 
 goods were shipped by the plaintiff 
 from abroad to this country, on the 
 verbal order of the defendant, at a 
 price exceeding ^£10. They were sent 
 to a shipping agent of the plaintiffs 
 in London, who received them and 
 warehoused them with a wharfinger, 
 informing the defendant of their ar- 
 rival. The wharfinger handed to the 
 shipping agent a deli very- warrant, 
 whereby the goods were made deliv- 
 erable to him or his assignees by en- 
 dorsement, on payment of rent and 
 charges. The agent endorsed and 
 delivered this warrant to the defend- 
 ant, who kept it for several months, 
 and, notwithstanding repeated appli- 
 cations, did not pay the price of or 
 
586 STATUTE OF FKATJDS. [CHAP. XII. 
 
 ties being together in the farm-yard of the plaintiff, negotia- 
 tions took place between them for the purchase of a stack of 
 hay standing therein, and after some doubts expressed ^ by 
 the buyer, as to the quality of the hay, it was sold to him at 
 the price of 2s. 6d. per hundred pounds. About two months 
 after this transaction, a farmer agreed with the buyer for the 
 purchase of part of the hay, which was still standing un- 
 touched in the farm-yard of the original owner. L was told 
 by the first purchaser to go and see what condition the hay 
 was in, as he had only agreed for it in case it was good. L 
 having examined it repotted it to be in a good state, and 
 agreed to give the first purchaser 38. 6d. per hundred pounds, 
 being told by him that he had agreed to give Ss. 6c?. per hun- 
 dred pounds to the original owner. L brought away tliirty-six 
 hundred weight of the hay, in virtue of this sub-contract; but this act 
 of the second purchaser was without the knowledge and against the 
 direction of the first. The original seller brought an action 
 against the first purchaser for goods sold and delivered. Two 
 grounds were made for the defendant on the trial ; first, actual 
 fraud in the sale ; and secondly, the non-compliance, with the 
 statute of frauds. The judge left it to the jury to decide, 
 whether the sale was fraudulent, and whether, under the circum- 
 stances, there had been a sufficient acceptance by the defendant. And 
 they found for the plaintiff upon both points, and gave Mm 
 damages to the value of the hay, at the price agreed for. A 
 rule nisi was obtained for setting aside this verdict, and for a 
 new trial, on the grounds that the judge had left that as a 
 question of fact to the jury, which he himself ought to have 
 decided as an objection in point of law, arising on the stat- 
 ute of frauds, and because the evidence did not warrant the 
 verdict ; but the rule was discharged ; Lord Kenyon, C. J., 
 observing, that it loas proper to leave the question specifically to the 
 jury, whether or not there was an acceptance of the hay by the de- 
 fendant; and that they had found that there was, which had put 
 an end to any question of law. That he did not mean to 
 disturb the settled construction of the statute ; that in order 
 
 charges upon the goods, nor return they would remain for the present in 
 
 the warrant, but said he had sent it bond. Held, that there was no such 
 
 to his solicitor, and that he intended delivery to and acceptance by the 
 
 to resist payment, for that he had defendant of the goods, as to satisfy 
 
 never ordered the goods ; and that the statute. 
 
SEC. 316.] ACCEPTANCE AND EECEIPT. 587 
 
 to take a contract for the sale of goods of this value out of 
 it, there must either be a part-delivery of the thing, or a 
 part-payment of the consideration, or the agreement must be 
 reduced to writing, in the manner therein specified; but he 
 was not satisfied in that case, that the jury had not done 
 rightly in finding a delivery, and that the goods being pon- 
 derous and incapable of being passed over to the buyer, an 
 actual delivery was not necessary, but that a delivery and 
 acceptance might be found from the circumstance th&.t the 
 buyer had subsequently dealt with the property as though it 
 was in his actual possession, to wit, by selling a part of it.^ 
 But such resale or attempt to sell does not of itself neeessa^ 
 rily constitute an acceptance, but is evidence thereof from 
 which, in connection with the circumstances, the jury may 
 find an acceptance.^ The question in all these cases must 
 be submitted to the jury as one of fact, to find whether there 
 was a delivery by the vendor and an actual acceptance and receipt 
 by the vendee, intended by both parties to have the effect of transfer- 
 ring the right of possession from the one to the other. ^ 
 
 Sec. 316. trsing Goods as Owner. — If the buyer takes 
 the goods into his possession, and uses them as owner, the fact 
 that it is understood that they will again be returned to the pos- 
 session of the seller, does not prevent such act from amounting to 
 an acceptance and receipt of the property. Thus, in an English 
 case,* the defendant agreed to purchase a carriage from 
 the plaintiff, at the same time desiring that certain altera- 
 tions might be made in it. The alterations were made, and 
 the defendant used it, in order that, as he was going to take 
 
 ^ See Marshall v. Green, L. R. 1 an absolute owner, there is eTidence to 
 
 C. P. D. 35, where Brett, J., said : go to the jury of an actual receipt of 
 
 " If the sub-sale stood alone, I should the thing. 
 
 have doubted whether it would have " Morton v. Tibbetts, 15 Q. B. 428 ; 
 
 been evidence of an actual receipt ; Johnson v. Cuttle, 105 Mass. 407 ; 
 
 but here he did something to the things Prostburgh Mining Co. v. N. E. Glass 
 
 themselves. I should be inclined to Co., 9 Gush. (Mass.) 118; Taylor v. 
 
 say that where there is no actual re- Mueller, 30 Minn. 343 ; 44 Am. Eep. 
 
 moval of the things sold, the question 203. 
 
 depends on the proposition, that where ' Phillips u. Bistolli, 2 B. & C. 
 
 there has been, during the existence 5142 ; Taylor on Evidence, Sec. 753 ; 
 
 of the verbal contract, for however Caulkins v. Hellman, 47 N. Y ; Alvet, 
 
 short a time, an actual possession of the J., in Hewes v. Jordan, 39 Md. 472. 
 thing sold, and something has been done * Beaumont u. Brengari, 5 C. B. 
 
 to the things themselves by the buyer, 301. 
 which would only properly be done by 
 
688 STATUTE OP FRAUDS. [CHAP. XH. 
 
 it abroad, it might pass the custom-house as a second-hand 
 carriage. He then returned it to the custody of the plain- 
 tiff. It was held that there was evidence of a specific bar- 
 gain for the particular carriage ; that the defendant assumed 
 to be the owner ; that the plaintiff kept the carriage as agent 
 for the defendant, and that there had been a sufficient accept- 
 ance.^ But the rule is otherwise where the goods are not 
 ready for delivery, and the buyer never actually takes them 
 out of the custody or possession of the seller. Thus, where 
 the defendant employed the plaintiff to construct a wagon, 
 and while the vehicle was in the plaintiff's yard unfinished, 
 procured a third person to fix on the iron-work and a tilt, it 
 was held that there had not been any acceptance, though it 
 might have been otherwise, if the work had been done after 
 the wagon was finished.^ Where A contracted with B to 
 purchase of him the trunks of certain oak trees, then felled 
 and lying at Hadnock, about twenty miles from Chepstow, 
 the course of dealing being for A's agent to select and mark 
 those portions which he intended to purchase, and for B to 
 sever the tops and sidings, and float the trunks down the 
 river Wye to A's wharf at Chepstow, and there deliver them, 
 and after a portion of the timber had been so delivered, and 
 the whole paid for, B became bankrupt, whereupon A sent 
 his men to B's premises at Hadnock, and severed and carried 
 away the marked portion of certain trees, it was held that 
 no property in the trees, or any portion of the trees, which 
 had not been delivered by B, passed to A by the contract, 
 and that there was no delivery or acceptance to satisfy the 
 statute, and consequently the assignees of B were entitled 
 to recover the value in trover.' 
 
 Sec. 317. Morton v. Tibbetts. — In an English case,* the 
 defendant purchased wheat of the plaintiff by sample, and 
 directed that the bulk should be delivered on the next morn- 
 ing to the carrier named by himself, who was to carry it to 
 the market-town of W., and the defendant himself took the 
 sample away with him. On the next morning the bulk, was 
 
 1 And see "Wright v. Percival, 8 L. & W. 155 ; Lucy v. Mouflet, 5 H. & 
 
 J. (N. S.) Q. B. 258. N. 229. 
 
 ^ Maberley v. Sheppard, 10 Bing. 8 Acraman v. Morrill, 8 C. B. 449; 
 
 100 ; and see Laidler v. Burlinson, 2 Smith v. Surman, 9 B. & C. 561. 
 M. & W. 615; Jordan v. Norton, 4 M. « Morton v. Tibbetts, 16 Q. B. 428. 
 
SEC. 317.] ACCEPTANCE AND RECEIPT. 689 
 
 delivered to the carrier, and the defendant resold it at W. on that 
 day by the sample. The carrier conveyed the wheat by order of 
 the defendant, who had never seen it, to the sub-vendor, who 
 rejected it as not corresponding with the sample ; and the 
 defendant, on notice thereof, repudiated his contract with 
 the plaintiff on the same ground. And on this state of facts 
 it was held by the court of Queen's Bench, that there was evi- 
 dence to warrant the jury in finding an ' ' acceptance and actual re- 
 ceipt" of the wheat hy the defendant, so as to gratify the statute 
 of frauds. This case established the doctrine that there may 
 be an acceptance and receipt without an examination of the 
 property by the buyer, and a waiver by him of the right of 
 rejection, because it does not correspond in quality or quan- 
 tity with the goods called for under the contract. In other 
 words, that when the parties have done that which effectually trans- 
 fers theproperty in the goods, and the right of dominion over them, 
 to the vendee, he having neglected to examine the goods, is treated as 
 having waived his right of rejecting them, because they do not answer 
 the requirements of the contract, and is left to his remedy upon 
 the contract itself.^ If this decision is sustainable at all, it is 
 upon the ground that, as the defendant had taken upon him- 
 self to exercise dominion over the wheat, and dealt with it 
 in a manner wholly inconsistent with the right of property 
 being in the vendor, those facts of themselves furnished evi- 
 dence to justify the jury in finding that the defendant had 
 waived his right to reject the same, and accepted the wheat, 
 and actually received the same. LoED Campbell, however, in 
 the course of his very elaborate judgment, maintained that 
 the case did not really require to be maintained, that the 
 acceptance contemplated by the statute is, in all cases, to 
 precede, or at any rate to be contemporaneous with the 
 actual receipt of the goods, and not a subsequent act ; that 
 there may be an acceptance and receipt within the statute, without 
 the purchaser having examined the goods, or done anything to pre- 
 clude him from contending that they do not correspond with the con- 
 tract; and that the acceptance to let in parol evidence of the 
 
 1 That this right may be waived, and the defendant was not to be liable 
 
 see Mason v. Whitbetk Co., 35 Wis. for the price until they were counted 
 
 164, in which it was held that where by C, and upon their deposit there 
 
 by a contract of sale of both by the they were accepted without count or 
 
 plaintiff to the defendant, the plaintiff inspection, he became liable for the 
 
 was to deposit them at a certain place, price. 
 
590 STATUTE OF FRAUDS. [CHAP. XII. 
 
 contract is a different acceptance from that which affords 
 conclusive evidence of the contract having been fulfilled^ 
 Says Alvey, J.,^ in commenting upon the doctrine of this 
 case : " Now, it may be readily conceded that the question 
 whether there has been, in any particular case, such accept- 
 ance and actual receipt of a part of the goods as will bind 
 the contract, may be quite different and distinct from that 
 as to whether the contract has been fulfilled in respect to 
 quantity and quality of the residue of the goods, where the 
 vendee has had no opportunity of examining the goods that 
 may be offered in fulfilment of the contract,' and where he 
 has done nothing to preclude himself from the exercise of 
 ' the right to object that they do not correspond with those 
 actually received by him. The effect of the acceptance and 
 actual receipt of part of the goods, however small, is to 
 prove the contract of sale, and it is not inconsistent with 
 this that the vendee should have the right, with respect to 
 the residue of the goods when offered in fulfilment of the 
 contract, to object that they are not such in quantity and 
 quality as the contract requires ; and in such case the ques- 
 tion in dispute can only be determined by the aid of parol 
 evidence. But in all cases where the goods bargained for 
 have been accepted and actually received by the vendee, he is 
 thereby precluded, in the absence of fraud, from objecting 
 that they do not correspond with the contract. Any other 
 construction would certainly tend to let in all the evils that 
 were intended to be excluded by the particular provision of 
 the statute ; and hence the proposition maintained by Lord 
 Campbell in Morton v. Tibbett, that there may be an accept- 
 ance and receipt within the statute, without the purchaser 
 having examined the goods, or done anything to preclude 
 him from contending that they do not correspond with the 
 contract, has found biit^ partial favor with the judges of 
 Westminster Hall. Some of those judges have openly ex- 
 pressed their dissent from it, and while it may be taken as 
 the established construction of the statute by the Queen's 
 Bench, it has failed to receive the sanction of the Court of 
 Exchequer." 2 The doctrine of Morton v. Tibbett, ante, was 
 
 1 In Hewes v. Jordan, ante. Coombs v. Bristol & Exeter R. Co., 3 
 
 2 Hunt V. Hecht, 8 Exch. 814 ; H. & N. 510. But in these cases the 
 
SBC. 317.] ACCEPTANCE AND RECEIPT. 591 
 
 fully sustained by a later English case,^ decided by the Court 
 of Appeals. In that case, the plaintiff verbally agreed to 
 sell barley to the defendant, the same to be well dressed and 
 equal to sample. In the defendant's absence his foreman 
 received the barley, which was delivered in several instal- 
 ments, examined it, and gave a receipt for each instalment, 
 with the words, "Not equal to sample." The defendant 
 afterwards personally examined the barley, and rejected it on 
 the ground that it was not properly dressed and not equal to 
 sample. In an action for goods sold and delivered, the jury 
 found, in answer to questions left to them by Pollock, B., at 
 the trial : 1st, that there was an acceptance by the defendant 
 of part of the barley ; and, 2dly, that the barley was equal 
 to sample and properly dressed. Upon the argument of a 
 rule for a new trial, obtained on the ground of misdirection, 
 and that the verdict was against the weight of evidence, it 
 was argued for the defendant that there was misdirection on 
 the parfr of the judge in holding that there was any evidence 
 to go to the jury of acceptance under the statute of frauds, 
 upon the ground, apparently, that the defendant's foreman, 
 having given a receipt with the words, " Not equal to sam- 
 ple," upon it, could not be held to have accepted it within 
 the meaning of the statute, and that the question, therefore, 
 whether it was equal to sample or not, never arose, because 
 there was no valid contract between the parties. The author- 
 ity of Morton v. Tibbett was attacked, but aU the lords jus- 
 tices (Bkamwell, Bkett, and Cotton) referred with ap- 
 proval to the principle there laid down, and held that there 
 was evidence for the jury of an acceptance sufficient to satisfy 
 the statute. That being so, the question whether the barley 
 was equal to sample or not was clearly one for the jury to 
 decide, and they had answered it in favor of the plaintiff. 
 LoKD Justice Brett refers in these terms to the acceptance 
 necessary under the statute : " There must be an acceptance 
 and an actual receipt ; no absolute acceptance, but an axxeptance 
 ivhich could not have been made, except on admission of the con- 
 
 criticism was wholly unnecessary, as i Kibble v. Gough, 38 L. P. N. S. 
 
 in those cases there was no act of 204. See also Currie v. Anderson, 2 
 
 the buyer which amounted to an ac- B. & E. 592 ; Meredith v. Meigh, 2 B. 
 
 ceptance, or which would have war- & B. 364 ; Grimoldby v. Walls, D. R. 
 
 ranted the jury in finding one. 10 C. P. 391. 
 
592 STATUTE OV FEAT7DS. [CHAP. XH. 
 
 tract, and that tJie goods were sent under it. I am of opinion 
 there was a sufficient acceptance under the statute of frauds, 
 although there was (still) a power of rejection," And then, 
 after reviewing the cases, and referring with approval to 
 Morton v. Tibbett, he adds: "The goods then were sold by 
 valid contract, actually delivered and received, and after this 
 the Vendee objects to them. If they had not been equal to the 
 sample, I say that it was not even then too late to object; but they 
 were equal to sample and they were (properly) dressed." 
 And Cotton, L. J., says : "All that is wanted is a receipt, and 
 such an acceptance of the goods as shows that it has regard 
 to the contract; but the contract may yet be left open to 
 objection." In Rickard v. Moore,^ decided in the same year 
 (1878), the plaintiff verbally sold by sample to the defendant 
 six bales of wool. The goods were sent off by the plaintiff, 
 and delivered at a railway station, and were received there 
 and taken home by the defendant, who then unpacked the 
 wool, and wrote the same day to the plaintiff that two bales 
 were inferior to sample, asking what was to be done in the 
 matter. Plaintiff replied, denying that the bales were not 
 equal to sample. The defendant was away from home when 
 this letter arrived. Four days afterwards he returned home, 
 and after reading the plaintiff's letter, sent the goods back 
 to the railway station, and telegraphed to the plaintiff reject- 
 ing them. During these four days the defendant admitted 
 that he had offered the goods for sale in the market, stating, 
 however, that he had not accepted them, and that he would 
 ,have to make other arrangements before he could sell. In 
 an action for goods sold and delivered, the defendant set up 
 in his plea that there was ' no acceptance and receipt, and 
 secondly, that the goods were not equal to the sample, and 
 that upon that ground he had properly rejected them. The 
 jury found that two of the bales were not equal to the 
 sample, and Hawkins, J., thereupon ordered a verdict to be 
 rendered for the defendant. Upon appeal, the case was dis- 
 tinguished from Kibble v. Gough, ante, upon the ground that 
 in that case the jury had found an acceptance in fact. 
 Beamwell, L. J., based his judgment upon the ground 
 that whether there was an acceptance or not, the defendant 
 
 1 38 L. T. N. S. 841. 
 
SEC. 318.] ACCEPTANCE AND EECEIPT. 593 
 
 had done nothing to waive his right to reject the goods, because 
 not equal to the sample, and the jury had found that they were 
 not equal to the sample. Although Morton v, Tibbett was 
 not referred to by the court, it is evident that the court 
 recognized the distinction expressed therein between a condi- 
 tional acceptance and absolute one sufficient to take the case 
 out of the statute. As has previously been stated, the rule 
 is, that in order to constitute an acceptance which will satisfy 
 the statute, the defendant's right of rejection because the 
 goods do not correspond in quantity or quality with those 
 called for by the contract must be gone,^ and we insist that 
 the doctrine of the principal case does not conflict with this 
 proposition, because the acts of the buyer were such as to 
 show a waiver of this right. It is immaterial what judges 
 may have said in commenting upon the doctrine of this case. 
 The fact still remains that, the jury found that the defendant 
 not only accepted, but had also actually received the wheat, and this 
 being the case, the statute was satisfied, and the only remedy 
 left to the buyer was upon the contract itself, because by those 
 acts, the contract became valid in law, precisely the same as though 
 it had been in writing, and the rights and remedies of the par- 
 ties were the same. The doctrine of this case, as we have 
 seen, has been attacked in the Court of Exchequer ; ^ nor in 
 the broad sense in which it is usually cited, is it adopted by 
 the courts in this country,^ but the actual doctrine of the 
 case, that there may be a waiver of the right to examine the 
 goods, and that there was evidence to show both an acceptance 
 and receipt of the wheat, can hardly be questioned. 
 
 Sec. 318. Taylor v. Mueller. — In a recent Minnesota 
 case,* the parties entered into a verbal agreement of 
 sale, by sample, of two carloads of barley, which the 
 plaintiff was to deliver. The grain had been consigned to 
 the plaintiff, and at the time of the sale was in the cars, and 
 was deposited by him in an elevator, in his own name and on 
 
 1 Remick v. Sandford, 120 Mass. v. Crumdick, 28 Minn. 352 ; Edwards 
 309; Currie v. Anderson, 2 E. & E. v. Grand Trunk* Eailway, 54 Me. Ill; 
 592 ; Simpson v. Crumdick, 28 Minn. Maxwell v. Brown, 39 id. 98 ; Shep- 
 352. herd v. Pressey, 32 N. H. 55. 
 
 2 Ante, p. 590. * Taylor v. Mueller, 30 Minn. 343 ; 
 8 Remick v. Sandford, 120 Mass 44 Am. Rep. 199. 
 
 309 ; Hewes v. Jordan, ante ; Simpson 
 
594 STATUTE OF FRAUDS. [CHAP. XH. 
 
 his own account. The barley remained in the elevator for a 
 period of about two months, when the defendant requested 
 that it be sent to the station on the railroad where they usu- 
 ally received their freight, which was accordingly done, the 
 defendants having furnished the manager of the elevator a 
 delivery order, and upon an examination of the barley, they 
 found it unfit for their use, and immediately rejected it, and 
 notified the plaintiffs of the fact. The jury found upon the 
 facts submitted to them, that the defendants had not accepted 
 or received the barley, and the court having refused to in- 
 struct the jury that the acts of the defendant constituted 
 sufficient evidence of an acceptance and receipt of the grain, 
 the ruling was sustained upon appeal, VANDEEBUiiGH, J., 
 in a carefully considered opinion, saying: "Whether there 
 was sufficient evidence of such acceptance as to warrant or 
 support a verdict in, plaintiff's favor is the principal question 
 for our consideration. Defendants had a short time pre- 
 viously ordered and received at Second Street two other car- 
 loads of barley, bought in the same way. The evidence 
 relied on as tending to prove such acceptance appears in the 
 testimony of the manager of the elevator, a witness in plain- 
 tiffs behalf, and is as follows: ",The circumstances under 
 which I shipped the last two cars are as follows : The defen- 
 dants ordered it by telephone, same as before, and gave me 
 the number of the cars. I told them I had no order to 
 deliver the grain to them ; that I had already delivered them 
 two cars, and that I must insist upon having a written order 
 before delivering any more ; and they got me one ; that is the 
 order upon which I sent out the last two cars, and which 
 gave me authority to send them all out ; 2,460 was one of 
 the cars for which I had no order. So I got this order for 
 all of them. . . . They were ordered to Second Street. 
 There is where they get at them with teams." The order 
 was a direction to the manager to deliver to defendants the 
 two cars previously ordered and sent, and the two cars then 
 delivered and referred to by the witness. Except as above, 
 and save as to previous requests by defendants of plaintiff 
 to send the barley down to Second Street, where they insisted 
 upon having it delivered, there is no evidence of an accep- 
 tance by defendants. The evidence shows that the barley 
 
8EC. 318.] ACCEPTANCE AND RECEIPT. 595 
 
 was examined by defendants the next morning after it was 
 ordered from the elevator. Delivery, according to the terms 
 of a written contract, passes the title, but delivery under a 
 contract invalid by the statute of frauds is at the vendor's 
 risk. No act of the vendor alone is sufficient.^ While the 
 grain remained in the elevator, in the name of the plaintiff, 
 there had been neither delivery nor acceptance. The mere 
 issuance of the delivery order did not constitute an actual 
 delivery of the grain. It was merely a written authority to 
 receive the possession.** The manager requested the order 
 to cover past deliveries and this also, and it was accordingly 
 issued. It would hardly be claimed that the defendants were 
 precluded from rejecting the former two car-loads at Second 
 Street, if found inferior to sample. Nor would it be reason- 
 able, under the circumstances, to construe their omission to 
 examine this grain at the elevator into a waiver or conclusive 
 acceptance. Defendants might have gone and inspected the 
 grain before it was put in the elevator. Doubtless they might 
 have examined it in the elevator also ; but manifestly, if, as 
 the jury have found, it was to be delivered at Second Street, 
 this was not contemplated by the parties in making the con- 
 tract for the delivery of grain at that place to correspond 
 with the sample. Dealing with the property as owner, as by 
 a sale, pledge, or otherwise, or detention of the property, or 
 its control beyond a reasonable time for inspection and rejec- 
 tion, is evidence of an acceptance. This is not, we think, 
 shown to be the case here, upon a fair construction of the 
 evidence. A constructive receipt by the carrier at the ele- 
 vator, upon plaintiff's order, though upon defendant's request 
 to send it to Second Street, followed as it was by a season- 
 able inspection and rejection, because not equal to the sample, 
 falls short of an acceptance.^ To constitute an acceptance, 
 within the meaning of the statute, there must have been 
 some act on the part of the defendants showing their inten- 
 tion to accept and appropriate the grain unconditionally as 
 owners.* Now, in this case, whether it be claimed that the 
 
 1 Stone V. Browning, 68 N. Y. 598. 449, 455 ; 7 Am. Rep. 461 ; Knight v. 
 
 2 Tanner v. Scovell, 14 M. & W. Mann, 120 Mass. 219. 
 
 28; Benjamin on Sales (3d Am. ed.), * Simpson v. Crumdick, 28 Minn. 
 
 §§ 776, 806, 815. 352, 355 ; Stone v. Browning, supra. 
 
 8 Caulkins v. Hellman, 47 N. Y. 
 
596 STATUTE OF FRAUDS. [CHAP. XU. 
 
 manager of the eleTator delivered the grain to the defen- 
 dants, through the carrier, at Second Street, and he says 
 " the order was his authority for sending the cars out," or 
 that he delivered it to the carrier for the defendants, in either 
 case the defendants had not so far received the actual pos- 
 session of the grain as to constitute an acceptance of the 
 goods as satisfying the contract.^ It is well settled that 
 delivery to a carrier, not selected or designated by the buyer, 
 does not constitute an acceptance within the statute.^ If the 
 buyer does not accept in person, he must do so tlirough an 
 authorized agent.^ Nor is it material that the buyer has 
 agreed or directed that it should be sent by carrier.* As 
 they did not order or control the cars, and did not remove or 
 disturb the grain, it was sufficient to give notice of their 
 refusal to accept it, leaving it in the custody of the carrier 
 on the transfer track.* The distinction between a mere 
 delivery or receipt, and an acceptance, is not to be lost sight 
 of ; and where the goods are sold by sample, the fact must be 
 considered as an element in the case in determining whether 
 the buj'er has taken actual or constructive possession as 
 owner, so as to indicate an acceptance thereby ; and the bur- 
 den of proof rests on the vendor to show the intent on the 
 buyer's part to take possession as owner.® If the plaintiff 
 intended to deliver the grain at the elevator, it is manifest 
 the defendants did not intend to accept and receive it there. 
 And as soon as they discovered that he had not delivered 
 what they agreed to buy, they refused to accept it. There 
 was no understanding that the barley was to be inspected at 
 the elevator. Considering the manifest understanding of 
 the defendants as to the proper place of delivery, and the 
 usual course of dealing between the parties, it was not un- 
 reasonable for them to request, nor for the plaintiff to send 
 these cars in the usual way, out on a transfer track in the 
 same city. They had a right to rely, as they unquestionably 
 did, upon plaintiff's agreement that the bulk would cor- 
 
 1 Blackburn on Sales, 22-3. v. Cuttle, 105 Mass. 447 ; 7 Am. Eep. 
 
 2 Caulkins v. Hellman, 47 N. Y. 545. 
 
 449, 454; 7 Am. Eep. 461. 6 Grimoldby v. Wells, L. R. 10 C. 
 
 8 Allard u. Greaaert, 61 N. Y. 1, 6. P. 391 ; Caulkins v. Hellman, 47 N. 
 
 * Norman v. Phillips, 14 M. & W. Y. 449, 455, 4^; 7 Am. Rep. 461. 
 277; Frostburg Mining Co. v. N. E. « Remick v. Sandford, 120 Mass. 
 
 Glass Co., 9 Cush. 115, 120; Johnson 809, 316. 
 
SEC. 319.] ACCEPTANCE AND EECEIPT. 597 
 
 respond with the sample. No complaint is made of defen- 
 dants' laches in not promptly rejecting and notifying the 
 plaintiff after they discovered the condition of the grain. 
 Ordinarily, it is considered a question for the jury, whether 
 the acts or conduct of the buyer amount to an acceptance. 
 But where the undisputed facts are insufficient, as in this 
 case, to warrant such a finding, the question would not be 
 submitted to the jury.^ Here, we think, the defendants, in 
 good faith, were seeking a delivery of the grain purchased 
 by them, and their act in procuring the delivery order, under 
 the circumstances, in ignorance of its condition, had refer- 
 ence solely to its delivery, and was not a decisive and 
 unequivocal act of acceptance thereof as owner. In Morton 
 V. Tibbett,^ relied on by the plaintiff's counsel, the defendant 
 himself sent a carrier for the grain purchased hy sample, and 
 previous to its arrival resold it hy the same sample, before he 
 had inspected it; and it was held that its receipt by the car- 
 rier was not an acceptance, but that his resale of it was 
 evidence of an acceptance."^ 
 
 Sec. 319. Marking Goods in Name of Vendee. — The mark- 
 ing of goods with the name of a purchaser with his consent, 
 will, if the other terms of the bargain have been settled, amount 
 to an acceptance of the goods, although the goods remain in the 
 possession of the vendor. But there must also be a delivery, 
 and to constitute that the possession must have been parted 
 with by the vendor, so as to deprive him of his right of lien.* 
 In Anderson v. Scot,* the plaintiff went into the defendant's 
 cellar and selected several pipes of wine, for which he agreed 
 
 1 Stone V. Browning, 68 N. T. 598, Walden v. Murdock, 23 Gal. 540 ; 
 
 601-2 ; Ham v. Van Orden, 4 Hun Kealey v. Tennant, 13 Ir. C. L. Rep. 
 
 (N. Y.) 709; Shepherd w. Pressey, 32 394; Byasse v. Reese, 4 Met. (Ky.) 
 
 N. H. 49, 56-7. 372 ; Dyer v. Libby, 61 Me. 45. 
 
 '^ 15 Q. B. 428. ' 1 Camp. 235. Where goods have 
 
 ' Frostburg Mining Co. v. N. E. been weighed in the presence of the 
 
 Glass Co., 9 Cueh. 115, 120 ; Johnson vendee, and placed by themselves in 
 
 u. Cuttle, supra. the vendor's warehouse, marked with 
 
 * Dyer v. Libby, 61 Me. 45 ; Rap- the vendee's name, and to be delivered 
 
 pleye v. Adee, 65 Barb. (N. Y.) 589; when sent for, it was held to be such 
 
 Hodgson V. Le Bret, 1 Camp. 233 ; an acceptance as would take the sale 
 
 Baldey v. Parker, 2 B. & C. 37 ; 3D. out of the Massachusetts statute of 
 
 & R. 220 ; Proctor v. Jones, 2 C. & P. frauds. Exp. Safford, 2 Low. (U. S. 
 
 632; Boulter v. Amott, 1 Cr. & M. C. C.) 463; 15 Bankr. Reg. 564. 
 333; Bill v. Bament, 9 M. & W. 36; 
 
598 STATUTE OF FEAUDS. [CHAP. Xn. 
 
 to pay a certain price : the spills or pegs by whicli the wine 
 is tested were then cut off; plaintiff's initials were iharked, 
 on the casks by defendant's clerk in his presence, and the 
 plaintiff took the gauge numbers. Loed Ellenboeoxtgh 
 held that upon these facts there had been an incipient 
 though not perfected delivery. This case, however, has 
 been disapproved of.^ In Proctor v. Jones,^ it was held 
 that the marking by the vendor of casks of wine lying 
 in the docks with the initials of the purchaser, at his 
 request, and in his presence, the terms of payment not having 
 been settled at the time, and consequently the contract not 
 being complete, was not an acceptance under the statute. 
 
 SeO. 320. Acceptance of One of Several Articles, Acceptance 
 of All, if Contract Entire. — Where several articles are bovght at 
 the same time, and the contract is proved to be entire, the accep- 
 tance of some of them is an acceptance of the wholet Thus, where 
 the plaintiff sold to the defendant twenty hogsheads of sugar 
 out of a larger quantity which he had in bulk, and filled four 
 hogsheads and delivered them to the purchaser, who accepted 
 them, and afterwards filled sixteen other hogsheads, and 
 requested the defendant to take them away, which he prom- 
 ised to do, it was held that the property in the sixteen hogs- 
 heads thereby passed to the defendant, and that his accep- 
 tance of the four was a part acceptance of the twenty.^ So 
 where the plaintiff and defendant went in one day to several 
 places distant a few miles from each other, where they agreed 
 for the purchase and sale of several lots of timber, and at 
 the last a memorandum of the whole transaction was made 
 and signed by the plaintiff, and part of the timber was 
 accepted by the defendant, but he refused to take the rest, 
 it was held that the whole formed one joint contract, and 
 that there had been a sufficient acceptance.* So where the 
 defendant verbally gave a joint order for thirty-five bundles 
 of common steel at 348. a bundle, and for five bundles of 
 cast steel at 48 s. a bundle, of a specified thickness, and the 
 
 1 4 Exch. 890 ; 18 L. J. Exch. 374. Scott v. Eastern Counties Eailway Co., 
 See Saunders v. Topp, ante. 13 M. & "W. 38. Field v. Runk, 22 N. 
 
 2 2 C. & P. 532. J. L. 525. 
 
 ' Ehodes «. Thwaites, 9 D. & E. « Bigg v. Wheeling, 14 C. B. 195. 
 293 ; Baldey v. Parker, 2 B. & C. 37 ; 
 
SEC. 320.] ACCEPTANCE AND EEUBIPT. 599 
 
 common steel was accepted, and the question was whether 
 the acceptance of the common steel operated also as an 
 acceptance of the cast steel, it was held that it did,i Paekb, 
 B., saying : " The first question in this case is, . . . whether 
 there was a sufficient part acceptance of the goods ordered 
 to take the case out of the statute of frauds. There was a 
 joint order for common steel and cast steel: the effect of 
 such joint order, unless explained, would be to make it one 
 entire contract, since we must assume that one article would 
 not have been furnished at one stipulated price, unless the 
 other had been agreed to be paid for at the other price. 
 There was no explanation in this case, and therefore it must 
 be taken to be a joifit contract. Then one of the articles, 
 the common steel, was certainly accepted ; and the question 
 is, whether that acceptance is suflScient to take the case out 
 of the statute as to the cast steel also ; and I am clearly of 
 opinion that it is. The object of the statute was to prevent 
 perjury in proving by parol a contract which was never made 
 in fact; but none of its provisions effectually exclude per- 
 jury ; they only tend to diminish the probability of its being 
 committed. There may be perjury in swearing to the hand- 
 writing of the party charged, or in proving the agency of 
 the party signing on his behalf: neither does the acceptance 
 of the goods or the giving of earnest operate as a certain 
 prevention of perjury. Looking, then, at the words of the 
 statute, and assuming that there is but one contract, I am of opin- 
 ion that there was an acceptance of part of the goods sold, witliin 
 the words and also within the principle of the statute. I should 
 have been of this opinion, supposing that there were no 
 decided case on the subject. Several cases have, however, 
 been referred to on the part of the defendant, for the pur- 
 pose of proving that this was not a sufficient part accep- 
 tance. In Thompson v. Maceroni,^ the court held that the 
 acceptance of a small part of goods to the value of £144, 
 made to order, was not sufficient to enable the seller to 
 recover against the buyer for the price of the whole, as for 
 goods sold and delivered. The court there say, in effect, that 
 there was no proof of actual delivery, nor such proof of actual 
 
 ' Elliott V. Thomas, 3 M. & W. ^ Thompson v. Maceroni, 3 B. & 
 176. C. 1. 
 
600 STATUTE OF FEAX7DS. [CHAP. XII. 
 
 acceptance as to take the case out of the statute of frauds, 
 i.e., the defendant had not accepted the whole, so as that a 
 count for goods sold and delivered could be maintained for 
 the whole. That case seems to me to have turned entirely 
 on the form of the action ; the plaintiff could not succeed 
 unless there was a delivery of the whole, or at least an actual 
 acceptance and receipt of the whole, so as to be equivalent 
 to a delivery. In Hodgson v. Le Bret,^ Loed Ellen- 
 BOEO0GH formed his opinion apparently on the ground of 
 there having been separate contracts ; but that case is greatly 
 shaken by Baldey v. Parker,^ which shows that the contract 
 in Hodgson v. Le Bret ought to have been eonsidered as a 
 joint one, and that the act of the purchaser's writing her 
 name on the goods was no acceptance. Hodgson v. Le Bret, 
 therefore, is no binding authority. No other case was cited 
 in argument which bears upon the point ; and that of Price 
 V. Lea,^ referred to by my brother Aldeeson, is rather an 
 authority the other way. Holeoyd, J., there says : ' There 
 was not then one entire contract for both the articles, so as 
 to make the acceptance of one the acceptance of the whole.' 
 The inference, therefore, is (I do not say it is conclusive), 
 that if the contract had been entire, the acceptance of part 
 would have been deemed sufficient to take the case out of 
 the statute as to the whole. I am of opinion, therefore, that 
 there was in this case a sufficient acceptance of part to bring 
 the case within the exception of this section of the statute 
 of frauds ; and that the defendants may be made responsible 
 upon this joint contract for two articles, by the receipt of 
 one ; provided both the articles were furnished according to that con- 
 tract, and were such as ought to have been delivered pursuant to it. 
 That was to be proved by the plaintiff, and he did give evi- 
 dence of it for the consideration of the jury." Where a 
 vendee has accepted a part of the goods under a contract of 
 sale, he cannot refuse to accept the residue upon the ground 
 that those accepted were of inferior quality, but if, when the 
 residue of the goods are tendered, they prove to be of inferior 
 quality, he may reject them, otherwise he must receive them.* 
 
 1 Hodgson V. Le Bret, 1 Camp. 233. Scott v. Eastern Co. Railway Co., 12 
 
 2 Baldey v. Parker, 2 B, & C. 37. M. & W. 33. 
 
 s Price v. Lea, 1 B. & C. 156 ; * Cohen v. Piatt, 69 N. Y. 348. 
 
SEC. 322.] ACCEPTANCE AND RECEIPT. 601 
 
 Sec. 321. when Contract is not Entire. — But if the contract 
 is not entire, or if goods are sent in excess of tJie order, the accep- 
 tance of part will not be an acceptance of all. Thus, where the 
 traveller of A and Co. in London, having called upon B in 
 the country for orders, B gave an absolute order for a quan- 
 tity of cream of tartar, and offered to take a quantity of lac 
 dye at a certain price, and the traveller said the price was 
 too low, but that he would write to his principals, and if B 
 did not hear from them in one or two days, he might con- 
 sider that his offer was accepted, and A and Co. never wrote 
 to B, but sent all the goods, it was held that there was not 
 one entire contract for both the articles, and therefore that 
 the acceptance of one was not equivalent to the acceptance 
 of the whole.^ So where a purchaser ordered four dozen of 
 wine, and the vendor sent him eight dozen, and the purchaser 
 kept thirteen bottles and returned the rest, it was held that 
 there was no part acceptance, but a new contract as to the 
 wine kept, and the purchaser was only liable upon that.^ In 
 a Massachusetts case;^ the defendant ordered a cargo of coal 
 of three hundred and seventy-five tons. The vendor shipped 
 to him three hundred and ninety-two tons. The court held that 
 the defendant was not bound to receive the substituted cargo.* 
 
 Sec. 322. Goods not Made. — Where an order is given for 
 goods, some of which are ready made at the time of the con- 
 tract, and the rest are to be manufactured according to order, 
 and the goods which are ready made are afterwards delivered 
 and paid for, the acceptance of them is a part acceptance of the 
 whole to satisfy the statute, as the contract is entire. Thus, 
 where certain lamps were ordered by the defendants, all of 
 which were of a well-known and ordinary description, with 
 the exception of a triangular lamp, which was very peculiar, 
 and the ordinary lamps were delivered and paid for, but the 
 triangular lamp was not finished for two years, and when 
 delivered the defendants refused to receive or pay for it, it 
 
 » Price V. Lea, 1 B. & C. 156. man v. Free, L. R. 4 Q. B. 600 ; Tarl- 
 
 ' Hart ». Mills, 15 M. & W. 85 ; ing v. O'Riandorn, L. R. Ir. 82. 
 
 and see Cunliffe v. Harrison, 6 Ex. * Rounnel v. Wingate, 103 Mass. 
 
 903 ; Gorman », Boddy, 2 C. & K. 145 ; 327. 
 
 Levy V. Green, 8 E. & B. 575 ; Dixon * Hill u. Heller, 27 Hun (N. Y.) 
 
 V. Fletcher, 3 M. & W. 145 ; Borrow- 416. 
 
602 STATUTE OF FEAT7DS. [CHAP. Xir. 
 
 was held that there was but one contract, and that the accep- 
 tance of some of the goods was enough to take the case out 
 of the statute.^ Alderson, B., saying : " The articles bar- 
 gained to be made are treated for this purpose as goods 
 actually made, although they are not in existence at the time 
 of the agreement." In a Colorado case,^ this rule was ap- 
 plied in the case of a verbal contract for the sale of lumber, 
 and it may be said to be well established in our courts, and 
 to be in strict conformity with the letter and spirit of the 
 statutes.^ 
 
 Sec. 323. Goods Sold by Principal as if Agent. — Where a 
 principal enters into a contract for the sale of goods, in 
 which he describes himself as an agent, and the buyer 
 accepts and pays the price of a portion of the goods, he 
 cannot, after notice that the alleged agent was himself the 
 real principal in the transaction, refuse to accept the residue 
 of the goods ; and the principal may sue in his own name for - 
 the non-acceptance of and non-payment for the residue.* 
 
 Sec. 324. Mixed Contract. — A contract for the sale of 
 goods, for a sum equal to that named therein, is not the less 
 within the statute of frauds, because it also embraces some- 
 thing to which the statute does not extend, as an exchange.^ 
 Thus, where it was agreed by parol between the plaintiff and 
 defendant that the plaintiff should sell the defendant a mare 
 and foal, and should keep them until a certain day at his own 
 expense, and that the plaintiff should also for a given time 
 keep and feed a mare and foal belonging to the defendant, 
 aiid that in consideration of all this the defendant should 
 fetch away the plaintiff's mare and foal on the day named, 
 and pay him £30, it was held that this, so far as it related to 
 the sale of the plaintiff's mare and foal, was a contract within 
 the seventeenth section of the statute, and void for want of 
 writing.^ 
 
 1 Scott V. Eastern Counties Rail- Welsh, 11 id. 235 ; Oilman v. Hill, 36 
 way Co., 12 M. & W. 33. N. H. 311. 
 
 2 Sloan Saw Mill &o. Co. „. Gutth- * Rayner v. Grote, 15 M. & W. 359. 
 sail, 3 Cal. 8. ^ Bach v. Owen, 5 T. R. 409. 
 
 « Gault i>. Brown, 48 N. H. 183 ; e Harman v. Reeve, 18 C. B. 586 ; 
 
 Phelps V. Cutter, 4 Gray (Mass.) 137; 25 L. J. C. P. 257; see alsoBenj. on 
 
 Knight V. Dunlop, 5 N. Y. 537 ; Marsh Sales, 2d ed. 108. 
 V. Hyde, 3 Gray (Mass.) 331 ; Ross v. 
 
SEC. 326.J ACCEPTANCE AND llECEIPT. 603 
 
 Sec. 325. Vendee Must Have an Opportunity of Judging 
 ■Whether G-oods Correspond with Order. — There can be no ac- 
 ceptance and actual receipt of goods, unless the vendee has had an 
 opportunity of judging whether the goods sent correspond with the 
 order,^ or the buyer must have done something which amounts to a 
 waiver of this riglit.^ Therefore, where the defendant agreed 
 to purchase of the plaintiff bones of a particular kind, to be 
 separated from a heap of various bones, and gave the plain- 
 tiff a note addressed to a wharfinger to receive and ship the 
 bones ; and the plaintiff accordingly sent to the wharf some 
 bones, which, on inspection, the defendant refused to accept, 
 on the ground that they were not'what he bargained for ; it 
 was held that although there was a receipt, there was no 
 acceptance to satisfy the statute, as the purchaser of goods 
 to be separated from the bulk could not be said to have 
 accepted them tUl they were separated, and Maetin, B., 
 said : " In my opinion, an acceptance, to satisfy the statute, 
 must be something more than a mere receipt ; it means some 
 act done after the vendee has exercised, or had the means of 
 exercising his right of rejection."* In Coombs v. The Bristol 
 and Exeter Railway Company,* Pollock, C. B., said : " There 
 is a decision in this court, Norman v. Phillips,^ that in order 
 to satisfy the statute of frauds, the consignee must have had 
 the power to reject the goods" ; and Bramwell, B., said: 
 " There must he some affirmative act of acceptance to make the 
 contract good" ; and referring to the judgment of Lokd 
 Campbell in Morton v. Tibbett,^ that there may he an accept- 
 ance and receipt of goods hy a purchaser within the statute, 
 although he has had no opportunity of examining them, and 
 although he has done nothing to preclude himself from object- 
 ing that they do not correspond with the contract, his lordship 
 said : " / agree with that, hut in such a ease the party must 
 have done something to waive his right to reject the goods."'' 
 
 Sec. 326. User or Experiments to Ascertain Quality. — When 
 the nature of the goods is such that their quality cannot he 
 
 1 Smith V. Surman, 9 B. & C. 561 ; son, 6 B. & S. 431 ; 34 L. J. Q. B. 145; 
 Norman v. Phillips, 14 M. & W. 277. Heilbutt v. Hickson, L. R. 7 C. P. 438. 
 
 2 Bkamwell, B., in Coombs v. * 3 H. & N. 510; 27 L. J. Ex. 401. 
 Bristol &c. Railway Co., 3 H. & N. ^ i4 M. & W. 277. 
 
 517 ; Morton v. Tibbetts, ante. « 15 Q. B. 441. 
 
 8 Hunt V. Hecht, 8 Exch. 814; 22 ' BogLeadMiningCo.u.Montagiie, 
 
 L. J. Ex. 293; and see Smith u. Hud- 10 C. B. N. S. 481. 
 
604 STATUTE OF FRAUDS. [CHAP. XII. 
 
 ascertained at once, the purchaser is entitled to keep them for 
 a reasonable time, for the purpose of examination. And if a 
 small quantity of the goods have been experimented upon 
 for the purpose of testing their quality, that does not amount 
 to an acceptance, and the purchaser will be entitled, if they 
 are defective, to return them within a reasonable time.^ 
 Jlven if the purchaser has used more of the goods than was 
 absolutely needful to ascertain their quality, it appears that 
 this will not necessarily amount to an acceptance.^ Where the 
 plaintiff sold the defendant a hogshead of cider by sample, 
 as good draught cider, and after the arrival of the cask the 
 defendant on the 28th of May wrote to the plaintiff, " The 
 cider differs from the sample, and the little I have sold has 
 been complained of in every instance ; should this continue, 
 I shall be obliged to return it," and the plaintiff did not 
 answer this letter till the 24th of June ; and the defendant, 
 in trjdng to sell the cider, used twenty gallons ; but finding 
 it unserviceable, refused to pay for the rest, which he returned 
 to the plaintiff ; and it was found as a fact that the twenty 
 gallons were more than sufficient to enable the defendant to 
 test the quality of the bulk ; it was held that the omission of 
 the plaintiff to answer the letter of the 28th of May was 
 evidence from which a jury might presume that the plaintiff 
 acquiesced in the further trial of the cider, and that the 
 defendant had not so accepted the bulk as to be bound to 
 pay for the whole.' 
 
 Sec. 327. Goods Need Not Be Returned. — It is not necessary 
 thai there should be a return of the goods, either actual or consU-uc- 
 tive.* Thus, where goods were sold by sample, and the bulk 
 was found by the purchaser, on inspection after delivery, not 
 to be equal to sample, it was held that the purchaser might 
 reject the goods by giving notice to the vendor that he would not 
 accept them, and that they were at the vendor's risk ; and that 
 he was not bound to send back, or offer to send back, the 
 goods to the vendor, or place them in neutral custody.^ 
 
 1 Cunliffe v. Harrison, 6 Exeh. 903 ; » Lucy v. Mouflet, 5 H. & N. 229 ; 
 20 L. J Ex. 325; Heilbutt v. Hickson, and see Grimoldby v. "Wells, L. R. 10 
 L. R. 7 C. P. 438. C. P. 391. 
 
 2 Elliott V. Thomas, 3 M. & "W. 170 ; * Lucy v. Mouflet, 5 H. & N. 233. 
 Curtis V. Pugh, 10 Q. B. Ill ; Toulmin ' Grimoldby v. Wells, L. R. 10 C. 
 II. Hedley, 2 Car. & K. 157. P. 391 ; Taylor v. Mueller, 30 Minn. 343. 
 
SEC. 328.] ACCEPTANCE AND EECEIPT. 605 
 
 Sec. 328. Delay in Refusing may Amount to Acceptance. — 
 
 It appears to be clear that where goods are forwarded to a vendee, 
 he is bound to notify his refusal, in case he objects to take the goods, 
 to the vendor within a reasonable time, otherwise he may be con- 
 sidered to have accepted them ; whether or not the refusal 
 was within a reasonable time is of course a question of fact 
 for the jury.i In Bushel v. Wheeler ^ it appeared that the 
 plaintiffs were the assignees of bankrupts who had carried 
 on business as manufacturers of iron. The defendant had 
 ordered of the bankrupts, before their bankruptcy, certain 
 mill machinery, to be forwarded to him at Hereford by the 
 Hereford sloop. The machinery was forwarded on the 23d 
 of April. On the 25th of April a letter of advice with an 
 invoice at three months' credit was sent to the defendant. 
 The goods arrived at Hereford, and were there placed in the 
 warehouse on the wharf of the owner of the sloop, and the 
 defendant was informed of this immediately. On the 7th of 
 October the goods were repudiated. The defendant proved 
 that after the arrival of the goods at the warehouse he had 
 seen them, and had informed the warehouseman that, he, the 
 defendant, did not intend to take them. Eeskine, J., directed 
 the jury to find a verdict for the defendant, reserving leave 
 to move \o enter a verdict for the plaintiff. It was held that 
 the judge ought not to have told the jury that there was no 
 acceptance, and a new trial was directed. Loed Denman, 
 C. J., said that " such a lapse of time, connected with the 
 other circumstances, might show an acceptance ; whether 
 there was an acceptance or not is a question of fact." Wil- 
 liams, J., said : " Something there must be in the nature of 
 constructive receipt, as there is constructive delivery. It 
 being, then, once established that there may be an actual 
 receipt by acquiescence, wherever such a case is set up it 
 becomes a question for the jury whether there is an actual 
 receipt." And Coleeidgb, J., said : " In almost all cases it 
 is a question for the jury whether particular instances of 
 acting, or forbearing to act, amount to acceptance and actual 
 receipt. Here goods are ordered by the vendee to be sent by 
 
 1 Coleman v. Gibson, 1 Mood. & Blake, 2 C. & P. 514 ; Downs v. Marsh, 
 
 Kob. 168; Bowes v. Pontifex, 3 F. & 29 Conn. 409; Hirchborn v. Stewart, 
 
 r. 739 ; Richardson v. Dunn, 1 G. 49 Iowa 418. 
 & D. 417; 2 Q. B. 218; Perciral v. ^ 15 Q. B. 442, n. 
 
606 STATUTE OF FRAUDS. [CHAP. XII. 
 
 a particular carrier, and in effect, to a particular warehouse ; 
 and that is done in a reasonable time. That comes to the 
 same thing as if they had been ordered to be sent to the 
 vendee's own house, and sent accordingly. In such a case 
 the vendee would have had the right to look at the goods, 
 and to return them if they did not correspond to order. But 
 here the vendee takes no notice of the arrival, and makes no 
 commxinication to the party to whom alone a communication 
 was necessary." ^ In Norman v. Phillips ^ the defendant, a 
 builder at Wallingford, gave the plaintiff, a timber merchant 
 in London, a verbal order for timber, directing it to be sent 
 to the Paddington Station of the Great Western Railway, to 
 be forwarded to him at Wallingford, as had been the practice 
 between the parties on previous dealings between them. The 
 timber was accordingly sent, and arrived at the Wallingford 
 Station on the 19th of April, and the defendant was informed 
 by the railway clerk of its arrival, upon which he said he 
 would not take it. An invoice was sent a few days after, 
 which the defendant received and kept, without making any 
 communication to the plaintiff himself until the 28th of May, 
 when he informed the plaintiff that he declined taking the 
 timber. It was held that although there might be a scintilla 
 of evidence for the jury of an acceptance of the timber, yet 
 that there was not sufficient to warrant them in finding that 
 there was such an acceptance ; and the court set aside a verdict 
 found for the plaintiff as not warranted by the evidence.^ But 
 the dealings between the parties may be such as to prove that there has 
 been an agreement that the vendee may delay exercising his right of 
 rejection. Thus in Cunliffe v. Harrison * the action was for 
 goods sold and delivered, to recover the price of ten hogs- 
 heads of claret. It appeared that the defendants having 
 ordered some hogsheads of claret, the plaintiff in October 
 sent them fifteen, whereupon the defendants by letter informed 
 the plaintiff that they had requested that ten only should be 
 shipped, and that they could take that number only on their 
 
 1 And see Morton v. Tibbett, 15 Q. 2 14 M. & W. 277. 
 
 B. 428 ; 19 L. J. Q. B. 382 ; Parker v. » And see NichoUs v. Plume, 1 C. 
 
 Wallis, 5 E. & B. 21 ; Smith v. Hud- & P. 272 ; Gorman v. Boddy, 2 C. & 
 
 son, 6 B. & S. 431 ; 34 L. J. Q. B. 145 ; K. 145. 
 in all of which it was considered that * 6 Exch. 903. 
 delay in rejecting amounts to some 
 evidence of acceptance. 
 
SEC. 330.] ACCEPTANCE AND RECEIPT. 607 
 
 proving satisfactory, and that they would hold the other five 
 on the plaintiffs account. The plaintiff replied : " You will 
 ascertain in the spring whether you have room for it." The 
 defendants placed the wine in a bonded warehouse in their 
 own names, and shortly afterwards tasted the wine and 
 disapproved of it, and gave the plaintiff notice in April that 
 they would not take any part of it. It>was held that there 
 was no acceptance, inasmuch as the defendants under the 
 contract had the option of rejecting the wine in the spring, 
 and they had availed themselves of that option. The same 
 rules apply in cases where the acts of acceptance relied upon 
 are the retention of the bill of lading or other indicia of 
 ownership, and the vendee's dealing therewith.^ 
 
 Sec. 329. Purchaser Cannot after Acceptance 'Withdraw 
 unless Fraud. — After the purchaser of goods has once accepted 
 and received them, he cannot withdraw from his bargain 
 except on the ground of fraud,^ because the contract by such 
 acts becomes as valid as though it had originally been in 
 writing, and the rights, liabilities, and remedies of the parties 
 become the same as they would be under a valid written 
 contract,^ and the power of rescission, except for fraud, is 
 gone. In a Connecticut case* the court held that a party 
 has no power to rescind a contract of purchase unless there 
 is a provision in it, giving him the right to do so, and that if 
 the property purchased does not answer the terms of the 
 contract, there being no fraud in the case, his only remedy is 
 by an action for a breach of the contract. 
 
 Sec. 330. Vendor's Consent to Acceptance Necessary. — In 
 order to satisfy the statute there must be an acceptance and 
 actual receipt of the goods, or part of them, with the consent 
 of the vendor, and if before such acceptance the vendor 
 rescinds the contract, the assignees of the buyer, in the case 
 of his bankruptcy, cannot claim them, although they have 
 been delivered to a carrier, consigned to the buyer. In Smith 
 V. Hudson^ the defendant, on the 3d of November, 1863, 
 
 1 Quintard v. Bacon, 99 Mass. 185; ' Marsh v. Hyde, 3 Gray (Mass.) 
 Farina v. Howe, ante. 333 ; Townsend v. Hargreaves, 118 
 
 2 Saunders v. Topp, 4 Exch. 390 ; Mass. 325 ; Knight i;. Mann, 118 Mass. 
 18 L. J. Ex. 874 ; Buckmgham v. Os- 145 ; Atherton v. Newhall, 123 id. 141. 
 borne, 44 Conn. 133 ; Jackson v.WaXtB, * Buckingham v. Osborne, ante. 
 
 1 McCord. (S. C.) L. 288. » 6 B. & S. 431 ; 34 L. J. Q. B. 145. 
 
608 STATUTE OF FEAUDS. [CHAP. XII. 
 
 entered into a verbal contract with W to sell him barley by 
 sample. The bulk was taken on the 7th of November by the 
 defendant to a railway station, and left there with a delivery 
 note. It is the custom of the trade for the buyer to compare 
 the sample with the bulk as delivered, and if the examination 
 is not satisfactory, to strike it, that is, either refuse to accept 
 it, or allow it to remain as the property of the vendor ; and 
 it was in the power of W to strike the corn if it had not 
 proved according to sample. On the 9th of November W 
 was adjudicated a bankrupt, and on the 11th the defendant 
 gave notice to the station-master not to deliver the corn to 
 the bankrupt or his assignees, or any other person without 
 his written consent. At the time of the notice the bankrupt 
 had given no order or direction respecting the corn, nor had 
 he examined it to see whether the bulk corresponded with 
 the sample, nor had he given any notice to the defendant 
 that he accepted or declined it. On the 1st of December the 
 assignees of W claimed the corn ;■ on the 5th the railway 
 company, on an indemnity from the defendant, delivered it 
 to him. It was held that there was no acceptance sufficient 
 to satisfy the statute.^ 
 
 Sec. 331. Contract Disaffirmed by Vendor. — If at the time 
 when the purchaser of goods takes to them as owner the parol con- 
 tract has been already disaffirmed by the vendor, there can be no 
 acceptance. Thus, where it was verbally agreed between the. 
 owner of goods and a person who was in possession of them 
 as his tenant, that the tenant might, if he pleased, purchase 
 them at the termination of his tenancy, but that he was not 
 to take them till the money was paid, and at the expiration 
 of the tenancy the buyer tendered the price, but it was 
 refused by the vendor, who denied the validity of the bargain, 
 and after this the vendee proceeded to take away the goods, 
 and the vendor prevented him and took possession of them ; 
 it was held that there was no evidence to go to the jury of 
 acceptance and receipt.^ 
 
 Sec. 382. Acceptance by Agents. Rule in Rodgers V. 
 Jones. — In order to bind a principal by the acceptance 
 of an agent, of property sold to him, it m,ust appear that he 
 
 1 And see Bolton v. Lancashire ^ Taylor i'. Wakefieldj 6 E. & B. 
 
 Hallway Co., L. R. 1 C. P. 431. 765. 
 
SEC. 332.] 
 
 ACCEPTANCE AND KECEIPT. 
 
 609 
 
 had authority to accept, or that the principal has under- 
 slandingly ratified his act in that respectA But authority to 
 buy necessarily carries with it authority to accept.^ Thus, 
 in a New York case,* it was held that an acceptance 
 by a broker of stock which he was authorized to purchase 
 by the principal, was operative to take the case out of 
 the statute. But authoritj'^ to receive does not necessarily 
 import authority to accept,* nor can this authority be dele- 
 
 ' Bodgers v. Jones, 129 Mass. 420; 
 Caulkins v. Hellman, 14 Hun (N. Y.) 
 330; AfE'd, 47 N. Y.; Berkley v. R. 
 & S. R. R. Co., 71 N. Y. 205. An 
 acceptance by a clerk or a shop boy 
 will not bind the principal- Smith v. 
 Mason, Anth. N. P. (N. Y.) 225. But 
 in all cases auihority to accept, express 
 or implied, must be shown : Dyer v. 
 Forrest, 2 Abb. Pr. (N. Y.) 282; Out- 
 water V. Dodge, 6 Wend. (N. Y ) 397 ; 
 Remick v. Sandf ord, 120 Mass. 309 ; 
 Safford o. McDonough, 120 id. 290; 
 Spencer v. Hale, .30 Vt. 314 ; Barney 
 V. Brown, 2 id. 374 ; Frostburg Mining 
 Co. u. N. E. Glass Co., 9 Cush. (Mass.) 
 115. In a New York case, it appeared 
 that G and other directors of a fair 
 association ordered goods to be sent 
 by express for the use thereof ; that 
 they were sent addressed to G, on his 
 agreement to be individually respon- 
 sible ; and that they were received by 
 T without any objection on the part 
 of G, and used by the association. It 
 was held, to warrant a finding that T 
 was authorized to accept the goods ; 
 that the acceptance was sanctioned 
 by G, and that there was a valid de- 
 livery within the statute of frauds. 
 Wilcox Silver Plate Co. v. Green, 72 
 N. Y. 17; Field v. Runk, 22 N. J. L. 
 525 ; Berkley v. R. & S. R. R. Co., 71 
 N. Y. 205; Rogers v. Gould, 4 Hun 
 (N. Y.) 229. 
 
 2 Snow V. Warner, 10 Met. (Mass.) 
 132. 
 
 ' Rogers v. Gould, 6 Hun (N. Y.) 
 229. 
 
 * In Jordan v. Norton, 4 M. & W. 
 155, it appeared that after some ne- 
 gotiation between the plaintiff and 
 defendant (who lived at the distance 
 
 of about thirty miles from each other) 
 for the purchase by the defendant of 
 the plaintiffs mare, she was sent on 
 the 16th of October, 1837, at the de- 
 fendant's request, to a public-house 
 called the World's End, nearly half- 
 way between their houses, for trial by 
 the defendant. The defendant's son, 
 in his presence, rode the mare, and 
 the defendant then offered twenty 
 guineas for her, which was refused by 
 the plaintiff's servant who had her in 
 charge, he having directions from the 
 plaintiff not to take less than £22, 
 and lie took her back. The plaintiff, 
 however, was afterwards willing to let 
 the defendant have her for twenty 
 guineas, and wrote to liim to that 
 effect. The defendant wrote in 
 answer as follows : 
 
 " Uxbridge, October 17, 1837. 
 
 "Sir, — I will take the mare at 
 twenty guineas, of course warranted ; 
 but as you say you have another horse 
 that I shall buy, the same expense 
 will bring the two up; therefore, as 
 the mare lays out, turn her out my 
 mare; and I will meet you at West 
 Wycombe, Saturday or Monday, 
 which day you like and pay you at 
 once. — W. NoBTON." 
 
 The mare was sent to Wycombe 
 accordingly, but the defendant was 
 not there ; two appointments also 
 which were subsequently made, one 
 at the World's End, and the other at 
 Wycombe, not having been kept by 
 him, the plaintiff wrote to him on the 
 subject, and received the following 
 answer : 
 
 "Uxbridge, October 26, 1837. 
 
 "Sir, — Of course I mean to have 
 the mare, and if you had read my 
 
610 
 
 STATUTE or PRAUDS. 
 
 [chap. xn. 
 
 to another. Thus, in a Massachusetts case,^ the 
 defendant made an oral agreement with the plaintiff to 
 
 1 Eodgers v. Jones, 129 Mass. 420. 
 
 note properly it would have saved 
 you a great deal of trouble. I now 
 say, my son will be at the "World's 
 End on Monday, the 30th instant, 
 when he will take the mare and pay 
 you. If you want to go elsewhere, 
 send anybody with a receipt, and the 
 money shall be paid ; only say in the 
 receipt sound, and quiet in harness." 
 
 On the 27th of October, the plain- 
 tiff wrote in answer: "I will send 
 the mare as desired ; she is warranted 
 sound, and quiet in double harness; I 
 never put her in single harness, as I 
 never wanted it." On the 30th the 
 mare was sent to the World's End, 
 according to the appointment ; but the 
 defendant's son not being there, the 
 plaintiff's servant left her in the care 
 of the landlord, with directions not to 
 give her up to the defendant without 
 payment of the price. After he had 
 gone, the defendant's son came, took 
 away the mare without paying for 
 her, rode her home (a distance of 
 eighteen miles) to the defendant's 
 stable, where she was kept two days, 
 and then sent back as being unsound, 
 her legs being at that time swelled ; 
 but the plaintiff refusing to receive 
 her, she was turned out of his yard, 
 and it did not appear what had be- 
 come of her. 
 
 The son, who was called as a wit- 
 ness for the defendant, said that his 
 father had given him directions not 
 to bring the mare away from the 
 World's End without the warranty, 
 and was angry with him for having 
 done so. He also, as well as the 
 person who took her back to the 
 plaintiff's, spoke to her unsoundness 
 at that time. This evidence was ob- 
 jected to by the plaintiff's counsel, 
 but the learned judge held that it was 
 receivable in mitigation of damages. 
 In summing up, his lordship told the 
 jury that the plaintiff was bound, in 
 order to recover, to prove a delivery 
 of the mare; but there could not. 
 
 under the circumstances of the case, 
 be a complete delivery unless there 
 had been an acceptance on the part of 
 the defendant, whereby he had waived 
 the conditions he had previously re- 
 quired, and which the plaintiff had 
 not complied with, namely, the giving 
 of a receipt, and of a warranty in- 
 serted in it : that the question whether 
 there had been such acceptance would 
 depend on whether the defendant had 
 returned the mare within a reasonable 
 time or not ; and if they thought he 
 had returned her within a reasonable 
 time, that they should find for the de- 
 fendant ; if not, for the plaintiff. He 
 also desired them to state their opinion 
 whether the defendant's son had 
 authority to take away the mare 
 without a warranty. The jury found 
 that the defendant had not accepted 
 the mare, and that the son had no 
 authority to take her away. The 
 judge thereupon directed a verdict for 
 the defendant, giving the plaintiff 
 leave to move to enter a verdict for 
 the sum of £21, in case the court 
 should think the direction to the jury, 
 and the admission of evidence of tm- 
 soundness, to have been wrong. 
 
 Upon appeal the verdict was sus- 
 tained, Pakke, B., saying : " The first 
 question to be disposed of is whether 
 there is any evidence of a complete 
 contract in writing between the parties. 
 If there was, then the only step neces- 
 sary to be proved in order to entitle 
 the plaintiff to recover in this action, 
 was to prove the delivery of the mare, 
 and it was not competent to the de- 
 fendant to annex to it any conditions. 
 It certainly appears that the mare 
 was seen by the defendant, and ridden 
 in his presence, and twenty guineas 
 offered by him for her, prior to the 
 first material letter to which I am 
 about to advert ; that is, on the 16th 
 of October. Then, on the 17th, the 
 defendant writes a letter to the plain- 
 tiff, which amounts to a proposal to 
 
SEC. 332.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 611 
 
 purcliase of him a lot of skins at an agreed price per pound 
 for merchantable skins, and directed one Koehler to see them 
 put up and taken away, but directed him not to take them 
 away before the following Friday or Saturday. Koehler only 
 remained to see apart of the skins packed, telling the plaintiff: 
 " There is no need of my staying here any longer. This is a 
 good lot of skins. There is no chance for any question as to 
 quality of skins, and you go ahead and put them up. ... I 
 know you well enough. I'll take the risk of your doing it all 
 right. You go ahead and put up the skins." The plaintiffs 
 did go ahead, and packed the skins ready for delivery on the 
 next Saturday, and marked each bundle with the defendant's 
 initials. Koehler had previously told them that he would 
 
 take the mare on new terms, one of 
 which was not yet arranged between 
 the parties. This letter amounts only 
 to a proposal to give twenty guineas 
 for the mare, proTided she were war- 
 ranted ; but the terms of the warranty 
 still remained to be agreed upon. If 
 the parties do not agree upon a war- 
 ranty which shall be satisfactory to 
 both, there is no complete contract. 
 We are to see, then, whether there 
 was a warranty subsequently agreed 
 on. Next comes the letter of the 
 26th of October. By that letter the 
 defendant agrees to be bound by the 
 contract, if the plaintiff will give a 
 warranty of a particular description, 
 viz., that the mare is quiet in harness ; 
 that is, prima facie, in all descriptions 
 of harness. The plaintiff replies, that 
 he will agree, not to the precise terms 
 of the warranty asked for, but only 
 that she is quiet in double har- 
 ness. The correspondence, therefore, 
 amounts altogether merely to this : 
 that the defendant agrees to give 
 twenty guineas for the mare, if there 
 is a warranty of her being sound and 
 quiet in harness generally, but to that 
 the plaintiff has not assented. The 
 parties never have contracted in writ- 
 ing ad idem. 
 
 We are then to ascertain, in the 
 next place, whether this is supplied 
 by the parol evidence, or by the acts 
 or conduct of the parties. There is 
 
 nothing in the parol evidence to sup- 
 ply it ; the question therefore is, first, 
 whether the conduct of the defendant's 
 son at the World's End amounts to 
 an acceptance. It is contended that 
 the defendant is bound by the son's 
 acts on that occasion ; but I think he 
 is not, because the son had only a 
 limited authority ; and if a party con- 
 tracts with another through his agent, 
 he can take only such rights as the 
 agent can give ; and this is no hard- 
 ship on the plaintiff, because he was 
 distinctly informed that the son was 
 authorized to receive the mare if a 
 warranty were given that she was 
 quiet in harness. Then the only re- 
 maining question is, whether she was 
 in fact accepted by the defendant on 
 the terms of the limited warranty pro- 
 posed by the plaintiff. That question 
 was left to the jury, and they found it 
 in favor of the defendant. I agree, 
 that if there was a complete contract 
 in writing before, the direction of the 
 learned judge would not have been 
 quite correct; but the question being 
 whether there was an acceptance in 
 fact, the contract not being complete 
 before, the direction was perfectly 
 unexceptionable. The case comes 
 therefore to this : there was no com- 
 plete contract in writing by which 
 both parties were bound, there was no 
 sufficient delivery to the defendant, 
 and there was no acceptance." 
 
612 STATUTE OF FEATIDS. [CHAP. Xn. 
 
 send his team around Saturday morning and take away the 
 skins, but did not do so, and on Saturday night the skins 
 were destroyed by fire. The court held that no sub-accept- 
 ance of the skins by the defendants had been shown as would 
 satisfy the statute. In order to constitute an acceptance and 
 receipt under the statute it is not enough to show that the title 
 has passed to the vendee, but it must also be shown that he has 
 assumed the legal possession of them, either by taking them into the 
 custody and control of himself or of his authorized agent, so as to 
 terminate the vendor's possession of them and lien for the price. ^ 
 A person cannot act in the double capacity of agent for the 
 vendor in selling and for the vendee in accepting the goods, 
 as the law will not tolerate any man becoming both buyer 
 and seller at the same time, of the same article, and this is so 
 whether his action was attended by the utmost fairness or 
 not.^ Thus, in the case first cited in the last note an action 
 was brought to recover of the defendant for twenty-three 
 casks of wine, sold by the plaintiffs through their agent, 
 Gordon, to the defendant by parol contract. The wine was 
 sold in New York City, and by the terms of the contract 
 was to be delivered at Blood's Station, and Gordon was 
 engaged by the defendant to see to the shipping of the wine 
 to him from Blood's Station to New York City. The wine 
 
 ' Grey, C. J., in Rodgers v. Jones, gain in duplicate, one part of which 
 
 129 Mass. 422 ; Atherton v. Newhall, he headed with the name of the de- 
 
 123 id. 141 ; Saiford v. McDonough, fendant, and the other part with the 
 
 120 id, 290. name of tlie plaintiff. The defendant 
 
 2 Calkins v, Hellman, ante ; N. T. requested that the date might be 
 Cent'l Ins. Co. v. Nat. Protection Ins. altered, so that by the custom of the 
 Co., 14 N. Y. 85 ; Claflin v. Farm &c. hop trade he would haye a week's 
 Bank, 24 How. Pr. (N. Y.) 15. But more time for payment. The plaintiff 
 this rule does not prevail as to the consented, and the alteration was 
 making of a memorandum of a con- made by the factor, who tore from his 
 tract under the statute, at least as to book the part of the memorandum 
 factors and brokers. Thus, in Durrell headed with the name of the defendant 
 o. Evans, 1 H. & C. 174, the plaintiff, and delivered it to him, and kept the 
 a hop-grower, having sent samples of counterfoil in his possession. It was 
 his hops to his factor, the defendant held that there was evidence for the 
 went to the factor and offered to buy jury that the factor was the agent of 
 some at j£16 16 s. a cwt. After some both parties for the purpose of draw- 
 negotiation between the defendant, ing a record of the contract binding 
 the factor, and the plaintiff, the latter on them ; and that, if he were, the 
 agreed to sell the hops at that price, name of the defendant at the head of 
 and the factor wrote in his book, in that part of the memorandum de- 
 the presence of the plaintiff and de- livered to him was sulScient. 
 fendant, a memorandum of the bar- 
 
SEC. 333.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 613 
 
 was sold by sample, and the defendant retained the sample at 
 his place of business in New York. The wine was delivered 
 at Blood's Station, and shipped by Gordon from thence to 
 the defendant at New York, who refused to receive it. In 
 action for the price of the wine the plaintiffs relied upon the 
 defendant's arrangement with Gordon, and Gordon's acts 
 thereunder, to establish an acceptance of the wine by the 
 defendant. The court held that there was no evidence of an 
 acceptance, as Gordon could not act as agent for the plain- 
 tiffs and the defendant both at the same time, relative to the 
 same transaction. 
 
 Sec. 333. A Carrier of Goods has no Authority to Accept. — 
 A carrier of goods, although named by the vendee, has no 
 authority to accept the goods ; he is only an agent for the pur- 
 pose of receiving and carrying.^ Neither a wharfinger, or any 
 
 1 DeliTery to a carrier does not 
 operate to take a contract, invalid 
 under the statute of frauds, out of the 
 statute. The delivery of the goods to 
 a carrier does not constitute an accept- 
 ance of them by the vendee, tliereby 
 validating the contract. Nor does the 
 designation of a carrier in such void 
 contract or order clothe him with 
 power to make such acceptance for the 
 vendee. The vendor, being charge- 
 able in law with knowledge of the 
 invalidity of such contract or order, 
 who delivers the goods to the carrier 
 upon it, takes the risk of their accept- 
 ance by the vendee on arrival. Kei- 
 wert V. Meyer, 62 Ind. 587 ; Krudler v, 
 Ellison, 47 N. Y. 36; 7 Am. Rep. 402. 
 Where the contract of purchase and 
 sale is not valid.or complete by reason 
 of the statute of frauds, the goods 
 being over the value of ilO, the title, 
 still remains in the consignor, though 
 the goods have been delivered to the 
 carrier, and the contract still resting 
 in parol, the action must be brought 
 by the consignor. Coombs v. The 
 Br. & Ex. R. Co., 3 Hurl. & Nor. 510. 
 But in this case all the judges, in de- 
 livering opinions, admitted the rule 
 to be, that the consignee must have 
 brought the action had the order been 
 in writing, and the sale valid. The 
 
 question was whether the property 
 passed to the vendee. If it did, he 
 must sue. 
 
 In Allard v. Greasert, 61 N. Y. 1, 
 it is expressly decided, that a delivery 
 to a specified carrier does not consti- 
 tute an acceptance by the vendee, 
 and will not take the contract out of 
 the statute. There being no valid 
 contract at the time of the delivery, 
 the carrier, in such case, has no power 
 to bind the vendee by an acceptance 
 of the goods ; though it is held that a 
 vendee may accept before delivery, 
 as if a buyer examines and selects 
 particular articles of goods, and after- 
 ward sends a legal, valid order for 
 ♦hose selected articles. Cross v. 
 O'Donnell, 44 N. Y. 661; 4 Am. 
 Rep. 721. 
 
 In Johnson v. Cuttle, 105 Mass. 
 447 ; 7 Am. Rep. 545, the court uses 
 this language : " Mere delivery is 
 not sufiScient ; there must be un- 
 equivocal proof of an acceptance and 
 receipt by him " (the buyer). "Such 
 acceptance and receipt may indeed be 
 through an authorized agent. But a 
 common carrier (whether selected by 
 the seller or by the buyer), to whom 
 the goods are intrusted without ex- 
 press instructions to do anything but 
 to carry and deliver them to the 
 
614 
 
 STATUTE OF FEAUDS. 
 
 [chap. XII. 
 
 other person authorized to receive and keep goods for a ven- 
 dee, has any authority of acceptance, and if the vendee refuses 
 to take the goods, the person to whom they have been intrusted 
 holds them as agent for the vendor. Where the purchaser 
 of goods ordered them to be forwarded to him in a particular 
 manner, and desired a third person, who then had possession 
 of them, to see them delivered, measured, and put up prop- 
 erly, and they were sent to another warehouse belonging to 
 the vendor, when one of his clerks gave an invoice to the 
 purchaser, who took it and requested a week longer to pay 
 the money, and on the same day gave notice that he would 
 not accept the goods, it was held that there had not been an 
 acceptance.^ The delivery of goods bought abroad, on board 
 
 buyer, is no more than an agent to 
 carry and delirer the goods, and 
 has no implied authority to do the 
 acts required to constitute an accept- 
 ance and receipt on the part of the 
 buyer and to take the case out of the 
 statute of frauds. Snow v. Warner, 10 
 Mete. (Mass.) 1.32; Frostburg Mining 
 Co. V. New England Glass Co., 9 Cush. 
 (Mass.) 115; Boardman u. Spooner, 13 
 Allen, 353 ; Quintard i-. Bacon, 99 
 Mass. 185; Norman v. Phillips, 14 M. 
 & W. 277 ; Nicholson v. Bower, 1 El. 
 & El. 172 ; Caulkins v. Hellman, 47 N. 
 Y. 449; Hausman v. Nye, 62 Ind. 485. 
 There is no acceptance, although the 
 goods have been delivered to a car- 
 rier designated by the vendee, so long 
 as there remains in the vendee a right 
 to object to the quantity or quality 
 thereof, Lloyd v. Wright, 25 Ga. 215 ; 
 and no act of the seller alone can be 
 sufficient, Shepherd v. Pressey, 32 N. 
 'K. 49; but there must be some act of both 
 parties, which amounts to a transfer of 
 possession, and an actual receipt of 
 the goods which deprives the seller of 
 hie lien for the price. Edwards v. Gd. 
 Trunk Railway Co., 54 Me. 105. And 
 although an intention of the consignor 
 of goods to vest the right of property 
 in the consignee is clearly proved, still, 
 until the goods are received by the con- 
 signee, or some evidence is given of 
 his agreement to take them on his 
 own account, the goods are at the risk 
 
 of the shipper, and if the shippers 
 are enemies, they are good prize, if 
 captured. The Francis, 8 Cranch (IT. 
 S.) 359. Goods are received and ac- 
 cepted by the purchaser, within the 
 statute of frauds, when they are trans- 
 ported by the seller to the place of 
 delivery appointed by the agent who 
 contracted for them, and are there 
 delivered to another agent of the pur- 
 chaser, and are by him shipped to a 
 port where the purchaser had given 
 him general directions to ship goods 
 of the same kind. Snow v. Warner, 
 10 Met. (Mass.) 132. Thus, under a 
 contract for the purchase of railroad 
 ties, to be counted, inspected, and ac- 
 cepted by the purchaser, the ties were 
 delivered at the place agreed on, taken 
 by the purchaser, loaded on cars, and 
 sold ; and it was held this was such an 
 acceptance as rendered the purchaser 
 liable on the contract. White v. Han- 
 chett, 21 Wis. 415. 
 
 1 Astey V. Emery, 4 M. & Sel. 262; 
 Johnson v. Cuttle, 105 Mass. 447; 
 Frostburg Mining Co. v. N. E. Glass 
 Co., 9 Cush. (Mass.) 115; Denmead 
 V. Glass Co., 30 Ga. 637 ; Lloyd u. 
 Wright, 25 Ga. 212; Boardman v. 
 Spooner, 13 Allen (Mass.) 363; Shep- 
 herd w. Pressey, 32 N. H. 49; Haus- 
 man 17. Nye, 62 Ind. 485 ; AUard v. 
 Greasart, 61 N. Y. 1; Maxwell v. 
 Brown, 39 Me. 98; Grimes v. Van 
 Vechten, 20 Mich. 410; Jones v. Me- 
 
SEC. 334.] ACCEPTAITCB AND RECEIPT. 615 
 
 a ship chartered by the purchaser, is not a sufficient accept- 
 ance.^ Nor does the delivery at a railway station named by 
 the purchaser, in pursuance of a parol order by him, amount 
 to evidence of acceptance.^ While a carrier, even though 
 designated by the vendee, has no authority to accept the 
 goods,* yet, under such circumstances, the receipt of the 
 goods by the carrier, is a receipt by the vendee,* and to this 
 extent, the doctrine of some of the earlier cases holding that 
 a delivery to a designated carrier concludes the bargain, are 
 sustainable,^ but the doctrine of these cases to the effect that 
 the carrier may accept the goods, as we have seen, is exploded. 
 Sec. 334. Disputed Terms though Acceptance. — Where 
 goods have been delivered by the vendor arid accepted by the vendee, 
 that is evidence of the existence of a contract between the parties.^ 
 There may, however, be terms of the contract which may be 
 disputed, and these are questions of fact to be determined by 
 the jurj"^. Thus, where the plaintiffs sold a piano to the 
 defendant, and delivered it to the defendant, who kept it, 
 but refused to pay for it, alleging that it was delivered upon 
 an agreement that it should remain as security for the pay- 
 ment of certain outstanding bills which he had discounted 
 for the plaintiff, it was held that there was a sufficient accept- 
 ance within the statute, and that parol evidence was admissi- 
 ble to show the terms of the bargain.'^ 
 
 chanics Bank, 29 Md. 287 ; Snow v. * Wilcox Silver Plate Co. v. Green, 
 
 Warner, 10 Met. (Mass.) 132; Spencer 72N. Y. 18; Allardi-. Greasart,61 id.l. 
 
 V. Hale, 30 Vt. 315; Rodgers v. * Hart v. Sattley, 3 Camp. 528; 
 
 Phillips, 40 N. Y. 519. Dames v. Peck, 8 T. R. 330. 
 
 ^ Acebal v. Levy, 10 Bing. 367 ; * In Townsend ;;. Hargreaves, 118 
 
 4 M. & Sc. 217; and see Hanson o. Mass. 325, Colt, J., said: "An accept- 
 
 Armitage, 5 B. & Aid. 557 ; Johnson ance implies the existence of a completed 
 
 V. Dodgson, 2 M. & W. 656; Bushel contract, sufficient to pass the title, 
 
 ». Wheeler, 15 Q. B. 445; Norman v. which is not to be confounded with 
 
 Phillips, 14 M. & W. 277 ; Meredith that actual transfer of possession nec- 
 
 V. Meigh, 2 E. & B. 364 ; 22 L. J. Q. essary to defeat the vendor's lien, or 
 
 B. 401 (overruling Hart v. Sattley, 3 right of stoppage in transitu, or to 
 
 Camp. 528) ; Hunt v. Hecht, 8 Exch. show an actual receipt under the stat- 
 
 814; Hart v. Bush, E. B. & E. 494; ute." Marsh v. Hyde, 3 Gray (Mass.) 
 
 27 L. J. Q, B. 271 ; Cusack v. Eobin- 33. It proves the existence of a. cou- 
 
 sdn, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; tract of sale. Williams v. Burgess, 
 
 Stevens v. Stewart, 3 Cal. 140. 10 Ad. & El. 499; Atherton v. New- 
 
 2 Smith V. Hudson, 6 B. & S. 431 ; hall, 123 Mass. 141. 
 
 34 L. J. Q. B. 145. '' Tomkinson v. Staight, 17 C. B. 
 
 « Johnson v. Cuttle, ante ; Ather- 697 ; 25 L. J. C. P. 85. In this case, 
 
 ton V. Newhall, 123 id. 141 ; Nicholson Jakvis, C. J., said : " My mind has 
 
 ti. Bower, 1 El. & E. 172. wavered considerably during the dis- 
 
616 
 
 STATUTE OF FEAUDS. 
 
 [chap, XII. 
 
 Sec. 335. what is an* Actual Receipt. Distinctiou between 
 and " Acceptance." Test of, Vendor's Lien. — The statute, it 
 will be seen, requires that the goods shall be accepted and 
 received, and it is important to remember that acceptance and 
 receipt are distinct matters, for there may be a constructive 
 acceptance of goods without receipt, and there may be an 
 actual receipt of goods without acceptance.^ The test for 
 
 cussion of this case. At one time 
 I was inclined to think that there 
 had heen no acceptance under the 
 statute ; but after looking into the 
 matter, I now think that there was, 
 and that the rule, therefore, ought to 
 be discharged. In order to satisfy 
 the statute on a sale of goods for £10 
 or more, there must be a writing, or a 
 part payment, or a delivery and accep- 
 tance of the goods sold. I think those 
 words mean an acceptance of goods 
 sold at a price of £10, or more. In 
 this case there is no doubt that there 
 was a delivery and an acceptance. It 
 is just as if the defendant had said he 
 accepted on six months' credit. The 
 terms of the contract as to the time 
 when the money is to be paid would 
 then be the question in dispute, there 
 being no doubt about the acceptance. 
 The jury has found the acceptance, 
 and the terms set up by the plaintiffs. 
 This case really does not differ from 
 the ordinary case where a man says to 
 another, 'I have sold you goods for 
 present payment,' and the other an- 
 swers, ' You sold them on a month's 
 credit, and you have brought your 
 action too soon.' The fact that there 
 is no case to be found in the books to 
 support the defendant's view affords 
 a strong argument to show that it is 
 not in accordance with the meaning 
 of the statute. I think, in this case, 
 the defendant is precluded by the find- 
 ing of the jury, and tliat, therefore, 
 the rule ought to be discharged." 
 Williams, J. : "I think there is no 
 doubt there was a delivery and accept- 
 ance under the statute of frauds. No 
 doubt the acceptance was accompa- 
 nied by a denial by the defendant of 
 one of the terms necessary to support 
 this action, and for some time I felt 
 
 great difSculty in saying that any 
 proof could be offered, in lieu of writ- 
 ing, which amounted, instead of a cor- 
 roboration of the contract, to a denial 
 of it. But, upon the whole, I am of 
 opinion that nothing was intended in 
 the statute, except that the defendant 
 should have accepted in the quality 
 of vendee. The legislature has thought 
 that where there is a fact so consistent 
 with the alleged contract of sale as 
 acceptance, it would be quite safe to 
 dispense with the necessity of a writ- 
 ing. The statute does not mean that 
 the thing which is to dispense with 
 the writing is to take the place of all 
 the terms of the contract, but that the 
 acceptance is to establish the broad 
 fact of the relation of vendor and 
 vendee. Here the relation of vendor 
 and vendee was established, and that 
 was sufficient to satisfy the statute." 
 Chowder, J. : "I think there was 
 an acceptance within the statute of 
 frauds. The jury having found the 
 acceptance, there is no doubt there 
 was a delivery and acceptance, and 
 that enables the plaintiff to lay before 
 the jury evidence of the terms of the 
 contract. It seems to me, that all 
 that was necessary under the statute 
 was that there should have been a 
 contract of sale, and that, under that 
 contract, the vendee should have 
 accepted ; it being a question for the 
 jury on the parol evidence, what were 
 the precise nature and terms of the 
 contract." Danf orth v. Walker, 40 Vt. 
 257. 
 
 1 See Castle v. Sworder, 6 H. & N. 
 833 ; Marvin v. Wallace, 6 E. & B. 
 726 ; 25 L. J. Q. B. 369 ; and Smith v. 
 Hudson, 6 B. & S. 431 ; 34 L. J. Q. B. 
 145. When the purchaser or his as- 
 signs and the vendor come to an agree- 
 
SEC. 33S.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 617 
 
 determining whether there has been &n actual receipt by the 
 vendee, that has been laid down in many cases, is to inquire 
 
 ment that the vendor shall cease to 
 hold the goods as vendor, and shall 
 hold them as an agent of the owner 
 of the goods, his rights as vendor are 
 gone ; and though the cases now show 
 that such an agreement between the 
 vendor and the original purchaser 
 himself must be proved by stronger 
 evidence than one between him and a 
 subvendee, it does not seem disputed 
 that such an agreement may be made. 
 At one time, the weight of authority 
 was that such an agreement was to be 
 readily presumed ; now the weight of 
 authority is, that such an agreement 
 must be very distinctly proved, and 
 - that unless the vendor's lien on some 
 part of the goods be gone there can- 
 not be an actual receipt. In Chaplin 
 V. Rogers, 1 East, 195 a, the plaintiff, 
 by a verbal agreement, sold to the 
 defendant for more than ilO, a stack 
 of hay, which he represented to be 
 good. The hay remained in the plain- 
 tiff's stack-yard. The defendant'seems 
 to have expressed an opinion that the 
 hay was bad, but some time after, one 
 Loft, having agreed for the purchase 
 of part of the hay from him at an 
 advanced price, the defendant told 
 him to go and see if it was good. 
 Loft not only thought it good, but 
 took away part without the knowledge 
 or assent of the defendant. The part 
 resold to Loft seems to have been for 
 less than i£10, in which case the bar- 
 gain between him and the defendant 
 may have been binding, so that the 
 defendant could not have revoked the 
 authority given to Loft by it, but the 
 case does not seem to have turned on 
 that. It was left to the jury to say, 
 if there had been an acceptance, and 
 they having found there was, the 
 King's Bench would not disturb their 
 verdict. The expressions used by 
 Lord Kenyon in delivering judgment 
 show that he thought there might be 
 an acceptance and actual receipt with- 
 out a removal of the goods ; and that 
 the conduct of the defendant, in bar- 
 
 gaining about the resale, was an ad- 
 mission that the contract was good ; 
 but he winds up by saying, " as upon 
 the whole justice has been done, the 
 verdict ought to stand ; " which almost 
 means that the verdict was contrary 
 to evidence. This case, therefore, 
 does not decide much. In Anderson 
 V, Scott, 1 Camp. 235, n., decided in 
 1805, at nisi prius, the action was by 
 the purchaser against the vendor for 
 not delivering wine, according to a 
 verbal agreement for the sale of it 
 for a price exceeding £10. The spills 
 had been cut in the presence of both 
 parties, and the purchaser's initials 
 were marked on the casks, which re- 
 mained in the vendor's cellars. It 
 was objected, that the bargain was 
 void by the statute of frauds, but 
 Losi) ELLEirBOROUGH held that the 
 marking of the casks in the presence 
 of all parties amounted to a delivery, 
 and that though there had been an 
 incipient delivery sufficient to take 
 the case out of the statute of frauds, 
 yet that delivery not having been per- 
 fected, the plaintiff had a right of 
 action to recover damages for the 
 non-completion of the contract. In 
 Hodgson V. lie Bret, 1 Camp. 233, in 
 1808, the same judge ruled that the 
 purchaser having written her name on 
 some goods to denote that she had 
 purchased them, though they remained 
 in the vendor's shop, took the case out 
 of the statute. Pabke, J., has ob- 
 served, "that in the older cases the 
 Court did not advert to the words of 
 the statute, 9 B. & C. 577. Certainly, 
 in Anderson v. Scott, Lokd Ellen- 
 borough, if the words of the statute 
 were present to his mind, must have 
 thought that there might be an actual 
 receipt without any delivery, which is 
 not the popular meaning of the words. 
 It appears from Hurry v. Mangles, 1 
 Camp. 452, that Lord Ellenborough 
 considered the vendor's rights gone 
 under circumstances but little stronger 
 than those existing in Hodgson v. lie 
 
618 
 
 STATUTE OF FEATTDS. 
 
 [chap. xri. 
 
 whether the vendor has parted with the possession of the 
 goods, and placed them under the control of the purchaser, so 
 
 Bret, and Anderson v. Scott. He 
 seeme to have thought that the cir- 
 cumstance of the purchaser exercis- 
 ing acts of ownership with the assent 
 of the vendor, proved a complete 
 agreement between them to consider 
 the possession of the vendor as thence- 
 forward that of a mere agent of the 
 purchaser. In Elmore u. Stone, 1 
 Taunt. 458, in 1808, the common pleas 
 acted upon this principle. In that 
 case the defendant, the purchaser of 
 horses under a verbal agreement from 
 the plaintiff, a livery-stable keeper, 
 had sent him word that he would have 
 the horses, but that as he had neither 
 servant or stables, the plaintiff must 
 keep them at livery for him. The 
 plaintiff assented, and moved the 
 horses into another stable (which, 
 however, seems material only as an 
 indication of assent). The common 
 pleas, after taking time to consider, 
 held that the bargain was bound. 
 Mansfield, C. J., in delivering the 
 opinion of the court, said, " After the 
 defendant had said that the horses 
 must stand at livery, and the plaintiff 
 had accepted the order, it made no 
 difference whether they stood at liv- 
 ery in the vendor's stable, or whether 
 they had been taken away and put in 
 some other stable. The plaintiff pos- 
 sessed them from that time not as 
 owner (vendor 1) of the horses, but as 
 any other livery-stable keeper might 
 have them to keep. Under many 
 events, it might appear hard if the 
 plaintiff should not continue to have 
 a lien upon the horses which were in 
 his own possession, so long as the 
 price remained unpaid ; but it was for 
 him to consider that before he made 
 his agreement. After he had asseilted 
 to keep the horses at livery, they 
 would on the decease of tlie defend- 
 ant have become general assets ; and 
 so if he had become bankrupt, they 
 would have gone to his assignees. 
 The plaintiff could not have retained 
 them, though he had not received the 
 
 price.'' In Blenkinsop v. Clayton, 7 
 Taunt. 597, in 1817, after a verbal 
 sale of a horse, the purchaser offered 
 to resell it to a tliird party, but after- 
 wards refused to go on with the bar- 
 gain: the vendor brought an action 
 for the price, and on proof of the 
 facts above stated had a verdict sub- 
 ject to leave to move to enter a non- 
 suit, on the ground that there was 
 nothing to satisfy the statute. The 
 court of common pleas thought that 
 there might be some evidence of a 
 delivery, and therefore granted a new 
 trial, not a nonsuit. 
 
 In all these cases there seems to 
 have been ample evidence of an ac- 
 ceptance of the goods, but scanty 
 evidence of any actual receipt, it by 
 that is to be understood a taking of 
 possession : indeed, in Blenkinsop r. 
 Clayton, as reported, there seems to 
 have been none. After the decision 
 of that last case, the current of au- 
 thority set the other way. In Howe 
 V. Palmer, 3 B. & A. 321, in 1820, 
 there was a verbal sale of 12 bushels 
 of tares at £1 per bushel, the pur- 
 chaser to send for them. The pur- 
 chaser said he had seen the tares, and 
 had no immediate use for them; he 
 therefore requested that they might 
 remain at the vendor's till seed time, 
 to which the vendor assented. The 
 vendor then went home, measured 
 out 12 bushels, and set them aside for 
 the purchaser. The King's Bench 
 held that these facts did not amount 
 to an acceptance and receipt. The 
 case was distinguished by the court 
 from Elmore v. Stone (1 Taunt. 458), 
 but Bavlet, J., expressed a doubt if 
 that case was well decided. 
 
 In Tempest v. Fitzgerald, 3 B. & A. 
 680, in the same year, the facts were, 
 that a horse was sold by parol for 
 £45 ready money ; after the sale, the 
 purchaser mounted him and tried him, 
 and made some changes in his har- 
 ness; he then asked the vendor to 
 keep him another week ; the vendor 
 
SEC. 335.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 619 
 
 as to deprive himself of the right of lien ; for so long as the 
 vendor retains his right of lien there can be no receipt. In 
 
 said he would to oblige him. Before 
 the week expired the horse died, and 
 the question was who should bear the 
 loss ? The King's Bench decided that 
 these acts could not amount to an ac- 
 ceptance and receipt, unless the pur- 
 chaser had a right under the bargain 
 to take away the horse. He could 
 not take away the horse unless he 
 paid the price, or the vendor waived 
 Ms right of lien, which the facts did 
 not show. 
 
 In Carter v. Touissaint, 5 B. & Ad. 
 855, A.D. 1822, the facts approached 
 very nearly indeed to those in El- 
 more V. Stone (1 Taunt. 458). The 
 defendant purchased by parol from 
 the plaintiffs a horse for £30; the 
 horse was by the defendant's consent 
 and approval fired, and the plaintiffs 
 agreed to keep him for twenty days 
 without charge ; at the end of the 
 twenty days the plaintiffs sent the 
 horse to grass at the defendant's re- 
 quest, but entered it in their own 
 name, as the defendant wished to con- 
 ceal his having bought it. The King's 
 Bench held that the plaintiffs must be 
 taken to have kept possession in their 
 character of vendors imtil something 
 showed an abandonment of their lien, 
 and that so long as there was nothing 
 to divest them of their possession in 
 the character of vendors, there could 
 be no receipt by the purchaser within 
 the statute of frauds. The court 
 made some attempt to distinguish the 
 case from Elmore v. Stone, on the 
 ground that in that case there was a 
 change of stables ; but that fact the 
 common pleas had expressly declared 
 to be immaterial. The two cases are 
 agreed in this, that there could not be 
 a receipt till the vendor's lien was di- 
 vested, but they differ as to what is 
 sufScient to divest the lien. 
 
 In Baldey v. Parker, 2 B. & C. 37, 
 in 1823, the defendant bargained in 
 the plaintiff's shop for goods above 
 the value of £10 : some of the articles 
 were measured in his presence, some 
 
 he marked in pencil, some he assisted 
 in cutting from a larger piece. The 
 King's Bench decided that there was 
 no evidence that the bargain was 
 bound. The ground of their decision 
 is concisely stated by Holroyd, J. 
 " Upon a sale of specific goods for a 
 specific price, by parting with the pos- 
 session the seller parts with his lien. 
 The statute contemplates such a part- 
 ing with the possession, and therefore 
 as long as the seller preserves his con- 
 trol over the goods so as to retain his 
 lien, he prevents the vendee from ac- 
 cepting and receiving them as his own 
 within the meaning of the statute." 
 This case very closely resembles An- 
 derson V. Scott (1 Camp. 236, n.), and 
 Hodgson V. Le Bret (1 Camp. 233), in 
 the facts. It seems that the difference 
 between the decisions is rather on the 
 practical application of the law than 
 its nature ; Lord Ellenbojiolgh 
 seems to have thought that the ven- 
 dors had abandoned their lien imder 
 circumstances which in Baldey v. Par- 
 ker were held not to be any evidence 
 of such abandonment. 
 
 In Smith v. Surman, 9 B. & C. 561, 
 in 1829, the ICing's Bench of which 
 LiTTLEDALE, J., and Pakke, J., had 
 become members, acted on the princi- 
 ple laid down in Baldey v. Parker. 
 In Maberly u. Shepherd, 10 Bing. 99, 
 in 1833, the plaintiff, under a verbal 
 contract, was building a wagon for the 
 defendant ; the defendant furnished a 
 tilt and iron-work, which he fixed on 
 the wagon whilst it was building. The 
 plaintiff brought an action for goods 
 sold and delivered, and was nonsuited. 
 The court of common pleas refused 
 to set aside the nonsuit. It is difficult 
 to see how £»ny question on the statute 
 of frauds could arise, as according to 
 the report there was not the shadow 
 of proof that the goods were delivered, 
 and there was no count for goods bar- 
 gamed and sold, or for not accepting 
 goods. But the report probably is in 
 some respect inaccurate, for the court 
 
620 
 
 STATUTE OF FRAUDS. 
 
 [chap. XII. 
 
 Baldey v. Parker,^ Holboyd, J., said: "Upon a sale of 
 specific goods for a specific price, by parting with the posses- 
 sion the seller parts with his lien. The statute contemplates 
 such a parting with the possession ; and therefore as long as the 
 seller preserves his control over the goods so as to retain his lien, he 
 
 did consider the question of whether 
 the bargain was bound, and they de- 
 cided it was not. "The plaintiff," 
 said TiNDAL, C. J., " retained his lien 
 upon the wagon, and there was noth- 
 ing in the facts that denoted any in- 
 tention either to deliver or accept. 
 The circumstances of the case cer- 
 tainly leave it open to doubt whether 
 the statute has been complied with or 
 not, but we think it the duty of the 
 plaintiff to free the .case from aU 
 doubt, and where any remains, that it 
 is safer to adhere to the plain intelli- 
 gible words of the statute, which 
 point as clearly as words can to an 
 actual delivery and an actual receiv- 
 ing of part or the whole of the goods 
 sold." 
 
 In Bill V. Bament, 9 M. & W. 37, 
 in 1841, the defendant having bar- 
 gained for a quantity of brushes from 
 the plaintiff, saw them at the ware- 
 house of the plaintiff's agent, Harvey 
 (by name), and directed a boy to alter 
 the mark on them, and to send them 
 to St. Catharine's Wharf. There was 
 a signature obtained by a trick after 
 action commenced to a receipt for the 
 goods. The exchequer set aside a 
 verdict which the plaintiff had ob- 
 tained for goods sold and delivered 
 and entered a nonsuit. Pakke, B., 
 said, "To take the case out of the 
 17th section there must be both de- 
 livery and acceptance, and the ques- 
 tion is, whether they have been proved 
 in the present case. I think they have 
 not ; I agree that there was evidence 
 for the jury of acceptance, or rather 
 of intended acceptance. The direc- 
 tion to mark the goods was evidence 
 to go to the jury quo animo, the de- 
 fendant took possession of them, so 
 also the receipt" {i.e. the receipt in 
 writing, signed by the defendant) 
 " was some evidence of an accept- 
 
 ance ; but there must also be a deliv- 
 ery, and to constitute that, the pos- 
 session must have been parted with 
 by the owner, so as to deprive him of 
 the right of lien ; Harvey might have 
 agreed to hold the goods as the ware- 
 houseman of the defendant, so as to 
 deprive himself of the right to refuse 
 to deliver them without payment of 
 the price, but of that there was no 
 proof." In Edan v. Dudfield, 1 Q. B. 
 306, in 1841, the case was reversed: 
 the vendor sold the goods to his factor, 
 who had the goods in his possession 
 at the time of sale. The Queen's 
 Bench held, that if the jury thought 
 he had taken to them as purchaser, it 
 was sufficient to satisfy the statute. 
 In Marvin v. Wallis, 6 E. & B. 726, 
 decided in 1856, after the delivery of 
 a horse by the vendor, he borrowed it 
 of the vendee and retained it as a bor- 
 rowed horse. It was held that there 
 had been an actual receipt by the 
 vendee, that there had been a change 
 of character in the vendor from that 
 of owner to bailee and agent of the 
 purchaser. This case was almost 
 identical with that of Elmore i\ Stone, 
 ante, and is a complete reaffirmance 
 of the doctrine of that case, and if 
 Tempest v. Fitzgerald and Carter v. 
 Toussaint, ante, could in any sense be 
 said to touch upon the doctrine of 
 Elmore v. Stone, the decision in Mar- 
 vin V. Wallis restores it. See Queen 
 V. Merriam, 28 Vt. 801; Vincent v. 
 Germond, 11 John. (N. Y.) 283; Bul- 
 lard V. Wait, 16 Gray (Mass.) 55; 
 Ely V. Ormsbee, 12 Barb. (N. Y.) 570; 
 Whipple V. Thayer, 16 Pick. (Mass.) 
 28; Tuxworth v. Moore, 9 id. 347; 
 Olyphant v. Baker, 5 Den. (N. Y.) 
 879; Carter v. Willard, 19 Pick. 
 (Maes.) 1; Appleton u. Bancroft, 10 
 Met. (Mass.) 286. 
 
 1 2B. &C. 44; 3 D. & R. 220. 
 
SEC. 336.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 621 
 
 prevents the vendee from accepting and receiving tliem as his own 
 within the meaning of the staiute."^ It maybe said to be the 
 rule according to the best considered cases, that in order to 
 constitute an acceptance and receipt sufficient to take a verbal con- 
 tract of sale out of the statute, the title to the goods must vest in the 
 vendee freed from the vendor's lien for the price, and of such an 
 unequivocal character that the vendee's right to reject the goods, 
 except for fraud, is gone.^ So, too, the goods must be received 
 by the vendee, with the assent of the vendor, with the inten- 
 tion of vesting the title to, and control over, the goods in the 
 vendee in pursuance of the contract.* 
 
 Sec. 336. Special Lien or Interest. — When it is said that 
 in order to constitute an acceptance and receipt of goods 
 there must be such an actual delivery as destroys the vendor's 
 lien for that price, the rule must be understood as applying 
 only to the general lien which the vendor has, so long as he 
 retains possession, and has no application where he has parted 
 with the title, hut has the right to resume the possession of the 
 goods before they come into the actual possession of the vendee,* or 
 
 1 Marsh v. Bouse, 44 N. Y. 643 ; 
 Bailey v. Ogden, 3 John. (N. Y.) 399; 
 Russell V. Minor, 22 Wend. (N. Y.) 
 659; Brand v. Focht, 3 Keyes (N. Y.) 
 409; Eathbern v. Rathbern, 6 Barb. 
 (N. Y.) 98; Safford u. McDonough, 
 120 Mass. 290; Rodgers v. Jones, 129 
 Mass. 420 ; Townsend v. Hargreayes, 
 118 id. 325; Mann v. Williams, 37 
 Me. 555; Green v. Merriam, 28 Vt, 
 801 ; Knight v. Mann, 118 Mass. 143 
 Janvrin v. Maxwell, 35 Wis. 615 
 Howe V. Palmer, 3 B. & Aid. 321 
 Tempest u. Fitzgerald, 3 B. & Aid 
 680 ; Carter v. Toussaint, 5 B. & Aid 
 858 ; Phillips v. BistoUi, 2 B. & C. 514 
 Hawes u. Watson, 2 B. & C. 542 
 Smith V. Surman, 9 B. & C. 577 ; Ma- 
 berley v. Sheppard, 10 Bing. 101 ; Bill 
 V. Bament, 9 M. & W. 41 ; Acraman 
 V. Morrice, 8 C. B. 449; Morton v. 
 Tibbett, 15 Q. B. 428; 19 L. J. Q. B. 
 382 ; Holmes v. Hoskins, 9 Exch. 756 ; 
 23 L. T. 70 ; Castle v. Sworder, 6 H. 
 & N. 833 ; 30 L. J. Ex. 310 ; Cusack 
 V. Robinson, 1 B. & S. 308; 30 L. J. 
 Q. B. 264. 
 
 2 Johnson v. Cuttle, 105 Mass. 447 ; 
 
 Keiwert v. Meyers, 62 Ind. 587; 30 
 Am. Rep. 206; Hausman i>. Nye, 62 
 Ind. 485; Gibbs v. Benjamin, 45 Vt. 
 130; Kirby v. Johnson, 22 Mo. .354; 
 Stone V. Browning, 68 N. Y. 598; Ed- 
 wards 1). Grand Trunk Railway Co., 
 54 Me. 105 ; Hooker v. Knabe, 20 Wis. 
 511; Hewes v. Jordan, 39 Md. 472; 
 Maxwell v. Brown, 39 Me. 98; Rus- 
 sell V. Minor, 22 Wend. (N.Y.) 659; 
 Brand v. Focht, 3 Keyes (N.Y.) 409; 
 Jackson v. Watts, 1 McCord (S. C.) 
 288; Rathbun v. Rathbun, 6 Barb. 
 (N.Y.) 98; Young v. Blaisdell, 60 
 Me. 272 ; Shindler v. Houston, 1 N. Y. 
 261; Safford v. McDonough, 120 
 Mass. 290; Mechanics &c. Bank u. 
 Farmers &c. Bank, 60 N. Y. 40. 
 
 ' Leven v. Smith, 1 Den. (N. Y.) 
 571 ; Baker v. Cuyler, 12 Barb. (N. Y.) 
 667; Davis v. Eastman, 1 Allen 
 (Mass.) 422 ; Mechanics &c. Bank v. 
 Farmers &c. Bank, 60 N. Y. 46. 
 
 * Earl, C, in Cross v. O'Donnell, 
 44 N. Y. 661 ; 4 Am. Rep. 721 ; Hodg- 
 son V. Lee, 7 T. R. 436 ; see also Pink- 
 ham V. Mattox, 53 N. H. 600. 
 
622 
 
 STATUTE OF FBAtTDS. 
 
 [chap. XII, 
 
 to cases where he has parted with the title, hut still retains the posses- 
 sion as agent or bailUefor the purchaser, togetJier with a special 
 interest in the goods arising either out of a usage of the business or 
 created by the contract itself, which entitles him to retain them until 
 the price is paid. Thus, in an English case,^ wool was bought, 
 
 1 Dodsley v. Varley, 12 Ad. & EI. 
 632. In this case the judgment of the 
 court was delivered by Lord Denman, 
 who said : " It was contended that 
 there was no contract completed by 
 delirery and acceptance so as to sat- 
 isfy the statute of frauds. The facts 
 were, that the wool was bought while 
 at the plaintiff's, the price was agreed 
 on, but it would have to be weighed ; 
 it was then removed to the warehouse of 
 a iAiVrf/ferson, where Bamf ord collected 
 the wools which he purchased for the 
 defendant from various persons, and 
 to which place the defendant sent 
 sheeting for the packing up of such 
 wools. Then it was weighed together 
 with the other wools, and packed, but 
 was not paid for ; it was the usual course 
 for the wool to remain at this place till 
 paid for. No wish was expressed to 
 take the opinion of the jury on the 
 fact of Bamford's agency, the defend- 
 ant's counsel acquiescing in that of 
 the judge, provided the circumstances 
 would amount to it in point of law ; 
 we agree that they might ; therefore 
 all these must be taken to be the acts 
 of the defendant. Then he has re- 
 moved the plaintiff's wool to a place 
 of deposit for his own wools ; he has 
 weighed it with his other purchases of 
 wools; he has packed it in his own 
 sheeting ; everything is complete but 
 the payment of the price. It was ar- 
 gued, tliat because by the course of 
 dealing he was not to remove the 
 wool to a distance before payment of 
 the price, the property had not passed 
 to him, or that the plaintiff retained 
 such a lien upon it as was inconsistent 
 with the notion of an actual delivery. 
 We think that, upon this evidence, 
 the place to which the wools were re- 
 moved must be considered as the de- 
 fendant's warehouse, and that he was 
 in actual possession of it there as soon 
 
 as it was weighed and packed ; tljat it 
 was thenceforward at his risk, and if 
 burnt must have been paid for by him. 
 Consistently with this, however, the 
 plaintiff had, not what is commonly 
 called a lien determinable on the loss 
 of possession, but a special interest 
 sometimes but improperly called a lien 
 growing out of his original ownership, 
 independent of the actual possession, 
 and consistent with the property being 
 in the defendant. This he retained in 
 respect of the term agreed on, that 
 the goods should not be removed to 
 their ultimate place of destination 
 before payment ; but this lien is con- 
 sistent, as we have stated, with the 
 possession having passed to the buyer : 
 so that there may have been a delivery 
 to and actual receipt by him. This 
 we think is the proper conclusion upon 
 the present evidence, and there will be 
 no rule." 
 
 It seems perfectly clear, that if 
 Bamford was the defendant's agent, 
 there was ample evidence of such an 
 appropriation of the specific wools as 
 would convert the agreement to sell 
 into a bargain and sale, and (if the 
 statute of frauds were out of the way) 
 transfer the property and consequent 
 risk to the defendant. The only ques- 
 tion, therefore, in the case was, whether 
 the facts showed such a receipt of the 
 goods as is contemplated by the statute 
 of frauds. The argument for the de- 
 fendant seems to have been that the 
 agreement by which the purchaser 
 was not to remove the wool till paid 
 for, showed that the acts done to the 
 wool could not be done with the inten- 
 tion to give him possession. The 
 court, however, seem to have thought 
 that the facts showed an unequivocal 
 delivery of the actual possession, and 
 consequently that the agreement could 
 only operate by giving such rights to 
 
SEC. 336.] ACCEPTANCE AND KECBIPT. G23 
 
 the price was agreed on, but it would have to be weighed ; it 
 was then removed to the warehouse of a third person, where 
 the defendant's agent collected the wools which he purchased 
 for the defendant from various persons, and to which place 
 the defendant sent sheeting for the pacldng up of such wools. 
 There it was weighed together with the other wools, and 
 packed, but it was not paid for. It was the usual course for 
 the wool to remain at this place till paid for. It was argued 
 that because, by the course of dealing, the defendant was not 
 to remove the wool to a distance before payment of the price, 
 the property in it had not passed to the defendant, or that 
 the plaintiff retained such a lien on it as was inconsistent with 
 the notion of an actual delivery. It was held that the defend- 
 ant was in actual possession of the wool as soon as it was 
 weighed and packed, and that it was thenceforward at his 
 risk ; but that the plaintiff had, not what is commonly called 
 a lien determinable on the loss of possession, but a special 
 interest, sometimes but improperly called a lien growing out of 
 his original ownership, independent of his actual possession, 
 and consistent with the property being in the defendant, and 
 that he retained this in respect of the terms agreed on, that the 
 goods should not be removed to their ultimate place of destina- 
 
 the vendor as were consistent with an the vendor's rights in the part of the 
 
 actual delivery of possession to the goods so received, and consequently 
 
 purchaser. In Howes v. Ball, 7 B. & the case does not affect the authority 
 
 C. 484, it was decided that an agree- of Baldey v. Parker (2 B. & C. 37) 
 
 ment of tliis kind did not confer on and the other cases before quoted, 
 the vendor any right either of property It may therefore be considered as 
 
 or possession in the goods actually de- settled, that the construction of the 
 
 livered, but at most operated as a per- statute is that so concisely and clearly 
 
 sonal license from the purchaser, stated by Holroyd, J., in Baldey i'. 
 
 Probably the Queen's Bench, in Dods- Parker, 2 B. & C. 37, and repeated in 
 
 ley V. Varley, would have come to the almost the same terms by Pahke, B., 
 
 same decision if it had been material in Bill v. Bament, 9 M. & W. 37, 
 
 to determine what rights Dodsley had namely, that the facts which prove 
 
 in the wool, but that being perfectly that part of the goods have been 
 
 immaterial to the question then before delivered and taken into the pur- 
 
 the court, they did not consider that chaser's control, so as to determine the 
 
 point. The judgment, therefore, in vendor's possession of that part, prove 
 
 Ilodsley v. Varley cannot be taken to that he has actually received them, 
 
 show that the Queen's Bench thought and that nothing short of such a de- 
 
 that there might be an actual receipt livery and taking can amount to an 
 
 of goods by the purchaser within the actual receipt by the purchaser within 
 
 meaning of the statute of frauds with- the meaning of the statute of frauds, 
 
 out such a taking of possession by Blackburn on Sales, 15, 18. 
 him as would completely determine 
 
624 STATUTE OP FKAUDS. [CHAP. XII. 
 
 tion before payment} In a New Hampshire case,^ eveii where 
 the property was sold conditionally, that is, upon the condi- 
 tion that the title should remain in the vendor until it is 
 paid for, it was held by the court that an acceptance and 
 receipt of the property, in this case a sewing machine, upon 
 thepe terms was sufficient to take the case out of the statute, 
 and to enable the vendor to sue upon and recover the contract 
 price .^ 
 
 Sec. 337. Goods in Possession ofVendee at Time of Sale. — 
 
 When goods are already in the possession of the vendee at the 
 time of sale, it is a question of fact for tht Jury whether he has 
 so dealt with them since the sale as to show that he considered 
 himself to be the owner. Thus, where goods of the plaintiff 
 were in the defendant's hands for the purpose of being sold 
 by the defendant for the plaintiff, and the defendant told the 
 plaintiff that he would take them himself at a price then 
 named, and the defendant sold them to a third party, and 
 after that, in a written account current delivered to the 
 plaintiff, debited himself with the price of the goods as "sold," 
 not adding to it for whom, it was argued that statute could 
 
 1 Howes V. Ball, 7 B. & C. 484; 558; Goodwin v. May, 23 Ga. 205; 
 Aldridge v. Johnson, 7 E. &B. 885; Shireman v. Jackson, 14 Ind. 459; 
 Dows V. Montgomery, 5 Robt. (N. Y.) Bailey v. Harris, 8 Iowa, 331 ; Patton 
 445; Spencer u. Hale, 30 Vt. 314. v. McCane, 15 B. Mon. (Ky.) 555; 
 
 2 Pinkham v. Mattox, 53 N. H. 600. Comstock v. Smith, 23 Me. 202; Hus- 
 " The rule is, that on a sale of per- sey v. Thornton, 4 Mass. 405 ; Reed v. 
 
 sonal property where the right to re- Upton, 10 Pick. (Mass.) 522; Heath 
 
 ceivepa3Tnent before deliyery is waived y. Randall, 4 Cush. (Mass.) 195; Sar- 
 
 by the seller, and immediate possession gent v. Metcalf, 5 Gray (Mass.) 306; 
 
 is given to the purchaser, and yet, by Blanehard v. Child, 7 id. 155 ; Deshon 
 
 express agreement, the title is to re- v. Bigelow, 8 id. 159 ; Dannefelser u. 
 
 main in the seller until the payment "Weigel, 27 Mo. 45 ; McFarland v. 
 
 of the price, such payment is strictly Farmer, 42 N. H. 286 ; Herring u. 
 
 a condition precedent, and until per- Willard, 2 Sandf . (N. Y.) 418 ; Piser 
 
 formance, the right of property is not v. Stearns, 1 Hilt. (N. Y. C. P.) 86 ; 
 
 vested in the purchaser. Putnam v. Price i,-. Jones, 3 Head (Tenn.) 84; 
 
 Lamphier, 36 Cal. 151, S. P. ; McBride Bigelow v. Huntley, 8 Vt. 154 ; Max- 
 
 V. Whitehead, Ga. Dec. Parti., 165; well v. Briggs, 17 id. 176; Luey v. 
 
 Marston v. Baldwin, 17 Mass. 606; Bundy, 9 N. H. 298; Buekmaster ti. 
 
 Dudley v. Sawyer, 41 N. H. 326 ; Flee- Smith, 22 Vt. 203 ; Root v. Lord, 23 
 
 man«. McKean, 25Barb. (N. Y.) 474; Vt. 568; Armington w. Houston, 38 
 
 Herring a. Hoppock, 3 Duer (N. Y.) Vt. 448; but according to the prln- 
 
 20; Bennett u. Sims, 1 Rice (S. C.) cipal case, the seller may waive his 
 
 421 ; Reeves v. Harris, 1 Bailey (S. G.) right under the conditional sale, and 
 
 563; Bradshaw v. Thomas, 7 Yerg. treating the title as having passed, 
 
 (Tenn.) 497 1 West v. Bolton, 4 Vt. sue for the price. 
 
SEC. 337.] ACCEPTANCE AND EECEIPT. 625 
 
 not be satisfied in the case of one 'at the time of the bargain 
 possessed of the goods, inasmuch as that circumstance pre- 
 vented them from being delivered to him, or actually received 
 by him, in virtue of the sale.^ But Lord Denmam, C. J., 
 said : " We have no doubt that one person in the possession 
 of another's goods may become the purchaser of them -by 
 parol, and may do subsequent acts, without any writing 
 between the parties, which amount to acceptance ; and the 
 effect of such acts, necessarily to be proved by parol evidence, 
 must be submitted to the jury. We entertain this opinion 
 after fully considering all the cases cited, especially Elmore 
 V. Stone,^ NichoUs v. Plume,^ Maberley v. Sheppard,* agreeing 
 that such evidence must be unequivocal, but thinking the 
 question, whether it is so or not under all the circumstances, 
 fact for the jury, not matter of law for the court. It was 
 indeed contended that parol evidence was inadmissible to 
 explain the character of the acts relied on to prove accept- 
 ance ; for that to admit it would let in all the inconvenience 
 which the statute was intended to prevent. No case, how- 
 ever, warrants the holding the rule so strict, nor does conven- 
 ience require it; for where there is the foundation of an act 
 done to build upon, the admission of declarations to explain 
 that act lets in only that unavoidable degree of uncertainty 
 to which all transactions to be proved by ordinary parol 
 evidence are liable. Upon this principle, stat. 9 Geo. 4, c. 14, 
 § 1, on a very analogous matter, has been construed in the 
 Court of Exchequer. For, whilst in Willis v. Newham ^ it 
 was held that part payment, to take a case out of the Statute of 
 Limitations, could not be proved by verbal acknowledgment 
 onli/, it was held in Waters v. Tompkins^ that, where a sum 
 had been paid without any statement on what account, declara- 
 tions were admissible to explain on what account." And in 
 a subsequent case Aldekson, B., said : "No doubt can be 
 entertained after the case of Edan v. Dudfield, which was 
 well decided by the Court of Queen's Bench, that this is a 
 question of fact for the jury, and that if it appears that the 
 
 1 Edan v. Dudfield, 1 Q. B. 302- * 3 Y. & J. 518. 
 
 306. 6 2 C. M. & R. 723; S. C. Tyrwh. & 
 
 2 1 Taunt. 458. Gr. 137. 
 
 8 10 Bing. 09 ; and see Dodsley v. « x C. & P. 272. 
 Varley, 12 Ad. & El. 632. 
 
626 
 
 STATUTE OF FRATTDS, 
 
 [chap. xri. 
 
 conduct of a defendant, in dealing with goods already in Lis 
 possession, is wholly inconsistent with the supposition that 
 his former possession continues unchanged, he may properly 
 be said to have accepted and actually received such goods 
 under a contract, so as to take the case out of the operation 
 of the statute of frauds ; as for instance if he sells or attempts 
 to sell goods, or if he disposes absolutely of the whole or any 
 part of them, or attempts to do so, or alters the nature of the 
 property or the like." ^ 
 
 Sec. 338. Goods in Hands of Third Person. — When, at the 
 time of sale, the goods are in the possession of a third per- 
 son, there may be a constructive possession in the buyer, 
 if the goods are accepted hy him, and notice given to the bailee 
 of such transfer of title? In some of the cases it is held 
 that, in order to make a valid sale of personal property in 
 the possession of a third person, such person must not only 
 be notified - of the change of title, hut must also consent to 
 hold it for the buyer? But this doctrine has n6 support in 
 
 1 Lillywhite v. Devereux, 15 M. & 
 "W. 291. 
 
 2 Gushing i'. Breed, 14 Allen 
 (Mass.) 376; Bass v. Walsh, 39 Mo. 
 192 ; Zachrisson v. Pope, 3 Bas. (N. Y.) 
 171 ; Franklin v. Long, 7 G. & J. (Md.) 
 407 ; Boardman v. Spooner, 13 Allen 
 (Mass.) 353 ; Townsend v. Hargreayes, 
 118 Mass. 325; Burton v. Curyea, 40 
 111. 320 ; Simmonds v. Humble, 13 C. 
 B. N. S. 262 ; Leonard v. Davis, 1 
 Black (U. S.) 476; Bentnall k. Burn, 
 ante ; Farina v. Home, ante ; "Williams 
 V. Evans, 39 Mo. 201 ; Harkins v. Baker 
 46 N. Y. 666 ; Godts u. Rose, 17 C. B 
 229 ; Boynton v. Veazie, 24 Me. 286 
 Jewett V. "Warren, 12 Mass. 300 
 Cooper V. Bill, 3 H. & C. 722. 
 
 8 Bassett o. Camp, 64 Vt. 232 
 Bentnall v. Bum, ante. In Blackburn 
 on Sales, 28, that learned author says 
 "There can be no question that an 
 actual removal of the goods by the 
 purchaser is an actual receipt by him ; 
 and when the goods are in the hands 
 of a third party it is pretty clear that 
 as soon as the vendor, the purchaser, 
 and the bailee agree together, that 
 the bailee shall cease to hold the goods 
 
 for the vendor and shall hold them 
 for the purchaser, that is an actual 
 'receipt by the purchaser, though the 
 goods themselves remain untouched. 
 They were in the possession of an 
 agent for the vendor, and so, in con- 
 templation of law, in that of the ven- 
 dor himself, and they become in 
 the possession of an agent for the 
 purchaser, and so in that of the 
 purchaser himself ; and it can 
 make no difference, whether tliis is 
 by a change in the person of the 
 holder of the goods or merely in his 
 character. So far the question of 
 whether there has been a receipt of 
 part of the goods by the purchaser or 
 not is identically the same as whether 
 the vendor has so parted with pos- 
 session, as to put an end to his lien as 
 to that part of the goods. Thus, in 
 Bentall v. Burn, ante, in 1824, the 
 King's Beiich decided that the accept- 
 ance and receipt of a delivery order, 
 not lodged with the warehousemen, 
 did not bind the bargain : till the ware- 
 housekeepers assented to hold the 
 property as agents to the vendee, they 
 held it as agents of the vendor, and 
 
SEC. 339.] ACCEPTANCE AND RECEIPT. 627 
 
 reason, and places it within the power of a naked bailee to 
 prevent a valid sale of the property without an actual change 
 of possession, and clothes him with an authority and con- 
 trol over the property never contemplated, and for which, at 
 least as affecting the validity of the sale as between the par- 
 ties, there is no conceivable reason, however it might be as to 
 attaching creditors. In the case of warehousemen, whose 
 business is peculiar and largely regulated by usage, and who, 
 by law, are given powers which individuals not warehoiise- 
 men do not possess, the rule might be applicable, but in the 
 case of individuals holding the goods of another as a mere 
 bailee, there is no sort of reason for holding that the validity 
 of the sale, is dependent upon the circumstance of his refus- 
 ing or assenting to hold the property for the buyer. 
 
 Sec. 339. Receipt by Acceptance of Delivery Order or Dock 
 ■Warrant. — The acceptance and receipt hy the vendee of a 
 delivery order or dock warrant is not sufficient acceptance and^ 
 receipt until the warehouseman or dock-keeper has accepted the 
 order or warrant, and has agreed to hold the goods for the 
 vendee. And the delivery order or warrant may be counter- 
 manded before it has been accepted by the warehouseman or 
 dock-keeper.^ But after such acceptance the warehouseman or 
 dock-keeper becomes the agent of the vendee, and there is a 
 complete constructive delivery to him.^ Where, on the sale of 
 
 whilst they did so, there could be no and sale of a lot of cotton consisting 
 actual acceptance (receipti) of the of six hales' weight, and stored in a 
 goods " Boardman u. Spooner, 13 warehouse, and the seller gave the 
 Allen (Mass.) 357; Appleton u. Ban- purchaser an order on the warehouse- 
 croft, 10 Met. (Mass.) 236; Tuxworth man for it. The seller notified the 
 V. Moore, 9 Pick. (Mass.) 347; Chap- warehouseman of the sale, and the 
 man v. Searle, 3 id. 38 ; Chase v. Wil- purchaser applied to him for the cot- 
 lard, 57 Me. 157 ; Warren v. Milliken, ton, hut delivery was postponed hy 
 57 id. 97 ; Linton v. Butz, 7 Penn. St. agreement of the warehouseman and 
 89 ; Hatch v. Lincoln, 12 Cush. (Mass.) the purchaser until the next morning. 
 31 ; Hatch u. Bayley, 12'id. 27. During the night the warehouse, to- 
 
 1 Lackington v. Atherton, 7 M. & gether with all the cotton but one 
 Gr. 360; Boardman o. Spooner, 13 bale, was destroyed by fire. It Was 
 Allen (Mass.) 353. held that there had been a sufficient 
 
 2 Pearson v. Dawson, E. B. & E. acceptance and receipt of the cotton 
 456 ; Harman v. Anderson, 2 Camp, to take the contract out of the statute, 
 243 ; Dickinson v. Marrow, 14 M. & and that the loss fell upon the pur- 
 W. 713 ; Chapman, J., in Hunter u. chaser. In Harkins v. Baker, 46 N. 
 Wright, 12 Allen (Mass.) 548. In Y. 666, a broker offered to the defend- 
 King V. Jarman, 35 Ark. 190, the par- ants ten casks of prunes, which they 
 ties orally agreed for the purchase orally agreed to take. The broker 
 
628 STATUTE OF FEAtTDS. [CHAP. XII. 
 
 wine in the warehouse of the London Dock Company, a 
 delivery order was given to the vendee, it was held that the 
 acceptance of the delivery order by the vendee was not an 
 actual acceptance (receipt ?),i the court saying : " There 
 could not have been any actual acceptance of the wine by 
 the vendee until the dock company accepted the order for 
 delivery, and thereby assented to hold the wine as the 
 agents of the vendee. They held it originally as the agents 
 of the vendors, and as long as they continued so to hold it 
 the property was unchanged. It has been said that the 
 London Dock Company were bound by law, when required, 
 to hold the goods on account of the vendee. That may be 
 true, and they might render themselves liable to an action for 
 refusing so to do, but if they did wrongfully refuse to trans- 
 fer the goods to the vendee, it is clear that there could not 
 then be any actual acceptance of them b}' him until he actu- 
 ally took possession of them."^ So where goods were sent to 
 a shipping agent of the plaintiffs in London, who received 
 them and warehoused them with a wharfinger, informing the 
 defendant of their arrival, and the wharfinger handed to the 
 shipping agent a delivery-warrant whereby the goods were 
 made deliverable to him or his assignees by indorsement, on 
 payment of rent and charges, and the agent indorsed and 
 delivered the warrant to the defendant, who kept it for sev- 
 eral months, and, notwithstanding repeated applications, did 
 not pay the price of or charges upon the goods, nor return 
 the warrant, but said he had sent it to his solicitor, and that 
 he intended to resist payment, for that he had never ordered 
 the goods, and that they would remain for the present in 
 bond. It was held on the authority of Bentall v. Burn, 
 
 executed and delivered to the plaintiffs flcient acceptance and receipt by the 
 
 a bought and sold note in the defend- defendants. 
 
 ants' name for the prunes, and re- ^ See Blackburn on Sales, 29 ; Ben- 
 ceived from the plaintiffs a warehouse jamin on Sales, 2d ed. 133. 
 order of delivery therefor, which ^ Bentall v. Burn, 3 B. & C. 423; 
 order ho delivered to the defendants, Ey. & M. 107 ; 5 D. & E. 284. See 
 who received and retained it, and re- also Harman v. Anderson, 2 Camp, 
 quested the broker to sell the goods 243 ; Lucas v. Dorrien, 7 Taunt. 278 
 for them. The ten casks had been Bill «. Bament, 9 M. & W. 36 ; Lack- 
 weighed and separated from the others ington v. Atherton, 7 M. & Gr. 3 
 for the defendants, and were all 8 Sc. (N. E.) 42 ; Woodley v. Coven- 
 which they owned at the warehouse, try, 2 H. & C. 164. 
 It was held that there had been a suf- 
 
SBC. 340.] ACCEPTAKCE AKD RECEIPT. 629 
 
 supra, that though there was evidence of acceptance there 
 was none of receipt.^ In Farina v. Home,^ the foregoing case 
 was followed. There the wharfinger gave the vendor a deliv- 
 ery-warrant, making the goods deliverable to him or to his 
 assignee by indorsement on payment of rent and charges. 
 The vendor forthwith indorsed and sent it to the purchaser, 
 who kept it ten months, and refused to pay for the goods or 
 to return the warrant, saying he had sent it to his solicitor, 
 and intended to defend the suit, as he had never ordered the 
 goods, adding that they would remain for the present in bond. 
 Held to be no actvial receipt, but sufficient evidence of accept- 
 ance to go to the jury. In Godts v. Rose,^ the vendor had 
 the goods transferred by his warehouseman, on the books of 
 the latter, to the buj'er's order, and took the certificate of 
 transfer, which he sent by his clerk to the buyer with an 
 invoice for the goods. The clerk handed the invoice and 
 warehouseman's certificate together to the buyer, and asked 
 for a check for the amount of the invoice, which was refused, 
 the buyer alleging that he was entitled to fourteen days' 
 credit. The clerk then asked for the warehouse certificate 
 back again, but the buyer refused to give it up, and the 
 vendor thereupon countermanded the order on the ware- 
 houseman ; but the purchaser had already got part of the 
 goods, and the warehouseman, thinking that the property had 
 passed, delivered the remainder to the purchaser. The 
 vendor then brought trover against the purchaser, and the 
 court held that the delivery to the purchaser of the ware- 
 houseman's certificate was conditional only, and dependent 
 upon his giving a check ; that the actual receipt, therefore, 
 had not taken place, the tripartite contract not being com- 
 plete. 
 
 Sec. 340. Possession Taken by Vendee. — Goods in the 
 possession of a third person may be delivered by the vendor, 
 allowing the vendee to take possession of them, and to per- 
 form acts of 6wnership, though they are not actually removed. 
 Thus, where trees on the land of a third person were sold, 
 
 1 Farina w. Home, 16 M. iW. 119; lams, 2 Man. & Gr. 650; Godts v. 
 and see Meredith v. Meigh, 2 E. & B. Rose, 17 C. B. 229. 
 364; 22 L. .J. Q. B. 401; Searle v. ^ Farina w. Home, 16 M. & W. 119. 
 
 Keeves, 2 Esp. 598 ; Salter v. "Wool- ' Godts v. Rose, 17 C. B. 229, and 
 
 25 L. J. C. P. 61. 
 
630 STATUTE OF FBAUDS. [CHAP. Xn. 
 
 the vendee to have the power o£ removing them when he 
 pleased, and the vendee performed acts of ownership over 
 them, it was held that the transfer of the whole was com- 
 plete.^ But the acts of the parties must be of such a charac- 
 ter as to unequivocally place the property within the power, 
 and exclusively under the control of the buyer as owner, dis- 
 charged of all lien for the price. ^ 
 
 Sec. 341. Symbolical Delivery. Goods Need not be Re- 
 moved from Possession of Vendor. — It is not necessary, in 
 order to constitute a valid receipt of goods within the statute, that 
 they should be removed from the possession of the vendor; as, if 
 the contract is complete, and by their acts the parties evince an 
 intention to change the character of the holding by the seller from 
 that of owner to that of bailee for the purchaser, the delivery is 
 complete, and from that time the title to the goods is in 
 tlie vendee, and the contract is taken out of the statute.^ 
 In the language of Blackbuen, J., "though the goods 
 remain in the personal possession of the vendor, yet if it 
 is agreed between the vendor and the vendee that the pos- 
 session shall thenceforth be kept not as vendor, hut as bailee 
 for the purchaser, the right of lien is gone, and then there is 
 
 1 Tansley i>. Turner, 2 Bing. (N. C.) Grey v. Cary, 9 Daly (N. Y. C. P.) 
 151 ; and see Cooper v. Bill, .3 H. & C. 363 ; Yale v. Seeley, 15 Vt. 221. 
 
 722. In Marshall v. Green, 1 C. P. D. 8 Webster v. Anderson, 42 Mich. 
 85, where timber was sold growing 554 ; Green v. Merriam, 28 Vt. 801 ; 
 upon land in the possession of a ten- Beaumont v. Brengeri, 5 C. B. 301 ; 
 ant, and the buyer cut down some of Anderson v. Scott, 1 Camp. 235 ; 
 the trees and sold the tops and stumps Chaplin v. Eogers, 1 East, 192 ; Mar- 
 to a third person before any of the vin v. Wallis, 6 EI. & B. 726 ; Bar- 
 ,trees had been removed, it was held rett v. Goddard, 3 Mass. (N. S.) 107; 
 that there was sufficient evidence of Wild u. Came, 98 Mass. 152 ; Janvrin 
 an actual receipt and acceptance of a v. Maxwell, 23 Wis. 51 ; Eappleye v. 
 part of the goods. Adee, 65 Barb. (N. Y.) 589. But in 
 
 2 Marsh u. Rouse, 44 N. Y. 643; all such cases the contract must be 
 French v. Freeman, 43 Vt. 93. Thus, complete in all its details, and there 
 in one case C orally agreed to buy a must nothing be left for future settle- 
 scale of G for ®60, payable on deliv- ments, and the lien of the vendor for 
 ery. G's carman took the scale on a the unpaid purchase money must 
 truck to C's office, said he had it on have been waived. Safford v. Mc- 
 
 , the truck, handed G's bill to C, and Donough, 120 Mass. 280 ; Means v. 
 
 was directed to drive it into the back Williamson, 37 Me. 556; Green v. 
 
 ' yard. In attempting to do so he ac- Merriam, 28 Vt. 801 ; Elmore v. Stone, 
 
 cidentally caused the scale to be ante ; Brown v. Hall, 5 Lans. (N. Y.) 
 
 broken. It was held that there was 177 ; Janvrin v. Maxwell, 23 Wis. 51 ; 
 
 no receipt of the scale by C sufficient Marsh v. Rouse, ante ; Safford v. Mc- 
 
 to take the case out of the statute. Donough, 120 Mass. 290. 
 
SEC. 341.] 
 
 ACCEPTANCE AND RECEIPT. 
 
 631 
 
 a sufficient receipt to satisfy the statute." ^ In Webster v. 
 Anderson ^ it was orally agreed between a farmer and his 
 employee that the latter should accept certain hogs in pay- 
 ment for his services. They were pointed out, but were to 
 remain in the pasture with other hogs until the employee 
 found ail opportunity to sell them ; and it was held a sufficient 
 delivery against the seller's creditors.^ In Ex parte Safford * 
 a lot of specified hides were sold, weighed, marked with the 
 vendee's name, and placed by themselves m the vendor's ware- 
 house, and he was to send for them when he pleased, and it 
 was agreed that they shovild be considered as insured for his 
 benefit by the vendor's general insurance. It was a sufficient 
 acceptance and receipt, Lowell, J., remarking that "there 
 is no doubt that the vendor may himself be the warehouse- 
 man or bailee." ^ In a Vermont case ^ the plaintiff sold to 
 
 ' Cusack ». Robinson, 1 B. & S. 
 308, per Blaokbukn, J. ; Sloan Saw 
 Mill &o. Co. V. Guttshall, 3 Col. 8; 
 Safford i-. McDonough 120 Mass. 290 ; 
 Wild 0. Came, 98 id. 152 ; Knight v. 
 Mann; 118 id. 143; Janvrin v. Max- 
 well, 35 Wis. 615 ; Means v. William- 
 son, 37 Me. 556; Chase v. Willard, 57 
 Me. 157 ; Barrett v. Goddard, 3 Mas. 
 (U. S.) 107; Hatch v. Lincoln, 12 
 Gush. (Mass.) 31. 
 
 2 Webster v. Anderson, 42 Mich. 
 554. 
 
 3 See also Jewett v. Warren, 12 
 Mass. 300 ; Green v. Merriam, 28 Vt. 
 801 ; Arnold ;;. Delano, 4 Cush. 
 (Mass.) 40. 
 
 4 Ex parte Safford, 2 Lowell (U. S. 
 C. C) 563. 
 
 6 Elmore u. Stone, 1 Taunt. 458; 
 Calkins v. Lockwood, 17 Conn. 154. 
 See statement of case ante, p. 671. In 
 Maryin v. Wallis, 6 El. & B. 726, 
 the plaintiff sold a horse to the de- 
 fendant, and requested the defendant 
 to lend it to him, and kept it with the 
 defendant's consent. It was held that 
 there had been a sufficient delivery. 
 In Phillips V. Hummell, 4 Me. 376, 
 under a similar state of facts except 
 that the subject of the sale was a yoke 
 of oxen, it was held that there had 
 
 been no delivery. In Bailey v. Ogden, 
 2 John. (N. Y.) 399, the rule that so 
 long as the contract is incomplete in 
 any of its requirements there can be 
 no acceptance and receipt while the 
 goods are in the hands of the vendor 
 was well illustrated. In that case the 
 sugar, which was the subject of the 
 sale, was in the possession of the ven- 
 dor, an agreement of sale was entered 
 into, and all the terms agreed upon, a 
 minute of the import entry was deliv- 
 ered, indorsed notes were to be given 
 for the price, and the goods were to 
 be stored by the vendor at the pur- 
 chaser's expense. It was held that 
 there was no actual delivery, Kent, 
 C. J., saying : " The circumstances 
 which are to be tantamount to an 
 actual delivery should be very strong 
 and unequivocal, so as to take away 
 all doubt as to the intent and under- 
 standing of the parties. The agree- 
 ment about storage might have been 
 conditional, and depending upon the 
 final completion of the contract, as to 
 the giving of the notes with a compe- 
 tent indorser, and the taking of the 
 minute of the import entry was at 
 least but an equivocal act. It was not 
 an indicium of ownership." In Vincent 
 v. Germond, 11 Johns. (N. Y.) 282, 
 
 6 Green v. Merriam, 28 Vt. 301. 
 
632 
 
 STATUTE OP FEATJDS. 
 
 [CHAP. XXI. 
 
 the defendant sixteen sheep, then in his (the plaintiff's) yard. 
 All the terms of the sale were agreed upon, and the sheep 
 were then driven into another yard of the plaintiff, and the 
 defendant agreed that if the plaintiff would keep them for 
 him until a certain day, he would call and get them, and pay 
 for the sheep aiid for the keeping of them. The court held that 
 this constituted a sufficient acceptance and receipt.^ In 
 Chaplin v. Rogers ^ the fact that the vendee of a stack of 
 hay had resold part of it to a third party, who had taken 
 away such part, was held to be sufficient to prove that the 
 hay had been received by the purchaser, though he had not 
 attempted to remove it from the vendor's premises. In 
 Elmore v. Stone ^ it appeared that the plaintiff, a livery-stable 
 
 cattle were sold to remain in posses- 
 sion of the vendor, at the vendee's 
 risk, until he called for them, and he 
 afterward took them without saying 
 anything to the vendor. It was held 
 a sufficient delivery. "It may be 
 questioned," said the court, " whether 
 what took place between B. Germond 
 and the plaintiff, if standing alone, 
 would amount to a delivery ; but the 
 subsequent conduct of the other de- 
 fendant in taking away the three 
 oxen, without any new contract, af- 
 fords sufficient ground to infer a de- 
 livery. The defendants dealt with the 
 oxen as their own, and as if in their 
 actual possession." 
 
 1 In Janvrin v. Maxwell, 23 Wis. 
 61, there was a sale of six barrels of 
 beef. The purchaser requested the 
 seller to roll it into the back yard of 
 the shop and store it for him, and sell 
 it for him if he had an opportunity, 
 and subsequently promised to take it 
 away. He gave specific directions 
 for its disposal, and it was held that 
 there had been a sufficient delivery 
 and acceptance. In Bass v. Walsh, 
 30 Mo. 192, there was a sale of 223 
 bales of hay lying by themselves on 
 the levee. The seller gave the buyer 
 a descriptive ticket, authorizing him 
 to take the hay as soon as weighed. 
 The buyer requested that the hay 
 should not be weighed on that day, 
 to which the seller assented, upon the 
 
 condition that the hay should remain 
 at the buyer's risk. It was held that 
 these facts warranted a finding that 
 there had been an acceptance and 
 delivery. A sale, by a broker, of 
 logwood, at the time in bond, was in- 
 valid under the statute of frauds. 
 The purchaser hired vessels, and noti- 
 fied the seller to deliver the goods at 
 the wharf where they lay, and re- 
 ceived from him a custom-house order, 
 which the custom-house officers re- 
 fused to act upon, on the ground that 
 no logwood appeared on their books 
 as belonging to the purchaser. The 
 seller was notified of this, and re- 
 quested to remedy the difficulty by 
 making the proper entries, which he 
 promised, but entirely neglected to 
 do. Part of the logwood was sent to 
 the wharf, and part put on board the 
 purchaser's vessel. The purchaser 
 refused to pay a bill for the logwood 
 sent to him, and finally notified the 
 seller that unless the proper custom- 
 house entries were made on or before 
 a certain day, he would deem the 
 contract dissolved. It was held that 
 there was no delivery to take the case 
 out of the statute of frauds. Zach- 
 risson v. Poppe, 3 Bosw. (N. Y.) 171. 
 
 " 1 East, 192 ; and see Marshall v. 
 Green, L. E. 1 C. P. D. 35. 
 
 ' 1 Taunt. 458 ; and see Jacobs v. 
 Latour, 2 Moo. & P. 205 ; Webster v. 
 Anderson, 42 Mich. 654. In Shindler 
 
SEC. 341.J 
 
 ACCEPTANCE AND RECEIPT. 
 
 G83 
 
 keeper, sold horses to the defendant, who told him that he 
 (the plaintiff) must keep the horses at livery, whereupon the 
 
 V. Houston, 1 Den. (N. Y.) 52, the 
 plaintiff and the defendant bargained 
 respecting the sale, by the former to 
 the latter, of a. quantity of lumber 
 piled apart from other lumber on a 
 dock, and in view of the parties at 
 the time of the bargain, and which 
 had been measured and inspected. 
 The parties having agreed as to the 
 price, the plaintiff said to the defend- 
 ant, "The lumber is yours." The 
 defendant then told the plaintiff to 
 get the inspector's bill and take it to 
 H, who would pay the amount. This 
 was done next day, but payment was 
 refused. The price was above $50. 
 This was held, by the Supreme Court, 
 a valid delivery and acceptance. The 
 court said : " Delivery in a sale may 
 be either real, by putting the thing 
 sold into the possession or under the 
 power of the purchaser, or it may be 
 symbolical, where the thing does not 
 admit of actilal delivery; and such 
 delivery is sufficient and equivalent in 
 its legal effects to actual delivery. 
 It must be such as the nature of the 
 case admits." This was reversed by 
 the Court of Appeals in 1 N. Y. 261, 
 the court holding that something more 
 than mere words is necessary; that 
 superadded to the language of the 
 contract there must be some act of 
 the parties amounting to a transfer of 
 possession, and an acceptance thereof 
 by the buyer, and that the case of 
 cumbrous articles is not an exception. 
 Gardiner, J., said : " I am aware that 
 there are cases in which it has been 
 adjudged that where articles sold are 
 ponderous, a symbolical or construc- 
 tive delivery will be equivalent in 
 legal effect to an actual delivery. The 
 delivering of the key of a warehouse 
 in which goods sold are deposited, 
 furnishes an example of this kind. 
 But to aid the plaintiff, an authority 
 must be shown that a stipulation in the 
 contract of the sale, for the delivery of 
 the key or other indicia of possession, 
 will constitute a delivery and accept- 
 
 ance within the statute. No such case 
 can be found." Bronson, J., who 
 was one of the court below, delivered 
 an opinion renouncing his former 
 judgment. He said : " There may be 
 a delivery without handling the prop- 
 erty or changing its position. But 
 that is only where the seller does an 
 act by which he relinquishes his do- 
 minion over the property, and puts it 
 in the power of the buyer ; as by de- 
 livering the key of the Avarehouso in 
 which the goods are deposited, or by 
 directing the bailee of the goods to 
 deliver them to the buyer, with the 
 assent of the bailee to hold the prop- 
 erty for the new owner." "Here 
 there was no delivery, either actual or 
 symbolical." Weight, J., also pro- 
 nounced an opinion the same way. 
 He said of Elmore v. Stone, supra, 
 that it "was doubted in Howe v. 
 Palmer, 3 B. & Aid. 324, and Proctor 
 V. Jones, 2 C. & P. 534, and virtually 
 overruled by subsequent decisions." 
 He distinguishes it, however, by re- 
 moval of the horses from the sale 
 stable to the livery stable, and, 
 Chaplin v. Rogers, by the buyer's sale 
 of part of the hay which the pur- 
 chaser took away. So that in both 
 these cases there were acts in addition 
 to mere words. As to the doubts 
 about Elmore v. Stone, of which 
 Wright, J., speaks, Bayley, J., in 
 Howe 0. Palmer, said : " That case 
 goes as far as any case ought to go, 
 and I think we ought not to go one step 
 beyond it. ... I must say, however, 
 that I doubt the authority of that 
 decision." This is purely obiter, for 
 he had clearly distinguished the case 
 as above. In Proctor v. Jones, the 
 case of Elmore v. Stone was not men- 
 tioned. Best, J., did there doubt 
 Scott V. Anderson, supra, but without 
 any reason, for there the terms of the 
 contract had been agreed on. Th^ 
 decision in both cases was clearly 
 right, and there are no signs of any 
 overruling of it." See Hollingsworth 
 
634 
 
 STATUTE OF FEATJDS. 
 
 [chap. XII. 
 
 latter removed them from his sale-stable to his livery-stable 
 and there kept them at livery. It was held that from that 
 time the plaintiff possessed the horses not as owner, but as 
 any other livery-stable keeper might have them to keep. In 
 Marvin v. Wallis ^ the plaintiff sold a horse to the defendant 
 by verbal agreement. The bargain was for immediate deliv- 
 ery, but the plaintiff requested the defendant to lend him the 
 horse, and by the defendant's consent kept it for a short 
 time. Afterwards the defendant refused to take the horse. 
 It was held that there was an acceptance of the horse within 
 the statute.^ 
 
 In Tempest v. Fitzgerald,^ the defendant in August agreed 
 to purchase a horse at the price of 45 guineas, and to fetch it 
 away in September. The parties understood it to be a ready- 
 money bargain. The defendant returned on the 20th Sep- 
 tember. He then tried the horse, and his servant, at his 
 direction, made some alteration in the harness. The defend- 
 ant then asked that the horse might remain in the plaintiff's 
 possession for another week, at the end of which he promised 
 
 V. Napier, 3 Cai. (N. Y.) 183. In 
 Fallo V. Miller, 2 Cr. & Dix, 416, the 
 defendant bought a number of pigs 
 of the plaintiff on Saturday. He said 
 he had no change about him and 
 could not pay any earnest, but he 
 wished the plaintiff's servant to keep 
 the pigs without any food from that 
 time until the Monday following, 
 when he would call for and take them 
 away. His directions were followed, 
 but the defendant never took tliem 
 away. The plaintiff afterwards sold 
 the pigs, and sued the defendant for 
 the difference between the sum for 
 which they were sold and what he 
 was to pay for them. It was held 
 that there had been no such delivery 
 as took the case out of the statute. 
 
 1 6 E. & B. 726. 
 
 ^ And see Martin v. Reid, 11 C. B. 
 (N. S.) 730 ; 31 L. J. C. P. 126 ; Beau- 
 mont V. Brengeri, 5 C. B. 301. These 
 cases show that if the bargain is com- 
 plete, the fact that goods remain in 
 the possession of the vendor will not 
 prevent him from proving that they 
 have been actually received. But 
 
 there cannot be an actual receipt by 
 the vendee so long as the goods con- 
 tinue in the possession of the seller as 
 unpaid vendor. Cusack v. Robinson, 
 1 B. & S. 308, per Blackburn, J. In 
 Dale V. Stimpson, 21 Pick. (Mass.) 
 384, the defendants offered the plain- 
 tiff a certain price for a steam-engine, 
 a part of the price to be paid when 
 the engine was taken away by him, 
 which was to be done within two or 
 three weeks, and the balance to be 
 secured by note. The plaintiff ac- 
 cepted the offer and said : " Then you 
 consider the engine yours? " to which 
 the defendant answered "Yes." The 
 boiler was set in bricks in the plain- 
 tiff's shop, and could not be removed 
 until they were taken away, and the 
 plaintiff was to take them away, which 
 he did the next week. The defendant 
 told a witness he had bought the en- 
 gine, and made inquiries as to the 
 terms on which he could get it carried 
 to another place. It was held that 
 there was no delivery and that the 
 sale was within the statute. 
 8 3 B. & Aid. 680. 
 
SEC. 341.J ACCEPTANCE AND RECEIPT. 635 
 
 to fetch it away and pay the price. The horse died before 
 the defendant paid the price or took it away. It was held 
 that there had been no acceptance, upon the ground that the 
 defendant had no right of property in the horse until the 
 price was paid, and that until then he could not exercise any 
 acts of ownership.! Again, in Carter v. Toussaint,^ the 
 plaintiffs, who were farriers, sold to the defendant a race- 
 horse which at the time of the sale required to be fired ; this 
 was done with the approbation of the defendant and in his 
 presence, and it was agreed that the horse should be kept by 
 the plaintiffs for twenty days without any charge being made 
 for it. At the expiration of the twenty days the horse was, 
 by the defendant's directions, taken by a servant of the 
 plaintiffs to a certain park for the purpose of being turned 
 out to grass there. It was there entered in the name of one 
 of the plaintiffs, which was also done by the direction of the 
 defendant, who was anxious that it might not be known that 
 he kept a race-horse. It was held that there had been no 
 acceptance, as the vendor was not compellable to deliver the horse 
 until the price was paid, though if it had been sent to the park 
 and entered in the defendant's name by his directions, that 
 would have been an acceptance. 
 
 In Castle v. Sworder ^ the plaintiffs, wine and spirit mer- 
 
 1 And see Holmes v. Hoskins, 9 house of the plaintiffs for six months 
 Exch. 753 ; 23 L. T. 70. without payment, and afterwards sub- 
 
 2 5 B. & Aid. 855. ject to the payment of rent. The 
 5 Castle c. Sworder, 6 H. & N. plaintiffs had a bonded warehouse in 
 
 828 ; 30 L. J. Ex. 310. Cockburn, which they kept not only their own 
 C. B., said : " We are all of opinion goods but those of other people. The 
 that the judgment of the court below plaintiffs appropriated particular 
 must be reversed, and the rule made goods to the defendant, and sent him 
 absolute to enter a verdict for the an invoice specifying the goods so 
 plaintiffs. The question for us is not appropriated. Some time after this 
 how the jury would have found it if it the defendant, finding that it did not 
 had been left to them, but whether suit his convenience to keep the goods, 
 there was any evidence of an accept- proposed to the plaintiffs' traveller to 
 ance and receipt of the goods to satisfy take them back, and wrote to the 
 the statute. I think that those terms plaintiffs suggesting that they should 
 are equivalent, and in my opinion do so. The question is whether these 
 there was such evidence. It appears facts amount to evidence of a con- 
 that the defendant had entered into a structive acceptance of the goods by 
 contract with the plaintiffs' traveller the defendant. Tlie important partic- 
 to buy the goods, and he was to have ular which has existed in several of 
 a right to take them whenever he the cases, viz., a lien on the part of 
 thought fit. In the meantime the the seller, which imports a right of 
 goods were to remain in the ware- possession incompatible with the pes- 
 
636 
 
 STATUTE OP FBATTDS. 
 
 [chap. XII. 
 
 chants, kept a bonded warehouse, where they took in other 
 persons' goods as well as their own, chargipg warehouse rent. 
 Of this warehouse the plaintiffs had one key and the custom- 
 
 session of the purchaser, did not exist 
 here. The goods were sold on credit, 
 and it is incontestable that during six 
 months the buyer might have claimed 
 these specific goods. The first point, 
 then, is wliether upon these facts the 
 possession which the sellers retained 
 was a possession by virtue of their 
 original property, or as bailees of the 
 buyer. / think there was evidence that 
 the possession of the plaintiffs, which had 
 originally been as owners and sellers, 
 had been converted into a possession by 
 them as bailees for the buyer; for as 
 soon as the goods had been specifically 
 appropriated, the defendant, by virtue 
 of his right as purchaser, evidenced 
 by the terms of the invoice, availed 
 himself of his right by having the 
 goods warehoused in the general 
 warehouse of the sellers, and by re- 
 questing the sellers to take back the 
 goods, and failing that to resell them 
 for him. Under the contract he was 
 entitled to have the goods ware- 
 housed for a certain period free of 
 charge, and after that at a rent ; and 
 he dealt with the goods as if they had 
 been warehoused for him. This was 
 a constructive possession in the buyer, 
 and u. constructive acceptance of the 
 goods by him. It is unnecessary to 
 consider whether, if the goods had 
 not been according to the contract, 
 the defendant might have repudiated 
 them ; or whether the case falls with- 
 in the rule that where a person 
 chooses to accept goods without exer- 
 cising his right to inspect them, he 
 waives his right to reject them, and 
 must be taken to have accepted them 
 without examination. The defendant 
 was content that the goods should re- 
 main in the plaintiffs' warehouse till 
 it suited him to deal with them as 
 owner. Therefore that difficulty does 
 not arise. A buyer may well waive 
 his right to examine goods and accept 
 them, trusting to his remedy by action 
 if they turn out not according to con- 
 
 tract. I am clearly of opinion that 
 there was evidence for the jury." 
 
 Crompton, J., said : " I am of the 
 same opinion. The only question in 
 the court below was whether there 
 was any evidence to go to the jury in 
 support of the plaintiffs' case. We 
 do not differ from the Court of Ex- 
 chequer except in thinking that there 
 was some evidence of the plaintiffs' 
 character being changed from that of 
 seller to that of warehouse-keeper. 
 I take it to be clear that where goods 
 are left by a buyer in the hands of the 
 seller, who is also a warehouse-keeper 
 or livery-stable keeper, there may be a 
 change in the character in which he holds 
 the goods so as to make him the agent for 
 the buyer. Here I think that there 
 was evidence to show that the defend- 
 ant had admitted that the goods had 
 become his, and remained in the plain- 
 tiffs' hands as warehouse-keepers. 
 After that I think he could not have 
 rejected them, though he might have 
 had a remedy by' action for damages 
 if they were not according to contract. 
 I think it is settled by the cases that 
 where the goods are left by the pur- 
 chaser with the seller his cliaracter 
 may be changed ; and that where he 
 becomes the bailee for the purchaser 
 the statute is satisfied. In Earina v. 
 Home, 16 M. & W. 119 it was held 
 that the mere giving of a transfer 
 order for the goods was not sufficient, 
 because they were held by a ware- 
 house-keeper as agent for the seller; 
 but where a delivery order is lodged 
 and attorned to by the bailee he holds 
 for the buyer, and the statute of 
 frauds is out of the question. The 
 only peculiarity of this case is that 
 the same person was both seller and 
 warehouse-keeper. In such case, in 
 order to satisfy the statute, it is necessary 
 that there should be some evidence of a 
 change in the character in which the 
 plaintiffs held the goods. Now it is 
 impossible to say that there was not 
 
SEC. 341.] ACCEPTANCE AND RECEIPT. 637 
 
 house oiBcer another. The defendant agreed to buy of the 
 plaintifPs two puncheons of rum, which were to remain in 
 bond till wanted, the defendant to have six months' further 
 credit. The plaintiffs sent the defendant an invoice describ- 
 ing the puncheons by marks and numbers, with the words 
 " free six months," which was explained to mean that they 
 might remain in the plaintiffs' warehouse without charge for 
 six months. The plaintiffs entered in the rum-book of their 
 warehouse the puncheons of rum as sold to the defendant, 
 and proved that after the entry they had no power to get the 
 goods out. The rum remained in the warehouse for two 
 years; during which time the defendant on several occasions 
 asked the plaintiffs to take back the goods or buy them of 
 him. It was held that there was evidence to go to the jury 
 that the character in which the plaintiffs held the goods was 
 changed, and that if they held as warehousemen for the 
 defendant, there was evidence of an acceptance and receipt 
 of the goods by the defendant to satisfy the statute. 
 
 The rule may be said to be that where articles are ponder- 
 ous and incapable of manual delivery, a delivery sufficient to 
 vest the title to the property in the vendee, and which gives to 
 him the exclusive dominion over it, is sufficient, although the 
 actual possession is not changed ^ to satisfy the reason and 
 
 some evidence to show that the goods him for the rum. That is strong evi- 
 were in the hands of the plaintiffs as dence of acceptance. When this is 
 warehouse-keepers. The defendant taken in connection with the entries 
 made statements and wrote letters in the rum and brandy books, and the 
 which show that he acquiesced in the proof that after that entry the plain- 
 plaintiffs holding the goods as his tiffs could not get out the goods, there 
 agents. Particular casks were appro- is evidence of a change of character, 
 priated to the defendant by the in- After that I think that the defend- 
 voice. The defendant kept the in- ants could not say that these goods 
 voice, and may be presumed to have did not pass to them, though they 
 assented to the terms of it. The might have brought an action if they 
 invoice states that the goods were to were not according to contract." 
 remain ' free for six months.' This ' Atwell v. Miller, 6 Md. 10 ; Cooke 
 shows that the plaintiffs would keep v. Chapman, 6 Ark. 197 ; King v. Jar- 
 the goods as warehouse-keepers free man, 3 id. 190; Pleasants v. Pendlc- 
 of charge for a certain time. It may ton, 6 Band (Va.) 473; Jordan v. 
 therefore be inferred that the defend- James, 5 Ohio, 88 ; Leishcrness v. 
 ant knew that the plaintiffs were ware- Berry, 38 Me. 83 ; Taylor v. Richard- 
 house-keepers, and assented to their son, 4 Houst. (Del.) 300; Peoples' 
 keeping the goods in that capacity for Bank v. Gridley, 91 111. 457 ; Shurtleff 
 him. When applied to for payment i;. Willard, 19 Pick. (Mass.) 210 ; 
 he asks what the plaintiffs will give Adams v. Foley, 4 Clarke (Iowa) 52; 
 
638 
 
 STATUTE or FKAUDS. 
 
 [chap. XII. 
 
 the policy of the statute.-' The rule may be said to be, that 
 if the goods sold are ponderous, and not capable of actual 
 delivery, and the buyer accepts them,, and in virtue of such 
 transfer of the property, proceeds to exert ^ right over them, 
 disposing of them, or giving orders and directions respecting 
 them, as the owner thereof, such proceedings ma}"- counter- 
 vail the actual delivery, and vest the property of the buyer, 
 without any written contract or earnest paid, notwithstand- 
 ing the statute ; and though it is proper for the court to say 
 whether a case does or does not fall within the statute, yet it 
 may be specifically put to the jury to say whether upon the 
 evidence there was or was not an acceptance of the thing by 
 the purchaser.^ In order, however, to make such a delivery 
 operative, the minds of the parties must have met upon all the 
 essential details of the contract, and there must he nothing left 
 undone which interferes with the exclusive dominion of the 
 
 Bethel Steam Mill Co. u. Brown, 57 
 Me. 9; Hayden v. Dunets, 53 N. Y. 
 426 ; Boynton i.. Veazie, 24 Me. 286 ; 
 Taylor v. Eichardson, 4 Houst. (Del.) 
 300; Calkins v. Lockwood, 17 Conn. 
 174 ; Leonard v . Davis, 1 Black. (U. 
 S. C. C.) 476. 
 
 1 Puckett V. Keed, 31 Ark. 131; 
 King V. Jarman, 35 id. 190. 
 
 2 Vincent v. Germond, 11 John. (N. 
 Y.) 283; Babcock r. Stanley, 11 id. 
 178 ; Wightman v. Caldwell, 4 Wheat. 
 {IT. S.) 85; Bailey a. Ogden, 3 John. 
 (N. Y.)399; Calkins t>. Lockwood, 17 
 Conn. 174; King v. Janvrin, ante. 
 The law relating to the delivery of 
 personal property does not require 
 parties to a sale to perform acts ex- 
 tremely inconvenient, if not impossi- 
 ble ; but accommodates itself to their 
 business, and the nature of the prop- 
 erty. Thus, where all the logs and 
 boards designated by a particular 
 mark are sold while afloat, a construc- 
 tive or symbolical delivery only is re- 
 quired, and this may be done by the 
 performance of any act which shows 
 that the seller has parted with the 
 right and claim to control the prop- 
 erty, and that the purchaser has ac- 
 quired that right. In such ease, the 
 delivery of one raft of boards upon 
 
 the water, having the same mark as 
 of the logs upon it, for the whole lum- 
 ber thus marked, would afford suffi- 
 cient evidence of such a delivery; 
 And the same raft may be used to 
 make such a delivery of the whole 
 lumber having the same marks, al- 
 though it had before been used to 
 make a delivery of a portion thereof, 
 between the same parties. Boynton 
 u. Veazie, 24 Me. 286. See also Leon- 
 ard V. Davis, 1 Black. (U. S.) 476. 
 Property in chattels may be trans- 
 ferred in writing without delivery, the 
 delivery of the writing being a sym- 
 bolical delivery of the property. 
 Southworth v. Sebring, 2 Hill (S. C.) 
 587. A delivery of part of a number 
 of chattels, and a symbolical delivery 
 of the remainder. Is a sufficient trans- 
 fer of possession. Chappel v. Mar- 
 vin, 2 Aik. (Vt.) 79. 
 
 An order on the depositary of 
 goods sold, given ■ by the vendor to 
 the vendee, constitutes a good deliv- 
 ery as between themselves. Sigerson 
 V. Harker, 15 Mo. 101 ; McCormick v. 
 Hadden, 37 111. 370; How v. Barker, 
 8 Cal. 603 ; 11 Cal. 893 ; Cushing v. 
 Breed, 14 Allen (Mass.) 376 ; Anthony 
 V. Wheatons, 7 E, I. 490. 
 
SEC. 341. j 
 
 ACCEPTANCE AND EECEIPT. 
 
 639 
 
 purchaser over the property. The property must bo of a spe- 
 cific character, and clearly identified and separated from other 
 property of the same kind, and the sale must not be depen- 
 dent upon any conditions or contingencies, and the possession 
 must he the best which the nature and the situation of the prop- 
 erty admits of?- In the words of Lord Ellenbokough,^ 
 " where goods are ponderous and incapable of being handed 
 over from one to another, there need not be an actual .deliv- 
 ery, but it may be done by that which is tantamount, such as 
 the delivery of the key of a warehouse,^ or other indication of 
 property." * In such cases, the delivery is constructive, and 
 
 ' Wilkes V. Ferris, 5 John. (N. Y. ) 
 335; Chappel v. Marvin, 2 Aik. (Vt.) 
 79; Gibbs o. Benjamin, 45 id.; King 
 V. Jarman, 25 Ark. 190; Chaplin v. 
 Rogers, 1 East. 192. In Rieder v. 
 Machen, 57 Md. 66, a sale was made 
 of a part of u, quantity of coal. 
 The part sold was not separated from 
 the rest, and was neither weighed nor 
 measured. It was held that the sale 
 was merely executory. If the whole 
 or a part of the price is to be paid 
 before it is to be taken away, there 
 is no delivery until such payment is 
 made. Dole u. Stimpson, 21 Pick. 
 (Mass.) 384. 
 
 ^ Chaplin v. Rogers, ante. 
 8 Gray v. Davis, 10 N. Y. 285; 
 Packard;;. Dunsmore, 11 Cush. (Mass.) 
 282; Wilkes v. Ferris, 5 John. (N. Y.) 
 335. Upon the sale of a safe, weigh- 
 ing some 2000 pounds, a delivery of 
 its key, as well as a key of the room 
 in which it is situated, is sufficient to 
 constitute a valid sale as against cred- 
 itors. Benford v. Schell, 55 Penn. 
 St. 393; Chappel v. Marvin, 2 Aik. 
 (Vt.) 79. 
 
 * Bentnall u. Bum, 3 B. & C. 423 ; 
 Lucas V. Dorreen, 7 Taunt. 278 ; AVoad- 
 lyu. Coventry, 2 H. & C. 164; Harmon 
 V. Anderson, 2 Camp. 243; Lacking- 
 ton V. Atherton, 7 M. & G. 360. 
 Where the owner of lumber sells it, 
 and indorses and delivers to the pur- 
 chaser the receipt of the proprietor 
 of the lumber yard in which it is de- 
 posited, this symbolical delivery is 
 sufficient to pass the title as between 
 
 the vendor and vendee. Mitchell u. 
 McLean, 7 Fla. 329. The delivery of 
 a shop, SO separated from the realty 
 as to be an article of personal prop- 
 erty, may well be effected by delivery 
 of the key, though that delivery take 
 place at a distance from the shop it- 
 self. Vining v. Gilbreth, 39 Me. 496. 
 The delivery of the invoice of goods 
 shipped, with an assignment of the 
 goods indorsed upon it, the assignor 
 having no bill of lading, was held to 
 be a symbolical delivery of the goods. 
 Gardner v. Rowland, 2 Pick. (Mass.) 
 599. Delivery of the key of a build- 
 ing in which personal propert}' is 
 stored, by the vendor to the vendee, 
 with intent to surrender possession of 
 the property, is a sufficient delivery 
 as against subsequent attaching cred- 
 itors of the vendor. Packard v. Duns- 
 more, 11 Cush. (Mass.) 282; Wilkes 
 V. Ferris, 5 Johns. (N. Y.) 335; Gray 
 t . Davis, 10 N. Y. 285. But plucking 
 a handful of half-grown grass, and 
 delivering it to a purchaser in a field 
 upon a sale of the grass, witli an 
 agreement that the vendor shall cut 
 it for the vendee at a proper time, is 
 not a constructive delivery of the hay 
 as a chattel, which will pass a title to 
 it, as against third persons. Lamson 
 v. Patch, 5 Allen (Mass.) 586. In the 
 sale of oxen, a delivery of brass knobs 
 which had been worn upon their horns 
 is not a symbolical or constructive de- 
 livery of the oxen, unless specially so 
 agreed. Clark v. Draper, 19 N. H. 
 419. 
 
640 
 
 STATUTE OF FRAUDS. 
 
 [chap. XII. 
 
 is sufficient for the purpose of taking the contract out of the 
 statute. But if anything remains to be done before the con- 
 tract is complete, as if the goods have not been separated from 
 others of the same kind,^ or if they have not been weighed 
 or measured,^ or some precise means of ascertaining the 
 value agreed upon, which only leaves the ascertainment of 
 
 1 Dunlop V. Perry, 5 111. 327 ; Cleve- 
 land V. "Williams, 29 Tex. 204 ; Gard- 
 ner V. Snydam, 7 N. Y. 357 ; Eager v. 
 Eichelberger, 6 Watts (Penn.) 29. A 
 sale of property is not fully completed 
 so long as anything remains to be done 
 to the thing sold to put it in a condi- 
 tion for sale, or to identify it, or dis- 
 criminate it from other things, or to 
 determine its quantity, if the price 
 depends on this, unless this is to be 
 done by the purchaser. ^McClung v. 
 Kelley, 21 Iowa, 508. Thus, if sev- 
 eral barrels of mackerel have been 
 inspected, and marked as of different 
 qualities, and the whole of those hav- 
 ing a particular mark are sold, a bill 
 of sale being given and a formal deliv- 
 ery made, the property will pass with- 
 out further separation or designation, 
 though such barrels are intermingled 
 with others. But if the whole of such 
 barrels are not sold, the title will not 
 pass without some future separation 
 or designation, notwithstanding a stor- 
 age receipt is given. Ropes v. Lane, 
 9 Allen (Mass.) 502. If a verbal con- 
 tract is made for the sale and delivery 
 of certain specified quantities of dif- 
 ferent kinds of spirituous liquors, at 
 agreed prices, the property will not 
 pass, and the sale is not complete until 
 the liquors are separated and set apart 
 for the purchaser. Banchor «. Wai^ 
 ren, 33 N. H. 183. If one joint owner 
 of a crop sells to the other his share 
 of it to pay a debt, and it is divided 
 in the presence of both, for the pur- 
 pose of ascertaining the amount to be 
 credited on the debt, there is no tres- 
 pass in the purchasing partner's re- 
 moving the property, though forbid- 
 den by the other. Warbitton v. Sav- 
 age, 4 Jones (N. C. ) L. 382. Where 
 the part of an undivided lot of prop- 
 
 erty is sold, and an order given for its 
 delivery, there must be some act of selec- 
 tion under the order before the right of 
 property is changed. Woods v. 
 M'Gee, 7 Ohio, Part II. 127. 
 
 2 Everett v. Clements, 9 Ark. 478; 
 Courtright v. Leonard, 11 Iowa, 32. 
 In Ockington v. Richey, 41 N. H. 275, 
 it was held that a sale of lumber to 
 be taken and measured from a larger 
 bulk, and to be an average lot as to 
 thickness and quality, is not com- 
 plete, even as between the parties, 
 until selected and measured. The 
 question of delivery or non-delivery 
 of the thing sold is a question of what 
 was the intention of the parties ; and 
 where, out of five or six hundred bales 
 of cotton stored in a warehouse, 125,000 
 pounds are bargained and sold for the 
 purpose of being used in a factory 
 near thereto, and the buyer, after the 
 bargain and sale to him, sells one-half 
 to his partner in the factory, and a 
 portion of that first bought is con- 
 sumed in the factory by the partner- 
 ship, and the first buyer receives from 
 his partner full payment for his half 
 in another lot of cotton of the same 
 quantity at another place, such use 
 and acts and circumstances show the 
 intention of the parties to treat the 
 entire 125,000 pounds as delivered for 
 consumption in the factory, to be 
 weighed as needed from time to time, 
 and altogether amount to a sufficient 
 delivery thereof, though the whole 
 quantity sold was not weighed and 
 severed from the bulk. 1876, Phillips 
 V. Ocmulgee Mills, 55 Ga. 633. And 
 it must be a delivery under the con- 
 tract and in pursuance of it. Mat- 
 thiessen &e. R. R. Co. v. McMahon, 
 38 N. J. L. 537. 
 
SEC. 342.] 
 
 ACCEPTANCE AND BECEIPT. 
 
 641 
 
 the price a mere matter of computation,^ there is no delivery, 
 because the elements do not exist which give to the buyer 
 exclusive dominion over the property, and divest the seller 
 of the right to recede from the contract. 
 
 Sec. 342. Delivery of Goods to a Carrier may be Delivery 
 to Vendee. — The delivery of goods by the vendor to a com- 
 mon carrier for the purpose of transmission to the vendee 
 may, in the absence of any special arrangement, and where 
 the contract is otherwise binding, amounts to a delivery to 
 the vendee, so as to vest the property in the goods in him, 
 and in the case of loss or damage he will be the proper 
 person to bring an action against the carrier.''^ 
 
 In a New York case,^ it was held that "upon a verbal con- 
 tract for the sale of goods of more than fifty dollars in value, 
 a delivery of them, in accordance with such contract, to a 
 
 ^ Gibbs V. Benjamin, 45 Vt. ; Tyler 
 c: Strange, 21 Barb. (N. Y.) 198. 
 
 2 Dawes v. Peck, 8 T. R. 330; 
 Fragano v. Long, 4 B. & C. 219; 
 Button V. Solomonson, 3 B. & P. 584 ; 
 Johnson v. Dodgson, 2 M. & W. 053 ; 
 Uunlop V. Lambert, 6 C. & E. 600; 
 Norman v. Phillips, 14 M. & W. 277; 
 Wait o. Baker, 2 Ex. 1 ; Meredith v. 
 Meigh, 2 E. & B. 364 ; Hart v. Bush, 
 3 E. B.& E. 494; 27 L. J. Q. B. 271; 
 Cusack 0. Robinson, 1 B, & ij. 299; 
 Smith V. Hudson, 6 B. & S. 431 ; 34 
 L. J. Q. B. 145. In Hausman v. Nye, 
 62 Ind. 485, an agent of a principal 
 residing in Ohio contracted with a 
 person residing in Indiana, to sell him 
 goods exceeding |50 in price. Noth- 
 ing was said as to the manner of 
 shipment. There was no memoran- 
 dum, earnest money, nor payment, 
 and the vendee did not receive any 
 part of the goods. The principal 
 afterward in Ohio, without the knowl- 
 edge or assent of the vendee, shipped 
 a part of the goods to the vendee, who 
 refused to receive them. It was held 
 that the contract was an Indiana 
 contract; that it was an entire con- 
 tract, and the vendee was not bound 
 to accept part; that the delivery to 
 the carrier under the circumstances 
 was not a legal delivery to the ven- 
 
 dee ; and that the contract was void 
 under the statute of frauds. As to 
 acceptance, see Johnson v. Cuttle, 106 
 Mass. 447 ; Kirby v. Johnson, 22 Mo. 
 354; Edwards v. Grand Trunk Rail- 
 way Co., 54 Me. 105 ; Hewes v. Jor- 
 dan, 39 Md. 472 ; Stone v. Browning, 
 68 N. Y. 598 ; Hooker o. Knabe, 26 
 Wis. 511 ; Everett v. Parks, 62 Barb. 
 (N. Y.) 9 ; Magruder i-. Gage, 33 Md. 
 344 ; Cobb v. Arundell, 26 Wis. 533 ; 
 Foster „. Rockwell, 104 Mass. 167; 
 Strong V. Dodds, 47 Vt. 348 ; Hunter 
 V. Wright, 12 Allen (Mass.) 348; Put- 
 nam t>. Tilleston, 13 Met. (Mass.) 517 ; 
 Merchant v. Chapman, 4 Allen 
 (Mass.) 362; Orcutt v. Nelson, 1 Gray 
 (Mass.) 536. But it must not be for- 
 gotten that a delivery to a. carrier 
 appointed by the purchaser only 
 amounts to a receipt and not to an ac- 
 ceptance of the goods. AUard v. Greas- 
 art, 61 N. Y. 1 ; Snow o. Warner, 10 
 Met. (Mass.) 132; Maxwell v. Brown, 
 39 Me. 98 ; Denmead v. Glass, 30 Ga. 
 637; Rodgers v. Phillips, 40 N.Y. 
 519 ; Froetburgh Mining Co. v. N. E. 
 Glass Co., 9 Gush. (Mass.) 115; Ath- 
 erton v. Newhall, 123 Mass. 141 ; 
 Quintard v. Bacon, 99 id. 185 ; Board- 
 man V. Spooner, 13 Allen (Mass.) 353. 
 a Rogers v. Phillips, 40 N. Y. 519. 
 
642 STATUTE OF FRAUDS. [CHAP. XII. 
 
 general carrier, not designated or selected by the buyer, does 
 not constitute such a delivery and acceptance, under the 
 statute of frauds, as to pass the title to the goods. Although 
 in the case of a contract, itself valid, such a delivery might 
 be sufficient to transfer the title and risk to the purchaser. " i 
 
 In a Georgia case,^ it is said in the opinion of the court ; 
 " Under the proof, was this case within the seventeenth section 
 of the statute of frauds ? The statute requires that the pur- 
 chaser shall ' actually receive ' the goods. And although 
 goods are forwarded to him hy a carrier by his direction, or 
 delivered abroad on 'board of a ship chartered by him, stUl 
 there is no actual acceptance to satisfy the act, so long as the 
 huyer continues to have the right, either to object to the quanr 
 turn or quality of the goods." ^ 
 
 In Maxwell v Brown,* the court say: "From the language 
 of this statute it is apparent, that when there is no written 
 contract, a mere delivery will not be sufficient. There must 
 further be an acceptance by the purchaser, else he will not 
 be bound. In Baldey v. Parker,^ ' it was formerly consid- 
 ered,' observes Best, J., 'that a delivery of goods by the seller 
 was sufficient to take a case out of the seventeenth section of 
 the statute of frauds : but it is now clearly settled, that there 
 must be an acceptance by the buyer as well as a delivery by 
 the seller.' " In the same case Holroyd, J., said : " As long 
 as the seller preserves his control over the goods, so as to retain his 
 lien, he prevents the vendee from accepting and receiving them as 
 his own, within the meaning of the statute." 
 
 In Cross v. O'Donnell,^ an action was brought by the 
 plaintiffs to recover the price of 24,000 hoops at fll.50 per 
 1,000, bought by the defendants of the plaintiffs, at Balti- 
 more in 1863. There was no memorandum of the contract 
 and no part of the purchase-money was paid by the pur- 
 chaser. But the purchaser inspected and accepted the hoops 
 and designated the steamer upon which they should be con- 
 veyed to New York. The hoops were thus delivered to the 
 
 1 Strong V. Dodds, 47 Vt. 348 1 & Co., 20 Ga. 574 ; Shepherd v. Pres- 
 Bacon v. Eccles, 43 Wis. 227 ; AUard sey, 32 N. H. 49. 
 
 V. Greasart, 61 N. Y. 1. < Maxwell v. Brown, 39 Me. 98. 
 
 2 Lloyd V. "Wright, 25 Ga. 215. = 2 B. & C. 37. 
 
 8 Acebal v. Levy, 10 Bing. 376; •> Cross n. O'Donnell. 44 N. Y. 661 ; 
 
 Howe V. Palmer, 3 B. & Aid. 321 ; 4 Am. Eep. 721. 
 Lloyd & Pulliam v. Wright, Griffith, 
 
SEC. 342.] ACCEPTANCE AND EECEIPT. 643 
 
 steamer ; but she was sunk on her voyage in the Chesapeake 
 Bay. The defendants refused to pay for the hoops, and 
 pleaded the statute of frauds. It was held that the plaintiffs 
 were entitled to recover as the hoops had been accepted by 
 the defendant, and that their delivery to the carrier desig- 
 nated by him was a delivery to the defendant and a receipt 
 of the hoops by him, EAel, C, saying : " In this case, the 
 purchasers designated the agents of the ' Curlew ' to receive 
 and transport the hoops to them. They were the agents of 
 defendants for the purpose of receiving the hoops from the 
 plaintiffs. It is not necessary to determine in this case that 
 a mere carrier, designated by the buyer, can both accept and 
 receive for him, so as to make a compliance with the statute ; 
 but I can find no reason, founded upon principle or authority, 
 to doubt that, after the buyer has accepted the article pur- 
 chased, a carrier, designated by him to take and transport it, 
 can bind him as his agent by receiving it. While there is 
 not upon this question entire harmony in the views of 
 judges, and while the authorities cannot all be reconciled, 
 the general drift of them is toward the conclusion I have 
 reached.^ 
 
 It is said by some writers that, to create such an appro- 
 priation of the goods by the buyer as will answer the mean- 
 ing attached to the words 'accept and receive' in the statute, 
 there must be such an actual delivery by the seller as will 
 destroy all lien for the purchase-price, or right of stoppage 
 in transitu. This, to the full extent, is not true. The seller 
 has a lien for the purchase-price of the goods while they 
 remain in his possession. And this lien he loses when he 
 voluntarily parts with the possession, except when he de- 
 livers them to a carrier. In the latter case, his lien is ex- 
 tended and lasts, although the title has passed to the buyer, 
 until the carrier has delivered the goods to the actual posses- 
 sion of the buyer. This lien is an arbitrary one, created by 
 law. As observed by Lord Kenyon,^ it is ' a kind of equi- 
 table lien adopted by the law for the purpose of substantial 
 
 1 Outwater v. Dodge, 8 Wend. (N. Hanson v. Armitage, 5 B. & Aid. 557 ; 
 y.) 397; The People v. Haynes, 14 Acebal v. 'Levy, ante; Coats v. Chap- 
 id. 546; Glen v. Whitaker, 51 Barb, lln, 3 Q. B.483; Morton v. Tibbett, 
 (N. Y.) 451 ; Spencer v. Hale, 30 Vt. ante. 
 314 ; Maxwell „. Brown, 39 Me. 98; = In Hodgson v. Lay, 7 T. R. 436. 
 
644 STATUTE OF FRAUDS. [CHAP. XII. 
 
 justice.' When the seller retakes the property in the exer- 
 cise of this right of stoppage, he is not reinvested with the 
 title, but simply placed in the actual possession of the goods, 
 holding them as security for the purchase-price. The stop- 
 page must be while the goods are in transitu, and that is 
 usually when they are not in the actual possession of either 
 party ; and yet they may be in the- actual possession of the 
 buyer under such circumstances as not "to take away the 
 right of stoppage. This right exists, although the goods are 
 shipped upon the buyer's own vessel, consigned to him at 
 his place of residence.-"- The fact that the right of stoppage 
 exists is no evidence that both the title and possession have 
 not passed to the buyers. The contract of sale may be in 
 writing, part of the purchase-money may have been paid, 
 and there may have been a part delivery, and yet, if the 
 seller consigns th^ goods by a carrier to the buyer, to be 
 delivered to him at the place of their destination, the right 
 of stoppage exists. And this may be so, even if the buyer 
 is also master of the vessel, and he in person takes the goods 
 and loads them upon his own vessel, provided, as in this 
 case, the seller consigns the goods to the buyer, to be carried 
 by him to their place of destination.^ Hence I hold that 
 a carrier designated by the buyer may receive the goods purchased, 
 so as to make a compliance with the statute of frauds." 
 
 Sec. 343. Executory Contract partly Hzecuted. — Upon an 
 executory contract for the delivery of goods periodically, 
 which is void under the statute for want of writing, the 
 vendor may sue for goods actually delivered.^ The claim 
 in such case is not upon the terms and footing of the con- 
 tract, but upon a quantum meruit,^ 
 
 1 Stubbs V. Lund, 7 Mass. 453 ; » Mavor v. Pyne, 3 Bing. 285. 
 lUsley V. Stubbs, 9 id. 65 ; Story on * Earl of Falmouth v. Thomas, 1 
 Sales, §336. Cr. & M. 109. 
 
 2 Pars, on Mar. Law, 335. 
 
CHAPTER XIII. 
 
 THE MEMOKANDUM OR NOTE IK WRITING. 
 
 SECTION. 
 
 344. Difference between Fourth and Seventeenth Sections. 
 
 345. Perm of Memorandum. 
 
 346. When Mutuality is Requisite. 
 
 347. May be in Form of Letters Addressed to Third Persons. 
 
 348. Records of Corporations. 
 
 349. Alteration of Memorandum. 
 
 350. Filling Blanks, etc. 
 
 351. When Price must be Stated. 
 
 352. Formal Agreement to be Prepared. 
 
 353. What is Sufficient Description of Property. 
 
 354. Both Parties must be Named. 
 
 355. Reference to Conditions or Particulars of Sale. Executors, etc. 
 
 356. When Description is Indefinite. 
 
 357. Entry in Order-Book. 
 
 358. Both Parties Named, but Seller not Named as Seller. 
 
 359. Reference to other Documents to Describe Parties. 
 
 360. Letter Repudiating Contract. 
 
 361. Letter Suggesting Abandonment of Contract. 
 
 362. Letters Written During Dispute as to Terms. 
 
 363. Affidavits. 
 
 364. Contract may be Gathered from Several Writings. 
 
 365. Insufficient Reference. 
 
 366. Recital of Agreement Sufficient. 
 
 367. Reference must be Clear. 
 
 368. Part only, of Documents Referred to, to be Incorporated in Contract. 
 
 369. Reference in Case of Letters Need not be Express. 
 
 370. Terms of Contract must Appear from Writing. 
 
 371. Auctioneers, Sales by. 
 
 372. Sheriffs, Constables, etc.. Sales by. 
 
 373. Recognition of Contract. 
 
 374. Must be Concluded Agreement. 
 
 375. Additional Terms. 
 
 376. Immaterial Addition to Acceptance. 
 
 377. Conditional Acceptance. 
 
 378. Parol Acceptance of Written Offer. 
 
 379. Special Acceptance. 
 
 380. Withdrawal of Offer. 
 
 381. Determination of Offer. 
 
 382. Rejection of Offer. 
 
 383. Acceptance must be Witliin Reasonable Time. 
 
 384. Parol Evidence not Admissible to Vary Contract. 
 
646 STATUTE OF FEATJDS. [CHAP. XIII. 
 
 385. When Admissible to Prove Stipulations of Contract. 
 
 386. Not, to Connect Separate Documents. 
 
 387. To Explain Imperfect Reference. 
 
 388. Cases where Parol Evidence not Admissible. 
 889. To Show that no Contract- was Intended. 
 
 390. That Agreement does not State Contract. 
 
 391. To Prove that Price was Agreed Upon. 
 
 392. To Show Abandonment of Contract. 
 
 393. To Explain Latent Ambiguity. 
 
 394. To Explain Omission in Bought and Sold Notes. 
 895. To Show Situation of the Parties. 
 
 396. Explain Subject-Matter. 
 
 397. To Show Trade Usage. 
 
 398. To Show Alterations in Articles Ordered. 
 
 399. To Prove Date. 
 
 400. To Show that Contract Signed by Agent in His Own Name was Signed 
 
 for a Principal. 
 
 401. To Prove Assent to Alterations in Memorandum. 
 
 402. To Prove Assent of Principal. 
 
 403. Effect of Parol Variations in Memorandum upon Remedy of Parties. 
 
 404. Lost Memorandum. 
 
 Section 344. Difference between the Fourth and Seventeenth 
 Sections. — Both the fourth and seventeenth sections of the 
 statute of frauds use the words " memorandum or note in 
 writing" , to indicate the means by which contracts are to be 
 authenticated. The wording of the two sections in other 
 respects is slightly different. The words of the fourth sec- 
 tion are : " Unless the agreement on 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 thereunto by him lawfully authorized." 
 Those of the seventeenth are : " Except that some note or 
 memorandum in writing of the said bargain be made, and 
 signed by the parties to be charged with such contract, or 
 their agents thereunto lawfully authorized." The meaning 
 of the two sections is substantially the same,^ but this dis- 
 tinction has been drawn : that if the memorandum states all 
 that is to be done by the party to be charged, that is suffi- 
 cient within the seventeenth section, though not enough to 
 make a valid agreement in cases within the fourth section.^ 
 
 1 Kenworthy v. Schofield, 2 B. & 0, " Sari v. Bourdillon, 1 C. B. (N. 
 947. S.) 188; 26 L. J. C. P.; Egerton u. 
 
SBC. 345.] MEMORANDUM OB NOTE IN WBITING. 
 
 647 
 
 Sec. 345. Form of the Memorandum. — If the memoran- 
 dum contains all the essential elements of a contract, the 
 form in which it is written is of no account, as any instru- 
 ment, however informal, or bunglingly constructed, which 
 describes the property, the price to be paid therefor, if the 
 price has been agreed upon,^ the parties and the essential 
 terms of the agreement,^ either by its own terms or by refer- 
 ence to other writings, so that parol evidence is not neces- 
 sary to establish or explain it, is as valid and binding as the 
 most formal instrument which could be constructed.^ The 
 statute only contemplated that such a note or memorandum 
 should be made as men in the hurry of business may be sup- 
 posed to be likely to make ; * but, nevertheless, of such a defi- 
 
 Matthews, 6 East, 307 ; Laythroop v. 
 Bryant, 6 Bing. (N. C.) 735; Hinds v. 
 Waterhouse, 7 East, 558 ; Bailey v. 
 Sweeting, 9 C. B. (N. S.) 843. 
 
 1 But the omission -of the price 
 has heen held not to render a memo- 
 randum invalid, when sufficient in 
 other respects. Thus, a writing as 
 follows : " Please get us 360 hogs, 
 instead of 250, if you can, so as to 
 make three carloads at your place. 
 Be careful about the weight," signed 
 by the defendant, was held to be suf- 
 ficient, although the price was not 
 stated, the court holding that the price 
 might be shown by parol. O'Neil v. 
 Cram, 67 Mo. 250. But this must only 
 be understood as being the rule where 
 either by statute, or the decisions of 
 the courts, a statement of the consid- 
 eration is unnecessary. But if the 
 price has been agreed upon, it must 
 be stated. Ires v. Hazard, 4 K. I. 14 ; 
 Norris v. Blair, 39 Ind. 90 ; McElroy 
 < . Buck, 35 Mich. 434; Soles v. Hick- 
 man, 20 Penn. St. 180; Wright v. 
 Cobb, 5 Sneed (Tenn.) 143; Parker 
 V. Bodly, 4 Bibb. (Ky.) 102; McFar- 
 son's Appeal, 11 Penn. St. 503; Par- 
 well r. Lowther, 18 111. 252 ; Brown v. 
 Bellows, 4 Pick. (Mass.) 178; Fugate 
 
 0. Hanaford, 3 Litt. (Ky.) 262; Holman 
 
 1. Bank, 12 Ala. 369. But see John- 
 son V. Ronald, 4 Munf. (Va.) 77. 
 
 ^ It must state the contract so that 
 the substance of it can be understood 
 with reasonable certainty from the 
 
 writing itself. Abeel v. RadclifEe, 13 
 John. (N. Y.)297; Parkhurst r. Van 
 Cortlandt, 1 John. Ch. (N. Y.) 274 ; 
 Dodge V. Lean, 13 John. (N. Y.) 297 ; 
 Vanderbergh v. Spooner.L. R. 1 Exchq. 
 317. It need not contain a detail of 
 all the particulars. Ives o. Hazard, 4 
 R. I. 14. A memorandum of a con- 
 tract for the sale of a cargo of coal 
 which states the kind, the price per 
 ton, the place of delivery, and the 
 draft of the vessel in which it is to be 
 carried, and of which duplicate copies 
 are made, one of them only being 
 signed by the buyer alone and kept 
 by the seller, the other accepted by 
 the seller, and given to the buyer, 
 sufficiently describes the quantity, 
 and the two papers are properly 
 submitted in evidence together, and 
 thus form a sufficient memorandum 
 under the statute of frauds. Rhoades 
 V. Castuer, 12 Allen (Mass.) 130. 
 
 8 Bailey v. Ogden, 3 John. (N. Y.) 
 399; Shaw v. Finney, 13 Met. (Mass.) 
 453 ; Ide v. Stanton, 15 Vt. 685 ; Adams 
 u. McMillan, 7 Port. (Ala.) 73; Wood 
 V. Davis, 82 111. 311 ; Holmes i;. John- 
 ston, 12 Heisk. (Tenn.) 155; Lang v. 
 Henry, 54 N. H. 57. In Beckwith v. 
 Talbot, 95 U. S. 289, it was held that 
 parol evidence is admissible to iden- 
 tify the agreement referred to in the 
 instrument to supply the defect of 
 signature. 
 
 * TiNDAL, C. J., in Acebal v. Levy, 
 4 M. & Sc. 220. 
 
648 
 
 STATUTE OF FRAUDS. 
 
 [chap. xnr. 
 
 nite character in all the essentials of the contract, that the interi- 
 tion of the parties, their names, and relation to each other under 
 the contract, can he gathered from the memorandum itself, 
 leaving nothing to he supplied hy parol?- But a memorandum 
 which is deficient in any of these respects, is insufficient to 
 take the contract out of the statute. Thus, an agreement 
 for the plaintiff to act for the defendant as travelling sales- 
 man, as follows: "The understanding with Mr. A, is as 
 follows : §2,000 for the first year ; $2,600 for the second year 
 sure, and provided the increase in sales shall warrant it, he 
 is to have $3,000 ; 3 year in proportion to business as above," 
 and signed by both parties, was, inasmuch as it contained no 
 mention of the nature of the services, held insufficient to take 
 the case out of the statute of frauds.^ So in an action against 
 
 1 Sievewright v. Archibald, 17 Q. 
 B. 102. In Reid v. Kenworthy, 25 
 Kan. 701, it was held that a paper 
 containing merely the date of an 
 agreement, the name and place where 
 written, certain figures, and the names 
 of certain parties, and the signature 
 of the party intended to be charged, 
 Is not a memorandum of agreement 
 within the statute of frauds. In Graf- 
 ton f. Cummings, 99 U. S. 100, it was 
 held that a memorandum not identi- 
 fying the otlier party thereto, was not 
 sufficient, as parol evidence is not 
 admissible for that purpose. So it 
 has been held that parol evidence is 
 not admissible to show who was the 
 seller or who the buyer under a mem- 
 orandum of the sale of goods, where 
 the word " sold " was omitted from 
 the memorandum by mistake. Lee v. 
 Hills, 6 Ind. 474. If it refers to let- 
 ters or other documents, they may be 
 used as a part of the memorandum ; 
 but taken as a whole, they must con- 
 tain all the essentials of the contract. 
 And it must be a completed contract. 
 Rossitur V. Mills, L. R. 3 H. L. 1128; 
 Gaunt V. Hill, 1 Stark, 10 ; Oakman v. 
 Rogers, 120 Mass. 214 ; Winn v. Bull, 
 7 Ch. Div. 29 ; Ballingall v. Bradly, 16 
 111. 373 ; Roberts v. Tucker, 3 Exchq. 
 632 ; Barry v. Coombs, 1 Pet. (U. S.) 
 640; Hazard v. Day, 14 Allen (Mass.) 
 48; Williamsy. Robinson, 73 Me. 186; 
 40 Am. Rep. 352. 
 
 2 Drake v. Seaman, 27 Hun (N. Y.) 
 63. Letters showing a marriage en- 
 gagement, without stating the time there- 
 for, are not a sufficient note or memo- 
 randum within the statute of frauds, 
 of an agreement by its terms not to be 
 performed within one year. UUman 
 V. Meyer, 10 Abb. (N. Y.) N. C. 281. 
 Nor is a letter referring generally to a 
 contract as existing, without stating 
 any of its terms or otherwise identify- 
 ing it, sufficient under the statute of 
 frauds to bind the writer to a con- 
 tract, the terras of which must be 
 supplied by parol evidence. Smith 
 V. Jones, 66 Ga. 338 ; 42 Am. Rep. 72. 
 Telegrams signed by the defendant, 
 merely stating the terms of pajrment 
 and directing the plaintiff to draw a 
 contract, together with the written 
 agreement so drawn, are not sufficient 
 memoranda within the statute, that 
 agreement being executed in violation 
 of the Sabbath. Hazard c. Day, 14 
 Allen, 487. A telegram sent by one 
 of the parties accepting an ofEer made 
 by the other, is sufficient evidence of 
 a subscription to take the case out of 
 the statute. Trevor v. Wood, 36 N. Y. 
 307. That the names of both parties 
 are required in a memorandum, see 
 Calkins v. Talk, 39 Barb. (N.Y.) 620. 
 But they need not both be in the same 
 paper if the memorandum is made up 
 of two or more. It is enough if it 
 appears in one of them. Lerned v. 
 
SEC. 345.] MEMORANDUM OR NOTE IN WRITING. 649 
 
 L to recover for goods sold and delivered, a memorandum 
 written on a bill-head of L, and, by an averred mistake, 
 omitting the word^ sold before L's name, and set up in his 
 answer and offer of set-off, denying delivery, etc., was held 
 not to be a "note or memorandum in writing of the bargaii^," 
 within the statute of frauds, and that parol evidence was 
 not admissible to supply the word.^ There is a distinc- 
 tion between evidence of a contract, and evidence of a compli- 
 ance with the statute of frauds. The effect of the statute is, 
 that although there is a contract which is good and valid, no 
 action can be maintained upon it, if made by parol only, 
 unless there be a note or memorandum in writing of the 
 contract, signed by the party to he charged.^ In the case of a 
 written contract, the statute has no application. In the case 
 of other contracts, the compliance may be proved by part 
 payment, or part delivery, or memorandum in writing. 
 Where a memorandum in writing is to be proved in compli- 
 ance with the statute, it differs from a contract in writing in 
 that it may be made at any time after the contract, and before 
 action is brought. It is not necessary that the memorandum 
 should be contemporaneous with the contract, but it is suffi- 
 cient if it has been made at any time afterwards, and then 
 anything under the hand of the party sought to be charged, 
 
 "Wannemacher, 9 Allen (Mass.) 412 ; tract itself, but the evidence thereof, 
 
 Grafton u. Cummings, 99 XJ. S. 100. which the statute has made indispen- 
 
 A memorandum cannot be partly in sable. Bird v. Munroe, 66 Me. 337. 
 
 writing and partly by parol, conse- Sievewright v. Archibald, 17 Q. B. 
 
 quently every essential part of the 107 ; Bill v. Boment, 9 M. & W. 36 ; 
 
 agreement must be contained therein. Pricker v. Thomlinson, 1 M. & G. 772 ; 
 
 Wright V. Weeks, 25 N. Y. 153. Gibson u. Holland, L. R. 1 C. P. 1 ; 
 
 1 Lee o. Hills, 66 Ind. 474. In Jones v. Victoria Graving Dock Co., 
 Wiemer v. Whipple, 53 Wis. 298, it 2 Q. B. Div. 314; Parton v. Crafts, 33 
 was held that a valid memorandum is L. J. C. P. 189; Barkworth v. Young, 
 not open to parol proof to explain, 4 Drew, 1 ; Hart v. Carroll, 85 Penn. 
 vary, or change its terras. See also St. 508 ; Lerned v. Wannemacher, 9 
 Peet V. Railroad Co., 19 Wis. 118; Allen (Mass.) 412; Williams i'. Bacon, 
 Whiting r. Gould, 2 id. 552; Lowber 2 Gray (Mass.) 287; Ide v. Stanton, 
 V. Connit, 36 id. 176 ; Hubbard v. Mar- 15 Vt. 685 ; Benziger v. Miller, 50 Ala. 
 shall, 50 id. 322 ; Shultze v. Coon, 51 206 ; Batturs v. Sellers, 5 H. & J. (Md.) 
 id. 416 ; Meyer v. Evereth, 4 Camp. 117 ; Old Colony R. R. Co., 6 Gray 
 22; Meres v. Ansell, 3 Wil. 375; (Mass.) 25; Lanz ,.. McLaughlin, 14 
 Gardiner v. Gray, 4 Camp. 144. Minn. 72 ; Mizell v. Burnett, 4 Jones 
 
 2 Ridgway v. Wharton, 6 H. L. (N. C.) L. 249; Thayer v. Luce, 22 
 305; Bailey v. Sweeting, 9 C. B. N. S. Ohio St. 62. 
 
 859. The memorandum is not the con- 
 
650 STATUTE OF PEAITDS, [CHAP. Xin. 
 
 admitting that he had entered into the agreement, ■will be suffi- 
 cient to satisfy the statute, which was only intended to pro- 
 tect parties from having parol agreements imposed upon 
 them.^ Thus, in the case first cited in the last note, it 
 appeared that the parties entered into an agreement for a 
 lease of certain premises for fifteen years, and an attorney 
 was employed to prepare the lease, which he did. After- 
 wards the defendant, finding himself unable to perform, 
 requested the plaintiff to cancel the lease. The plaintiff 
 consented to do this, if the defendant would reimburse him 
 for his expenses and inconvenience in the matter, and would 
 relinquish the agreement in writing. The defendant there- 
 upon endorsed upon the draft of the lease the following: 
 "I hereby request Mr. Shippey (the plaintiff) to endeavor 
 to let the premises to some other person, as it will be incon- 
 venient for me to perform my agreement for them, and .for 
 doing so, this shall be a sufficient authority. J. Derrison." 
 And this was held to be a sufficient note or memorandum in 
 writing to satisfy the statute. This rule is forcibly illus- 
 trated in a recent English case.^ In that case, in an action 
 for breach of a contract for the hire of a carriage for more 
 than a year from the date of the agreement, at a specified 
 sum per month, it was proved that the plaintiff agreed to let 
 the carriage to the defendant ; a memorandum of the terms 
 of the agreement was signed by the plaintiff, but not by the 
 defendant. The defendant subsequently wrote a letter to 
 the plaintiff, desiring to terminate the agreement, in which 
 he referred to "our arrangement for the hire of your car- 
 riage," and "my monthly payment." There was no other 
 
 1 Shippey v. Derrison, 5 Esp. 193; Miss. 678; 1873, Marqueze v. Caldwell, 
 
 Bailey v. Sweeting, 9 C. B. N. S. 857 ; 48 Miss. 23 ; Brooklyn Oil Refinery v. 
 
 Tawney v. Crowtlier, 3 Bro. C. C. 161 ; Brorni, 33 How. Pr. (N. Y.) 444. A 
 
 Bradford v. Eoulston, 8 Ir. C. L. (N. written proposal containing the names 
 
 S.) 468; Webster v. Zeiley, 52 Barb, of both parties, and signed by a duly 
 
 (N. Y.) 482; Lerned u. Wannemacher, authorized agent of the proponent, is, 
 
 9 Allen (Mass.) 416 ; Sanborn v. Cham- within the meaning of the Ohio statute 
 
 berlin, 101 Mass. 416. It is the uni- of frauds, " an agreement in writing 
 
 form doctrine of the courts of this and signed," and the assent thereto 
 
 country and England that it is a suffi- may be proved by parol testimony, 
 
 cient compliance with the statute of Himrod Furnace Co. v. Cleveland &c. 
 
 frauds if only " the party charged " R. R. Co., 22 Ohio St. 451. 
 shall have signed tlie memorandum ^ Cave u. Hastings, 45 L. T. N. S. 
 
 or agreement, whether the other party 848. 
 sign or not. Williams v. Tucker, 47 
 
SEC. 34S.] MEMORANDUM OK NOTE IN WRITING. 651 
 
 arrangement between the parties to which the expressions of 
 the defendant could have any reference, except the agree- 
 ment contained in the memorandum signed by the plaintiff. 
 It was held that the letter of the defendant was so connected 
 by reference to the document containing the terms of the 
 arrangement, as to constitute it a note and memorandum of 
 the contract signed by him within the fourth section of the 
 statute of frauds. As has previously been stated, the statute 
 does not require that the contract itself shall be in writing, 
 but that it shall be evidenced by a writing under the hand 
 of the party to be charged. Consequently, if an agreement 
 in writing exists, which is signed only by one of the parties, 
 so long as this condition of things exists, it is enforceable 
 only against the party so having signed it; but, if subse- 
 quently, at any time before action is brought, the other party 
 in any manner admits in writing, under his own hand, or that 
 of an authorized agent, the existence of such contract, it 
 becomes binding upon him because the two papers are to be 
 taken together as forming the note or memorandum required 
 by the statute. Therefore, in this view, which seems to be 
 the result of the better authorities, it is immaterial in what 
 form the memorandum is made, or whether it was ever deliv- 
 ered to the other party or not, provided that, in itself, or by 
 reference to other writings, it embraces all the essential ele- 
 ments of the contract. Nor is it material in what form the 
 writing admitting the existence of a contract, a memoran- 
 dum of which is signed by one party, is made by the other 
 party. If it admits the contract, and refers to the memoran- 
 dum in 8ueh a manner that the court can connect it therewith, 
 and ascertain the terms of the contract without the aid of parol 
 evidence, it is sufficient to hind him, although he did not intend 
 thereby to ratify the contract. The moment written evidence 
 of the contract, under his hand, in whatever form, exists, the 
 contract is taken out of the statute,^ even though such admis- 
 
 1 In Townsend v. Hargreaves, 118 tional evidence, some written memo- 
 Mass. 325, the court said : " The pur- randum signed by the party sought to 
 pose of this celebrated enactment, as be charged, or proof of some act con- 
 declared in the preamble and gathered firmatory of the contract relied on. 
 from all its provisions, is to prevent It does not prohibit such contract. It 
 fraud and falsehood, by requiring a does not declare that it shall be void 
 party who seeks to enforce an oral or illegal, unless certain formalities 
 contract in court, to produce, as addi- are observed. If executed, the effect 
 
652 
 
 STATUTE OP FRAUDS. 
 
 [chap. XIII. 
 
 sion is in the form of a letter repudiating the contract.^ But 
 in order to make a writing of this character sufficient, it must 
 
 of its performance on the rights of 
 the parties is not changed, and the 
 consideration may be recovered. Stone 
 V. Dennison, 13 Pick. (Mass.) 1 ; 23 
 Am. Dec. 654 ; Basford v. Pearson, 
 9 Allen (Mass.) 387 ; Nutting v. 
 Dickinson, 8 id. 540. The memo- 
 randum required is the memoran- 
 dum of only one of the parties ; the 
 alternative acts of the 17 th section 
 proceed from one only; they pre- 
 suppose a contract, and are in affirm- 
 ance or partial execution of it ; they 
 are not essential to its existence ; need 
 not be contemporaneous, and are not 
 prescribed elements in its formation. 
 It is declared in the 4th section that 
 no action shall be brought upon the 
 promises therein named, unless some 
 memorandum of the agreement shall 
 be in writing ; and in the 17th, that no 
 contract for the sale of goods ' shall 
 be allowed to be good,' or, as in our 
 statute, ' shall be good and valid,' un- 
 less the buyer accepts and receives 
 part or gives earnest, or there is some 
 memorandum signed by the parties to 
 be charged, or, as in our statute, by 
 the party to he charged. It is true 
 there is difference in phraseology in 
 these sections ; but in view of the pol- 
 icy of the enactment, and the neces- 
 sity of giving consistency to all its 
 parts, this difference cannot be held 
 to change the force and effect of the 
 two sections. 'Allowed to.be good' 
 means good for the purpose of a 
 recovery under it ; and the clause in 
 the last part of the latter section, 
 which requires the memorandum to 
 be signed by the party or parties to 
 be charged, implies that the validity 
 intended is that which will support an 
 action on the contract. We find no 
 case in which it is distinctly and 
 authoritatively held otherwise. See 
 Leroux v. Brown, 12 C. B. 801 ; Car- 
 rington v. Roots, 2 M. & W. 248; 
 Reade v. Lamb, 6 Exch. 130. In car- 
 rying out its purpose, the statute only 
 affects the modes of proof as to all 
 
 contracts within it. If a memoran- 
 dum or proof of any of the alterna- 
 tive requirements peculiar to the 17th 
 section be furnished; if acceptance 
 and actual receipt of part be shown, 
 then the oral contract, as proved by 
 the other evidence, is established with 
 all the consequences which the com- 
 mon law attaches to it. If it be a com- 
 pleted contract, according to common- 
 law rules, then, as between the parties 
 at least, the property vests in the pur- 
 chaser, and a right to the price in the 
 seller, as soon as it is made, subject 
 only to the seller's lien and right of 
 stoppage in transitu. Many points 
 decided in the modern cases support 
 by the strongest implication the con- 
 struction here given. Thus, if one 
 party has signed the memorandum, 
 the contract can be enforced against 
 him, though not against the other, 
 showing that the promise of the other 
 is not wholly void, because it affords 
 a good and valid consideration to sup- 
 port the promise which, by reason of 
 the memorandum, may be enforced. 
 Reuss u. Picksley, L. R. 1 Ex. 342. 
 The memorandum is sufficient, if it 
 be only a letter written by the party 
 to his own agent; or an entry or 
 record in his own books ; or even if 
 it contain an express repudiation of 
 the contract. And this because it is 
 evidence of, but does not go to make 
 the contract. Gibson v. Holland, L. 
 R. 1 C. P. 1 ; Buxton v. Rust, L. R. 7 
 Ex. 1, 279; Allen v. Bennet, 2 Taunt. 
 169; Tufts V. Plymouth Gold Min- 
 ing Co., 14 Allen, 407 ; Argus Co. v. 
 Albany, 55 N. Y. 495 ; S. C, 14 Am. 
 Rep. 296." 
 
 1 Buxton u. Rust, L. R. 7 Exchq. 
 279 ; Wilkinson v. Evans, L. R. 1 C. 
 P. 407. In Leather Cloth Co. o. Hie- 
 ronimus, L. R. 10 Q. B. 140, the defen- 
 dant wrote a letter, admitting the pur- 
 chase and referring to the plaintiff's 
 letter containing the invoice, but de- 
 nied any liability, because the goods 
 had been sent by a wrong route. The 
 
SEC. 34S.] MEMOKANDUM OK NOTE IN WRITING. 
 
 653 
 
 admit the existence of a previous completed contract be- 
 tween the parties. It cannot be used to make, but only to 
 prove a contract already made ; and although it admits the 
 contract, if it annexes conditions to it, or otherwise varies it, 
 it has no effect as a memorandum.^ The statute simply 
 requires some note or memorandum of the agreement entered 
 into, in writing, signed by the party to be charged. There- 
 fore it is only necessary that the essential terms of the con- 
 tract should be evidenced by some writing which is ratified 
 by the party to be charged under his own signature, or that 
 of an authorized agent; and, as before stated, the form of the 
 writing is not material, but any writing or number of written 
 documents may be used to constitute a memorandum under 
 the statute, if they are connected with each other by proper 
 reference,^ although such writings were not signed by the 
 
 court held that the letter was a suffi- 
 cient note of the bargain to satisfy 
 the statute, because it did not deny 
 any of the terms of the contract, but 
 merely sought to avoid it because, it 
 had not been properly performed. 
 Bailey v. Sweeting, 9 C. B. N. S. 843 ; 
 Cave V. Hastings, ante. 
 
 1 Nesham v. Selby, L. R. 7 Ch. 406 ; 
 Jenness v. Mt. Hope Iron Co., 53 Me. 
 20; Smith v. Surman, 9 B. & C. 561; 
 Williams r. Bacon, 2 Gray (Mass.) 
 387 ; Williams v. Morris, 95 U. S. 444. 
 Eossiter v. Miller, ante; Bailey i/. 
 Sweeting, 9 B. &; C. 843 ; McLean v. 
 NicoU, 7 H. & N. 1124. 
 
 2 The requisite written evidence 
 of the contract may be established 
 through the medium of letters and 
 separate documents containing refer- 
 ences to each other. Any printed 
 papers or communications in writing 
 which may have passed between the 
 parties, forming on the face of them 
 part of one connected transaction, 
 may be incorporated and construed 
 together, and made to establish the 
 requisite written evidence of an 
 "agreement" within the statute. 
 Bird V. Blosse, 2 Ventr. 361 ; Dobell 
 V. Hutchinson, 3 Ad. & EI. 355; 
 Home V. Booth, 4 Sc. N. R. 559. But 
 the terms of the agreement must ap- 
 
 pear upon the face of the written 
 instruments themselves, when placed 
 in juxtaposition, and cannot be estab- 
 lished in any way througli the me- 
 dium of oral testimony. Coe v. 
 DuflSeld, 7 Moore, 252 ; Stead u. Lid- 
 dard, 1 Bing. 4 ; Kenworthy v. Scho- 
 field, 2 B. & C. 945; Ridgeway !•. 
 Wharton, 22 Law T. E. 2C5. The 
 note or memorandum of the agree- 
 ment for the sale and purchase of 
 lands, or of any interest in or concern- 
 ing them, need not be drawn up in 
 technical language, or in words of 
 form, but there must be written evi- 
 dence of an aggregatio meniium, or mu- 
 tual agreement, on the part of the 
 vendor and pvirchaser to sell and to 
 buy; and both the subject-matter of 
 the sale and the price to be paid for 
 it must be specified. It would not be 
 sufficient to say, " I agree to sell A B 
 my lands," without specifying the terms 
 or the price, and if those could be 
 supplied by oral evidence, we should 
 let in all the mischief against which 
 the statute of frauds was meant to 
 guard, viz., of having important parts 
 of the contract proved by oral evi- 
 dence. Bayley, J., in Saunders v. 
 Wakefield, 4 B. & Aid. 601 ; Ogilvie 
 V. Foljambe, 3 Mer. 53. If upon ne- 
 gotiations for the purchase and sale 
 
654 
 
 STATUTE OF PEATJDS. 
 
 [chap. XIII. 
 
 party to be charged, if they were in existence before the writing 
 which is signed by him was executed;^ and it is sufficient, if 
 
 1 Wood V. Midgley, 5 De G. M. & 
 G. 41 ; Jackson t . Lowe, 1 Bing. 9 ; 
 Eishton v. "Whatmore, 8 Ch. Div. 467 ; 
 Dobell I'. Hutchinson, 3 Ad. & El. 
 371 ; Williams c. Jordan, 6 Ch. Div. 
 517; Scarlett v. Stein, 40 Md. 512; 
 Drury v. Young, 58 id. ; Mayer v, 
 Adrian, 77 N. C. 8-3 ; Washington Ice 
 Co. V. Webster, 62 Me. 341 ; Williams 
 V. Morris, 95 U. S. 444; Briggs u. 
 Munchon, 56 Mo. 467; Tallman v. 
 Franklin, 14 N. Y. 584; Kronheim v. 
 Johnson, 7 Ch. Div. 60 ; Wilkinson v. 
 Evans, L. E. 1 C. P. 407 ; Eidgway v. 
 Ingram^ 50 Ind. 145, and so many of 
 them as of themselves show a rela- 
 tion to each other may be taken 
 together as a memorandum. Buxton 
 V. East, L. E. 7 Exchq. 279; Lemed 
 V. Wannemacher, 9 Allen (Mass.) 412 ; 
 Beckwith v. Talbot, 95 U. S. 289; 
 Ide V. Stanton, 15 Vt. 685 ; Work v. 
 Cawhick, 81 111. 317 ; Thayer v. Luce, 
 
 of an estate the owner writes a letter 
 which amounts to a distinct offer to 
 sell the property upon certain terms, 
 and the party to whom the letter is 
 addressed answers it and accepts the 
 offer within a reasonable period, the 
 contract is complete, and an action 
 may be maintained upon it at com- 
 mon law, or the owner may be com- 
 pelled to perform It in specie in equity. 
 Coleman v. Upcot, 5 Vin. Abr. 627, pi. 
 17; Dunlop v. Higgins, 1 H. L. C. 
 381. But if there has not been a 
 clear offer and acceptance of one and 
 the same set of terms, if the property 
 has not been clearly described and 
 defined, and any material particulars 
 are left unsettled between the parties, 
 there is not a concluded contract ca- 
 pable of supporting an action, or a 
 bill for specific performance. Ken- 
 nedy V. Lee, 3 Mer. 451 ; Thomas v. 
 Blackman, 1 Coll. 312. Where a draft 
 agreement had on the back of it, " We 
 approve of this draft," and this was 
 signed by the intended parties to the 
 agreement, it was held that it merely 
 
 22 Ohio St. 62 ; Peabody v. Speyers, 
 56 N. Y. 230, but not otherwise, as 
 parol or extrinsic evidence is not 
 admissible to connect them. Board- 
 man i;. Spooner, 13 Allen (Mass.) 
 353; Stocker u. Partridge, 2 Eob. 
 (N. Y.) 193; Morton v. Dean, 13 Met. 
 (Mass.) 385; Johnson j;. Buck, 35 N. 
 J. L. 338 ; Preeport r. Bartol, 3 Mo. 
 340; Schafer v. Farmer's Bank, 59 
 Penn. St. 144 ; Johnson v. Kellogg, 
 7 Tenn. 262 ; Wiley v. Eobert, 27 Mo. 
 388; Clark v. Chamberlin, 112 Mass. 
 19 ; Eidgway v. Ingram, 50 Ind. 145 ; 
 O'Donnell v. Seeman, 43 Me. 158; 
 Jacob V. Kirk, 2 Moor. Ey. 221; 
 Hinde v. Whitehouse, 7 East, 558; 
 Counnins o. Scott, L. E. 20 Eq. 11; 
 Tawney v. Crowther, 3 Bro. C. C. 318 ; 
 Peirce v. Corf. L. E. 9 Q. B. 210; 
 Jackson r. Lowe, 1 Bing. 9 ; Coles v. 
 Trecothick, 9 Ves. 234. 
 
 amounted to evidence of something 
 they intended to agree to, and not 
 to an actual agreement. " If the 
 words," observes Lokd Tentekden, 
 "imported an agreement, there would 
 never be any necessity for any other 
 instrument." Doe v. Pedgriph, 4 C. 
 & P. 312. "Still," observes Sm E. 
 SuGDEN, "where the parties them- 
 selves not being professional persons 
 sign such a memorandum, it is a ques- 
 tion to be decided in each case whether 
 they signed in that form, as simply 
 approving of the draft as such, or 
 whether they intended to give validity 
 to it as an agreement." Sugd^ Vend. 
 129. "It is not necessary that the 
 note in writing should be cotemporary 
 with the agreement. It is sufficient if 
 it has been made at any time before 
 action is brought thereon, and adopted 
 by the party afterwards, and then 
 anything under the hand of the party 
 expressing that he had entered into 
 the agreement will satisfy the statute, 
 which was only intended to protect 
 persons from having oral agreements 
 
SEC. 345.] MEMOEAKDTJM OR NOTE IN WEITING. 
 
 655 
 
 the writing which is signed admits tlie contract, there being 
 a memorandum thereof in writing, previously executed by 
 the other partj'', although it is a mere request to be absolved 
 therefrom.^ A stated account in which the vendor charges 
 himself with the price of land,^ a receipt for money, or a bill 
 of parcels * may, if signed by the party to be charged, or 
 
 imposed upon them." Shippey v. 
 Derrison, 5 Esp. 192. 
 
 If it relates to a bargain for the 
 sale of goods, it must state the names 
 of the contracting parties or their 
 agents : Champion v. Plummer, 4 B. & 
 P. 25i; Graham v, Musson, 5 Bing. 
 (X. S.) 605; 7 Sc. 769; Sherburne v. 
 Shaw, 1 N. H. 157 ; Nichols v. John- 
 son, 10 Conn. 192 ; Godet v. Cowdry, 
 1 Buer (N. Y.) 132; and the price to 
 be paid, if the price was fixed and 
 agreed upon at the time of the mak- 
 ing of the contract : Elmore v. Kings- 
 cote, 5 B. & C. 583 ; 8 D. & R. 343 ; 
 Smith V. Arnold, 5 Mas. (U. S.) 414; 
 Ide V. Stanton, 15 Vt. 685 ; Adams v. 
 McMillan, 7 Port. (Ala.) 73 ; but if no 
 price was positively and definitely 
 fixed and agreed upon, the note or 
 memorandum will be sufficient, in the 
 case of the sale of a chattel, without 
 any statement of price, and the law 
 will infer that a reasonable price was 
 to be paid. Hoadley v. Maclaine, 10 
 Bing. 482; Acobal v. Levy, ib. 227, 
 376; Valpy v. Gibson, 4 C. B. 864; 
 16 Law J. C. P. 248. It is not neces- 
 sary that all the minutiae and particu- 
 lars of the contract should appear 
 upon the face of the written memo- 
 randum; any note, or an entry in a 
 book or ledger, acknowledging the 
 fact of the sale, mentioning the name 
 of the vendor and the thing sold, and 
 signed by the purchaser or his agent, 
 will take the case out of the statute. 
 The contract may be authenticated 
 and established through the medium 
 of bills of parcels, entries in books, 
 letters, and separate writings, provided 
 they refer to each other and to the same 
 persons and things^ and manifestly relate 
 to the same contnict and transaction. 
 Saunderson v. Jackson, 2 B. & P. 238 ; 
 Allen o. Bennett, 3 Taunt. 169. 
 
 Where goods were sold by auction to 
 an agent acting on behalf of an un- 
 disclosed principal, and the auctioneer 
 wrote the initials of the agent's name, 
 together with the prices, opposite the 
 lots purchased by him, in the printed 
 catalogue ; it was lield, that the entry 
 in the catalogue and a letter after- 
 wards written by the principal to the 
 agent, recognizing the purchase, might 
 be coupled together to constitute and 
 establish the requisite written memo- 
 randum of the contract. Phillimore 
 u. Barry, 1 Campb. 513. And where 
 a buyer wrote to the seller : " I give 
 you notice that the corn you delivered 
 to me, in part performance of my con- 
 tract with you for one hundred sacks 
 of good English seconds flour, at 45 s. 
 per sack, is so bad, that I cannot make 
 it into saleable bread." And the sel- 
 ler replied : " I have your letter or 
 notice of the 24th September, in reply 
 to which I have to state that I con- 
 sider I have performed my contract 
 as far as it has gone." It was held, 
 that the first letter and the answer 
 might be coupled together, and incor- 
 porated, and were sufficient evidence 
 in writing to satisfy the terms of the 
 statute of frauds, and enable the 
 buyer to sue the seller for the non- 
 delivery of an article corresponding 
 with that mentioned and described in 
 the buyer's letter. Jackson v. Lowe, 
 1 Bing. 9. 
 
 ' Cave V. Hastings, 45 L. T. Rep. 
 N. S. 348. 
 
 2 Bourland u. County of Peoria, 
 16 111. 538 ; Barry v. Coombs, 1 Pet. 
 (U. S.) 640. 
 
 ' Williams v. Morris, 95 U. S. 444 ; 
 Barickman v. Kuykendall, 6 Blackf. 
 (Ind.) 2; Evans v. Prothero, 1 De G. 
 M. & G. 572; Ellis v. Deadraan, 4 
 Bibb. (Ky.) 466, as to bill of parcels. 
 
656 STATUTE OF FEATJDS. [CHAP. XIII. 
 
 recognized by some other writing under his hand, amount to 
 a sufficient memorandum,' provided it contains a description 
 of the property sold, and the essential terms of the agreement, 
 and this is the rule both as to chattels and land.^ But a 
 memorandum, in whatever form, which does not in itself, or 
 by reference to other written papers, contain all the essential 
 terms of the contract as well as a sufficient description of the 
 property, is not sufficient.^ But, to comply with the statute, 
 the memorandum need only contain the substance of the con- 
 tract, and need not set forth all the details or particulars. It 
 is enough if the names of the parties, the price (if it has been 
 agreed upon), such a description of the property that it can 
 be identified, and such other special terms, if any, as have 
 been agreed upon are set forth, so as to make a complete 
 agreement without the aid of parol evidence.* If terms of 
 credit are agreed upon, they should be stated in the memo- 
 randum, otherwise it will be treated as a sale for cash.® So 
 if a special time for delivery has been agreed upon, it must 
 be stated in the memorandum or it will be treated as a con- 
 tract to deliver at once.^ In the case of a lease, or rather an 
 agreement for a lease, the term should be stated in the 
 memorandum, and cannot be shown by parol evidence.'' 
 
 The fact of the making of a note or memorandum presup- 
 poses the existence of a prior parol contract, and whUe there 
 
 Hawkins v. Chace, 19 Pick. (Mass.) f Wright w. Weeks, 3 Bos. (N. Y.) 
 
 602 ;. Batturs v. Sellers, 5 H. & J. 372 ; Davis v. Shields, 26 Wend. (N. 
 
 (Md.) 117; Saundersonti. Jackson, 2 B. Y.) 341 ; Elfe v. Gadsden, 2 Rich. (S. 
 
 & P. 238; Drurya. Young, 58 Md.546. C.) L. 373; Smith v. Jones, 7 Leigh. 
 
 ' Barickman v. Kuykendall, ante ; (Va.) 165; Fessenden v. Mussey, 11 
 
 Cosack V. Descourdes, 1 McCord (S. Gush. (Mass.) 127. So if a time for 
 
 C.) 425; Shooftstall v., Adams, 2 the delivery of the goods is agreed 
 
 Grant (Penn.) 209. upon, it should be stated. Davis v. 
 
 2 Sherburne v. Sha:w, 1 N. H. 157 ; Shields, 26 Wend. (N. Y.) 341. So if 
 
 Stafford v. Lick, 10 Cal. 12 ; Sheid v. the goods are warranted as to qual- 
 
 Stamps, 2 Sneed. (Tenn.) 172 ; Kay v. ity : Newberry v. Wall, 65 N. Y. 454 ; 
 
 Curd, 6 B. Mon. (Ky.) 100; Ferguson Smith v. Dallas, 35 Ind. 255; Peltier 
 
 V. Storer, 33 Penn. St. 411 ; Nichols v. v. Collins, 3 Wend. (N. Y.) 459. 
 Johnson, 10 Conn. 192. ^ Williams v. Robinson, 73 Me. 
 
 8 McCarty v. Kyle, 4 Cold. ' Clarke v. Fuller, 16 C. B. (N. S.) 
 
 (Tenn.) 348; Knox w. King, 36 Ala. 24; Abeelv. EadclifEe, 13 John. (N 
 
 367; Doty v. Wilder, 15 111. 407; Y. ) 297 ; Riley w. Williams, 123 Mass. 
 
 White V. Watkins, 13 Mo. 423 ; Kurtz 506 ; Hodges r. Howard, 5 R. I. 149 
 
 V. Cummings, 24 Penn. St. 35. Parker u. Tainter, 123 Mass. 185 
 
 1 Knox V, King, 36 Ala. 367 ; Doty Fitzmaurice v. Bayley, 9 H. L. Cas, 
 
 V. Wilder, 15 111. 407 ; Ives v. Hazard, 79. 
 4 R. I. 4. 
 
SEC. 34S.] MEMORANDUM OR NOTE IN WRITING. 
 
 657 
 
 is a distinction between the note or memorandum, and the 
 contract itself, yet tlie note or memorandum being required 
 to embody all the essential terms of the contract, excludes 
 parol evidence as to any of the essential terms of such prior 
 contract.^ The object of the statute, in requiring a note or 
 memorandum in writing to be made, is to prevent disputes 
 as to what the parties had agreed to and intended, and there- 
 fore the memorandum or note supersedes the prior parol 
 agreement, and excludes all proof as to what was said by 
 the parties, or even to show a mistake in the writing itself.^ 
 
 1 See §§ 384-401, as to instances 
 in which parol evidence is admissible 
 to explain, etc., memorandums. 
 
 2 Watkins v. Eymill, 10 Q. B. Div. 
 178; Stoops V. Smith, 100 Mass. 
 63; Ridgway v. Bowman, 7 Cush. 
 (Mass.) 268; Grout «. Story, 44 Vt. 
 200; Pitcher v. Hennessey, 48 N. Y. 
 415; Clark v. N. Y. L. Ins. & F. Co., 
 7Lans.(N.Y.)322. In Eden «. Blake, 
 13 M. & W. 614, the defendant bought 
 at auction for less than £10 a dress- 
 ing-case, which in the printed cata- 
 logue was described as having silver 
 fittings, but which before the sale the 
 auctioneer stated was a mistake, and 
 that the fittings were plated. The 
 court held that as the contract was 
 not in writing, parol evidence was ad- 
 missible to show that the dressing- 
 case was sold as having only plated 
 fittings although the catalogue itself 
 was not altered. Pollock, C. B., 
 said ; "I am of opinion that this rule 
 ought to be discharged. I accede al- 
 together to the authorities cited by 
 the defendant's counsel, and to the 
 proposition, that, whatever be the 
 value of the goods sold, whether it be 
 such as calls for a memorandum in 
 writing under the statute of frauds 
 or not, if there has been a memorandum 
 in writing, it cannot be altered by extrin- 
 sic evidence ; and consequently, the plain- 
 tiff could not be allowed to prore that, 
 at the time of the sale, the auctioneer 
 made declarations contradicting the 
 printed conditions of sale. In Shelton 
 V. I/ivius, 2 C. & J. 411, the catalogue 
 as it originally stood formed part of 
 
 the contract entered into ; for there, 
 although the auctioneer announced in 
 the sale-room an alteration in the con- 
 ditions of sale, he afterwards signed 
 the book without making any altera- 
 tion in the printed catalogue ; and 
 that signature bore reference to the 
 catalogue, which contained the condi- 
 tions of sale, and constituted the con- 
 tract. In this case no question arises 
 on the statute of frauds, for the 
 amount sold being less than £10, no 
 writing was requisite, and the question 
 is what in point of fact was bargained 
 and sold; and that is altogether a 
 question for the jury. According to 
 the evidence, it appears that, before 
 this article was put up for sale, the 
 auctioneer stated publicly that the 
 fittings were not silver, as stated in 
 the catalogue, but plated, and that the 
 dressing-case would be sold as having 
 plated fittings. Now it was for the 
 jury to say whether the defendant 
 bargained for these things as being 
 only plated, or as silver, what, in 
 point of fact, was the article bargained 
 and sold. It is the same as if the 
 auctioneer had put up and sold an 
 article not named in the catalogue at 
 all. The objection taken in the cases 
 which have been cited does not arise 
 in the present." 
 
 Alderson, B., said : " I am of the 
 same opinion. The question turns 
 entirely on the facts, for the law on 
 the subject is clear. If the auctioneer 
 had signed a book containing or ref er- 
 ing to the catalogue, without making 
 any alteration in it relative to these 
 
658 
 
 STATUTB OF FKAUDS. 
 
 [chap. XIII. 
 
 The legal effect of a note or memorandum is left precisely as 
 it was at the common law, hut the whole contract must he em- 
 hraced in the writing or other collateral writings connected 
 therewith, and no part of it left resting in parol, because in 
 such an event, all the mischiefs which the statute was in- 
 tended to prevent might ensue.-'^ Therefore a memorandum 
 
 fittings being plated, and not silver, I 
 should agree that it would not be 
 competent to the opposite party to 
 show that, previous to the bidding, 
 the auctioneer had declared that the 
 goods to be sold were only plated; 
 because, having subsequently signed 
 in the book a statement that they 
 were silver, it is that subsequent act 
 of signing which binds the purchaser, 
 and not the mere proceedings at the 
 sale. That would be in accordance 
 with the case of Shelton u. Livius, 
 ante, because there the auctioneer 
 signed the book without making any 
 alteration in the particulars of sale, 
 although he had stated verbally that 
 the alteration was to be made. 
 Whether the subject-matter of the 
 sale be land or goods is immaterial 
 for this purpose. The sole question 
 is, what were the terms upon which 
 this article was sold. Are those terms 
 in writing 1 If they are, they cannot 
 be varied by parol testimony ; but if 
 they exist only in parol, they of course 
 may be varied by parol; and as it 
 appears that the article was not sold 
 under an agreement in writing, it is 
 for the jury to say whether the con- 
 tract existed in the printed particulars 
 alone, or partly in them and partly in 
 parol; namely, that the auctioneer 
 stated that there was an inaccirracy 
 in the particulars, which declaration 
 was heard by the defendant, who, after 
 hearing it, bid for the article. This 
 the jury have found. I am therefore 
 of opinion that the rule ought to be 
 discharged." 
 
 KoLFE, B., said: "I am of the 
 same opinion. Where there is a sale 
 of land, the party cannot be bound, 
 except by a contract signed either by 
 himself, or by some person either . ex- 
 pressly or impliedly constituted his 
 
 agent to sign for him. After the pass- 
 ing the statute of frauds, the ques- 
 tion arose, whether the express words 
 of that statute, that an agreement for 
 the sale of land, or of goods above 
 the value of £10, should be ' signed 
 by the party to be charged therewith, 
 or some person thereunto by him law- 
 fully authorized,' could be got over 
 by holding that an auctioneer might 
 act as agent for both parties. It has 
 however been settled, that if he signs 
 the printed particulars of sale, he 
 signs them as the agent of the pur- 
 chaser; but if, before the sale, he 
 gave a parol intimation of an altera- 
 tion in the particulars, there might be 
 great doubt whether the party who 
 bid simpliciter at a sale of land would 
 be bound by that intimation, unless 
 he gave an express authority to the 
 auctioneer to sign the altered particu- 
 lars as agent for him ; but where, as 
 is the case here, the chattel to be sold 
 is under the value of £10, and conse- 
 quently no writing is required by the 
 statute of frauds, the auctioneer 
 might very well say, ' I have no such 
 article to sell as that described by the 
 catalogue to have silver fittings, but I 
 will put this up as a plated article 
 which does not appear in the cata- 
 logue.' A party bids for it, and when 
 the auctioneer strikes do^vn his ham- 
 mer, the contract is complete. It is 
 not clear to me that what the auction- 
 eer signs afterwards makes any differ- 
 ence, for the contract is completed by 
 the act of sale; but, as the case 
 stands, there is no pretence for this 
 rule." Taylor v. Kiggs, 1 Pet. (U. S.) 
 591 ; Hakes v. Hotchkiss, 23 Vt. 291 ; 
 Carter v. Hamilton, 11 Barb. (N. Y.) 
 147 ; Small v. Quincy, 4 Me. 497. 
 
 1 In Bird v. Munroe, 66 Me. 337, it 
 was held that a writing ante-dated as 
 
SEC. 345.] MEMORANDUM OR NOTE IN WRITING. 
 
 659 
 
 or note in writing which does not contain the terms of the 
 agreement, but is an agreement to take the property " upon 
 the terms specified,^'' and the terms referred to rest in parol, is 
 incomplete and inoperative.^ But as we shall see hereafter. 
 
 an original contract of the date of the 
 verbal contract first made, is not in 
 law the contract itself, but is merely 
 the necessary evidence by which the 
 contract may be proved and the stat- 
 ute satisfied, and that parol evidence 
 is admissible to show that the contract 
 was ante-dated. In McElroy v. Buck, 
 35 Mich. 434, it was held that where 
 a verbal contract had been entered 
 into by an agent for the purchase of 
 property, a telegram from the princi- 
 pal accepting the action of the agent, 
 but which did not express the terms 
 of the contract, leaving the terms of 
 the contract to be proved by parol, 
 did not constitute a sufficient memo- 
 randum under the statute. 
 
 1 Wright V. Weeks, 25 N. Y. 153 ; 
 McElroy v. Buck, 35 Mich. 434; 
 , Whelan v. Sullivan, 102 Mass. 204 ; 
 Frank v. Miller, 38 Md. 450. The con- 
 tract must be certain in itself, or capable 
 of being made so by reference to some 
 other written evidence. Abeel v. Rad- 
 clifEe, 13 John. (N. Y.) 300 ; Parkhurst 
 V. Van Cortlandt, 1 John. Cas. (N. Y.) 
 274 ; Hagan v. Domestic Sewing Ma- 
 chine Co., 9 Hun (N. Y. ) 73. In Clark 
 V. Chamberlin, 112 Mass. 250, a memo- 
 randum of a sale of land described the 
 land as being " lots No. 1 and 2 on F 
 Street," and did not refer to any plan 
 by which the premises could be iden- 
 tified, and it was held insufficient, 
 because it left the land (the subject- 
 matter of the contract) to be identified 
 by parol. See also Wheeler v. Sullivan, 
 102 Mass. 204. But in Scanlan v. Ged- 
 des, 112 Mass. 15, a memorandum as 
 follows: "Boston, Nov. 10,1870. Re- 
 ceived of Scanlan 120.00 as forfeit- 
 money and part payment of the price 
 of house on Fifth Street, between D 
 and E Street. The price agreed on 
 to be paid for the house is $3,400. 
 The purchaser agrees to pay $2,000 
 when the house is finished, the bal- 
 ance of $1,400 to remain on mortgage 
 
 for a term of three years. The un- 
 dersigned agrees to have the house 
 completed by Dec. 1, 1870 ; also to 
 give a warranty deed of the property, 
 free from incumbrance," was held 
 sufficient, provided the promisor 
 owned but one house upon the street. 
 In a later case. Mead v. Parker, 115 
 Mass. 413, a memorandum which 
 merely described the property as being 
 " a house on Church Street," was held 
 sufficient, and parol evidence to iden- 
 tify the property was held admissible. 
 See also Slater v. Smith, 117 Mass. 
 96. If the last cases cited contain 
 the true rule, it is difficult to under- 
 stand upon what principle the doctrine 
 of Clark u. Chamberlin, ante, can be 
 sustained. If parol evidence was 
 admissible to identify the " house " 
 in Mead u. Parker, and Scanlan v. 
 Geddes, ante, it was equally admissible 
 in Clark c. Chamberlin. It is true 
 that no particular plan was referred 
 to, neither was any plan referred to 
 in the other cases, but the data for 
 ascertaining the identity of the prop- 
 erty was as perfect in the one case as 
 in the other. And the whole contract 
 must appear from the writings. A writ- 
 ten acceptance of an oral offer will 
 not, unless it states the terms of the 
 contract, be sufficient.. Thus, in Palmer 
 V. Marquette & Pacific Rolling Mill 
 Co., 32 Mich. 274, the defendant sent 
 a telegram to the plaintiff, as follows : 
 " You may come on at once, at salary 
 of two thousand, conditional only upon 
 satisfactory discharge of business " ; 
 and in an action for damages for re- 
 fusing to take the plaintiff into ser- 
 vice this was held insufficient, because 
 it did not state either the time, price, 
 or business with definiteness. In Sweet 
 W.Lee, 4 Scott (N. R.) 77, the following 
 memorandum was made between the 
 plaintiff and the defendant, and signed 
 with their respective initials : " Die. of 
 Practice, £80 per annum for five years. 
 
660 
 
 STATUTE OF FKATJDS. 
 
 [chap. xin. 
 
 the same rules preyail in reference to the admissibility of 
 parol evidence to explain and apply a note or memorandum 
 
 commencing Michaelmas, 182^ ; £Q0 
 per annum for tlie rest of Mr. Lee's 
 life, if he survive the five years, pay- 
 able, in either case, quarterly, the first 
 payment Michaelmas, 1828, Mr. Lee 
 to separate the practices K. B. and 
 C. P." Held, that parol evidence was 
 admissible to explain the document; 
 but that, inasmuch as it appeared to 
 be a memorandum of a contract that 
 was not to be performed within a year, 
 and no consideration was stated on the 
 face of it, it came within the fourth 
 section of the statute of frauds, and 
 was, therefore, not capable of being 
 enforced by action. The plaintiff 
 having paid the annuity for several 
 years under this memorandum, held, 
 that he could not (upon the defend- 
 ant's setting up the above objection to 
 its legality) recover back the money 
 as upon a failure of consideration. In 
 McLean v. Nieoll, 7 H. & N. 1024, the 
 true rule as to what should be em- 
 braced in a memorandum was an- 
 nounced. It was an action for goods 
 sold, etc., and it appeared that the 
 plaintiff was a looking-glass manufac- 
 turer, and that, on the 18th December, 
 1860, the defendant called at his shop 
 and ordered the goods mentioned in 
 the invoice. He desired that the goods 
 might be sent to Jersey, to be deliv- 
 ered there, and it was agreed that the 
 glass should be plate-glass of the best 
 quality, and that the plaintiff should 
 insure it from breakage. The plaintiff, 
 on shipping the goods, sent an invoice 
 as follows : 
 
 Januaby 8, 1861. 
 Mr. Nieoll bought of diaries M'Lean, 78 
 
 Fleet Street and 144 Oxford Street: 
 1861. 
 Jan. 7. Two compo chimney-glaasee, 
 
 gilt, 70x60, and 60x50, stock, £22 00 
 
 " Insur. of glass from breakage, 1 15 
 
 " Six 8-lncb silvered plates, at 
 
 2s 12 
 
 " Loan of cases for ditto, to be 
 
 returned 1 10 
 
 " 18-ft. table and slab, stock . . 8 05 
 
 " Carved chimney-glass, C. C. 
 
 T.,stock, plate 68x48 . . . 9 00 
 
 " Insurance of breakage of glass 
 
 to Jersey 1 00 
 
 " Loan of cases, to be returned, 1 00 
 
 ITetcash £45 2 
 
 To which the defendant replied in 
 the following letter : 
 
 "MiDVALE House, 
 
 Jeeset, Jan. 18, 1861. 
 
 Sir : — You advise having for- 
 warded a printed list, patterns, and 
 prices; it has not reached. In your 
 account I apprehend there must be 
 some mistake; your charge for loan 
 of cases and packing is equivalent to 
 their value. Please rectify this. 
 Yours truly, ^ 
 
 Edward Nicoll. 
 Mr. M'Lean, London." 
 
 The ship by which the goods were 
 sent was lost, and the goods were 
 rendered useless. On this evidence, 
 Beamwell, B., ordered the plaintiff 
 to be non-suited, for want of a memo- 
 randum,' as required by the seven- 
 teenth section of the statute of 
 frauds, with leave to move for a 
 rvJe to set aside the non-suit, and 
 enter a verdict for £48 10 s., if the 
 court should be of opinion that the 
 documents in evidence constituted a 
 sufficient memorandum. A rule hav- 
 ing been obtained, the defendant con- 
 tended that the documents put in at 
 the trial did not set out the actual 
 contract. They cited Cooper v. Smith, 
 15 East, 103; Bailey v. Sweeting, 9 
 Weekly Rep. 273 ; Archer v. Baynes, 
 5 Exch. 625; and Goodman v. Grif- 
 fiths, 1 H. & N. 574. And the plain- 
 tiff contended that the defendant, by 
 his answer to the invoice, acquiesced 
 in its accuracy as a statement of the 
 real contract. 
 
 Pollock, C. B. : "We are all of 
 opinion that the rule must be dis- 
 charged. We all think the memo- 
 randum must contain all the terms of 
 the contract. Now, the invoice, taken 
 with the answer, does not contain all 
 the terms of the contract. No doubt 
 cases have decided that an invoice, 
 responded to by a signed letter, may 
 form a memorandum to satisfy the 
 statute of frauds ; but in those cases 
 it was held that the memorandum 
 must contain all the terms of the con- 
 
SEC. 343.] MEMORANDUM OR NOTE IN WRITING. 
 
 661 
 
 under the statute, as exist at common law in reference to 
 any written contract. The statute simply requires that the 
 
 tract ; and the invoice, taken with the 
 answer, does not contain all the terms 
 of the contract, according to the evi- 
 dence of the plaintiff. One term of 
 the contract, relating to the gualiti/ of the 
 glass, is not mentioned in the invoice at 
 all ; and as the memorandum should con- 
 tain all the terms of the contract, we 
 cannot hold that the statute of frauds 
 has been complied with. We are first 
 to inquire what was the real contract, 
 and then whether the invoice and an- 
 swer together furnish a memorandum 
 of what was the real contract. We 
 can hold that it does, for the reasons 
 I have stated. It is to he regretted 
 that we should he under the necessity 
 of entering upon such frequent in- 
 stances of non-compliance with the 
 statute. The cases have gone very 
 far in putting the correspondence of 
 parties together, and constituting a 
 memorandum to satisfy the statute. 
 But I think we should not be always 
 searching for something equivalent to 
 a memorandum ; and in this case, cer- 
 tainly, we could not on any principle 
 hold that any had been shown." 
 
 In Justice v. Lang, 47 N. Y. 493, 
 the plaintiffs brought action upon the 
 following memorandum, signed by 
 the defendants : 
 
 "New York, May 13, 1861. 
 
 We agree 'to deliver P. S. Justice 
 one thousand Enfield pattern rifles, 
 with bayonets, no other extras, in 
 New York, at 'eighteen dollars each, 
 cash upon such delivery; said rifles 
 to be shipped from Liverpool not later 
 than July 1, and before, if possible. 
 W. Bailey Lang & Co." 
 
 Held, that when accepted by the 
 other party, it was suflicient to take 
 the case out of the statute. The ends 
 and objects of the statute are attained 
 by written proof of the obligation of 
 the defendant, and the statute is com- 
 plied with when the note or memoran- 
 dum is signed by the parties to be 
 charged thereby, and the fact that the 
 party who does not sign is not liable 
 
 thereon, does not daetroy or annul the 
 consideration and terms which form 
 the inducement of the other party to 
 make it obligatory on himself, by 
 complying with all the requirements 
 of the law to make it so. The con- 
 tract must not only be in writing, but 
 all the essential elements of the con- 
 tract must be in writing. Thus, in 
 Tuttle «. Sweet, 31 Me. 555, the de- 
 fendant by parol employed the plain- 
 tiff to work for liim making powder- 
 casks for the term of three years. 
 Held, that the contract being within 
 the statute of frauds, no recovery 
 could be had for its breach. In that 
 case it appeared that the plaintiff 
 verbally offered to labor for the de- 
 fendant three years, at a certain price. 
 The defendant wrote the plaintiff 
 three letters as follows : 
 
 "June 12, 1847. 
 
 I have concluded to hire you at 
 your offer; shall depend on you as 
 you talked." 
 
 " October 10, 1847. 
 
 I have talked with Jones about 
 your coming. Have concluded to 
 keep on a year longer without you." 
 "January 31, 1848. 
 
 I received yours. If anything is 
 wrong and of damage to you, let it 
 stand until I come and I will endeavor 
 to do right." 
 
 Held, that the letters were not a 
 sufficient memorandum to take the 
 contract out of the statute. The 
 memorandum must be signed by the 
 party to be charged, and the names 
 of both parties must be contained 
 therein. Sams v. Fripp, 10 Rich. Eq. 
 (S. C.) 447. In Old Colony R. R. Co. 
 V. Evans, 6 Gray (Mass.) 25, the court 
 say: "A written contract, signed by 
 one and acted upon by both, may be 
 enforced in equity against the one 
 who did not sign it." Allen v. Ben- 
 net, 3 Taunt. 176 ; Douglass v. Spears, 
 2 N. & Mc. (S. C.) 207; Pennemari v. 
 Hartshorn, 13 Mass. 91 ; Clason o. 
 Bailey, 14 Johns. (N, Y.) 484; Roget 
 
662 
 
 STATUTE OP FRAUDS. 
 
 [chap. XIII. 
 
 contract shall be evidenced by writing, but it leaves the law 
 relating to the effect of the written contract, and the admis- 
 sibility of parol evidence to explain or apply it, as it existed 
 at the common law.^ 
 
 V. Merritt, 2 Cai. (N. Y.) 120; Rey- 
 nolds V. Dunkirk &c. K. R. Co., 17 
 Barb. (N. Y.) 61.3. In Lang v. Henry, 
 54 N. H. 57, the defendant took a bill 
 of sale of the entire stock of boots 
 and shoes finished and unfinished, 
 belonging to Charles A. Lang, the 
 plaintiff's son. But by the terms of 
 the sale the boots and shoes were to 
 be finished by Lang. This sale was 
 made in August, 1851, and in the fol- 
 lowing September the workmen be- 
 came uneasy about their pay, when 
 Charles A. Lang went to Boston to 
 see the defendant, and he gave the 
 plaintiff the following letter : 
 
 " Boston, Sept. 25, 1869. 
 Charles A. Lang : 
 
 Dear Sir. — In relation to your 
 workmen's pay, have no fear; they 
 shall be paid for all their labor on 
 the shoes made and sent to me. 
 Yours truly, 
 
 John J. Henry." 
 
 This letter was shown to the plain- 
 tiff, who was one of the workmen to 
 whom Lang was indebted for work on 
 the shoes. The workmen intended 
 to have secured their claims by at- 
 tachment of the shoes, but on the 
 strength of this letter they forbore 
 their suits, and the next day about 
 f 1,200 worth of shoes were forwarded 
 to the defendant. The court held 
 that the undertaking not being an 
 original one, and a part of the terms 
 of the sale, and the plaintiff not 
 being privy thereto, and no sum being 
 named as due to him, no action could 
 be maintained by him, the undertak- 
 ing being within the statute of frauds. 
 Wood's Master and Servant, 377-380. 
 A memorandum : " Received of L 
 $408.35, being his proportion of the 
 first payment on the Bradley Sand 
 Bank purchase, I having agreed to 
 give him an interest of four-fifths of 
 said purchase at cost, and hereby bind 
 myself, when the purchase-money 
 
 shall have been all paid, to cause a 
 deed of general warranty to be made 
 to him and myself in like proportion, 
 to wit, L four-fifths and myself one- 
 fifth," although duly dated and signed, 
 was held to be insufficient within the 
 statute of frauds, as not showing the 
 time of purchase nor the locality of the 
 property, nor referring to any writing to 
 determine if the purchase was of the 
 entire property. Johnson v. Kellogg, 
 7 Heisk. (Tenn.) 262. And the same 
 was also held where F agreed to pay 
 certain notes of K & Co., and gave a 
 written memorandum to that effect in 
 which the notes, so to be paid, were 
 not specified with any accuracy or 
 particularity, for the reason that parol 
 evidence was required to show what 
 notes were meant. The rule that a 
 contract required by the statute of 
 frauds to be in writing, cannot be 
 partly in writing and partly in parol, 
 was also applied. Frank v. Miller, 
 38 Md. 450. So a writing : " I to-day 
 made the agreement with to let 
 liim take the sand out of the pit fifty 
 feet wide, the entire length, for the 
 sum of $650, and give him one year's 
 time to take it out, from the date 
 above," signed by the landowner only, 
 was held void as to 0, fie not having 
 signed it as required by the statute of 
 New Jersey. O'Donnell v. Brehen, 
 36 N. J. L. 257. 
 
 1 Blackburn on Sales, 46 ; Benja- 
 min on Sales, Sec. 205; Williams v. 
 Robinson, 73 Me. 186; 40 Am. Rep. 
 352. "To satisfy the statute," says 
 Virgin, J., in the case last cited, " the 
 memorandum must contain within 
 itself, or by some reference to other 
 written evidence, the names of the ven- 
 dor and vendee, and all essential terms 
 and conditions of the contract, ex- 
 pressed with such reasonable certainty 
 as may be understood from the mem- 
 orandum and other written evidence 
 referred to, if any, without aid from 
 
SEC. 346.] MEMOEANDUM OH NOTE IN WRITING. 
 
 663 
 
 Sec. 346. When MutuaUty is Requisite. — Ordinarily, if 
 one party signs the memorandum, and it is accepted orally 
 by the other party, he is bound, although the other party is 
 not.^ Thus, a proposal in writing, signed hy the party to he 
 charged^ and accepted hy parol hy the party to whom it is 
 
 parol testimony. O'Donnell v. Seman, 
 43 Me. 158 ; Jenness v. Mt. Hope Iron 
 Co., 53 id. 20 ; Horton v. McCarty, 53 
 id. 394 ; Washington Ice Co. v. Web- 
 ster, 62 id. 341 ; 18 Am. Rep. 462. 
 And when a memorandum is made, 
 signed, and delivered between the par- 
 ties as and for a, complete memoran- 
 dum of the essential terms of the 
 contract, and it is capable of a clear 
 and intelligible exposition, it is conclu- 
 sive between the parties, and parol 
 evidence is incompetent to contradict 
 or vary its terms and construction; 
 and if in fact some of the conditions 
 actually made be omitted from it, the 
 defendant cannot avail himself of 
 them." Small v. Quincy, 4 Me. 497 ; 
 Coddington v. Goddard, 16 Grey 
 (Mass.) 436; Hawkins u. Chase, 19 
 Pick. (Mass.) 502 ; Ryan v. Hall, 13 
 Met. (Mass.) 523 ; Warren v. Wheeler, 
 8 id. 97; Cadet v. Winsor, 1 Allen 
 (Mass.) 546; Remick w. Sandford, 118 
 Mass. 102. A telegram from a prin- 
 cipal, saying he would take certain 
 property "for the purchase of which 
 his agent had negotiated, was held not 
 a su£Scient memorandum to satisfy 
 the statute of frauds, where it did not 
 express the terms of the contract, but 
 these would have to be ascertained 
 from the oral negotiations between 
 the agent and the seller. McElroy v. 
 Buck, 35 Mich. 434. And, generally, 
 a memorandum, to take a contract 
 out of the statute, must express all 
 the essential terms of the contract 
 with such certainty as to render it 
 unnecessary to resort to parol evidence 
 to determine the intent of the parties. 
 Hagan v. Domestic S. M. Co., 9 Hun 
 (N. Y.) 73. The statute does not 
 require the memorandum to be drawn 
 in any particular form, but one which, 
 either in its own terms, or by refer- 
 ence to other writings, shows the names 
 
 of the parties, a sufficiently clear des- 
 cription of the subject-matter to render it 
 capable of identification, the terms and 
 conditions of the contract, and price to 
 be paid, or other consideration given, 
 is sufficient. Wood v. Davis, 82 111. 
 311. 
 
 • Getchell «. Jewett, 4 Me. 350; 
 Barstow v. Gray, 3 id. 409 ; Small v. 
 Quincy, 4 id. 497 ; Atwood v. Cobb, 
 16 Pick. (Mass.) 227 ; Rogers v. Saun- 
 ders, 16 Me. 92 ; Laythoarp v. Bryant, 
 2 Bing. (N. C.)469; Old Colony R. R. 
 Co. I.. Evans, 6 Gray (Mass.) 25; Hat- 
 ton • V. Gray, 2 Ch. Cas. 164 ; Ives v. 
 Hazard, 4 R. I. 14 ; Coleman v. ITpcot, 
 5 Vin. Ab. 528; Sams v. Tripp, 10 
 Rich. (S. C.) Eq. 447; Bowen v. Mor- 
 ris, 2 Taunt. 374 ; Martin v. Mitchell, 
 2 Jac. & W. 413 ; Clason v. Bailey, 14 
 John. (N. Y.) 484; Hunter v. Seton, 7 
 Ves. 265; Ballard !•. Walker, 3 John. 
 Cas. (N.Y.) CO; Lowry v. Mehaffy, 
 10 Watts. (Penn.) 287; Varley v. 
 Shirley, 7 Blackf. (Ind.) 452; Parrish 
 V. Koons, 1 Pars.' Cas. (Penn.) 79; 
 Gale V. Nixon, Cai. (N. Y.) 445; 
 Roget V. Merritt, 2 Cai. (N.Y.) 117; 
 Flight t,. Bolland, 4 Russ. 298; Or- 
 mond V. Anderson, 2 B. & B. 363; 
 Child V. Comber, 3 Swanst. 423; 
 Hunter v. Giddings, 97 Mass. 41 ; 
 Mason v. Decker, 72 N. Y. 598 ; Cook 
 ».. Anderson, 20 Ind. 15; McFarson's 
 Appeal, 11 Penn. St. 503; Williams 
 V. Robinson, 73 Me. 186; 40 Am. 
 Rep. 352; Gartrell v. Stafford, 12 
 Neb. 545; 41 Am. Rep. 767. The 
 statute simply requires that the party 
 sought to be charged should sign. Fowle 
 V. Freeman, 9 "Ves. 351 ; Seton v. 
 Slade, 7 id. 265 ; Lowber v. Connit, 36 
 Wis. 176; McCrea v. Purmont, 16 
 Wend. (N.Y.) 460; Thayer v. Luce, 
 22 Ohio St. 62; Justice v. Lang, 42 
 N.Y. 493; 1 Am. Rep. 576. 
 
664 
 
 STATUTE OP FRAUDS. 
 
 [chap: XIII. 
 
 made, has been held sufficient to satisfy the statute,^ although 
 
 1 In Eeuss v. Picksley, L. R. 1 Bx- 
 cheq. 343, this rule was well illus- 
 trated. In that case it appeared that 
 the plaintiffs carried on business at 
 Manchester and the defendants carried 
 on business as agricultural implement 
 makers, at Leigh, near Manchester, 
 under the style of Picksley, Sims & 
 Co. In the autumn of 1864 an indus- 
 trial exhibition was fixed to be held 
 at Moscow, and the defendants were 
 desirous of exhibiting some of their 
 machines there. Accordingly they 
 entered into negotiations with the 
 plaintiffs, with the yiew of the plain- 
 tiffs undertaking to look after the 
 . goods sent by the defendants whilst 
 at the exhibition. The plaintiffs at 
 first declined the responsibility, but 
 upon the defendants proposing to 
 make an agency for ten years with 
 them if they would bear a part of the 
 expense of the exhibition, one of the 
 plaintiffs, Mr. Ernst Reuss, stated 
 that he would go to Moscow and him- 
 self superintend the arrangements 
 necessary for exhibiting the defend- 
 ants' goods. With that intention he 
 went to Moscow in July, 1864, and 
 remained there for a month. Mean- 
 time a quantity of goods were sent by 
 the defendants to the plaintiffs for 
 the purpose of being forwarded to the 
 exhibition. On Mr. Eeuss's return he 
 requested an interview with Mr. Sims, 
 one of the defendants, with reference 
 to the Russian agency. An interview 
 thereupon was had, at which the terms 
 of the agency were discussed, and 
 .afterwards the plaintiffs wrote to the 
 defendants the following letter : — 
 " Manchester, 
 8th September, 1864. 
 
 Messrs. Picksley, Sims & Co., 
 Leigh : — Referring to our conversa- 
 tion with Mr. Sims, respecting the 
 machinery for the Moscow exhibition, 
 it was arranged that we take charge 
 of all the machines, etc., in Hull, and 
 pay for your account all freight 
 charges. Insurances, etc., till delivered 
 in Moscow. That we sell in Moscow 
 as many of the machines as possible. 
 
 and that after the close of the exhibi- 
 tion the unsold remainder be at your 
 risk and expense, either to keep in 
 Moscow or return home as you think 
 fit at your expense. That we pay you 
 here cash for all machines sold during 
 the exhibition, the price to be calcu- 
 lated at list price less the full trade 
 discount for cash, that you pay the 
 travelling expenses there and back of 
 Mr. Smith, but that we pay his addi- 
 tional salary whilst in Moscow of 10s. 
 per day, and his hotel bill. That the 
 agency for Russia be for ten years 
 from date on following conditions. 
 You to allow us full discount for cash 
 on all orders received by us direct, 
 and that you hand over to us to be 
 dealt with in the same way all orders 
 you receive from Russia (excepting 
 those from Odessa). On all orders 
 executed by you from Russia, except- 
 ing Odessa, that may come through 
 any other agent in Great Britain, you 
 allow us a commission of £5 per cent. 
 That we act as and are hereby ap- 
 pointed your sole agents for the king- 
 dom of Italy, on the same conditions 
 as for Russia. Awaiting your reply, 
 we are, etc., 
 
 Eknst Reuss & Co." 
 
 To that letter the defendants re- 
 plied as follows : — 
 
 " Bedford Pousdry, 
 Leigh, Lancashire, 
 September 9th, 1864. 
 
 Our Mr. Sims desires me to ac- 
 knowledge the receipt of your favor 
 dated the 8th inst., and to say as far 
 as the agency for Russia goes he con- 
 siders it satisfactory, except that you 
 must confine yourselves to us for 
 every description of machinery we 
 manufacture, and which you sell in 
 Russia. With respect to Italy, Mr. 
 Sims cannot at present say anything 
 about it, in consequence of the change 
 which is likely to take place in our 
 firm shortly. I am, etc., 
 
 p.p. Picksley, Sims & Co., 
 Joseph Smith. 
 Messrs. Ernst Reuss & Co." 
 
 The plaintiffs sent no reply to this 
 
SEC. 346.] MEMOEANDXJM OE NOTE IN WETTING. 
 
 665 
 
 the party accepting such proposal is not bound, provided he 
 is ready to perform upon his part, as must always be the 
 
 letter, but after the date of it goods 
 were sent to them by the defendants, 
 and were forwarded by the plaintiffs 
 to Moscow, where they were shown at 
 the exhibition, which took place on 
 the 7th September, 1864. At the 
 close of the exhibition a great propor- 
 tion of the goods remained unsold, 
 and in respect of these, as well as in 
 respect of those sold, the plaintiffs 
 incurred considerable expenses. 
 
 On the 8th December, 1864, the 
 defendants transferred their business 
 to a Joint Stock Company, and in the 
 February following the plaintiffs' 
 Moscow agent died. Shortly after- 
 wards the plaintiffs and defendants 
 entered into a correspondence with a 
 yiew to a settlement of the matters 
 connected with the Moscow exhibi- 
 tion, but the parties were unable to 
 come to any agreement. The plain- 
 tiffs thereupon brought this action. 
 No orders for machinery from Eng- 
 land had been received by either 
 plaintiffs or defendants for Russia 
 (except Odessa) at the time of the 
 alleged breach. Upon the trial the 
 judge directed the jury that the Mos- 
 cow and Russian stipulations in the 
 letters of the 8th and 9th September 
 were parts of one and the sanje con- 
 tract, and the jury found that the 
 plaintiffs did accept and accede to the 
 terms of that contract. A verdict 
 was accordingly entered under the 
 direction of the learned judge for the 
 plaintiffs, damages £850. Leave was 
 reserved to the defendants to move to 
 set aside the verdict and enter a non- 
 suit on the ground that there was no 
 sufficient memorandum in writing of 
 the contract under the statute of 
 frauds. 
 
 The verdict was sustained, Willes, 
 J., saying; "We are all of opinion 
 that the judgment of the Court of 
 Exchequer should be affirmed. It 
 appears that the plaintiffs, through a 
 member of their firm, had some nego- 
 tiations with the defendants, through 
 
 a member of their firm, with reference 
 to so much of the contract declared 
 upon as related to the Moscow exhibi- 
 tion. In the course of these negotia- 
 tions, the plaintiffs refused to encoun- 
 ter the expenses of this exhibition 
 unless the defendants would under- 
 take in some way or other to reim- 
 burse them, and accordingly com- 
 munications as to the manner in which 
 this object could be effected were 
 entered into between the parties. It 
 was suggested by the plaintiffs that 
 they should be employed for a term 
 of ten years as agents in Russia for 
 the sale' of machinery. But when 
 first broached that negotiation did not 
 come to a head. One of the plaintiffs 
 went abroad, and on his return sent 
 word that he wished to see one of the 
 defendants, Mr. Simi, on business, 
 that business being with reference to 
 the agency in Russia. An interview 
 was thereupon had, at which the 
 terms of the agency, were discussed, 
 and letters afterwards passed relating 
 to the Moscow exhibition, the agency 
 in Russia, and an agency which the 
 plaintiffs desired in Italy. On the 8th 
 September, 1864, one letter was writ- 
 ten by the plaintiffs, and on the 9th 
 an answer was sent by the defendants. 
 The letter of the plaintiffs was to this 
 effect. [The learned judge read so 
 much of the letter as refers to the 
 Moscow exhibition.] Then tlie letter 
 proceeds to speak of the Russian 
 agency in terms not applicable to a 
 distinct or separate contract. Having 
 dealt with the matters connected with 
 the Moscow exhibition, which was to 
 operate as accessory to the general 
 agency, and as an advertisement, the 
 letter goes on to detail the terms of 
 the agency for Russia; and as to this 
 part of tlie arrangement the plaintiffs 
 do not state that they are to abstain 
 from taking orders from other per- 
 sons. To this, and to this alone, the 
 defendants objected in the letter of 
 the 9th. Then follows, in the letter 
 
666 
 
 STATUTE OF FRAUDS. 
 
 [chap. XIII. 
 
 case when a party seeks to enforce a contract,^ and the fact 
 of such acceptance may be proved by parol evidence.^ 
 
 1 Laythroap v. Bryant, 2 Bing. {N. 
 C.) 735; Morin v. Murtz, 13 Minn. 
 191 ; Brumfleld v. Karson, 33 Ind. 94 ; 
 Clason V. Bailey, 14 John. (N. Y.) 
 484; Shirley v. Shirley, 7 Blaekf. 
 (Ind.) 452; Penniman v. Hartshorn, 
 13 Mass. 87; Fenley o. Stewart, 5 
 Sandf. (N. Y.) 101; Douglass v. 
 Shears, 2 N. & M. (S.C) 207; Bar- 
 stow u. Gray, 3 Me. 409; Justice v, 
 Lang, 42 N. Y. 493; 1 Am. Rep. 576. 
 
 of the 8th, the paragraph respecting 
 the Italian agency. 
 
 In answer to this letter comes the 
 letter of the 9th September. So far, 
 therefore, as the Russian agency goes, 
 the letter of the 8th was otherwise 
 satisfactory to the defendants. Now, 
 the letter of the 8th dealt with the 
 Russian agency and also with the 
 arrangement respecting the Moscow 
 exhibition. There was no reference 
 to the one as distinct from the other, 
 and the conclusion is, that as to the 
 Moscow exhibition no observation was 
 required, and as to tlie Russian agency 
 the sole objection was that the plain- 
 tiffs, instead of having the agency 
 given to them without limitation, were 
 to be prevented from being agents for 
 any one else. As to the Italian 
 agency, that is put out of the ques- 
 tion. The meaning, therefore, of the 
 whole is this: 'True, we made a cer- 
 tain arrangement yesterday as to 
 Russia, but we meant it to be with a 
 limitation, and as to Italy, we made 
 no arrangement at all.' 
 
 Now, this was either a memoran- 
 dum of agreement, or at least u, pro- 
 posal with the terms of the letter of 
 the 8th as a basis ; a proposal, that is, 
 that the plaintiffs should act as agents 
 at Moscow, and become agents for 
 Russia, pledging themselves to take 
 no other agency. Therefore, I say 
 these letters constitute either an 
 agreement or at least a proposal. 
 Assume it in favor' of the defendants 
 to be the latter. We must now con- 
 
 2 Reuss V. Picksley, L. R. 1 Ex- 
 cheq. 342 ; Western Union Tel. Co. v. 
 Chicago &c. R. E. Co., 86 HI. 246 ; 
 Ward V. Kirkman, 27 Miss. 823 ; San- 
 born V. Flagler, 9 Allen (Mass.) 474; 
 Justice V. Lang, 42 N. Y. 493 ; Argus 
 Co. V. Albany, 55 N.Y. 495; Griffith 
 V. Rembert, 2 S. & C. 410; Lanz v. 
 McLaughlin, 14 Minn. 72; Ivory u. 
 Murphy, 36 Mo. 534 ; De Cordova c/. 
 Smith, 9 Tex. 129; Dresel u. Jordan, 
 104 Mass. 412. 
 
 sider what followed. The Moscow 
 exhibition took place, and the goods 
 intended for exhibition were forwarded 
 and dealt with by the plaintiffs as they 
 undertook to deal with them. Ex- 
 penses were incurred by the plaintiffs 
 which they certainly would not have 
 incurred without a promise of the 
 Russian agency; and these expenses 
 were incurred with reference to the 
 Moscow exhibition. Was this evi- 
 dence of assent on the part of the 
 plaintiffs to the terms of the letter of 
 the 9th September ■? The defendants 
 maintain that it was not, and their 
 argument depends on a dissection of 
 the terms of the letter of the 8th. 
 But we see no reason for dissevering 
 those terms. The whole appears to 
 have been one arrangement. When 
 taking the two letters together we find 
 the second silent as to the Moscow 
 exhibition, and when we find more- 
 over that the exhibition was accessory 
 to and connected by way of advertise- 
 ment with the rest of the Russian 
 agency, we conclude that the whole 
 transaction between the parties was 
 one and indivisible. Therefore there 
 was a performance of their part by 
 the plaintiffs, which was evidence of 
 an assent to the terms of the letters 
 of the 8th and 9th September, or, 
 treating the letter of the 9th as a 
 modified proposal, there was evidence 
 that the plaintiffs assented to it. 
 
 Now in point of law what was the 
 effect of this assent "! Putting for the 
 moment the statute of frauds out of 
 
SEC. 346.] MEMOEANDtTM OK NOTE IN WKITING. 
 
 667 
 
 But where the contract is one which imposes the performance of 
 mutual recurring acts and services from time to time on the 
 
 the queation, no inquiry would be 
 made as to the precise time at which 
 the different parts of one single tran- 
 saction took place. The question 
 would be, was it or was it not one 
 transaction, and was an assent con- 
 tained in it ? and in this case we are 
 of opinion that the transaction was 
 one, and did contain an assent. But 
 the statute of frauds introduces a new 
 element, because it makes it necessary 
 by § 4 that an agreement not to be 
 performed by either party within a 
 year must be in writing, signed by 
 the party to be charged therewith. 
 Now all that was signed here was not 
 a formal agreement, but a proposal on 
 one side, and there was an assent to 
 that proposal on the other. All diffi- 
 culty as to the terms of the proposal 
 is out of the case. It contained the 
 names of the parties and all the terms 
 by reference to the letter of the 8th 
 September, which must be taken to 
 be recited in the letter of the 9th. 
 The only question is, whether it is suffi- 
 cient to satisfy the statute that the party 
 charged should sign what he proposes as 
 an agreement, and that the other party 
 should ajlerwards assent without writing 
 to the proposal f As to this it is clear, 
 both on reasoning and authority, that 
 the proposal so signed and assented 
 to does become a memorandum or 
 note of an agreement within the 
 4th section of the statute. Many 
 cases might be put in illustration of 
 this proposition, but one or two will 
 be sufficient. Take for example a 
 case arising under the Joint Stock 
 Companies Act, whereby it is pro- 
 vided that no person shall be deemed 
 to have accepted any share in the 
 company unless he testifies his accept- 
 ance by writing under his hand. It 
 was at first supposed that something 
 must be done by the shareholder in 
 writing after allotment, and that 
 otherwise he would not be a share- 
 holder because he proposed in writing 
 to become one and to accept his 
 
 shares upon allotment. But the Court 
 of Common Pleas, when the case was 
 brought before them, said that it was 
 a mistake to suppose that under these 
 circumstances there was no acceptance 
 in writing. The true mode, they said, 
 of regarding such a transaction was 
 that it was from beginning to end one 
 transaction, and accordingly they held 
 that the acceptance was complete, and 
 the statute satisfied by a proposal in 
 writing to accept the shares, followed 
 by an allotment. The court there 
 acted on a judgment delivered in the 
 Court of Queen's Bench by my 
 Brother Blackbukn to the effect that 
 the 'acceptance' of goods to satisfy 
 the statute of frauds, § 17, may be 
 prior to the actual delivery of them. 
 Cusack V. Robinson, 1, B. & S. 209; 
 ^he Bog Lead Mining Company v. 
 Montague, 10 C. B. (N. S.) 481. It is 
 indeed quite a fallacy to suppose that 
 because certain acts happen at differ- 
 ent periods they cannot be so con- 
 nected as to form one transaction. 
 That was the ground of the Lord 
 Keeper's decision in Coleman v. Up- 
 cot, 5 Vin. Abr. 527; where he held 
 that an offer to sell an estate, made 
 in writing and afterwards accepted by 
 parol, bound as a contract. The prin- 
 ciple of that case was recognized and 
 assented to by Kindersley, V. C, in 
 Warner v. Willington, 3 Drew, 523; 
 he did not, however, treat it as pre- 
 cisely in point, probably on account 
 of the note in Viner, stating that, in 
 fact, there was an acceptance in writ- 
 ing. The judgment, however, was 
 founded on the consideration that the 
 parol acceptance was sufficient, and it 
 is cited to support that position by 
 Lord St. Leonards (Sugden, Ven- 
 dors and Purchasers, lOtli ed. vol. I. 
 p. 164). The case of Warner v. Wil- 
 lington was followed by the Court of 
 Common Pleas in Smith v. Neale, 2 
 C. B. (N. S.) 07, and by the Court of 
 Exchequer in Liverpool Borough 
 Bank v. Eccles, 4 11. & N. 139. 
 
668 
 
 STATUTE OF FRAUDS. 
 
 [chap. XIII. 
 
 parties, both must be bound by the contract, or neither can 
 be made liable upon it, except in respect to acts done and 
 services actually rendered.^ Thus, where a servant con- 
 
 So far as to agreements which 
 must be mutual, but where the statute 
 only requires the signature of the 
 party to be charged. But we may 
 usefully consider two classes of con- 
 tracts. One class includes cases 
 where a proposal is made which may 
 or may not be acted on. The most 
 ordinary example is a guarantee, 
 which by § 4 of the statute must be in 
 writing. The creditor may supply 
 goods to the person whose credit is 
 guaranteed or not as he pleases ; but 
 if he does supply them, the surety is 
 bound to accept in cases like Mozley 
 V. Tinkler, 1 C. M. & R. 692, where on 
 the true construction of the guaran- 
 tee, which was in the form of a letter 
 to the plaintiffs, it was held that 
 notice of the plaintiffs' acceptance of 
 it should have been given. But in 
 that case it does not seem to have 
 occurred to any of the court that the 
 acceptance need be in writing. In- 
 deed, the judgment of Lord Wensley- 
 dale (Parke, B.) rather points to the 
 opposite conclusion. That case, there- 
 fore, is confirmatory of our decision 
 that the whole evidence of an agree- 
 ment need not be in writing, but only 
 all the terms along with the signature 
 of the party to be charged. 
 
 It has been urged upon us that 
 this conclusion will lead to fraud and 
 perjury, and to the very mischiefs the 
 statute was passed to prevent. We 
 do not concur in that view, because 
 no one will be able to enforce an 
 agreement of the sort we are now dis- 
 cussing, without proving that he did 
 or was ready to do his part to entitle 
 him to performance on the part of the 
 other contracting party. Moreover, 
 if good for anything, that argument 
 is good to show that a regular agree- 
 ment or memorandum of it, signed by 
 one party only, ought not to bind him. 
 The reason we have given is a, good 
 answer to the argument, but that 
 argument was also considered by the 
 
 Court of Common Pleas in Laythoarp 
 w. Bryant, 2 Bing. (N. C.) 735, where the 
 court held, in spite of a weighty dic- 
 tum of SiK W. Grant in Martin v. 
 Mitchell, 2 Jac. & Walk. 428, that only 
 the party to be charged need sign, the 
 other party, however, at the same time 
 being ready to fulfil his- own part of the 
 agreement before suing. 
 
 Again, take another case, viz., 
 the case of a contract where both 
 parties must sign, of which the most 
 familiar example is an ordinary lease 
 for years not under seal which, by the 
 conjoint operation of §§ 1 and 4 
 of the statute, must be in writing, 
 signed by the parties making the 
 same. I am referring for the moment 
 to leases before the 7 & 8 Vict. c. 76, 
 and the 8 & 9 Vict. c. 106, which 
 enacted that leases required to be in 
 writing by the statute of frauds shall 
 thenceforth be under seal. Where 
 such a lease was signed by the lessee 
 only, he took no interest, and was not 
 bound according to the principle laid 
 down in Soprani v. Skurro, Yelv. 18. 
 Now, suppose the lessee were to sign 
 before the lessor. Every argument 
 which has been urged to show that a 
 subsequent act cannot turn what is 
 not an agreement into an agreement 
 would apply ; but could any one seri- 
 ously contend that it would make any 
 difference whether the lessor or lessee 
 signed a lease first ? The law is clear 
 upon the point. We are not to look 
 at the precise moment at which an 
 assent is given, but at the entire tran- 
 saction, and if the assent when given 
 does make a contract, that is enough ; 
 for the proposal though prior in time 
 is, in fact, a memorandum or note of 
 the terms of that contract, signed by 
 the party to be charged within the 
 meaning of the statute." 
 
 1 Haddeson Gas Co. v, Haslewood, 
 6 C. B. (N. S.) 239; Souch v. Straw- 
 bridge, 2 C. B. 808; Callis u.Botham- 
 ley, 7 W. E. 87. 
 
SEC. 347.] MEMOKANDTJM OR NOTE IN WRITING. 
 
 tracted in writing to work for A at his trade, and for no 
 other person during twelve months, and so on for twelve 
 months until he should give notice of quitting, and the mem- 
 orandum was not signed by A, it was held that the agree- 
 ment was invalid for want of mutuality.' 
 
 Sec. 347. Memorandum may be in the Form of a Letter Ad- 
 dressed to Third Party. — It is not necessary that the memo- 
 randum should he made between the parties to the contract only, 
 hut it may he addressed to a third person, who is the agent of 
 one of the parties. Thus, letters addressed by the person to 
 be charged to a third party, who is the authorized agent of 
 either party relating to the transaction, or who is made so 
 by the terms of the letter, may be sufficient to bind the 
 sender, if they either contain or refer to documents which con- 
 tain the terms of the agreement? In Gibson v. Holland,^ a 
 
 1 Sykes v. Dixon, 9 Ad. & El. 693. 
 
 2 Smith V. Watson, Bunb. 55 ; Wel- 
 ford V. Beazley, 3 Atk. 503 ; 1 Ves. 6 ; 
 
 I Wils. 118 ; Cooke v. Tombs, 2 Ans. 
 420; Longfellow k. Williams, Peake 
 Add. Gas. 225 ; Rose v. Cunynghame, 
 
 II Ves. 550; Owen v. Thomas, 3 M. & 
 K. 353 ; Goodwin v. Fielding, 4 D. M. 
 G. 90. 
 
 8 L. R. 1 C. P. 1. In this case the 
 objection relied upon was that the 
 note or memorandum was a note pass- 
 ing between the party to be charged 
 and his own agent. But the court held 
 it to be suiScient, and Stone, J., in 
 commenting upon this case in Drury 
 V. Young, 58 Md. 546; 42 Am. Rep. 
 343, says: "The object of the statute 
 of frauds was the prevention of per- 
 jury in tlie setting up of contracts by 
 parol evidence, which is easily fabri- 
 cated. With this view, it requires 
 the contract to be proved by the pro- 
 duction of some note or memorandum 
 in writing. Now a note or memoran- 
 dum is equally corroborative, whether 
 it passes between the parties to the 
 contract themselves or between one 
 of them and his own agent. Indeed, 
 one would incline to think that a 
 statement made by the party to his 
 own agent would be the more satis- 
 factory evidence of the two." Ar- 
 
 gus Co. V. Albany, 55 N. Y. 495; 
 Buck V. Pickwell, 27 Vt. 167 ; Town- 
 send V. Hargreaves, 118 Mass. 335; 
 Buxton V. Rust, L. R. 7 Excheq. 
 279 ; Tufts v. Plymouth Gold Mining 
 Co., 14 Allen (Mass.) 407 ; Goodwin v. 
 Fielding, 4 De G. M. & G. 90; Leroux 
 V. Brown, 12 C. B. 801 ; Bradford v. 
 Roulston, 8 Ir. C. L. R. 473 ; McMil- 
 lan V. Bentley, 10 Grant (Ont.) 387. 
 
 Quere? Why, then, is not a letter 
 to ani/ person, whether an agent or 
 not, suflScient, if it admits the contract 
 in such a manner tliat its terms are 
 clearly deducible therefrom 1 Is it 
 quite correct to say that the note or 
 memorandum is merely evidence of 
 the contract ? Is it not, when com- 
 plete, tlie contract ? If not, why is it 
 necessary, in order to give effect to a 
 letter so written by the party to be 
 charged to a third person, that such 
 person should be the agent of one of 
 the parties in reference to the transac- 
 tion 1 And see Moss «. Atkinson, 44 
 Cal. 3, 16, where it was held that a 
 letter signed by the owner of land 
 and addressed to A, stating that he 
 has agreed with B to sell B the land, 
 and giving the general terms of the 
 agreement, with a general description 
 of the land and its price, is a sufficient 
 memorandum of a contract for the 
 
670 STATUTE OP PEAT7DS. [CHAP. XIII. 
 
 letter signed by the party to be charged, written to his own 
 agent, referring to letters of the agent, stating the terms 
 upon which the latter had made a contract on his behalf 
 with the other party for the purchase of goods, was held 
 to be a sufficient note or memorandum of the bargain to 
 satisfy the statute. So where a guarantee was addressed by 
 the defendant to the plaintiffs attorney, it was held that the 
 plaintiff was entitled to the benefit of it.^ And a guarantee 
 addressed to one of several partners in a firm will enure for 
 the benefit of all, if the partner to whom it is addressed does 
 not carry on any separate business, or if there is evidence 
 that it was given for the benefit of all.^ But a letter ad- 
 dressed to a third person, who is not the agent of either party, rela- 
 tive to the transaction, or clothed with any power as such by the 
 terms of tAe letter, is not a sufficient note or memorandum to 
 satisfy the statute.^ Nor is a letter addressed to an agent, 
 or to the other party even, sufficient, unless it contains 
 within itself, or by reference to other writings, the essential 
 terms of the agreement.* But a letter of credit directed to 
 any person who may act upon it, or, in other words, to a person 
 unnamed, agreeing to be responsible for the amount of any 
 bill which the bearer may contract not exceeding a certain 
 sum, has been held sufficient to enable a person who acted 
 upon the faith of it, to maintain action against the writer.^ 
 Thus, in a South Carolina case,^ the defendant signed a letter 
 addressed to F, as follows : " As you request, we are willing 
 to help you in the purchase of a stock of goods. We will 
 therefore guarantee the payment of any hills which you may 
 
 sale of the land within the statute of ' Walton v. Dodson, 3 C. & P. 162; 
 
 frauds, and may be enforced hy B in Garrett v. Ilandley, 4 B. & C. 664. 
 equity. If the terras of the contract, ' Davis v. Moore, 9 Rich. (S. C.) 
 
 the consideration, the subject of the 215; Loed Hakdtvick in Wilf ord r. 
 
 sale, etc., are stated with reasonable Beazely, 3 Atk. 503; Ayliffe v. Tracy, 
 
 certainty, the memorandum is suffi- 2 P. Wms. 64; Seagood v. Meale, 
 
 cient. Form is not important. The Prec. Ch. 560. 
 
 fact that the memorandum was found * Clark v. Wright, 1 Atk. 12; 
 
 only in a letter addressed to a third Whaley v. Bagnel, 6 ; Bro. C. C. 45 ; 
 
 person by the party to be charged was Jackson v. Titus, 2 John. (N. Y.) 430; 
 
 held not to defeat its validity. But Ayliffe v. Tracy, ante. 
 see Davis v. Moore, 9 Rich. (S. C.) ^ Griffin v. Rembert, 2 S. C. 410; 
 
 215, where such a letter was held not Williams v. Brynes, 8 L. T. N. S. 69. 
 sufficient, unless such third person was " Griffin v. Eembert, ante. See also 
 
 the agent of one of the parties. Williams v. Brynes, ante. 
 1 Bateman v. Phillips, 15 East, 272. 
 
SEC. 347.] MEMORANDUM OR NOTE IN WRITING. 671 
 
 make, under this letter of credit, in Baltimore, not exceeding, 
 in the whole, fifteen hundred dollars." It was held that any 
 party in Baltimore, advancing goods to F, upon the faith of 
 the promise contained in the letter, could maintain an action 
 thereon against defendants as guarantors, though his name 
 did not appear therein. The fact that he became a party to 
 the agreement could be shown by parol. Because in such a 
 case, the name of the other party could not be given until 
 he acted upon the faith of the letter ; the letter itself being 
 in the nature of an open letter of credit, available to any 
 person who, in good faith and in reliance upon it, furnished 
 the credit sought thereby, who thereupon became a party 
 thereto, and the ambiguity being latent, the name of such 
 party may be shown by parol, because it is plain that the 
 writer intended the letter for no person in particular, but for 
 any one who might act upon it. But where it is evident 
 upon the face of the instrument that the writer intended it 
 for a particular person, whose name is omitted through mis- 
 take or otherwise, or even is erroneously given, the letter is 
 inoperative under the statute, because the ambiguity in this 
 respect is patent, and the name of the party intended cannot 
 be shown by parol.^ So a letter which is signed, and contains 
 the terms of the agreement, or which refers to other writings 
 which contain such terms, although they are not signed'^ or, 
 to something else which is certain, as to a custom of the 
 country or well-established usage of trade, is sufficient.^ 
 But it is held by some of the cases that in order to make a 
 letter written by a principal to his own agent operative as a 
 memorandum, it must appear thai it was seen by and read and 
 assented to by the other party, and it is not enough to show that 
 its contents were communicated to such party by the agent.* 
 Thus, in the case last cited, the plaintiff, who sought to com- 
 pel the specific performance of a contract relating to the pur- 
 chase of land, alleged that the defendants were the owners 
 of certain lands described in the petition, and that the 
 
 1 In Grant v. Naylor, 4 Cr. (U. S.) 2 Tawney v. Crowther, 3 Bro. C. C. 
 
 224, the letter was addressed to John 318; Sanderson v. Jackson, 2 B. & P. 
 
 and Joseph, and was delivered to John 288. 
 
 and Jeremiah. Held not sufficient, and ' Brodie v. St. Paul, 1 Ves. Jr. 
 
 that parol evidence was not admissible 336. 
 
 toshowthat Johnand Jeremz'aAwerethe * Steel v. Fife, 48 Iowa, 99. 
 partiesforwhomtheletterwas intended. 
 
672 STATUTE OF FEAITDS. [CHAP. XIII. 
 
 plaintiff applied to one Johnson, who was agent for the 
 defendant, to purchase the same, and that afterward Johnson 
 informed him that he had received a letter from the defend- 
 ant stating that they would sell a certain portion of the land 
 for 1650, and that the plaintiff thereupon accepted the pro- 
 posal and requested Johnson to procure a deed thereof, and 
 the defendant refused to execute it. It was not shown that 
 the plaintiff ever saw the letter, nor was it produced or its 
 contents proved upon the trial, except as to what was stated 
 by Johnson. The court held that the letter was not suffi- 
 cient as a note or memorandum under the statute, Seeveks, 
 J., saying : " It is not alleged in the petition that Johnson 
 was the agent of the plaintiffs, but that he was the agent of 
 the defendant. This being true, the delivery of the letter to 
 Johnson could have no other or greater effect than if it had 
 been written and retained in the possession of the defendant. 
 It is unquestionably true that a memorandum, agreement, or 
 deed must be executed by the party to be bound, or his 
 authorized agent, and delivered to and accepted hy the other 
 party, to take the case out of the operation of the statute 
 and its clear intent and meaning." He cited and approved 
 the doctrine of a Pennsylvania case,-' in which it appeared 
 that there was found among the papers of Robert Martin, 
 deceased, a plot of certain lands, on which was endorsed, in 
 his handwriting, " These lands sold to Robert Morris, Esq., 
 of Philadelphia. Deeds fall to him. Purchase-money paid 
 me, Robert Martin. The over measure to be cast up and 
 accounted for." It was sought to compel a specific perform- 
 ance. The defence was the statute of frauds. The court 
 say : " An agreement is the assent of two minds to the same . 
 thing ; it requires that the written evidence of it, when it is 
 reduced to writing, as well as the agreement itself, should be 
 seen and assented to by both parties. ... It may 'be evi- 
 denced by a letter sent from the one to the other, and ac- 
 cepted as well as acted upon as an offer of terms, or by a 
 receipt or memorandum sufficiently stating the conditions; 
 hut in these instances the paper is parted with as evidence of 
 the thing agreed to. The principle that delivery is necessary 
 to give effect to a written agreement is not confined to spe- 
 
 1 Grant v. Levan, 4 Penn. St. 393. 
 
SEC. 347.] MEMORANDUM OR NOTE IK "WRITING. 673 
 
 cialties." But in these cases the court lost sight of the fact 
 that the note or memorandum is treated as merely evidence of 
 the contract, and not the contract itself y&wdi that the statute 
 only requires written evidence of the contract under the hand 
 of the parties to he charged, and is "wholly silent upon the 
 question of its delivery. Therefore there would appear 
 to be no good reason why such evidence, produced from 
 the custody of the defendant himself, or any other person, 
 is not as efficacious as though it had been in the custody 
 of the plaintiff. In a Maryland case^ the note or memo- 
 randum relied upon was made by the book-keeper of 
 the defendants, by the direction of one of them, and was 
 deposited in their safe upon the day of its date, and 
 remained there until it was produced in court. It did not 
 appear that it was ever seen by the defendants, or even its 
 existence known to. them until the time of trial. It vras 
 insisted by the defendants that the memorandum was not 
 sufficient iinder the statute, because it had never been de- 
 livered. But the court held that the memorandum, being 
 otherwise suificient, satisfied the statute whether it had ever 
 been delivered or not. "It must be borne in mind," said 
 Stone, J., " that the statute of frauds was not enacted for 
 cases where the parties have signed a written contract .: for in 
 these cases the common law affords quite a sufficient guar- 
 antee against frauds and perjuries. The intent of the statute 
 was to prevent the enforcement of parol contracts unless the 
 defendant could be shown to have executed the alleged con- 
 tract by partial performance, or unless his signature to some 
 written note or memorandum of the bargain, not to the bar- 
 gain itself, could be shown. 
 
 1 Drury v. Young, 58 Md. 546 ; 42 the contract will not affect his rights 
 
 Am. Eep. 343. In Peabody v. Spey- in a particular in which tlie writings 
 
 ers, 56 N. Y. 230, it was held that a known to the parties are sufficient 
 
 paper stating the terms of a contract, and definite, wliere there is no abso- 
 
 signed by a party to be charged and lute incompatibility between them, 
 
 addressed to a third person, though it "Where, therefore, by the written 
 
 did not, at the time', come to the T;nowl- memoranda known to the parties, the 
 
 edge of the other party, may be deemed party to be charged appears as princi- 
 
 as part of the sufficient memorandum pal, the fact that such other paper 
 
 of the contract required by the statute shows him to have contracted for 
 
 of frauds ; and the fact that the latter another does not prevent his being 
 
 is compelled to resort to such paper charged as principal, 
 to complete the written evidence of 
 
674 STATUTE OF FRAUDS. [CHAP. XIII. 
 
 The existence of the note or memorandum presupposes an 
 antecedent contract by parol, of which the writing is a note 
 or memorandum. Now the statute itself is entirely silent 
 on the question of the delivery of the note or memorandum 
 of the bargain, and its literal requirements are fulfilled by 
 the existence ■ of the note or memorandum of the bargain, 
 signed by the party to be charged thereby. The statute 
 itself deals exclusively with the existence, and not with the 
 custody, of the paper. If the non-delivery of the note does 
 not violate the letter of the statute, would it violate its spirit 
 and be liable to any of the mischiefs which the statute was 
 made to prevent? 
 
 The statute was passed to prevent fraud practised through 
 the instrumentality of perjury. It was passed to prevent the 
 defendant from suffering loss, upon the parol testimony of 
 either a perjured or mistaken witness, speaking of a bargain 
 different from the one in fact made. It made the defendant 
 only liable when a note or memorandum of the bargain 
 signed by himself was produced at the trial. If produced 
 from the defendant's own custody, it guards against the mis- 
 chief that the statute was passed to prevent, just as well as 
 if produced from the custody of the plaintiif. The plaintiff 
 is the one likely to suffer by leaving the evidence of his bar- 
 gain in the hands of the defendant — not the defendant him- 
 self." In an English case before cited ^ the only note or 
 memorandum of the bargain was a letter addressed by the 
 defendant to his own agent ; the court decided that to be 
 sufficient, and Eele, C. J., in delivering his opinion, said : 
 " But the objection lelied on is, that the note or memoran- 
 dum of that contract was a note passing between the defend- 
 ant, the party sought to be charged, and his own agent, and 
 not between the one contracting party and the other." The 
 object of the statute was the prevention of perjury by setting 
 up parol contract: with this view it requires the contract to 
 be proved by written evidence. Now there can be no good 
 reason why a note or memorandum in writing is not equally 
 efficacious whether it passes between the parties themselves 
 or between one of them and his own agent. In another 
 English case ^ the defendant made a note of the sale in his 
 
 1 Gibson v. Holland, L. K. 1 C. P. 1. ^ Johnson v. Dodgson, 2 M. & "W. 653. 
 
SEC. 348.] MEMORANDUM OR KOTB IN WRITING. 675 
 
 own book, and got the plaintiff's agent to sign it, and it was 
 held to be sufficient, although it had never been delivered. 
 
 Sec. 848. Records of Corporations. — The record of the 
 vote of a corporation containing the terms of a contract 
 which the corporation voted to make, attested by the clerk, 
 is a sufficient memorandum within the statute,^ and this is 
 the rule as well in reference to municipal as other corpo- 
 rations.2 Thus, a vote of an authorized committee of a city, 
 electing their clerk, city engineer, for a year from a subse- 
 quent day, duly recorded and signed by Mm as clerk, has 
 been held sufficient to take the appointment out of the 
 statute, although the amount of compensation was not stated 
 in the vote,* the court saying : " If the agreement was within 
 the statute, we are of the opinion that the recorded vote of 
 the committee on streets, passed on the 21st February, 1854, 
 and signed by the plaintiff as clerk, was a sufficient note or 
 memorandum thereof in writing." In a New York case* a 
 similar view was adopted. In that case the common cbuncil 
 of the city of Albany, -on the 10th December, 1862, adopted 
 a resolution referring it to the printing committee of the 
 council to consider and report as to the propriety of estab- 
 lishing an official organ for the city and the proper compen- 
 sation for the same. This committee afterward reported a 
 resolution that the proceedings of the board should be 
 reported for, and published in one daily paper, to be desig- 
 nated by the board at an annual expense not to exceed 
 f 1,000, and that all city advertising should be published at 
 the rates prescribed by law for the publication of legal 
 
 ' Johnson u. Trinity Church So- indebted to him by the terms of the 
 
 ciety, 11 Allen (Mass.) 123; Tufts v. agreement until November following." 
 
 Plymouth Gold Mining Co., 14 id. 407. Held, that there was a sufScient mem- 
 
 The secretary of a religious society orandum of a contract extending to 
 
 wrote to a minister informing him the 1st of February. Johnson a. 
 
 that the society had voted, on the 1st Trinity Church Society, 11 Allen 
 
 of January, to employ him for one (Mass.) 123. 
 
 year from that date, for a sum in ^ Chase v. Lowell, 7 Gray (Mass.) 
 
 gross. He accepted the offer, stipu- 33 ; District of Columbia v. Johnson, 
 
 lating, however, that the year should 1 Mackey (D. C.) 51; The Argus Co. 
 
 begin on the 1st of February, and the v. Albany, 7 Lans. (N. Y.) 264; afEd. 
 
 payTnents be made quarterly. In the 55 N. Y. 495. 
 
 December following the societypassed ^ chase v. Lowell, ante. 
 
 a vote, which was duly recorded, re- * Argus Co. v. Albany, ante. 
 citing that they should not " become 
 
676 STATUTE OF PEAUDS. [CHAP. XIII. 
 
 notices in the same paper, the designation to be for the term 
 of three years ; also, that all printing and binding, chargeable 
 to the city, should be done by the proprietor or proprietors 
 of such paper, for the like term, at the rates current in the 
 city, and that the chambel-lain should be and he was thereby 
 authorized to enter into contract accordingly with such pro- 
 prietor or proprietors as the board might designate. This 
 resolution was adopted on the 26th of January, 1863, by a 
 two-tliirds vote, taken by yeas and nays. 
 
 The newspaper of the plaintiff was, on motion, designated 
 as such official paper on the 26 th of January, 1863, and a con- 
 tract in writing, pursuant to such resolution, was entered into 
 between plaintiff and defendants on the 27th of January, 1863, 
 for three years from that date, such contract being signed 
 and sealed on the part of the defendants by the chamberlain. 
 On January 16, 1866, the common council adopted a reso- 
 lution "that the Argus be and hereby is designated as the 
 offici^il paper, in accordance with the former resolution of the 
 common council establishing an official organ for this city." 
 This resolution was not adopted by a vote taken by yeas' and 
 nays, but it was entered on the minutes of the minutes of 
 the board, which were signed by the clerk of the common 
 council, and, after the adoption of the resolution, the plain- 
 tiff subscribed a written acceptance thereof, wliich was iiled 
 by the plaintiff with the clerk of the common council January 
 27, 1866. 
 
 After such acceptance the plaintiff proceeded to publish 
 the proceedings of the common council in the Argus, and 
 continued so to do for the space of three years thereafter. 
 On the 4th of June-, 1866, the common council passed a 
 resolution purporting to rescind that of January 16, 1866, 
 and also resolutions modifying that of January 26, 1863, and 
 awarding the printing, binding, and advertising to three other 
 papers. 
 
 After the adoption of these resolutions the plaintiff, having 
 protested in writing against their being carried into effect, 
 the defendant refused to furnish the plaintiff with any print- 
 ing, etc., under the original resolution. The court held that 
 the resolution under which the plaintiff was appointed city 
 printer for the term aforesaid, having been entered in the 
 
SEC. 349.] MEMOEANDUM OR NOTE IN WRITING. 677 
 
 minutes of the council, and signed by the clerk in the dis- 
 charge of his official duties, and accepted by a writing signed 
 by the plaintiff, created a valid Contract in writing under the 
 statute of frauds, entitling the plaintiff to recover the com- 
 pensation agreed upon for the whole period of three years, 
 and that, even though it might have been contemplated by 
 the resolution, that a more formal contract should be entered 
 into in behalf of the city, by its chamberlain, yet the parties 
 could waive, and had waived this formality, by entering at 
 once upon the performance of the agreement. In a case 
 before the Supreme Court of the District of Columbia,^ the 
 city in December, 1867, passed an ordinance granting 
 authority to the defendants to erect a wharf at a point on 
 the river front of the city, for the yearly rent of |1,000, for 
 the term of ten years. The ordinance was to take effect on 
 the execution by the grantees of a bond to fulfil the require- 
 ments of the ordinance. The grantees gave the bond and 
 went into possession. In 1878, the city brought an action to 
 recover the accrued rent. It was held that the grantees, by 
 entering into possession of the premises and accepting the 
 ordinance, made the latter the written memorandum of the 
 contract, which was of itself sufficient to take the case out of 
 the statute, and that the execution of the bonds under the 
 requirements of the ordinance also would be sufficient as a 
 memorandum. An entry made by the plaintiff or his agent 
 in the defendant's book, at his request, does not constitute a 
 memorandum under the statute, unless the defendant actually 
 signed it.^ 
 
 Sec. 349. Alteration of Memorandum. — A material altera- 
 tion in a contract, after the agreement is entered into, with- 
 out the consent of the other party to the contract, annuls 
 the instrument, so as to preclude the party making the alter- 
 ation from recovering upon the contract evidenced by the 
 instrument so altered by him.^ Thus, the affixing a seal to a 
 guaranty so as to give it the appearance of a deed,* and 
 
 ' District of Columbian. Johnson, ham v. Musson, 5 Bing. (N. C.) 603; 
 
 1 Mackey (D. C.) 51. Groover v. Warfield, 50 Ga. 644. 
 
 2 Champion v. Plummer, 5 Esp. ^ Powell v. Divelt, 15 East, 29. 
 240; Barry v. Low, 1 Cr. (U. S. C. C.) * Davidson v. Cooper, 13 M. & W. 
 
 77 ; Newby v. Eogers, 40 Ind. 9 ; Gra- 343. 
 ham V. Fretwell, 3 M. & G. 368 ; Gra- 
 
678 STATUTE OF FRAUDS. [CHAP. XIII. 
 
 the addition of words to a sold note, which would make it 
 import that the goods sold were to be of the vendor's own 
 manufacture,^ have been considered such material alterations 
 as to invalidate the contract. If the memorandum is made 
 in duplicate, for the sale of goods, the party selling signing 
 one and the buyer signing the other, and the plaintiff adds 
 a stipulation to the copy signed by him only, the original 
 contract may be enforced by him.^ 
 
 Sec. 350. Filling Blanks in Deed, etc. — Blanks left in a 
 memorandum, which do not change its character or terms, 
 such as filling in the date, etc., may be filled without vitiating 
 it. Thus, where a mortgagor executed a mortgage deed to 
 A B, the solicitor who prepared it, and on the following 
 morning A B fiUed in the date of the deed, the names of the 
 tenants, and the date of the proviso for redemption, it was 
 held that this alteration did not render the deed void.^ So it 
 seems that, where an alteration in a memorandum is written 
 across its face, merely correcting an error, will bind the party 
 writing it, although he does not sign it. Thus, in Bluck v. 
 Gompertz,* it was held that a memorandum written across 
 the face of a signed agreement correcting an error in one of 
 its terms, would bind the writer although he did not sign it, 
 and that the agreement thus corrected was vaUd under the 
 statute. 
 
 Sec. 351. 'When Price must be stated. — Ordinarily, except 
 in those States in which the statute expressly requires 
 the consideration to be stated, the price to be paid for 
 goods need not be stated in the memorandum, but if 
 when the verbal contract is entered into the parties agree upon 
 the price to he paid, the memorandum must state the price, 
 as it is then of the essence of the contract. Thus where, 
 
 1 Mollett V. Wackerbarth, 6 C. B. (S. C.) 472 ; Ellis v. Deadman, 4 Bibb. 
 181. (Ky.) 467 ; Ives v. Hazard, 4 R. I. 14 
 
 2 Lemed v. Wannemacher, 9 Allen Williams u. Norris, 95 U. S. 444 
 (Mass.) 412. Shied v. Stamps, 2 Sneed (Tenn.) 172 
 
 ' Adsetts V. Hives, 33 Beav. 52. M'Farson's Appeal, 11 Penn. St. 503; 
 
 * 7 Exch. 862; Ide v. Stanton, 15 Norris v. Blair, 39 Ind. 90; Farwell 
 
 Vt. 685; Soles v. Hickman, 20 Penn. v. Lowther, 18 111. 252; Barickman v. 
 
 St. 180 ; Kay v. Curd, 6 B. Mon. (Ky.) Kuykendal, 6 Blackf . (Ind.) 21 ; Smith 
 
 103; Adams v. McMillan, 7 Port. v. Arnold, 4 Mas. (U. S. C. C.) 414; 
 
 (Ala.) 73; Waul v. Kirkman, 27 Mo. McElroy v. Buck, 35 Mich. 434; Buck 
 
 823 ; Kinloch v. Savage, Spears Eq. v. Pickwell, '27 Vt. 157. 
 
SEC. 351.] MEM0EANDt7M OE KOTE IN WEITING. 679 
 
 after a verbal contract for the sale of a horse for 200 
 guineas, the defendant wrote to the plaintiff as follows: 
 " Mr. Kingscote begs to inform Mr. Elmore that, if the horse 
 can be proved to be five years old on the 13th of this month, 
 in a perfectly satisfactory manner, of course he shall be most 
 happy to take him ; and if not most clearly proved, Mr. K. 
 will most decidedly have nothing to do with him," and there 
 was no other memorandum of the contract ; it was held that 
 the above letter was not sufficient, as the price constituted a 
 material part of the contract.-' So, where the defendant 
 agreed to purchase of the plaintiff certain goods at a discount 
 of £5 per cent, from a list of goods with prices annexed, and 
 he signed an order for the goods referring to the list, but not 
 mentioning the discount, it was held that the order was not 
 a sufficient memorandum within the statute, as it did 
 not contain the price.^ 
 
 But if the verbal contract is silent as to the price, then it 
 is not necessary/ that it should be stated in the memorandum, 
 for a contract for the sale of a commodity, in which the price is 
 left uncertain, is in law a contract for what the goods shall be 
 found to be reasonably worth? Thus, where the defendant 
 gave the plaintiff an order as follows : " Sir Archibald Mc- 
 Laine orders Mr. Hoadley to build a new, fashionable, and 
 handsome landaulet, with the following appointments, etc., 
 the whole to be ready by the 1st of March, 1833," and nothing 
 was said as to the price, it was held that the memorandum 
 was sufficient, Tindal, C. J., sajdng : " What is implied by 
 law is as strong to bind the parties as if it were under their 
 hand. This is a contract which is silent as to price, and the 
 parties therefore leave it to the law to ascertain what the 
 commodity contracted for is reasonably worth "; and Pabk, 
 J.: "It is only necessary that price should be mentioned 
 when price is one of the ingredients of the bargain ; the dicta 
 in Elmore v. Kingscote are applied to the facts of that case, 
 in which the bargain was for a specific price, and it is admit- 
 
 1 Elmore v. Kingscote, 5 B. & C. v. Muir, 33 Mich. 223, it was held that 
 583. a memorandum of an executory con- 
 
 2 Goodman v, Griffiths, 1 H. & N. tract, which is within the statute, must 
 674 ; see also Kaiu v. Old, 2 B. & C. state the price as well where a reason- 
 627. able price is agreed upon as any 
 
 8 Blackst. bk. 2, c. 30. In James other. 
 
680 STATUTE OF PEAUDS. [CHAP. XHI. 
 
 ted on all hands that if a specific price be agreed on, and that 
 price is omitted in the memorandum, the memorandumi is 
 insufficient.! The price may be stated in any form, either by 
 letters or figures which clearly indicate, as applied to the 
 subject-matter, what the price is, and it is sufficient, if the 
 figures or letters, or both, by the aid of a prevailing usage, 
 afford the means by which to ascertain the price. ^ 
 
 Sec. 352. Formal Agreement to be Prepared. — A memo- 
 randum which contains the terms of the proposed contract, 
 and is signed by the party to be charged, will bind him, 
 although the contracting parties have agreed that a more 
 formal agreement shall be prepared. Whether the parties 
 intend to bind themselves is a question of fact which must 
 depend on the particular circumstances of each case.^ Thus 
 where the purchaser of an estate wrote to the vendor's 
 solicitor, asking him when he would forward the agreement 
 to be entered into with the vendor, " relative to the purchase 
 I have concluded with him " ; the solicitor having a memo- 
 randum containing the terms of the proposed agreement, as 
 was shown by the evidence, it was held that there was a 
 sufficient contract within the statute.* 
 
 Where the alleged contract was founded on expressions in 
 a letter written by the defendant's agent to the intended 
 lessee, to the effect that instructions had been given for the 
 preparation of the lease in conformity with terms arranged, 
 specific performance was refused, no agreement having been 
 actually signed.^ 
 
 Sec. 353. what is Sufficient Description of Property. — It 
 
 is not necessary that the agreement should cbntain a very pre- 
 
 1 Hoadly v. M'Laine, 10 Bing. 482; (n.) ; Fowle v. Freeman, 9 Ves. 351 ; 
 Acebal ti. Levy, 10 Bing. 376; Joyce Card .;. Jaffray, 2 Sch. & Lef. 374; 
 0. Swann, 17 C. B. (N. S.) 84; Ash- Thomas v. Dering, 1 Keen, 741; Gib- 
 croft !'. Morrin, 4 M. & Gr. 451 ; Valpy bins u. North Eastern Metropolitan 
 V. Gibson, 4 C. B. 864. Asylum, 11 Beav. 1 ; Cliinnock v. 
 
 2 Gowen v. Klous, 101 Mass. 449; Marchioness of Ely, 4 De G. J. & S. 
 Carr v. Passaic &c. Co., 19 N. J. Eq. 646. 
 
 424 ; Salmon Falls Mf 'g Co. v. God- ^ Morgan v. Holf ord, 1 S. & G. 101 ; 
 
 dard, 14 How. (U.S.) 446; Smith v. and see Crossley a. Maycock, L. R. 18 
 
 Arnold, ante ; Bird v. Richardson, 8 Eq. 180. 
 
 Pick. (Mass.) 252; Atwood v. Cobb, ^ Ridgway b. "Wharton, 3 D. M. G. 
 
 16 id. 227. 677 ; 6 H. L. C. 238, 264. 
 8 Child V. Comber, 8 Swanst. 423 
 
SEC. 353.] MEMORANDUM OK NOTE IN WRITING. 681 
 
 cise description of the property to be sold, as parol evidence is 
 admissible to identify it^ where the memorandum or note con- 
 tains sufficient data to apply the description to the subject- 
 matter by the aid of such evidence, without requiring any 
 aid from such evidence as to. the intention of the person 
 sought to be cliarged, where he owns other property to which 
 the writing might apply .^ If reference is so made thereto in 
 the memorandum, that it can be applied to the subject-matter 
 of the agreement with reasonable certainty, "facts existing 
 at the time of making the agreement may," said Wigram, 
 V. C, " be admissible to assist the court in determining the 
 meaning of the language, an act done or letter written at 
 the time material to the right interpretation of the agreement. 
 But no point of law can, I apprehend, be better settled than 
 this : that in construing the agreement, no acts of the parties 
 subsequent to the making of it are (as such) admissible for 
 the purpose of determining its meaning. The acts of the 
 parties subsequent to the agreement may be material to show 
 that a writing does not express that which the parties in- 
 tended to express in it ; and proof of that may be a reason 
 why this court should refuse to act upon the written agree- 
 ment." But that is a very different thing from deducing 
 from the acts of the party the meaning of the agreement 
 itself."^ If the note or memorandum does not contain 
 either in itself or by reference to any other writing, the means 
 of identifying the property, it is insufScient.* Thus, a simple 
 description of premises as "lots No. 1 and 2," without refer- 
 ring to any particular plan or data by which the lots can be 
 identified, is insufficient because in such a case it would be 
 
 1 Scanlan v. Geddes, 112 Mass. 15. missible to show to what an agreement 
 
 ^ Ogilvie V. Foljambe, 3 Mer. 53; to buy "your wool" applied. Mac- 
 
 McMurray v. Spicer, L. R. 5 Eq. 527 ; donald v. Longbottom, 1 E. & E. 197. 
 
 and see Daniels v. Davison, 16 Ves. But such evidence is only admissible 
 
 249. Parol evidence is admissible to when the writing does not distinctly 
 
 identify the subject-matter of the define the property so as to admit of 
 
 writing. Miller v. Stevens, 100 Mass. its being applied without the aid of 
 
 518 ; Caulkins v. Hellman, 14 Hun such proof. Pike v. Pay, 101 Mass. 
 
 (N. Y.) 330; Bateman v. Phillips, 15 134; Hill v. Rowe, 11 Met. (Mass.) 
 
 East, 272; Chambers v. Kelly, 7 Ir. 268; Hart ti. Hammett, 18 Vt. 127. 
 K. Ch. 231 ; Stoops u. Smith, 100 3 Monro v. Taylor, 8 Hare, 56. 
 Mass. 63 ; Shortridge v. Check, 1 Ad. * Whelan v. Sullivan, 102 Mass. 
 
 & El. 57 ; Sweet v. Shumway, 102 204 ; Egglestou v. Wagner, 46 Mich. 
 
 Mass. 357 ; Mumford v. Gething, 7 C. 610. 
 B. (N. S.) 305. Thus, it was held ad- 
 
682 STATUTE OF FRAUDS. [CHAP. Xni. 
 
 necessary to show what the party intended to convey, as well 
 as the location, by parol.^ But where the writing, within 
 itself or by reference to other writings, contains sufficient 
 data so that by the aid of parol evidence no question as to 
 the intention of the party can arise, it is sufficient.^ Thus, a 
 memorandum describing the property as "my estates" located 
 in certain towns, is sufficient, if it is shown that the p'arty 
 owned no other estates in the towns named, because the 
 writing can be definitely applied to the subject-matter, by 
 the aid of parol evidence without raising any question as to 
 the real intention of the party, except such as is apparent 
 from the writing itself.^ So such descriptions as " the land 
 bought of Mr. Peters,"* "Mr. Ogilvie's house," « "the 
 property in Cable Street," ® or " a house on Church Street," ^ 
 or " the house in Newport " * " my house," ^ " the intended 
 new public-house at Putney," ^^ " the mill property, including 
 cottages in Esher village," -"^ have been held to be sufficient. 
 A description of the property in a title bond, as " a steam- 
 mill and distillery, with all the machinery," etc., " situate in 
 the county of Smith, and State of Tennessee, near the village 
 of Rome, in civil district No. 13, on the banks of the Cum- 
 berland River, supposed to contain one and a half ac'res of 
 land," was held to be sufficient, and parol evidence to be 
 
 1 Clark V. Chamberlin, 112 Mass. 545. But, if he owned more than one 
 19. house on the street, the tnemorandum 
 
 2 Slater v. Smith, 117 Mass. 96 ; would be insufficient, because in such 
 Hurley v. Brown, ante ; Scanlan v. a case parol evidence is not admissible 
 Geddes, 112 Mass. 15. to show which house the party in- 
 
 8 Slater v. Smith, 117 Mass. 96 ; tended to sell. Mead v. Parker, 115 
 
 Scanlan v. Geddes, ante ; Mead v. Par- id. 413. 
 
 ker, 115 id. 413. '' Mead v. Parker, 115 Mass. 413; 
 
 * Rose V. Cunynghame, 11 Ves. Scanlan v. Geddes, 112 id. 15. 
 
 550. 8 Owen w. Thomas, 3 M. &. K. 853. 
 
 5 Ogilvie V. Poljambe, 3 Mer. 53. ^ Cowley v. Watts, 17 Jur. 172. 
 
 « Bleakley v. Smith, 11 Sim. 150; i» Wood v. Scarth, 2 K. & J. 33. 
 
 Scanlan v. Geddes, 112 Mass. 15. But in King v. Wood, 7 Mo. 389, it 
 
 Where, in a written contract, the words was held that a memorandum describ- 
 
 are " house and lot on " a certain street, ing the estate as " all that piece of 
 
 it is presumed that the words relate to property known as The Union Hotel 
 
 a house and lot owned by the person property," was insufficient because it 
 
 signing the contract, and, although required parol evidence to show what 
 
 there are other houses on the street, property was comprehended under the 
 
 and oral evidence is admissible to words " Union Hotel property." 
 
 show which house and lot such person " McMurray v. Spicer, L. E. 5 Eq. 
 
 owned. Hurley v. Brown, 98 Mass. 527. 
 
SEC. 353.] MEMORANDUM OB NOTE IN WEITING. 683 
 
 admissible for the identification of the premises.^ So a written 
 contract to convey a house on a certain street named is a 
 contract to convey the house of the grantor there, and is 
 sufficiently definite within the statute; and if it is shown 
 aliunde that there are other houses on that street, it may 
 be shown that there is no other owned by the grantor.® So 
 an auctioneer's memorandum of sale of "the lot or lots 
 of land situate at the corner of C and G streets in D, belong- 
 ing to the estate of Thomas Gowen, deceased, delineated on 
 a plan by L. B. and adjacent to " certain estates named, in 
 which the number of the lot is written against the name of 
 the purchaser, sufficiently describes the land sold, although 
 the land belonged to the estate of Thomas W. Gowen.^ A 
 memorandum describing the estate in this form was also held 
 sufficient: "Ellsworth, Dec. 15, 1854; received of D. B. 
 and C. S. C. $1,000 to be accounted for, if they shall furnish 
 me satisfactory security for certain lands on the Naraguagus 
 Rivers, say 119,000 acres for $113,000, on or before Friday 
 morning next; otherwise to be forfeited. John Black";* 
 because in such a case parol evidence is admissible to show 
 what land John Black owned on the river named, and that 
 he owned no other land there than that described. In order 
 to render a written contract for the sale of real estate bind- 
 ing under the statute of frauds, it is not essential that the 
 description should have such particulars and tokens of identi- 
 fication as to render a resort to extrinsic aid entirely needless 
 when the writing comes to be applied to the subject-matter. 
 The terms may be abstract and of a general nature, but they 
 must be sufficient to fit and comprehend the property which 
 is the subject of the transaction ; so that with the assistance 
 of external evidence the description, without being contracted 
 or added to, can be connected with and applied to the very 
 property intended and to the exclusion of all other property. 
 The circumstance that in any case a conflict arises in the 
 outside evidence cannot be allowed the force of proof that 
 the written description is in itself insufficient to satisfy the 
 statute. "Whether the description answers the requirement 
 of the statute is a question which occurs on the face of the 
 
 1 White V. Motley, 4 Baxt. (Tenn.) " Gowen v. Klous, 101 Mass. 449. 
 544. 4 Clark v. Bumham, 2 Story (U. 
 
 2 Hurley v. Brown, 98 Mass. 545. S. C. C.) 1. 
 
684 
 
 STATUTE OF FKAUDS. 
 
 [chap. xni. 
 
 papers and is naturally preliminary to the introduction of 
 testimony to connect the contract with the property, and the 
 decision of it would regularly seem to be required on an 
 inspection of the documents, and before the arrival of oppor- 
 tunity for any conflict of the kind referred to. Moi-eover, it 
 would hardly be deemed reasonable to allow the validity of 
 the written description to depend on the ability of a party to 
 bring about a conflict in the outside testimony. ^ If the de- 
 
 1 Tallman o. Franklin, 14 N. Y. 
 584 ; Hurley v. Brown, 98 Mass. 545 ; 
 Scanlan v. Geddes, 112 id. 15; Mead 
 V. Parker, 115 id. 413; Slater v. Smith, 
 117 id. 96 ; "White v. Hermann, 51 111. 
 243; Nichols v. Johnson, 10 Conn. 
 192; Colerich „. Hooper, 3 Ind. 316; 
 Waring v. Ayers, 40 N. Y. 357 ; King 
 V. Ruckman, 20 N. J. Eq. 316 ; Ogilvie 
 V. Foljambe, 3 Mer. 53-60 ; Bleakley 
 V. Smith, 11 Sim. 150; Owenu.Thomas, 
 
 3 My. & K. 358^ White v. Bradshaw, 
 16 Jur. 738 ; Stuart v. London & N. 
 W. R. Co., 1 D. M. & G. 721 ; Com- 
 mins u. Scott, L. R. 20 Eq. Cas. 11; 
 Barry v. Coombe, 1 Pet. (U. S.) 640; 
 Dobson V. Litton, 5 Coldw. (Tenn. ) 616 ; 
 Eggleston v. Wagner, 46 Mich. 610. 
 If land is the subject of sale, it must 
 be described with such certainty that 
 it can be identified. White v. Motley, 
 
 4 Baxt. (Tenn.) 544 ; Fisher v. Kerlin, 
 54 Miss. 480; Force v. Dutcher, 18 
 N. J. Eq. 401 ; Baldwin v. Kerlin, 46 
 Ind. 426; Church &c. v. Farrow, 7 
 Rich. (S. C.) Eq. 378; McMurry v. 
 Spicer, L. R. 5 Eq. 527 ; Ferguson v. 
 Stover, 33 Penn. St. 411 ; Carmack v. 
 Masterton, 3 S. & P. (Ala.) 311; Pip- 
 kin V. James, 1 Humph. (Tenn.) 325; 
 Clinan v. Cooke, 1 Sch. & L. 22 ; Hart- 
 nell V. Yeilding, 2 id. 549 ; Lindsay v. 
 Lynch, 2 id. 1. But it is sufficient if 
 it is described in such a manner that 
 it can be certainly identified by parol, 
 as the land purchased by me of A. 
 Atwood V. Cobb, 16 Pick. (Mass.) 227 ; 
 Johnson v. Kellogg, 7 Heisk. (Tenn.) 
 262; Simmons v. Spruill, 3 Jones (N. 
 C.) Eq. 9; Grace v, Dennison, 114 
 Mass. 16 ; or, indeed, in any way that 
 leaves no doubt as to the property in- 
 tended to be conveyed. Hurley v. 
 
 Brown, 98 Mass. 545 ; Mead v. Parker, 
 115 id. 413. But see Holmes v. Evans, 
 48 Miss. 247, in which a receipt for 
 §100 for lot on corner of Main and 
 Pearl Streets, city of Natchez, etc., 
 was held insufficient. Where a memo- 
 randum, purporting to contain the 
 terms of a contract for the sale of 
 land, and signed by both parties, is 
 not sufficiently certain to satisfy the 
 reqtiirements of the statute, its de- 
 fects may be supplied by instruments 
 reciprocally executed by the parties 
 a few days afterwards, only inopera- 
 tive as deeds for want of delivery ; and 
 the connection between the memoran- 
 dum and deeds maybe shown by parol 
 proof of the attendant circumstances. 
 Jenkins v. Harrison, 66 Ala. 345. A 
 receipt for a part of the purchase- 
 money, for "one house and lot, in 
 the town of H.," without any other 
 description of the property to be con- 
 veyed, is not a sufficient note or memo- 
 randum of an agreement, under the 
 statute of frauds, and cannot be helped 
 out by parol evidence. Murdock v. 
 Anderson, 4 Jones Eq. (N. C.) 77. 
 But see Hurley v. Brown, 98 Mass. 
 545, where it was held that a written 
 contract to convey a certain house 
 imports an agreement to convey the 
 fee. Hurley v. Brown, 98 Mass. 545. 
 This seems to conflict with and over- 
 rule Farwelli). Mather, 10 Allen(Mass.) 
 322. See also Scanlan ;;. Geddes, 112 
 Mass. 15; Mead u. Parker, 115 id. 413; 
 and Slater v. Smith, 117 id. 96, from 
 the doctrine of which it would seem 
 that, under such circumstances, parol 
 evidence would be admissible to show 
 whether the person giving the receipt 
 owned more than one house and lot 
 
SEC. 353.] MEMOEANDUSr OE KOTE IN "WKITING. 685 
 
 scription is such that it can be identified beyond a doubt, it is 
 sufficient. Thus, where land was described as " ten acres of 
 land adjoining B on the north," it was held sufficiently 
 definite.^ So " I will give J S 100 acres of the land next to 
 either S or N, for f450, or I will give him 200 acres with a 
 clear title, for his hoiise and lot."^ But a writing which 
 furnishes no data by which to identify the land is not suf- 
 ficient. Thus, the following : " January 4, 1808, received of 
 
 J E $ , in part pay of a lot he bought of me in the town 
 
 of V, it being the cash part of the purchase of said lot. 
 Nathan Deadman, Test, Will Atwood," was held insufficient.^ 
 But there is a tendency to relax the rigor of the rule as to the 
 admissibility of parol evidence in such cases, and where the 
 note or memorandum contains sufficient data, so that it can, 
 with the aid of parol testimony, be certainly applied to the land, 
 it is, in some of the States, held to be sufficient. Thus, in a 
 Massachusetts case,* S, in a writing signed by himself and P, 
 agreed to convey to P " my estates located as follows : Three 
 houses in the town of R, as shown this day ; two are French- 
 roof, and valued at f 3,000 each; the other is a pitch-roof 
 house, and valued at $6,000 ; together with all the land as 
 now fenced; the whole being valued at $12,000. Also, three 
 tenement houses on B street, in C, as shown this day, and 
 valued at $8,000, subject to a $2,000 mortgage ; all the afore- 
 mentioned estates having an equity of $18,000." On a bill 
 brought by P and wife for specific performance, it was held 
 that the contract, though not signed by the wife, was a 
 sufficient memorandum within the statute of frauds, and that 
 a demurrer to the bill must be overruled. So in an Illinois 
 case,® a letter from a vendor to his agent, sent by the pur- 
 
 in the town, and if he did not, to iden- the lot," describing it, on a ground 
 
 tify it. Peltier v. Collins, 3 Wend, rent of §60, it was held to be an agree- 
 
 (N. Y.) 459. ment in writing, under the statute of 
 
 1 Hurly r. Blackford, 1 Dana (Ky.) frauds, for a lease of the land on 
 1. A receipt as follows : " Received ground rent. Cadwalader v. App, 81 
 of L. Anderson ^300 cash on payment Penn. St. 194. 
 
 on house," was held insufficient. Pat- ' Ellis v. Deadman. 4 Bibb. (Ky.) 
 
 terson v. Underwood, 29 Ind. 607. 466 ; Murdock v. Anderson, 4 Jones 
 
 2 Simpson v. Breckennidge, 32 (N. C.) Eq. 77 ; Holmes v. Evans, 48 
 Penn. St. 287. A paper signed by Miss. 247; S. P. Gigas w. Cochran, 54 
 parties in possession of a lot that had Ind. 593. 
 
 been leased for ten thousand years, * Slater v. Smith, 117 Mass. 96. 
 but without seals, agreeing " to take ^ Spangler v. Danforth, 65 111. 162. 
 
686 STATUTE OF FRAUDS. [CHAP. XIH. 
 
 chaser and stating that the latter had " agreed to take the 
 pasture lot for $2,400 — $1,000 cash, |400 Dec. 1, 1871, at 10 
 per cent; |1,000 July 1, 1872, at 10 per cent, secured by 
 mortgage," and directing the agent to "make the papers," and 
 acknowledging the receipt of |20 on the contract, was held 
 to be a sufficient memorandum under the statute of frauds, 
 and to give a superior equity to that of a person who, earlier 
 on the same day, had verbally contracted with the agent for 
 the same land without paying any money until after notice 
 of the rival purchase.^ So, a receipt stating that the sum 
 received was for " the Fleming farm, on French Creek," was 
 held to be a sufficient memorandum under the statute.^ But 
 in all cases where the memorandum or note is of an agreement 
 to sell certain land, it is sufficient although it does not set 
 forth whether an estate in fee simple or a less estate is in- 
 tended, as in such cases, it is presumed that the vendor 
 intends to convey the estate or title which he has in the land, 
 and that the other party knows what the nature of that estate 
 is.* A memorandum of an agreement for a lease, which ex- 
 cepts a portion of the premises, without specifying what part 
 
 1 See also Crutchfield v. Donothan, |1,000 may remain by bond and mort- 
 49 Tex. 691. In White i/. Hermann, gage; the balance the 1st of May, 
 51 111. 243, it was held that a descrip- when the' deed will be executed and 
 tion of land in a contract will not be possession given," amounts to a 
 held to be invalid if sufficient to en- valid written contract for the sale of 
 able a surveyor to locate the premises, the land, under the statute in New 
 as where a description of land as " Sec. York. Westervelt v. Matheson, 1 
 27, T, 38, 14 E. of 3d P. M.," omitted Hoffm. (N. Y.) 37. An assignment of 
 to state the range and the position of a certificate of entry in these words, 
 the land as to the base line ; the gov- " I, B, do sine, the within certificate 
 ernment surveys showing that no town- over to A, which is to empower him 
 ship 38 lay south of the base line and to lift the deed in his own name," was 
 14 east of that meridian which would held sufficient upon proof of a valid 
 locate the land in the given county. consideration. Halsa v. Halsa, 8 Mo. 
 
 2 Eoss V. Baker, 72 Penn. St. 186. 303. Where A bought of B some 
 But see King v. Wood, 7 Mo. 389, groceries and an ice-house and lot, 
 where a memorandum describing the and a memorandum of the sale was 
 property as that " known as the Union made as follows : " Invoice of articles 
 Hotel " was held insufficient because purchased by A of B August 29, 1836," 
 it required the aid of parol evidence and one of the items stated was " ice- 
 to identify it. See also Farwell u. house and lot .'J140," it was held void 
 Mather, 10 Allen (Mass.) 322. A re- as to them, because it did not describe 
 ceipt in these terms, " Received from them with any certainty. Pipkin v. 
 A 120 on account of the purchase of Lames, 1 Humph. (Tcnn.) 325. 
 
 the house and lot No. 38 Hammond, ^ Atwoodu. Cobb, 16 Pick. (Mass.) 
 at |2,900, subject to a lease to B for 227 ; Howe v. Deming, 2 Gray (Mass.) 
 four years from the 1st of May next; 476. 
 
SEC. 353.] MEMORANDUM OR NOTE IN WRITING. 687 
 
 is excepted, is good. Thus, where the lessor agreed to let a 
 farm " except 37 acres thereof," which were not specified, it 
 was held that the agreement was not void for uncertainty, as 
 the lessor had the right of selection.^ So, where an agree- 
 ment for a lease reserved to the lessor the right to search for 
 and work mines and minerals, " etc.," it was held that these 
 stipulations did not render the agreement uncertain.^ Again, 
 the terms, " good will, etc.," in a contract for the sale of a 
 foundry, have been considered not to be so uncertain as 
 alone to prevent a decree for specific performance, for the 
 words et caetera point to things necessarily connected with 
 and belonging to the good will, and to be defined in the con- 
 veyance.* 
 
 Where the contract was for a lease of " those two seams of 
 coal known as ' the two-feet coal,' and ' the three-feet Coal,' 
 lying under lands hereafter to be defined in the Bank End 
 Estate," it was held that the contract was sufficiently definite 
 to be enforced, and that the true construction of it was, that 
 the boundaries of the estate were to be thereafter defined.* 
 And if it can be shown that the parties knew of the tenure 
 of the property, it is immaterial that the agreement is silent 
 on this point.® So an agreement to take a farm, paying so 
 much rent per acre, is not void because the number of acres 
 is not mentioned.^ 
 
 But an agreement for letting and taking coals, "etc.," 
 under certain lands,^ or for the purchase by a railway com- 
 pany of " the land required," ^ or a statement that a party 
 has disposed of his title-deeds,* is too indefinite to be speci- 
 fically enforced. The rule that, in order to admit parol 
 evidence to apply a note or memorandum to the subject- 
 matter of the contract, it must contain within itself or by 
 reference to other data, sufficient to show the real intention 
 of the party, is well illustrated in a Massachusetts case ^* in 
 which there was a memorandum in writing agreeing to give. 
 
 1 Jenkins v. Green, 27 Beav. 437. ^ Shannon v. Bradstreet, Sch. & 
 
 2 Parker v. Taswell, 2 De G. & J. Lef. 73. 
 
 559. ' Price v. Griffith, 1 D. M. G. 80. 
 
 8 Cooper V. Hood, 26 Beav. 293. 8 Stewart v. L. & N. W. R. Co., 1 
 
 * Haywood v. Cope, 25 Beav. D. M. G. 721. 
 
 140. 9 Seagood v. Meale, Prec. Ch. 560. 
 
 5 Monro v. Taylor, 8 Hare, 51 ; lo Farwell v. Mather, 10 Allen 
 
 Cowley V. Watts, 17 Jur. 172. (Mass.) 322. 
 
688 STATITTE OF FRAUDS. [CELiP. Xin. 
 
 a certain sum "for the whole property, from cellar to top, 
 including lease, press, boiler and engine, type, fixtures, fur- 
 niture," etc., and to pay a certain sum quarterly until the 
 principal and interest are paid, and " in addition, pay over 
 the 11,215 to be received from A, and the proceeds and good 
 will of the ' Times,' all of which shall be deducted from " the 
 gross sum to be paid. The court held that the memorandum 
 was not sufficient to take the case out of the statute, because 
 it contained no such data as would warrant the introduction 
 of parol evidence to apply to it the subject-matter. 
 
 Where one of the articles sold on a purchase of goods was 
 described as " candlestick complete," and it was proved that 
 at the time the goods were selected, it was arranged that a 
 " gallery " should be added to the top of the candlestick for 
 the purpose of receiving a "mosquito shade," it was held 
 that the memorandum was sufficient without mentioning the 
 "gallery."! 
 
 Sec. 354. Both Parties Must be Named or Described. — 
 In order that there may be a binding contract it is necessary that 
 both buyer and seller shall be either named or described expressly, or 
 by sufficient reference, in such a manner that their identity cannot be 
 fairly disputed,^ and must also shoio who is the seller and who is 
 
 1 Sari !;. Bourdillon, 1 C. B. (N. S.) 272 ; Thayer ;;. Luce, 22 Ohio St. 62 ; ■ 
 188. Williams t.. Bacon, 2 Gray (Mass.) 
 
 2 Grafton v. Cummings, 99 U. S. 387 ; Comm'ins v. Scott, L. R. 20 
 100 ; Coddington v. Goddard, 16 Gray Eq. 11 ; Beer <,. London & Paris 
 (Mass.) 442; Harvey v. Stevens, 43 Hotel Co., L. R. 20 Eq. 412; Potter 
 Vt. 653; Brown v. Whipple, 58 N. H. v. Duffield, 18 id. 4; Earwell v. Low- 
 229; Osborne v. Phelps, 19 Conn. 73; ther, 18 111. 252; Sherburne v. Shaw, 
 Waterman w. Meigs, 4 Cush. (Mass.) 1 N. H. 167; Waterman v. Meigs, 4 
 497; Harvey I). Stevens, 43 Vt. 653; Cush. (Mass.) 497. Williams u. Jor- 
 Webster v. Ela, 3 N. H. 229 ; Johnson dan, 6 Ch. Div. 517 ; Nichols v. John- 
 V. Buck, 35 N. J. L. 338; Barry v. son, 10 Conn. 192. A memorandum 
 Law, 1 Cranch (U. S. C. C.) 77; Cham- of the sale of goods containing the 
 pion V. Plummer, 1 B. & P. 252 ; Wil- stipulation " buyer paying insurance 
 liam V. Lake, 2 El. & E. 349 ; Griffin to N. Y." is sufficient, although the 
 V. Rembert, S. C. 460; Webster v. amount of Insurance is not stated nor 
 Ela, 5 N. H. 540; Jacob v. Kirk, 2 for whose benefit, if it does not ap- 
 Moo. & K. 221 ; Allen v. Bennett, 3 pear that these were agreed upon. 
 Taunt. 169 ; Thomas v. Brown, 1 Q. And a memorandum reading " W. W. 
 B. Div. 714 ; Gowen a. Klaus, 101 Goddard to T. B. Coddington & Co.," 
 Mass. 449; Cutting u. King, 5 Ch. followed by a description of the 
 Div. 660; Thornton v. Kelley, 11 R. goods, etc., sufficiently shows who 
 I. 498 ; Sale v. Lambert, L. R. 18 was vendor and who vendee. Cod- 
 Eq. 1 ; Walsh v. Barton, 24 Ohio St. dington v. Goddard, 16 Gray, 436. 
 28; Bateman u. Phillips, 15 East, 
 
SEC. 354.] MEMOKANDUM OR NOTE IN WHITING. 
 
 689 
 
 thebuyer.^ Thus in an English case^ it appeared that the 
 plaintiff had purchased at a sale of wreck a quantity of 
 marble ; this the defendant agreed to buj', but afterwards 
 repudiated his bargain, and refused payment. The value of 
 the goods was above £10, and the only note or memorandum 
 of the contract in writing, signed by the defendant, was as 
 follows : " D. Spooner agrees to buy the whole of the lots of 
 marble purchased by Mr. Vandenbergh, now lying at the 
 Lyme Cobb, at Is. per foot. D. Spooner." 
 
 Evidence was also given to the effect that, after the 
 defendant had 'signed this document, he wrote out what he 
 alleged to be a copy of it, which at his request the plaintiff, 
 supposing it to be a genuine copy, signed. This was m the 
 following words : " Mr. J. Vandenbergh agrees to sell to D. 
 Spooner the several lots of marble purchased by him now 
 lying at Lyme, at one shilling the cubic foot, and a bill at 
 one month. Julius Vandenbergh." The jury, however, were 
 of opinion that the first document stated the contract actually 
 
 ' Lee i: Hills, 66 Ind. 474; Lin- 
 coln V. Erie Preserving Co., 132 Mass. 
 129; Bailey v. Ogden, 3 John. (N. Y.) 
 399; Nichols v. Johnson, 10 Conn. 
 198; Caulkins v. Falk, 1 Abb. App. 
 (N. Y.) 291; Cameron v. Spiking, 25 
 Grant (Ont.) 116 ; Salmon Falls Mf g 
 Co. V. Goddard, 14 How. (U. S.) 446; 
 Osborne v. Phelps, 19 Conn. 73 ; Brown 
 V. Whipple, 58 N. H. 232; Newberry 
 V. Wall, 84 N. Y. 576. 
 
 ^ Vandenbergh v. Spooner, L. R. 
 1 Exchq. 316. In a, recent English 
 case the plaintiff was the lessee of 
 vaults in the city of London under a 
 lease granted by the mayor and cor 
 poration of London and the Mercers' 
 Company. The defendant company 
 entered into a negotiation for the pur- 
 chase of the lease. The secretary of 
 the company wrote to the house- 
 agents acting for the plaintiff a letter 
 in which he said that the directors 
 thereby offered to purchase the vaults 
 for £2,500 cash, and to take over a 
 mortgage for £3,500 on the lease, 
 these terms to include the lease, good- 
 will, fixtures, etc. The house-agents 
 answered as follows ; " In reply to 
 your letter of the 7th instant we are 
 
 now instructed to accept the offer 
 therein contained, and will forward 
 contract as soon as we obtain it from 
 the solicitor." Differences subse- 
 quently arose respecting the time 
 when possession should be given, and 
 eventually the plaintiff brought an 
 action against the defendants, claim- 
 ing damages for breach of contract. 
 Malins, V. C, held that the letters 
 contained a binding contract between 
 the parties. But this was reversed 
 by the Court of Appeals, and it was 
 held that no binding contract had 
 been entered into, first, because the 
 name of the vendor had not been dis- 
 closed or a sufficient description given 
 so as to satisfy the statute of frauds ; 
 and secondly, because the letters men- 
 tioned only what was the property to 
 be purchased and the price to be 
 given for it, but left the other neces- 
 sary terms of the agreement, such as 
 the time when possession was to be 
 given, to be settled by a formal con- 
 tract to be prepared by a solicitor in 
 the ordinary way. Donnison v. Peo- 
 ple's Caf^ Co., 45 L. T. Rep. N. S. 
 187. 
 
690 STATUTE OP FRAUDS. [CHAP. Xin. 
 
 made, and found a verdict for the plaintiff for £35; leave 
 being reserved to the defendant to move to enter a non-suit, 
 on the ground (amongst others) that there was no sufficient 
 note or memorandum of the contract within the statute of 
 frauds. The verdict was set aside. Bkamwbll, B., 
 saying: "The question we have had to consider in this 
 case is, whether the document relied upon by the plain- 
 tiff was a sufficient note or memorandum in writing to 
 bind the defendant under section seventeen of the statute 
 of frauds. The document was signed by the defendant, 
 and was in the following terms, ' D. Spooner agrees to buy 
 the whole of the lots of marble purchased by Mr. Vanden- 
 bergh, now lying at the Lyme Cobb, at Is. per foot.' Can 
 the essentials of the contract be collected from this docu- 
 ment by means of a fair construction or reasonable intend- 
 ment? We have come to the conclusion that they cannot, 
 inasmuch as the seller's name as seller is not mentioned in it, 
 but occurs only as part of the description of the goods." ^ 
 In Coleman v. Upcot,^ Loed Cowper said "that if a man 
 (being in company) makes offers of a bargain, and then 
 writes them down and signs them, and the other party takes 
 
 1 But in Newell v. Radford, L. E. of the parties are inaccurately given, 
 3 C. P. 52, there was a memorandum it will not be sufficient. Thus, where 
 as follows : " Mr. Newell, 32 sacks a letter of credit was erroneously ad- 
 culasses at 39 s., 280 lbs. to await dressed to John and Joseph, and de- 
 orders. John Williams," and the court livered to John and Jeremiah, who 
 held that parol evidence was admis- were the parties intended, and who 
 sible to show what trade each party furnished the goods under it, it was 
 was engaged in, and thus create an held that John and Jeremiah could 
 inference as to which was the buyer not maintain an action upon it for the 
 and which the seller, and this seems goods furnished by them. Grant v 
 to be a reasonable rule. The names Naylor, 4 Cr. (U. S.) 224. But if 
 and relation of the parties to each such a letter is addressed to a person 
 other under the contract should ap- unnamed, it seems that any person 
 pear with reasonable certainty, furnisliing goods upon it can main- 
 Thomas V. Brown, 1 Q. B. Div. 714 ; tain an action thereon. Williams v. 
 Beer v. London & Paris Hotel Co., Brynes,8L.T.N. S. 69; Griffinv.Eem- 
 L. E. 20 Eq. 412 ; Cutting v. King, 5 bert, 2 S. C. 410. Where the names 
 Ch. Div. 660 ; Potter v. Duffield, L. R. of the plaintiffs appeared upon the 
 18 Eq. 4 ; Sale v. Lambert, id. 1 ; title-page of their order-book in which 
 Williams v. Jordan, 6 Ch. Div. 517 ; the defendant's order was written, it 
 Webster v. Ela, 5 N. H. 540 ; Griffin v. was held sufficient. Sari v. Bourdil- 
 Rembert, 2 S. C. 410; Farwello.Low- Ion, 1 C. B. (N. S.) 188; Havey v. 
 ther, 18 111. 252; Thornton v. Kelly, Stevens, 43 Vt. 653; Newell v. Rad- 
 ii R. I. 498; Gowen v. Klaus, 101 ford, L. R. 3 C. P. 62. 
 Mass. 449. And in the case of a ^ 5 Vin. Abr. 527. 
 guaranty it seems that, if the names 
 
SKC. 35S.] MEMORANDUM OE NOTE IN WRITING. 691 
 
 them up, and prefers his bill, this shall be a good bargain." ^ 
 But where the memorandum signed by the vendor was as 
 follows: "Sold 100 mining Purdys at 17 «. Qd." it was 
 held to be insufficient, as the names of both parties to the 
 contract did not appear? So where, on the sale of an 
 estate by auction, the name of the owner did not appear 
 in the particulars or conditions of sale, and the agree- 
 ment signed by the purchaser did not mention the 
 owner's name, and was not signed either by him or the 
 auctioneer, it was held that there was no contract on 
 which the vendor could maintain an action for non-com- 
 pletion.^ Where the plaintiff's agent wrote down the terms 
 of a sale by the defendant, which the defendant signed, as 
 follows: "Bought of W. Plummer, etc.," but the name of 
 the purchaser did not appear, it was held that there was no 
 contract, Mansfield, C. J., saying: "How can that be said 
 to be a contract, or memorandum of a contract, which does 
 not state who are the contracting parties? By this note it 
 does not at all appear to whom the goods were sold. It 
 would prove a sale to any other person as well as to the 
 plaintiff."* So where a memorandum in these words: "I 
 will furnish H with funds for the purchase of a steam-engine, 
 and machinery for a flour-mill, on his suiting himself with the 
 same, and notifying the purchase to me," was signed by J, 
 but not addressed to any one, and was delivered to B with 
 the consent of J, and afterwards orally acknowledged to B by 
 J ; it was held that there was no contract within the statute.^ 
 
 Sec. 355. Reference to Conditions or Particulars of Sale. 
 Executors. Proprietor. — But the rule as stated in the pre- 
 vious section is satisfied, if the memorandum sufficiently shows 
 who are the parties to the contract, hy description, instead of hy 
 name. Thus, if the memorandum is written upon, or clearly 
 
 ' And see Sugd. V. & P. 131 ; Dart. Musson, 5 Bing. (N. C.) 603 ; Skelton 
 
 5th ed. 217. v. Cole, 1 De G. & J. 596. 
 
 2 Boyce v. Green, Bat. 608; and » Williams v. Byrnes, 2 N. R. 47; 
 
 see Seagood v. Meale, Free. Ch. 560. 9 Jur. (N. S.) 363; and see Williams 
 
 s Wheeler v. Collier, M. & M. 123 ; v. Lake, 2 E. & E. 349 ; 29 L. J. Q. B. 1 ; 
 
 and see Jacob v. Kirk, 2 Moo. & Rob. over-ruling on this point, it would 
 
 221. seem, Walton v. Dodson, 3 C. & P. 
 
 * Champion v. Plummer, 1 Bos. & 162. 
 P. (N. E.) 252; and see Graham v. 
 
692 STATUTE OP FKATJDS. [CHAP. XIII. 
 
 refers to conditions or particulars of sale, which show who is 
 the vendor, or if it refers to an advertisement for sale con- 
 taining the name, that will be sufficient.^ 
 
 Where the particulars of sale of a leasehold house stated 
 that it was the property of Admiral F, deceased, and that 
 the sale was by direction of his executors (who did not 
 accept office until after the sale), not naming them, and a 
 memorandum of the sale endorsed on the particulars was 
 signed by the auctioneers as agents of the vendors, it was 
 held that there was a sufficient contract.^ 
 
 In the case of Sale v. Lambert,^ the particulars stated that 
 the sale was by direction of the " proprietor," and it was held 
 that the vendor was sufficiently described, Jessel, M. R., 
 saying : " The question is can you find out from the memoran- 
 dum, who the vendor is ? The property is stated to be put up 
 for sale 'by direction of the proprietor.' Therefore, the pro- 
 prietor is the vendor, and is referred to as the person who 
 employs the auctioneer to sell. What more do you want? 
 It is said that the term 'proprietor' is not a sufficient descrip- 
 tion. I think it is an excellent description ; certainly in Acts 
 of Parliament the proprietor or owner is frequently mentioned 
 as the person on whom notices are to be served and the 
 like." * 
 
 Sec. 356. when Description is Indefinite. Illustrations. — 
 When, however, the description of either of the parties is in- 
 definite, and is equally applicable to two or more persons, it is 
 insufficient. Thus, where the only description of the pur- 
 chaser was contained in a letter to his solicitor from the 
 vendor, in which he was spoken of as " your client," it was 
 held that the description was insufficient.* And where real 
 estate was put up for sale under particulars and conditions 
 of sale which did not disclose the vendor's name, but stated 
 that B was the auctioneer, and the purchaser of one of the 
 lots signed a memorandum acknowledging his purchase ; and 
 B signed at the foot of his memorandum another in these 
 
 1 Warner v. 'Willington, 3 Drew. * See also Commlns v. Scott, L. R. 
 530, per Kinderslet, V. C. 20 Eq. 11 ; Beer v. London & Paris 
 
 2 Hood V. Lord Barrington, L. E. Hotel Co., ib. 412. 
 
 6 Eq. 218. 6 Skelton ... Cole, 1 De G. & J. 
 
 3 L. R. 18 Eq. 1 ; Eossiter v. Mil- 587. 
 ler, 49 L. J. Ch. 228. 
 
SEC. 358.] MEMOEANDTJM OR NOTE IN WRITING. 693 
 
 words, " confirmed on behalf of the vendor, B,"' it was held 
 that the memorandum did not sufficiently show who the 
 vendor was, and a bill for specific performance of the con- 
 tract for sale was dismissed.^ Where, however, an agreement 
 for the sale of real estate did not disclose the name of the 
 vendors, but it appeared therefrom that the vendors were a 
 company in possession of the property offered for sale, and 
 that they had carried on operations thereon, it was held that 
 the vendors were sufficiently described.^ 
 
 Sec. 357. Entry in Order Book. — Where the defendant 
 purchased several articles at the plaintiff's shop, which, with 
 their respective prices, were entered in the plaintiff's " order- 
 book " on the fly-leaf, at the beginning of which were written 
 the names of the plaintiffs; and the defendant wrote his 
 name at the foot of the entry, for the purpose of verifying 
 the bargain, it was held that there was a sufficient memoran- 
 dum of the contract.^ But where a memorandum in writing 
 of a contract for the purchase of flour by the defendant from 
 the plaintiff, a miller, was taken by the plaintiff's rider in his 
 common order-book in these terms, " 19th February, 1811, of 
 John Smith £64" (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 40 sacks of flour called thirds, at 58 s. 
 a sack), and the order was not signed by the defendant, it 
 was held that this was not a sufficient memorandum to bind 
 him, though it was read over to him by his desire at the time 
 it was written.* 
 
 Sec. 358. Both Parties Named, but Seller not Named as 
 Seller. — The memorandum or note must in some way indicate 
 
 ' Potter V. Duffield, L. R. 18 Eq. 4. in a book headed, on the inside of the 
 
 2 Commins v. Scott, L. R. 20 Eq. front cover, " John Harvey's Auction 
 
 11 ; and see Beer v. tondon & Paris Sale Book." It was held that this 
 
 Hotel Co., ib. 412. memorandum vras sufficient to satisfy 
 
 ' Sari V. Bourdillon, 1 C. B. (N. S.) the requirements of the statute of 
 
 188 ; 26 L. J. (C. P.) 78. In Harvey v. frauds, and therefore bound the parties 
 
 Stevens, 43 Vt. 653, G, the auctioneer upon a contract of sale made by the 
 
 at an auction sale of the property of auctioneer. 
 
 H, caused to be entered by his clerk, * Cooper v. Smith, 15 East, 103 ; 
 
 as the sales were made, the articles and see Jacob v. Kirk, 2 Moo. & Rob. 
 
 sold, the names of the buyers, and the 221. 
 
 prices at which the articles were sold, 
 
694 STATUTE OF FRAUDS. [CHAP. XIII. 
 
 who is the buyer, and who the seller. But it may be shown 
 by parol what business the respective parties are engaged in, 
 and if an inference can be drawn therefrom as to who is the 
 vendor and who the vendee, the memorandum will be suf- 
 ficient. Thus, where the memorandum signed by the de- 
 fendant was as follows : " D. Spooner agrees to buy the 
 whole lot of marble purchased by Mr. Vandenbergh, now- 
 lying at the Lyme Cobb, at 1 s. per foot," it was held that the 
 memorandum was insufficient, as the seller's name as seller 
 was not mentioned in it.^ In a subsequent case, however, a 
 duly authorized agent of the defendant made the following 
 entry in a book belonging to the plaintiff, " Mr. Newell, 32 
 sacks culasses at 39 «., 280 lbs. to wait orders. John WiUiams." 
 It was argued on the authority of Vandenbergh v. Spooner, 
 that it was not* possible to tell which was the buyer and 
 which seller, but it was held that it might be proved what 
 the parties would have understood to be the meaning of the 
 words used in the memorandum, and that parol evidence 
 was admissible to show that the plaintiff was a baker and the 
 defendant a dealer in flour. Letters between the parties also 
 were held to show that they stood in the position of buyer 
 and seller.^ 
 
 Sec. 359. Reference to Other Documents to Describe Parties. 
 
 — If the memorandum is defective in that one of the contract- 
 ing parties is not described in it, the defect may be corrected by 
 other documents having a clear reference to the memorandum. 
 Thus, an order for goods written and signed by the seller in 
 a book of the buyer's, but not naming the buyer, may be 
 connected with a letter of the seller to his agent, mentioning 
 the name of the buyer, and with a letter of the buyer to the 
 seller claiming the performance of the order, so as to consti- 
 tute a complete contract within the statute.^ But the refer- 
 ence must be clear.* "No doubt, as a general rule," said 
 KiNDERSLEY, V. C, "in order to maintain an action upon a 
 memorandum of agreement, signed by a purchaser or in- 
 tended lessee, the name of the vendor or intended lessor 
 
 1 Vandenbergh .*. Spooner, L. E. ' Skelton w. Cole, 1 De G. & J. 596 ; 
 1 Ex. 316. and see Jackson v. Oglander, 2 H. & 
 
 2 Newell V. Radford, L. E. 3 C. P. M. 465 ; Newell v. Radford, L. R. 3 C. 
 52. P. 52. 
 
 8 Allen V. Bennett, 3 Taunt. 169. 
 
SEC. 360.] MBMORAKDTJM OR NOTE IN WRITING. 695 
 
 must appear in the memorandum, as well as in the other 
 terms of the agreement. But though this is the general rule, 
 there is this exception, that if it can he ascertained who is the 
 vendor, or intended lessor, from some other document which is 
 sufficiently/ connected with the memorandum by clear reference, 
 that will cure the defect of the memorandum." ^ In the case 
 of a letter, Mr. Dart is of opinion ^ that, if an envelope be 
 used, and the name of the person to whom the letter is 
 addressed does not appear in it, the court would receive 
 evidence connecting the letter with the envelope. 
 ' Sec. 360. Letter Repudiating Contract may be Sufficient 
 Memorandum. — A letter Written for the purpose of repudiating 
 a contract may, nevertheless, amount to a memorandum of it, if 
 there is an admission of the contract, and its substantial terms 
 are stated. Thus, where the defendant purchased goods, 
 some of which were damaged in the carriage, and he declined 
 to receive them, and wrote to the plaintiffs as follows : " The 
 only parcel of goods selected for ready money was the 
 chimney-glasses, amounting to £38 10 «. 6d., which goods I 
 have never received, and have long since declined to have, 
 for reasons made known to you at the time," it was held that 
 the letter, inasmuch as it contained an admission of the bar- 
 gain and of all the substantial terms of it, was a sufficient 
 memorandum.^ So where the defendant refused goods, 
 returning the invoice with a note signed by hiin on the back 
 as follows : " The cheese came to-day, but I did not take 
 them in, for they were very badly crushed. So the candles 
 and cheese is returned." It was held that there was a suf- 
 ficient memorandum of the contract.* The principle upon 
 which these cases rest is, that the letter furnishes, not the 
 contract, but what the statute requires through the admission 
 contained in the letter, written evidence of a prior parol con- 
 tract which was before not enforceable because it could only 
 be proved by parol, and the soundness of the doctrine cannot 
 be questioned.* 
 
 ' Warner v. Willington, 3 Drew. p. 66, in which the contrary opinion is 
 
 529. expressed. 
 
 2 Dart. V. & P. 5th ed. 218, citing « Wilkinson v. Evans, L. R. 1 C.P. 
 Sari V. Bourdillon, 5 W. R. 196. 407 ; and sec Gibson v. Holland, ib. 1 ; 
 
 3 Bailey K. Sweeting, 9 C.B. (N.S.) Buxton v. Rust, L. R. 7 Ex.279; 
 857; 30 L. J. (C. V.) 150, dissenting McClean v. Nicolls, 9 W. R. 811. 
 from a passage in Blackburn on Sales, ' Care v. Hastings, 45 L. T. N. S. 348. 
 
696 
 
 STATUTE OP FBAUDS. 
 
 [chap. xm. 
 
 Sec. 361. Letter Suggesting Abandonment of Parol Con- 
 tract. — But a letter written to suggest the abandonment of 
 a parol contract will not take a case out of the statute. 
 Thus, where the defendant being unable to make a title to 
 lands sold by auction, his agent wrote a letter to the plain- 
 tiff's attorney, naming both the plaintiff and defendant, 
 saying that a title could not be made to the property, and 
 advising the plaintiff "to relinquish his purchase," it was 
 held that there was no contract within the statute.^ But in 
 
 1 Gosbell V. Archer, 2 Ad. & El. 
 500 ; and see Fyson v. Kitton, 3 C. L. 
 R. 705 ; Tanner v. Smart, 6 B. & C. 
 603; Pain v. Coombs, 1 De G. & J. 34; 
 Buckmaster v. Eussell, 8 Jur. (N. S.) 
 155. In Cave v. Hastings, 45 L. T. 
 Rep. N. S. 348, jt appeared that the 
 terms of the agreement actually made 
 (and sued on) were contained in a 
 memorandum dated 1st of December, 
 1879, and signed by the plaintiff (but 
 not by the defendant), which was as 
 follows : " I hereby agree to provide 
 you with a victoria (selected), horse, ' 
 harness, and coachman, to your satis- 
 faction, for one year from 1st Jan- 
 uary, 1880, for the sum of £ 18 10 s. a 
 month ; occasionally, in wet weather, 
 the use of a brougham." 
 
 A carriage was supplied by the 
 plaintiff in accordance with the terms 
 of the agreement, and the defendant 
 used It for six weeks, and then re- 
 fused to keep it any longer. On the 
 11th of February, 1880, the defend- 
 ant wrote the following letter to the 
 plaintiff (and this was the only docu- 
 ment signed by the defendant), which 
 was as follows : " You no doubt re- 
 member that it was agreed at our 
 interview on the 28th January, that 
 our arrangement as to the hiring of 
 your carriage was at an end, and that 
 you were not to send to me after the 
 end of this month. I now find that I 
 can dispense with your services after 
 this week, and shall be glad to know 
 what deduction you feel inclined to 
 make from my monthly payment, if I 
 agree to give you your carriage on 
 Saturday next." The defendant ad- 
 mitted that he did refer in this letter 
 
 to the arrangement, the terms of which 
 were contained in the memorandum of 
 the 1st December, 1879, and it was 
 proved that there was no other ar- 
 rangement with reference to the hire 
 of a carriage entered into between 
 the parties. The jury found that the 
 agreement was not rescinded, and 
 assessed the damages at £25. The 
 judge did not give judgment, and the 
 case was set down for motion by the 
 plaintiff. The verdict was upheld. 
 Field, J., saying ; " This was an action 
 tried before Lopez, J., who did not 
 give judgment; and the question ar- 
 gued before us on motion for judg- 
 ment was whether there was a suffi- 
 cient memorandum in writing signed 
 by the defendant of the agreement 
 sued upon, within the 4th section of 
 the statute of frauds. It is clear that 
 there was an agreement in fact made 
 between the plaintiff and the defend- 
 ant, on the 1st December, 1879, for 
 the hire by the defendant of a car- 
 riage for a year from the 1st January, 
 1880, upon the terms contained in the 
 memorandum of the 1st December, 
 1879, which was signed by the plain- 
 tiff. The plaintiff supplied a carriage 
 in accordance with the agreement, but 
 an interview which took place be- 
 tween the plaintiff and the defendant 
 on the 28th January, 1880, resulted 
 in the letter which the latter wrote on 
 the 11th February, in which he refers 
 to ' our arrangement as to the hiring 
 of your carriage,' and to ' my month- 
 ly payment.' There is abundant evi- 
 dence that there was an agreement 
 which was not rescinded; but the 
 defendant now contends that he is 
 
SEC. 361.] MEMORANDUM OR NOTE IN WRITING. 
 
 697 
 
 this case it will be observed that the letter did not refer to 
 any other writing, nor did it appear that any other writing 
 relating thereto was in existence when the letter was 
 
 not liable, because he signed no mem- 
 orandum in writing of the contract. 
 It has, however, been long settled that 
 the whole of the agreement need not 
 appear on one document, but the 
 agreement may be made out from 
 several documents. The only docu- 
 ment signed in this case by the defend- 
 ant was the letter of 11th February, 
 which does not in itself contain the 
 terms of the contract. In Dobell v. 
 Hutchinson, 3 Ad. & El. 355, Lohd 
 Denman states the law on this sub- 
 ject to be as follows : ' The cases on 
 this subject are not at first sight uni- 
 form; but on examination it will be 
 found that they establish this princi- 
 ple, that when a contract or note exists 
 which binds one party, any subsequent 
 note in writing signed by the other 
 is sufficient to bind him, provided it 
 either contains in itself the terms of 
 the contract, or refers to any writing 
 which contains them.' This letter in 
 question refers to ' our arrangement.' 
 Mb. Gully, in his argument, con- 
 tended that that might refer to some 
 other and different parol arrangement ; 
 but it seems to us that this reference to 
 the former document is sufficient, in 
 accordance with the principle laid 
 down in Ridgway v. Horton, ubi supra, 
 where 'instructions' were referred 
 to, and it was held that parol evidence 
 might be given to identify the instruc- 
 tions referred to, with certain instruc- 
 tions in writing. This principle was 
 applied in Baumann v. James, 16 L. T. 
 Rep. (N. S.) 165, and carried still fur- 
 ther in Long v. Millar, 41 id. 306, in 
 •which Bramwell, L. J., says : ' The 
 first question to be considered is, 
 whether there is a contract valid 
 according to the provisions of the 
 statute of frauds, § 4. ' I think that 
 there is sufficient memorandum. The 
 plaintiff has signed a document con- 
 taining all the terms necessary to 
 constitute a binding agreement, so 
 that if he committed a breach of it, 
 
 he would be liable to an action for 
 damages, or to a suit for specific per- 
 formance. But the point to be estab- 
 lished by the plaintiff is, that the 
 defendant has bound himself, and a 
 receipt was put in evidence, signed by 
 hira, and containing the name of the 
 plaintiff, the amount of the deposit, 
 and some description of the land sold. 
 The receipt also uses the word " pur- 
 chase," which must mean an agree- 
 ment to purchase, and it becomes 
 apparent that the agreement alluded 
 to is the agreement signed by the 
 plaintiff, so soon as the two docu- 
 ments are placed side by side. The 
 agreement referred to may be identi- 
 fied by parol evidence.' He then 
 goes on to add : ' I may further illus- 
 trate my view by putting the follow- 
 ing case : Suppose that A writes to 
 B, saying that he will give £1,000 for 
 B's estate, and at the same time states 
 the terms m detail, and suppose that 
 B simply writes back in return, "I 
 accept your offer." In that case there 
 may be an identification of the docu- 
 ments by parol evidence, and it may 
 be shown that the offer alluded to by 
 B is that made by A without infring- 
 ing the statute of frauds, §4, wliich 
 requires a note or memorandum in 
 writing.' Under the circumstances 
 of this case, we think that the two 
 documents of the 11th February and 
 the 1st December are connected. We 
 may exclude the evidence of the de- 
 fendant as to what was passing in his 
 mind when he wrote the letter, for it 
 is clear on the evidence that there was 
 no other arrangement between the 
 parties other than this particular one. 
 We therefore hold that the defend- 
 ant's letter is so connected with the 
 former letter of the plaintifi as to 
 make it a note and a memorandum of 
 the contract signed by the defendant, 
 so rendering him liable to fulfil the 
 contract. For these reasons our judg- 
 ment must be for the plaintiff." 
 
698 STATUTE OF ¥KAUDS. [CHAP. Xni. 
 
 written, and that it did not contain within itself the essen- 
 tial terms of the contract, consequently upon that ground 
 it was insufficient. But where a letter repudiating a con- 
 tract, or relinquishing one, refers to a written memoran- 
 dum thereof, or is susceptible of being directly connected 
 therewith, it will be operative as a note or memorandum if 
 signed by the party to be charged. Thus, in Drury v. 
 Young,! tjjg jjote or memorandum was as follows : " Office of 
 Drury, Ijams & Rankin, Wholesale and Retail Grocers, and 
 Dealers in Flour, Feed, and Fertilizers, cor. Gay and High 
 Streets; E. T. Drury, W. H. Ijams, Jr., S. M. Rankin, Jr. 
 
 Baltimore, Aug. 27, 1881. 
 
 Sold W. H. Young & Co., 2,500 cans, say 5,000 dozen C. 
 C. C. tomatoes at $1.10 per dozen, cash ; cars at Philadelphia 
 Depot, Baltimore, Md. 5,000 dozen at fl.lO, $5,500." 
 
 Subsequently the defendants sent the plaintiffs a letter as 
 follows : [Same heading as the previous note.] 
 
 "Baltimore, Aug. 29, 1881. 
 Messes. W. H. Yottng & Co. — Q-ents : We regret to say 
 it is impossible for the Chase Canning Co. to furnish the 
 2,500 cases 3c tomatoes purchased of us on the 27th inst., at 
 fl.lO per dozen. Nor do we think it possible to fill order 
 this season, as the fruit cannot be procured. Hoping this 
 may be entirely satisfactory, we are very respectfully, 
 
 Dexjey, Ijams & Rankin." 
 
 The court held that, even though the first paper was not 
 a sufficient note or memorandum, it became so when taken 
 in connection with this letter, which sufficiently refers in its 
 terms to the former note or memorandum.^ 
 
 Sec. 362. Letters Written during Bispute as to Terms. — 
 
 Letters written during a dispute as to whether a parol con^ 
 tract has been duly performed, in which the purchaser men- 
 tions the terms of the contract and the vendor does not 
 repudiate, but constructively assents to the terms as so 
 stated, have been held to constitute a sufficient memoran- 
 dum.^ So it would seem that a bond of reference to a sur- 
 
 • Drury v. Young, 58 Md. 546; 42 « Fysou v. Kitton, 3 C. L. E. 705. 
 
 Am. Eep. 343. = Cooth v. Jackson, 6 Ves. 17, 
 
SEC. 362.] MEMOEANDXJM OE NOTE IN WRITING. 
 
 veyor, the price to depend upon his -valuation, would be 
 sufficient.^ And a receipt for purchase-money, signed by the 
 Yendor,® or for a deposit signed by an auctioneer, may, if it 
 contains or refers to documents which contain the terms of 
 the contract, have the effect of an agreement.^ But neither 
 a receipt for purchase-money, nor anj other paper writing 
 which is not signed hy the party to he charged, will take the 
 contract out of the statute, nor will it be aided by a letter 
 written and signed by such party, which only refers generally 
 to an existing contract, but does not by itself or in connec- 
 tion with such receipt, embrace the essential terms thereof. 
 
 1 Coles V. Trecothick, 9 Ves. 234. 
 
 ' Blagden v. Bradbear, 12 Ves. 466 ; 
 Emmerson v. Heelis, 2 Taunt. 38 ; Gos- 
 bell V. Archer, 2 A. & E. 500 ; 4 N. & 
 M. 485. 
 
 3 Smith V. Jones, 66 Ga. 338; 42 
 Am. Rep. 72. In this case an action 
 was brought to recover the balance 
 due on the alleged purchase of a house 
 and lot. The plaintiff introduced in 
 evidence a receipt for ninety-five dol- 
 lars paid for the house and lot, but 
 only signed by himself, and not by 
 the defendant, who was the party 
 sought to be charged by the contract 
 and sued in this action for the balance 
 of the money. The receipt set out 
 the price and designated the house 
 and lot sold. The plaintiff also intro- 
 duced a letter from defendant in re- 
 gard to some house, but not designat- 
 ing that described in the receipt, or 
 the price to be paid, or any of the 
 terms of the contract. It was written 
 to the wife of plaintiff, and contained 
 these expressions, and these only, on 
 the subject : 
 
 " Please ask the Captain if he will 
 let the rent go this year on the pay- 
 ment of the house ; if he will, I can 
 make the payment this year, and ask 
 him to please let me know as early as 
 possible, as I have another object in 
 view. I almost know he will, as I 
 have no one to help me, and people 
 are dyingout so fast I want the mat- 
 ter settled. Tell him I can send him 
 all the money I have made if he wants 
 it, or if not, send him at Christmas all 
 
 I will have up to that time, as I am 
 living very economical. Please let 
 me know very soon, and oblige, very 
 respectfully, 
 
 Easter Joites.'' 
 
 The defendant pleaded that she 
 did not make the contract, and that 
 no note or memorandum of it in writ- 
 ing was made by her, or by any one 
 for her authorized to sign it. The 
 court granted a non-suit on the ground 
 that the case was not taken out of the 
 statute of frauds by the receipt and 
 letter construed together, and the 
 question before the court was whether 
 these papers furnish such a note or 
 memorandum of the contract as will 
 take the case without that statute? 
 Jackson, C. J., said : " It is clear that 
 the receipt is not such a note or mem- 
 orandum as will bind the defendant, 
 because it is a paper which she did 
 not sign. Does her letter help or 
 heal the difficulty? We think not. 
 It does not refer to the receipt at all ; 
 nor does it otherwise describe the 
 thing bought, nor the price, nor any 
 of the terms of the contract. There 
 is therefore nothing in writing signed 
 by her which complies with the stat- 
 ute so as to bind her, and taking the 
 two papers together, unless the parol 
 testimony be let in to connect them 
 and show that the letter referred to 
 the receipt, there is nothing signed by 
 her to bind her to the contraet set out 
 in the receipt. If the parol testi- 
 mony could show that, away would 
 go the statute, and it might as well be 
 
700 
 
 STATOTE OF FRAUDS. 
 
 [chap. XIII. 
 
 Sec. 363. Affidavit. — In Barkworth v. Young,^ a state- 
 ment of the terms of the agreement made in an affidavit 
 filed by the party to be charged in another suit, was held to 
 be a sufficient memorandum within the statute. "It can 
 signifj'- nothing," said Kindebslby, V. C, "what is the 
 nature or character of the document containing such writ- 
 ten statement, provided it be signed by the party sought to 
 be charged, whether it was a letter written by that party to 
 the person with whom he contracted, or to any other person, 
 or a deed or other legal instrument, or an answer to a bill, or 
 an affidavit in chancery, or in bankruptcy, or in lunacy." It 
 is not necessary in such a case to allege that the affidavit 
 was signed, as an affidavit must be signed before it is sworn, 
 and the court will presume that this was done. 
 
 Sec. 364. Contract May Be Collected from Several Writings. 
 — A complete binding contract may he made hy letters, or other 
 documents relating to one connected transaction, from which the 
 names or descriptions of the parties, the svhj ect-matter of the 
 contract, and its terms, may be collected? The same con- 
 
 admitted to show the whole contract. 
 And such we understand to be the full 
 current of authority, whether cited by 
 the one or the other side here. The 
 rule should not be relaxed now when 
 the flood-gates are open wide as to 
 the competency of witnesses, and 
 the only breakwater left is the requi- 
 sition to put this class of contract, 
 and others of similar character, in 
 writing. It is well to observe that 
 the contract was made in 1875; it 
 seems from the parol testimony, and 
 the receipt is dated the 1st of Janu- 
 ary, 1878, and the letter the July fol- 
 lowing. Whilst if the trade had been 
 acknowledged in writing afterward, it 
 could make no material difference, yet 
 the subsequent writings appear by 
 their dates not to have been executed 
 to make a note or memorandum of 
 the sale, but the receipt simply to 
 acknowledge the payment of money 
 on it, and the letter seems a proposi- 
 tion to modify or alter its terms in 
 regard to rent. The defendant was 
 not put in possession, and there was 
 
 no part performance of the contract 
 by plaintiff so as to take the case 
 without the statute. 
 
 Under these views of the law, 
 there could be no recovery for the 
 plaintiff, no matter what was the parol 
 testimony, and the non-suit was prop- 
 erly awarded. The case turned on 
 the single point, do the letter and 
 receipt, without the assistance of 
 parol testimony, show a note or mem- 
 orandum of the sale signed by the 
 defendant so as to bind her "i We 
 think they do not, and the judgment 
 is affirmed." 
 
 1 4 Drew. 13. 
 
 2 Eedhead o. Cator, 1 Stark. 14. 
 The first case (reported) in which a 
 signed paper referring to another writ- 
 ing was held to be sufficient to satisfy 
 the statute was Saunderson ti. Jackson, 
 
 2 B. & P. 238, decided in 1800. In 
 this case, however, the report fails 
 to show the connection between the 
 papers, or how the reference was 
 made. But in 1810, Allen v. Bennett, 
 
 3 Taunt. 169, was decided, and in that 
 
SEC. 364.] MEMORANDUM OR NOTE IN WRITING. 
 
 701 
 
 struction must be put upon a letter, or a series of letters, 
 that would, be applied to the case of a formal instrument, the 
 
 case we find an intelligible Btatement 
 of the facts shows how the reference 
 was made, and what was deemed essen- 
 tial to connect the papers. In that 
 case, the agent of the defendant sold 
 rice to the plaintiff, and entered all the 
 terms of the bargain on the plaintiff's 
 book, but did not mention the plain- 
 tiff's name. Subsequently the defend- 
 ant wrote to his agent, mentioning 
 the plaintiff's name, and authorizing 
 his agent to give credit according to 
 the memorandum in the plaintiff's 
 book, saying, also, that to prevent 
 dispute he sent a "sample of the 
 rice." It was held that the letter re- 
 ferred to the memorandum of the bar- 
 gain sufficiently to render the two 
 together a signed note of the bargain. 
 In 1812, Cooper v. Smith, 15 East. 103, 
 was distinguished from the foregoing 
 case, because the letter offered to 
 prove the contract, as entered on the 
 plaintiff's books, falsified instead of 
 confirming the entry, by stating that 
 the bargain was for delivery within a 
 specified time, a fact denied by the 
 plaintiff. Le Blanc, J., tersely said : 
 " The letter of the defendant referred 
 to a different contract from that 
 proved on the part of the plaintiff, 
 which puts him out of court, instead 
 of being a recognition of the same 
 contract, as in a former case." Haugh- 
 ton V. Morton, 5 Ir. C. L. R. 329, 
 where also it is stated by Crampton, 
 J., at p. 342, that since the case of 
 Jackson v. Lowe, supra, it is for the 
 jury, in case of dispute, to decide 
 whether the signed does or does not 
 refer to the unsigned document. And 
 see on this McMullen v. Helberg, 4 L. 
 R. Ir. 94, at p. 104. In Jackson v. 
 Lowe and Lynam, 1 Bing. 9, the com- 
 mon pleas, in 1822, held it perfectly 
 clear that a contract for the sale of 
 flour was fully proven within the stat- 
 ute by two letters : the first from the 
 plaintiff to the defendants, reciting 
 the contract, and complaining of the 
 defendants' default in not delivering 
 
 flour of proper quality; and the 
 second from the defendants' attorney 
 in reply to it, saying that the defend- 
 ants had " performed their contract 
 as far as it has gone, and are ready to 
 complete the remainder," and tlireat- 
 ening action if " the flour " was not 
 paid for within a month. Richards v. 
 Porter, 6 B. & C. 437, was decided in 
 the king's bench in 1827, and on the 
 face of the report it is almost impos- 
 sible to reconcile it with the other 
 decisions on this point. The facts 
 were, that the plaintiff sent to the de- 
 fendant, by order of the latter, from 
 Worcester to Derby, on the 25th Jan- 
 uary, 1826, five pockets of hops, which 
 were delivered to the carriers on that 
 day, and an invoice was forwarded 
 containing the names of the plaintiff 
 as buyer and of the defendant as 
 seller. The defendant was also in- 
 formed that the hops had been for- 
 warded by the carriers. A month 
 later, on 27th February, the defend- 
 ant wrote to the plaintiff : " The 
 hops (five pockets) which I bought of 
 Mr. Richards on the 23d of last month 
 are not yet arrived, nor have I ever 
 heard of them. / received the invoice. 
 The last was much longer than they 
 ought to have been on the road. 
 However, if they do not arrive in a 
 few days, I must get some elsewhere, 
 and consequently cannot accept 
 them." The plaintiff was non-suited, 
 and the king's bench held the non- 
 suit right, Lord Tenterden saying : 
 " I think this letter is not a sufficient 
 note or memorandum in writing of 
 the contract to satisfy the statute of 
 frauds. Even connecting it with the 
 invoice, it is imperfect. If we were 
 to decide that this was a sufficient 
 note in writing, we should in effect 
 hold that, if a man were to write and 
 say, 'I have received your invoice, 
 but I insist upon it the hops have not 
 been sent in time,' that would be a 
 memorandum in writing of the con- 
 tract sufficient to satisfy the statute." 
 
702 
 
 STATUTE OF PEATJDS. 
 
 [chap, xin. 
 
 only difference between them being that a letter or a corre- 
 spondence is generally more loose and inaccurate in respect 
 
 The facts, as reported, certainly are 
 not the same as those used in illustra- 
 tion by Lord Tenterden. No doubt, 
 if the defendant had said, " Our bar- 
 gain was that you should send the 
 hops in time, and you delayed beyond 
 the time agreed on," there would have 
 been no proof of the contract in writ- 
 ing as alleged by the plaintiff. But 
 the report shows that the goods were 
 delivered in due time to the carrier, 
 which, in contemplation of law, was a 
 delivery to the purchaser, and the 
 complaint was not that the goods had 
 not been sent in time, but that they 
 did not arrive in time ; that a previous 
 purchase also was delayed "on the 
 road." The dispute, therefore, does 
 not seem to have turned in the least on 
 the terms of the bargain, which were 
 completely proven by the letter and 
 invoice together, but on the execution 
 of it. In the case of Wilkinson v. 
 Evans, L. R. 1 C. P. 407 ; 35 L. J. C. 
 P. 224, the judgment in Richards v. 
 Porter is said to be reconcilable with 
 the current of decisions, by Eele, C. 
 J., on the ground "that the letter 
 stated that the contract conta,ined a, 
 term, not stated in the invoice ; that 
 the term was that the goods should be 
 delivered within a given time." It is 
 difficult to find in the letter, as quoted 
 in the report, the statement said by 
 the learned chief justice to be con- 
 tained in it. The decision in Richards 
 V. Porter seems to be reconcilable with 
 settled principles only on the assump- 
 tion that there was some proof in the 
 case that the carrier was by special 
 agreement the agent of the vendor, 
 not of the vendee. Richards v. Por- 
 ter seems also irreconcilable with the 
 opinion of the court as expressed by 
 Ekle, C. J., in Bailey v. Sweeting, 
 ante, but the doctrine as stated in the 
 text is now well established. Bird v. 
 Blosse, 2 Vent. 361; Bac. Abr. tit. 
 Agreements (c), 3 ; Coe v. Duf- 
 fleld, 7 Moo. 252; Stead v. Liddard, 
 8 Moo. 2; Dobell v. Hutchinson, 3 
 
 Ad. & El. 355; Jones v. "Williams, 7 
 M. & W". 493; Inge u. Birmingham, 
 Wolverhampton & Stour Valley Rail- 
 way Co., 8 D. M. G. 658 ; Baumaun v. 
 James, L. R. 3 Ch. 508. If instru- 
 ments contain in themselves no refer- 
 ence to each other, a connection 
 cannot be shown by parol evidence so 
 as to form a memorandum. Board- 
 man V. Spooner, 13 Allen (Mass.) 353. 
 In order that letters may furnish a 
 sufficient memorandum within the 
 statute it must appear that the parties 
 meant to complete the contract by the 
 correspondence. And letters settling 
 the terms of a contract which the 
 parties propose to afterwards draw up 
 formally are insufficient. Lyman w. 
 Robinson, 14 Allen (Mass.) 242. Pos- 
 ter V. Sleeper, 29 Ga. 294. Where 
 two memoranda of a contract for the 
 sale of goods worth more than fifty 
 dollars are signed, one by each party, 
 and the plaintiff adds a stipulation to 
 the copy signed by him only, the orig- 
 inal contract may be enforced by him. 
 Lerned v. Wannemacher, 9 Allen, 
 412. In Montague v. Hayes, 10 Gray 
 (Mass.) 609, it was held that a letter 
 of instruction to an attorney signed, 
 dated, and addressed, running as fol- 
 lows : " The agreement between M. 
 and myself is simply this : we have 
 purchased an estate of H. and M., Jr., 
 on Washington Street, which has by 
 mutual consent been conveyed to me 
 (I having paid and secured the pur- 
 chase-money) ; whatever disposition is 
 made of the property, the profit and 
 loss is to be divided between us, de- 
 ducting interest. You will please 
 make such papers as are necessary to 
 carry this agreement into effect," is 
 a sufficient memorandum within the 
 statute of frauds to create a trust in 
 real estate if acted on by the parties. 
 But the principle of this case seems 
 overruled by Hazard v. Day, 14 Allen 
 (Mass.) 487, in which it was held that 
 a written contract drawn up for signa- 
 ture, but unsigned, is not a sufficient 
 
SEC. 364.] MEMORANDUM OK NOTE IN ■WRITING. 
 
 703 
 
 of terms, and creates a greater difficulty in arriving at a 
 precise conclusion.^ In an Illinois case',^ a written contract 
 between a railroad company and a telegraph company for 
 the building and operating of a telegraph along the railway, 
 was signed by the telegraph company, and a copy §i it sent 
 to the railroad company, which accepted it by letter of its 
 agent, but did not sign the contract. The telegraph com- 
 pany made large expenditures under the contract, and for 
 more than a year both parties executed it. It was held that 
 the contract was binding upon the railway company, and that 
 the acceptance of it by the letter before referred to amounted 
 to a sufficient signing to take the contract out of the statute.^ 
 A letter from a person sought to be charged, which merelj' 
 refers to a parol agreement, without containing the essential 
 terms of the contract, is not sufficient as a memorandum,* 
 and the same rule prevails as to telegrams,^ or, indeed, any 
 writings. There is nothing in the statute which requires 
 that the whole terms of the contract should be contained in 
 
 memorandum within the statute, al- 
 though drawn by the written order of 
 the defendant. Hazard o. Day, 14 
 Allen, 487 (1867). See also Board- 
 man V. Spooner, 13 id. 353 ; Lyman v. 
 Robinson, 14 id. 242 ; Sanborn o. 
 Chamberlin, 101 Mass. 416. 
 
 1 Kennedy v. Lee, 3 Mer. 451, per 
 Lord Eldon ; and see Saunderson v. 
 Jackson, 2 B. & P. 238 ; Ogilyie v. Fol- 
 jambe, 3 Mer. 53 ; Thomas v. Black- 
 man, 1 Coll. 301 ; Greene v. Cramer, 
 2 Con. & L. 54, 63; Fitzraaurice v. 
 Bayley, 9 H. L. 78; 6 Jur. (N. S.) 
 1215. 
 
 2 Western Union Tel. Co. v. Chi- 
 cago &c. R. R. Co., 86 111. 246; 29 
 Am. Rep. 28. Several writings of dif- 
 ferent dates may be read in connec- 
 tion to show a memorandum of an 
 agreement, and where a, contract was 
 signed by one party and retained by 
 the other, letters subsequently written 
 by the latter, in which the contract 
 was clearly referred to, are sufiScient 
 to show his assent, and that he sub- 
 scribed the contract within the mean- 
 ing of the statute. Beckwith c/. Tal- 
 bot, 2 Col. T. 6.39. A parol contract, 
 required to be in writing by the stat- 
 
 ute of frauds, if treated as obligatory 
 by the parties until it is executed, is 
 not void. A parol contract within 
 the provisions of the statute cannot 
 be made the ground of a defence, nor 
 does part performance of a verbal 
 contract within the statute have any 
 effect at law, to take the case out of 
 its provisions. This can only be done 
 in equity. Wheeler v. Frankenthal, 
 78 111. 124. A writing signed by the 
 party sought to be charged, although 
 in the form of a letter addressed to a 
 third party, is held a sufficient " mem- 
 orandum," if explicit enough as to the 
 terms of the contract. Moore v. 
 Mountcastle, 61 Mo. 424. A proposi- 
 tion by letter for the assignment of a 
 judgment, if accepted by letter, and 
 stating the consideration and the 
 names of the contracting parties, is 
 not within the statute of frauds. Ab- 
 bott V. Shepard, 48 N. H. 14. 
 
 8 McConnell v. Brillhart, 17 El. 
 354 ; Cassit v. Hobbs, 56 id. 231. 
 
 * Waterman v. Meigs, 4 Cush. 
 (Mass.) 497. 
 
 ' Hazard a. Day, 14 Allen (Mass.) 
 487 J McElroy v. Buck, 35 Mich. 434. 
 
704 STATTJTE OP PEATJDS. [CHAP. XIII. 
 
 one paper. It only makes it necessary there should be, at 
 the time when the action is brought, a complete contract in 
 existence, which is evidenced in writing ; ^ and this may be 
 done by several papers, as well as one, and if they contain 
 the whole^ha,Tga.m, they form together such a memorandum 
 as will satisfy the statute, provided the contents of the signed 
 paper make such reference to the other written paper or 
 papers, as to enable the court to construe the whole of them 
 together, as constituting all the terms of the bargain.^ And 
 the same result will follow if the other papers were attached 
 or fastened to the signed paper at the time of the signature.^ 
 But if it be necessary to adduce parol evidence, in order to 
 connect a signed paper with others unsigned, by reason of 
 the absence of any internal evidence in the contents of the 
 signed paper to show a reference to, or connection with, the 
 unsigned papers, then the several papers taken together do 
 not constitute a memorandum in writing of the bargain so as 
 to satisfy the statute.* But where the reference contained 
 in the signed paper is ambiguous, parol evidence will be 
 admitted to explain the ambiguity and identify the docu- 
 ment to which the signed paper must and does refer. Thus, 
 parol evidence was held admissible to identify the docu- 
 ments which were respectively referred to by the following 
 ambiguous expressions : " instructions," ^ " terms agreed 
 upon," 8 "purchase,"^ "our arrangement,"* "purchased."^ 
 It is submitted, therefore, that since the decision in Bau- 
 mann v. James, the principle of which case has been adopted 
 in the most recent cases illustrating this subject, the rule as 
 laid down by the earlier authorities must be taken to have 
 been enlarged to the following extent: it is no longer neces- 
 sary for the signed paper to refer to any unsigned paper as 
 such ; it is sufficient to show that a particular unsigned paper 
 
 1 Bill V. Bament, 9 M. & "W. 36; Pierce v. Corf, L. R. 9 Q. B. 210; 
 Phillips I). Ocmulgee Mills, 55 Ga. Smith v. Jones, 66 Ga. 338. 
 
 633 ; Gibson v. Holland, L. R. 1 C. P. ^ Ridgway v. "Wharton, 6 H. L. C. 
 
 1; Horton v. McCarty, 53 Me. 394; 238. 
 
 Bird V. Munroe, 66 id. 337. « Baumann v. James, 3 Ch. 508. 
 
 2 See Khoades v. Castner, 12 Allen, ' Long v. Millar, 4 C. P. D. 450, 
 130, 132 ; Johnson v. Buck, 338, 344, C. A. 
 
 345. 8 Care v. Hastings, 7 Q. B. D. 125. 
 
 = Tallman v. Pranklin, 14 N. Y. » Shardlow v. Cotterell, 18 Ch. D. 
 
 584. 280 ; S. C. 20 Ch. D. 90, C. A. 
 
 4 Ridgway v. Ingram, 50 Ind. 145 ; 
 
SBC. 364.] MEMOKANDTTM OR NOTE IN "WEITING. 
 
 705 
 
 and nothing else can he referred to, and parol evidence is admis- 
 sible for this purpose. In Long v. Millar,^ the principle was 
 carried still farther, Thesigeb, L. J., saying : " When it is 
 proposed to prove the existence of a contract by several docu- 
 ment, it must appear upon the face of the instrument signed 
 hy the party to be charged, that reference is made to another 
 document, and this omission cannot be supplied by verbal 
 evidence."^ In Ridgway v. Whartonj^ Loud Ceanv?^oeth 
 
 1 4 C. P. D. 450. 
 
 a See Beckwith v. Talbot, 95 V. S. 
 389 ; Cave v. Hastings, ante ; Jenkins 
 V. Harrison, 66 Ala. 345 ; Thayer v. 
 Luce, 22 Ohio St. 62 ; Lerned v. "Wan- 
 nemacher, 9 Allen (Mass.) 416; Bux- 
 ton V. Rust, L. E. 7 Exchq. 279 ; Bau- 
 mann p. James, 3 Ch. App. 508 ; Work 
 r. Cowthick, 81 III. 317 ; see Brown v. 
 Wliipple, 58 N. H. 229, in which Doe, 
 J., questions the doctrine expressed 
 by Bradley, J., in Beckwith v. Tal- 
 bot, ante. In that case (Brown v. 
 Whipple), the plaintiff brought an 
 action against the defendant for not 
 accepting certain lumber. As evi- 
 dence of the memorandum required 
 by the statute of frauds, the plaintiff 
 introduced, subject to exception, » 
 letter written and signed by the de- 
 fendant, a memorandum written by 
 the defendant, and a letter written 
 and signed by the plaintiff. 
 
 The defendant's Letter. 
 
 "Lancaster, Dec. 21, 1867. J. B. 
 Brown, Esq. — Dear Sir : Can you 
 get 20 M. feet maple, the best quality, 
 the coming winter, saw it in the spring 
 (or winter), and deliver it at the depot 
 at your place in July next ? If so, for 
 how much per M. t Please call at my 
 place when you are at Lancaster, and 
 we will talk it over, or write me all the 
 particulars. Respectfully yours, 
 
 J. M. Whipple." 
 The Defendant's Memorandum. 
 
 " Rock maple, clear, for J. M. Whip- 
 ple, 15,000 feet ; 10,000 feet 2 inches 
 thick; 5,000 feet \\ inches thick. To 
 be delivered at the railroad track. 
 Price, $20 per M." 
 
 The Plaintiff's Letter. 
 
 " May, 1868. John M. Whipple : 
 The maple lumber which I agreed to 
 get out for you is ready for delivery. 
 Would like to have you call up and 
 take the account of it, as I wish to 
 draw it over to the railroad track. 
 James B. Brown.'' 
 
 The plaintiff had a verdict ; but it ' 
 was set aside upon appeal. Doe, C. J., 
 saying : " When one document refers 
 to another, the latter is, for the pur- 
 pose of such reference, incorporated 
 vfith the former. 1 Starkie Ev. 359 ; 
 Simons u. Steele, 36 N. H. 73, 83; 
 Church 0. Brown, 21 N. Y. 315, 330- 
 334. A list of taxes may, by annex- 
 ation and reference, be made a part of 
 a tax-collector's warrant. Bailey v. 
 Ackerman, 54 N. H. 527. In Tallman 
 0. Franklin, 14 N. Y. 584, it was held 
 that a document was made a part of 
 a memorandum by being fastened to 
 it by a pin before the memorandum 
 was signed, a blank column of the 
 memorandum being headed 'Terms 
 of sale,' and the annexed document 
 having the same heading, and con- 
 taining terms of sale. In this case, 
 the letter written by the plaintiff to 
 the defendant is no part of the mem- 
 orandum required by the statute of 
 frauds, because it is neither signed by 
 the defendant, nor made by annexa- 
 tion or reference, a part of a writing 
 signed by him. 2 Kent Com. 511 ; 
 Benjamin on Sales, §§ 222-237 ; Black- 
 bum on Sale, 46-54 ; authorities cited 
 in Morton v. Dean, 13 Met. 385; Fitz- 
 maurice u. Bayley, 9 H. L. Cas. 78; 
 Skelton v. Cole, 1 De Gex & J. 587. 
 
 » 3 D. M. G. 
 
706 
 
 STATUTE OF FRAUDS. 
 
 [chap. XIII. 
 
 said : " The statute is not complied with, unless the whole 
 contract is either embodied in some writing signed by the 
 
 If it was held in Salmon Falls Mf g 
 Co. 0. Goddard, 14 How. (U. S.) 446, 
 and in Lerned v. Wannemacher, 9 
 Allen (Mass.) 412, that, by a writing 
 signed by the plaintiiT, not signed 
 by the defendant (the party to be 
 charged), and not made a part of a 
 memorandum signed by the defendant, 
 the plaintiff may prove a fact which 
 the statute requires to be proved by a 
 memorandum signed by the defend- 
 ant, those cases are in coniliet with 
 a mass of authority too great to be 
 overthrown. The soundness of the 
 contrary doctrine was, in the former 
 case, demonstrated in the dissenting 
 opinion of two judges, and was in the 
 latter case substantially admitted. 
 
 In Beckwith v. Talbot, 95 U. S. 
 289, 292, it was a question of legal con- 
 struction, whether the written agree- 
 ment, signed by the plaintiff, was suf- 
 ficiently identified and referred to by 
 the defendant, in his letters, to make 
 it a part of a memorandum signed by 
 him. It was held that the general 
 rule is, that collateral papers, adduced 
 to supply the defect of signature of 
 a written agreement, should on their 
 face sufficiently demonstrate their 
 reference to such agreement, without 
 the aid of parol proof. In what was 
 said of an exception, in cases where 
 parol evidence leaves no ground for 
 doubt, we do not concur. Unless the 
 essential terms of the sale can be 
 ascertained from the writing itself, or 
 by reference in it to something else, 
 the writing is not a compliance with 
 the statute ; and if the agreement be 
 thus defective, it cannot be supplied 
 by parol proof, for that would at once 
 introduce all the mischiefs which the 
 statute was intended to prevent. Wil- 
 liams V. Morris, 95 U. S. 444, 456. A 
 defective reference can no more be cured 
 by parol than any other defective part 
 of the memcyrandum. 
 
 The writing, called in this case the 
 defendant's memorandum, is insuffi- 
 cient, because, if it is signed by the 
 
 defendant, and if it shows that he 
 bought lumber of some one, it does 
 not show of whom he bought it. The 
 defendant's letter of inquiry is insuffi- 
 cient, because it does not show that he 
 bought or agreed to buy anything of 
 anybody. If the necessary memoran- 
 dum were described in the statute 
 (Gen. St., Chap. 201, § 14) as a scin- 
 tilla of proof of the essentials of the 
 bargain, and if the question were, 
 whether, in fact, the plaintiff is the 
 person with whom the defendant con- 
 tracted, one question of law would be, 
 whether the defendant's memorandum 
 and letter (with or without other evi- 
 dence) are competent for the consid- 
 eration of a jury. But the question 
 is, not whether there is an infinitesi- 
 mal or other amount of circumstan- 
 tial evidence from which a jury may 
 find the fact not stated in the writ- 
 ings, but whether the court does find, 
 upon a fair legal construction of the 
 writings, that the fact is stated in 
 them. Taken together, with all the 
 meaning that is expressed, and all 
 that can be implied, by the most 
 strained construction, in favor of the 
 plaintiff, the defendant's memoran- 
 dum and letter state, that at some 
 time the defendant agreed to buy of 
 somebody 15,000 feet of clear rock 
 maple boards of certain dimensions, 
 to be delivered at the railroad track, 
 at $20 a thousand; and that on the 
 21st day of December, 1867, the de- 
 fendant inquired of the plaintiff by 
 letter, whether he could get for the 
 defendant 20,000 feet of the best 
 maple lumber the coming winter, saw 
 it in the winter or spring, and deliver 
 it at the depot at the plaintiff's place 
 the next July, and at what price the 
 plaintiff woiJd do this. We do not 
 think the legal import of this state- 
 ment is, that the plaintiff is the per- 
 son with whom the ■ defendant con- 
 tracted. A memorandum, consisting 
 of one or more writings, may be read, 
 like other documents, in the light of 
 
SEC. 364.J MEMORANDUM OE NOTE IN WRITING. 707 
 
 party, or in some paper referred to in a signed document, and 
 capable of being identified by means of the description of it 
 contained in tlie signed paper. Thus, a contract to grant a 
 lease on certain specified terms is of course good. So, too, 
 even if the terms are not specified in the written contract, 
 yet if the written contract is to grant a lease on the terms 
 of the lease or written agreement .under which the tenant 
 now holds the same, or on the same terms as are contained 
 in some other designated paper, then the terms of the statute 
 are complied with. The two writings in the case I have put 
 become one writing. Parol evidence is, in such a case, not 
 resorted to for the purpose of showing what the terms of the 
 contract are, but only in order to show what the writing is 
 which is referred to. When that fact, which it is to be 
 observed is a fact collateral to the contract, is established by 
 parol evidence, the contract itself is wholly in writing signed 
 by the party." 
 
 Where an agreement was made and reduced into writing, 
 but not signed, and the defendant, on being asked by letter 
 to sign the agreement, wrote, saying that " his word should 
 be as good as any security he could give," it was held that 
 this was sufficient to take the case out of the statute.' So 
 where the purchaser of an estate wrote to the vendor's solic- 
 itor, asking him when he would forward the agreement to be 
 entered into with the vendor, "relative to the purchase I 
 have concluded with him," the solicitor having a memoran- 
 dum containing the terms of the proposed agreement, as was 
 shown by the evidence, it was held that there was a sufficient 
 agreement within the statute.^ So where a memorandum of 
 agreement for a lease for twenty-one years was signed by the 
 intended lessee, but not by the lessor, and named referees, 
 and the lessor's agents prepared a draft lease, and wrote to 
 
 the circumstances in which it was construction of the law, or a liberal 
 
 written, for the explanation of its construction of the memorandum." 
 latent ambiguities, and the applica- i Tawney v. Crowther, 3 Bro. C. C. 
 
 tion of its terms to the persons and 318. This case, however, was disap- 
 
 things sufficiently described in it. proved of by Lord Redesdale in 
 
 But this rule does not admit parol evi- Clinan v. Cooke, 1 Sch. & Lef. 34. 
 dence to supply an essential part of the " Morgan v. Holford, 1 S. & 6. 101 ; 
 
 contract, the omission of which is patent and see Hamilton v. Terry, 11 C. B. 
 
 on the face of the memorandum; and 954; Wood u. Scarth, 2 K. & J. 83 ; 
 
 the inequitable operation of the stat- Alcock w. Delay, 4 E. & B. 660. 
 ute is not to be avoided by a narrow 
 
708 STATUTE OP FEATJDS. [CHAP. XIII. 
 
 the lessee saying they hoped on a certain day to have the 
 agreement prepared and ready for inspection ; and to this the 
 lessee replied by a letter making an appointment, and hop- 
 ing all would be satisfactorily arranged, it was held that 
 there was an agreement sufficiently signed by the lessor.^ So 
 also a letter written bj' the solicitor to the purchaser to the 
 vendor's solicitor, headed with the names of the clients, and 
 agreeing to settle the purchase personally in two months, if 
 that would be satisfactory to the vendor, was held binding 
 on the writer.^ But a reference to "the agreement which 
 your client alleges he has entered into," in a signed docu- 
 ment, is not a sufficient acknowledgment of the existence of 
 an agreement at all to take a case out of the statute.^ 
 
 Skc. 365. Insufficient Reference, Rent-RoUs, Abstract, Par- 
 ticulars. — Where A agreed by parol with B for the purchase 
 of lands, and B delivered a rent-roll which was dated and 
 altered in his own handwriting, and showed by the title of 
 it that an agreement had been made between them for the 
 sale of the estate at twenty-one years' purchase ; and an 
 abstract of title was also delivered to A, together with the 
 deeds, in order to be compared with the rent-roll ; and B also 
 wrote to several of his creditors, informing them that he had 
 contracted with A for the sale of his estate at twenty-one 
 years' purchase, and sent the tenants to treat with A for a 
 renewal of their leases ; it was held, nevertheless, that there 
 was no sufficient memorandum.* So where the defendant 
 gave a particular of the property signed by him, which was 
 sent to an attorney with instructions to prepare a convey- 
 ance, it was held that there was no agreement of which spe- 
 cific performance could be enforced.^ 
 
 Sec. 366. Recital of Agreement Sufficient. — Where an 
 agreement was produced as follows : " Mr. Hall [the plain- 
 tiff] having agreed to purchase of Mr. Betty [the defendant] 
 two leasehold houses, situate, etc., Mr. Betty hereby agrees 
 
 1 Warner v. Willington, 3 Drew. 465 ; and see Skelton v. Cole, 1 De G. 
 523. &J. 587. 
 
 2 Powers I). Fowfer, 4 E. & B. 511 ; « Whaley v. Bagenal, 1 Bro. P. C. 
 and see Baumann v. JaUes, L. B. 3 S45. 
 
 Ch. 508. ■ 6 Cooke v. Tombs, 2 Ans. 420; and 
 
 ' Jackson v. Oglander, 2 H. & M. see Cass v. Waterhouse, Prec. Ch. 29. 
 
SEC. 367.] MEMOKANDUM OR NOTK IN WRITING. 
 
 709 
 
 to paper and paint, etc.; Mr. Hall to pay £230 at the time 
 of the conveyance, and the remaining j620 on the comple- 
 tion of the painting," it was held that the agreement to pur- 
 chase, though recited as an existing agreement, was to be 
 considered as forming part of the agreement produced.^ 
 
 Sec. 367. Reference must be Clear. — In order to embody 
 in a memorandum any other document or memorandum or in- 
 strument in writing, so as to make it part of a special contract 
 contained in that memorandum, the memorandum must either 
 set out the writing referred to, or so clearly and definitely refer 
 to the writing, that hy force of the reference the writing itself 
 becomes part of the instrument it refers to? The leading case 
 on this point is Boydell v. Drummond.^ There the defendant 
 
 1 Hall V. Betty, 4 Man. & Gr. 410 ; 
 and see De Porquet v. Page, 20 L. J. 
 Q. B. 28. 
 
 ^ Peek V. North Staffordshire Rail- 
 way Co., 10 H. L. C. 473, 568, fer 
 LoED WESTBCRr; and see Jacob u. 
 Kirk, 2 Moo. & Rob. 221 ; Price ... 
 Griffith, 1 D. M. G. 80; Ridgway v. 
 Wharton, 3 D. M. G. 677 ; Boyce v. 
 Green, Batty, 608. Where there are 
 several writings relating to a transac- 
 tion, so many of them as of them- 
 selyes show their relation to each 
 other are treated as together, form- 
 ing the memorandum. Wilkinson v. 
 Erans, L. R. 1 C. P. 407. In Bcck- 
 with i;. Talbot, 95 U. S. 289, the gen- 
 eral rule was held to be that collat- 
 eral papers, adduced to supply the 
 defect of signature of a written agree- 
 ment under the statute of frauds, 
 should on their face sufficiently de- 
 monstrate their reference to such 
 agreement without the aid of parol 
 proof, is subject to exceptions. Parol 
 proof, if clear and satisfactory, may 
 be received to identify the agreement 
 referred to in such collateral papers. 
 But if the relation between the differ- 
 ent papers does not appear from the 
 writings themselves, such relation can- 
 not be established by parol. Stocker 
 V. Partridge, 2 Robt, (N. Y.) 193; 
 Johnson v. Kellogg, 7 Tenn. 262; Mor- 
 ton v: Deane, 13 Met. (Mass.) 385; 
 Schafer v. Farmer's Bank, 59 Penn. 
 
 St. 144; Freeport v. Bartol, 3 Me. 
 340 ; Ridgway v, Ingram, 50 Ind. 
 145 ; Boardman v. Spooner, 13 Allen 
 (Mass.) 353; O'Donnell v. Lehman, 
 43 Me. 158 ; Johnson v. Buck, 35 N. 
 J. L. 338 ; Wiley v. Roberts, 27 Mo. 
 388 ; Clark v. Chamberlin, 112 Mass. 
 19 ; Hinde v. Whitehouse, 7 East, 058 ; 
 Jacob «. Kirk, 2 M. & R. 221 ; Leonard 
 V. Wannemacher, 9 Allen (Mass.) 412 ; 
 Buxton t). Rust, L. R. 7 Exchq. 279 ; 
 Allen V. Bennett, 3 Taunt. 169 ; Pea- 
 body V. Speyers, 56 N. Y. 230 ; Ide v. 
 Stanton, 15 Vt. 685 ; Thayer ;;. Luce, 
 22 Ohio St. 62; Work v. Cowhick, 81 
 lU. 317. 
 
 8 11 East, 142. Any letter or other 
 document that is signed, which refers 
 to other writings, authorizes the read- 
 ing of such papers : Rushton v. What- 
 mere, 8 Ch. Div. 467 ; Buxton v. Rust, 
 L. R. 7 Exchq. 279; Williams o. Jor- 
 dan, 6 Ch. Div. 517; Jackson v. Lowe, 
 1 Bing. 9; Laythoarp v. Bryant, 2 
 Bing. (N.C.) 735; Williams D.Morris, 
 95 U. S. 444; DeBeil v. Thompson, 3 
 Beav. 469 ; Pierce v. Corf, L. R. 9 Q. 
 B. 210 ; Mayer v. Adrian, 77 N. C. 83 ; 
 Scarlett v. Stein, 40 Md. 512 ; Wash- 
 ington Ice Co. V. Webster, 62 Me. 341. 
 If they were in existence when the 
 writing referring to them was signed ; 
 Wood V. Midgeley, 5 De G. M. & G. 
 41 ; Briggs v. Munchon, 56 Mo. 467 ; 
 Coles V. Trecothick, 9 Ves. 224 ; Taw- 
 ney v. Crowther, 3 Bro. C. C. 318. 
 
TIO STATUTE OF PEAUDS. [CHAP. XUI. 
 
 was a subscriber to a proposed edition of Shakespeare's plays. 
 The terms of the contract were set out in a printed prospec- 
 tus which was delivered to the subscribers. This was not 
 signed, but the subscribers' signatures were written in a book 
 entitled, "Shakespeare subscribers — their signatures," and 
 this book did not refer to the prospectus. It was held that 
 the book and prospectus could not be connected so as to take 
 the case out of the statute, as such connection could only be 
 established by parol evidence.^ In Cooper v. Smith,^ the 
 defendant wrote a letter recognizing an order entered in the 
 plaintiff's order-book, but insisted that the goods had not 
 been delivered in time, thus introducing a new term, which 
 was denied by the plaintiff, and it was held that the plain- 
 tiff could not prove by parol that no such term existed. 
 LbBlanc, J., said : " The letter of the defendant referred to 
 a different contract from that proved on the part of the 
 plaintiff, which puts him out of court instead of being a 
 recognition of the same contract." In Jackson v. Lowe,' the 
 purchaser of flour wrote to the vendors as follows : " I hereby 
 give you notice that the corn you delivered to me in part per- 
 formance of my contract with you ... is of so bad a qualitj'- 
 that I cannot sell it or make it into saleable bi'ead. The 
 sacks of flour are at my shop, and you will send for them, 
 otherwise I shall commence an action." To this letter the 
 vendors answered by their attorney : " Messrs. Lowe and 
 Lynam consider they have performed their contract with 
 you as far as it has gone, and are ready to complete the 
 remainder, and unless the flour is paid for at the expiration 
 of one month, proceedings will be taken for the amount." 
 It was held that the two letters constituted a sufiicient mem- 
 orandum.* In Smith v. Surman,^ the owner of trees grow- 
 ing on his land verbally agreed with the defendant to sell 
 him the timber at so much per foot. The vendor's attorney 
 subsequently wrote to the purchaser, requiring payment "for 
 
 1 See also Allen v. Bennett, 3 Hieronimus, L. R. 10 Q. B. 140; Bux- 
 Taunt. 169; Crane v. Powell, L. R. 4 ton v. Eust, L. R. 7 Ex. 279; see the 
 C. P. 123 ; Llewellyn u. Earl of Jer- remarks on Richards v. Porter, 6 B. & 
 Bey, 11 M. & W. 189. C. 437, in Benjamin on Sales, 2d ed. 
 
 2 15 East, 103. 165. 
 
 ' 1 Bing. 9. 5 9 B. & C. 561, 570 ; 4 Mann. & R. 
 
 * And see Wilkinson v. Evans, L. 455. 
 R. 1 C. P. 407 ; Leather Cloth Co. v. 
 
SEC. 367.] MEMOKANDUM OR NOTE IK WEITING. 
 
 711 
 
 the ash timber you purchased. . . . The value at 1 s. 6 d. per 
 foot amounts to £VI %s. %d. I understand your objection 
 to complete your contract is on the ground that the timber 
 is faulty and unsound, but there is sufficient evidence to 
 show that the same timber is very kind and superior." The 
 purchaser answered : " I have this moment received a letter 
 from you respecting Mr. Smith's timber, which I bought of 
 him at 1 s. 6 d. per foot to be sound and good, which I have 
 some doubts whether it is or not, but he promised to malce it 
 so, and now denies it." It was held that, as the purchaser did 
 not in his letter recognize the absolute contract described in the 
 vendor'' s letter, but stated one condition as to quality, there was 
 no note in writing to satisfy the statute.^ 
 
 1 And see Archer v. Baynes, 5 Ex. 
 625 ; Thornton v. Kempster, 5 Taunt. 
 786. If the njemorandum does not con- 
 tain enough to make out a completed 
 agreement, the defect cannot be sup- 
 plied by parol, but the contract will 
 be void because it is not evidenced by 
 a writing under the hand of the party 
 to be charged. Thus in Archer v. 
 Baynes, ante, the defendant verbally 
 agreed to purchase of the plaintiff 
 certain barrels of flour. The defend- 
 ant afterwards wrote to the plaintiff, 
 stating that he had received some 
 barrels, which were not so fine as the 
 sample, and were not the barrels he 
 had bought, and that he would not 
 have them. In answer the plaintiff 
 wrote as follows : " Annexed you have 
 invoice of the flour sold you last 
 Friday. I am very much astonished 
 at your finding fault with the flour. 
 It was sold to you subject to your 
 examining the bulk ; and it was not 
 until after you had examined it, and 
 satisfied yourself both of quality and 
 condition, that you confirmed the pur- 
 chase. What was forwarded you was 
 the same you saw. Under these cir- 
 cumstances you cannot, therefore, 
 object to fulfil your agreement." The 
 defendant replied as follows : " I beg 
 to say the barrels I have received is 
 not the same I saw. I took a sample 
 with me from the sample I have, and 
 the barrels I saw was quite as fine as 
 
 I compared them with, nor was they 
 lumpy. Now the barrels I have re- 
 ceived is all very lumpy, and none of 
 them so fine as the same. If you will 
 take them back and pay charges, I 
 will with pleasure send them. There 
 must be some mistake about them." 
 Held, that the letters did not consti- 
 tute a sufficient note or memorandum 
 in writing of the contract within the 
 17th section of the statute of frauds. 
 In this case Aldersos, B., said: " We 
 have no difficulty, therefore, in com- 
 ing to the conclusion that these let- 
 ters may be looked at for the purpose 
 of seeing whether or not they contain 
 a sufficient contract to take the case 
 out of the statute ; but looking at 
 them, we do not think they do. They 
 do not express all the terms of the 
 contract; and the case is in truth 
 governed by Richards v. Porter, which 
 was cited in the course of the argu- 
 ment, and in which Lord Tknteeden 
 gave a similar decision as to a docu- 
 ment of a. similar nature which was 
 then before him. There is a distinct 
 refusal on the part of the defendant 
 to accept the flour which he had 
 bought of the plaintiff. It is clear 
 from the letters that he had bought 
 the flour from the plaintiff upon some 
 contract or other; but whether he 
 bought it on a contract to take the 
 particular barrels of flour which he 
 had seen at the warehouse, or whether 
 
712 
 
 STATUTE OF FEAUDS. 
 
 [chap. XIII. 
 
 SeO. 368. Part Only of Documents Referred to, to be Incor- 
 porated in Contract. — If a part only of documents referred 
 to are to be incorporated in the contract, the reference must 
 show clearly what part is to be so incorporated. Thus, 
 where an agreement for a lease of a farm referred to a paper 
 containing the terms, a bill for specific performance accord- 
 ing to such clauses as had been read to the plaintiff was dis- 
 missed.^ 
 
 he had bought them on a particular 
 sample which had been delivered to 
 him, on the condition that they should 
 agree with that sample, does not 
 appear; and that which is in truth 
 the dispute between the parties is not 
 settled by the contract in writing; 
 and therefore the rule must be dis- 
 charged." In Richards v. Porter" 6 
 B. & C. 437, the plaintiff sent to the 
 defendant an invoice of hops, and 
 delivered the invoice to a carrier to 
 be conveyed to the defendant. In 
 the invoice the plaintiff was described 
 as the seller, and the defendant as 
 the purchaser, of the hops. The de- 
 fendant afterwards wrote to the plain- 
 tiff as follows: "The hops which I 
 bought of Mr. Richards (the plaintiff) 
 on the 23d of last month are not yet 
 arrived, nor have I heard of them. 
 I received the invoice. The last was 
 much longer than they ought to have 
 been on the road; however, if they 
 do not arrive in a few days, I must 
 get some elsewhere, and consequently 
 cannot accept them"; and it was 
 held that the invoice and letter taken 
 together did not constitute a sufficient 
 note in writing within the statute. 
 Where, however, the vendee, by his 
 letter in answer, recognizes and adopts 
 the terms of a contract specified in 
 the vendor's letter, that is a sufficient 
 memorandum to satisfy the statute: 
 Jackson v. Lowe, 1 Bing. 9 ; Smith v. 
 Surman, 9 B. & C. 561. The rule is 
 that a subsequent recognition in writ- 
 ing, of a contract otherwise void 
 under the statute of frauds, for want 
 of a sufficient writing, will be suffi- 
 cient: Gale V. Nixon, 6 Cow. (N. Y.) 
 445. In Ide «. Stanton, 15 Vt. 685, the 
 
 writings relied on to satisfy the 
 statute, consisted, as in the principal 
 case, of the correspondence of the 
 parties after the contract had been 
 made ; which was decided to be com- 
 petent as a note in writing, but insuf- 
 ficient because the letters did not 
 state the price. "The statute has 
 never required," said the court, " that 
 the written evidence of the purchase 
 should be created at the time of mak- 
 ing the contract. A written admis- 
 sion of a previous verbal contract will 
 satisfy the statute. Neither is it 
 essential that all the written evidence 
 necessary to constitute a sufficient 
 note or memorandum of the bargain 
 should be comprised in a single paper 
 or document. Distinct writings, and 
 of different dates, if signed by the 
 party to be charged, and properly 
 conducing to prove the contract, are 
 competent evidence in this class of 
 cases. But since the whole object 
 of the statute is to guard against the 
 danger of fraud and perjury in prov- 
 ing the contract, it is obviously indis- 
 pensable that enough should appear 
 in writing to show that a contract of 
 purchase has been concluded, which 
 is legally binding upon the party 
 sought to be charged. The written 
 note or memorandum must therefore, 
 either by its own language or by ref- 
 erence to something else, contain such 
 a description of the contract actually 
 made as shall obviate the necessity 
 of resorting to parol evidence, in 
 order to supply any term of the con- 
 tract which was essential to give it 
 validity." 
 
 1 Brodie v. St, Paul, 1 Ves. Jr. 326; 
 and see Clinan v. Cooke, 1 Sch. & Lef. 
 
SEC. 370.] MEMORANDUM OE NOTE IN WRITING. 713 
 
 Sec. 369. Reference in Case of Letters need not bo Sxpress. 
 — The reference in the case of letters need not be express, hut 
 it will he sufficient if the court can he satisfied that a reference 
 was intended} Thus, where A, the owner of property, wrote 
 to B on the 5th July in the third person, informing him that 
 C applied for the purchase of the W farm at a certain price, 
 but that if B chose to have the farm at the price mentioned, 
 C would decline the purchase in his favor ; and the bill stated 
 that B accepted the terms in a letter, which, however, was 
 not proved, and that A wrote to C on the 11th July, saying : 
 " I have just received yours, and am glad you have deter- 
 mined to purchase the W farm. ... I will write to Mr. C 
 to inform him you have agreed to purchase the estate," Sir 
 William Grant said: "Determination and agreement upon 
 the part of the plaintiff to purchase does seem necessarily to 
 presuppose some proposal to sell ; for it would be absurd to 
 speak of an original proposal from the plaintiff as a determi- 
 nation and agreement bringing the business to such a close, 
 that it only remained to the solicitors to confer upon the 
 title. This letter (of the 11th July) therefore clearly im- 
 plies an antecedent proposal to which it is an assent. As to 
 the nature of the proposal there is no controversy. It is in 
 A's handwriting, and coupling that with the letter, they 
 amount to an agreement signed by the party to be charged." ^ 
 
 Sec. 370. Terms of Contract must Appear from Writing. — 
 
 The letters or documents must either definitely state the terms 
 of the contract, or must enahle the court to ascertain what the 
 terms of the contract are.^ "In order," said Lord Eldon, 
 
 36; Vonillon ». States, 2 Jur. (N. S.) tains sufficient for that purpose, the 
 
 845. court will give effect to it according to 
 
 1 But see contra Fyson v. Kitten, 3 the intent of the parties as gathered there- 
 C. L. K. 705. from, and extrinsic evidence will not be 
 
 2 Western v. Russell, 3 V. & B. 187 ; admitted to show a different intent. 
 and see Verlander v. Codd, T. & R. Williams v. Robinson, 73 Me. 186 ; 40 
 352; Greene v. Cramer, 2 Con. & L. Am. Rep. 852; Washington Ice Co. 
 54 ; Skinner v. McDouall, 2 De G. & v. Webster, 62 id. 341 ; 10 Am. Rep. 
 S. 265. 462 ; Horton v. McCarty, 53 Me. 394 ; 
 
 ' It may be stated as a general Jenness v. Mt. Hope Iron Co., 53 id. 
 
 rule, that, in order to make a note or 50 ; O'Donnell v. Leeman, 43 id. 158 ; 
 
 memorandum sufficient to take the Mason v. Decker, 72 N. Y. 595; 28 
 
 contract out of the statute, enough Am. Rep. 190; Bacon v. Daniels, 37 
 
 must be stated to enable the court to give Ohio St. 279 ; Clark v. N. Y. Life Ins. 
 
 effect to it as a contract, and if it con- Co., 7 Lans. (N. Y.) 322 ; Groat v. 
 
714 
 
 STATUTE or PEAUDS. 
 
 [chap. xin. 
 
 " to form a contract by letter, I apprehend nothing more is 
 necessary than this ; that when one man makes an offer to 
 
 Story, 44 Vt. 200; Stoops v. Smith, 
 100 Mass. 63; Pitcher v. Hennessey, 
 48 N. Y. 415 ; Taylor v. Riggs, 1 Pet. 
 (U. S.) 591; Pord v. Yates, 2 M. & G. 
 549 ; Ridgway u. Bowman, 7 Cush. 
 (Mass.) 268; Carter v. Hamelton, 11 
 Barb. (N. Y.) 147; Lee v. Hills, 66 
 Ind. 474. In other words, enough of 
 the contract must be stated so that it 
 can be enforced, and a part of it can- 
 not be shown by the loriting, and a part 
 of it by parol. It must be evidence of 
 a completed bargain. Weeks v. Wright, 
 
 25 N. Y. 153; Kossitur v. Miller, L. R. 
 3; H. L. 1128; Winn v. Bull, 7 Ch. 
 Div. 29; Roberts v. Tucker, 3 Exchq. 
 632 ; Gaunt v. Hill, 1 Stark. 20 ; Wha- 
 ley V. Bagnel, 1 Bro. P. C. 345 ; Strata 
 ford u. Bosworth, 2 V. & B. 341; 
 Symes v. Huntley, 2 L. T. N. S. 509; 
 Oakman v. Rogers, 120 Mass. 214; 
 Barry v. Coombe, 1 Pet. (U. S.) 046; 
 Hazard v. Day, 14 Allen (Mass.) 487; 
 Ballingall v. Bradley, 16 111. 373 ; Elfe 
 V. Gadsden, 2 Rich. (S. C.) L. 373; 
 Merton v. Dean, 13 Met. (Mass.) 385. 
 For, while the memorandum is said 
 not to be the contract itself, yet it is 
 the only evidence of the contract which 
 the statute permits to be used. Williams 
 V. Robinson, ante ; Ellis v. Deadman, 
 4 Bibb. (Ky.) 466; Dawes v. Shields, 
 
 26 Wend. (N. Y.) 341; Buck v. Pick- 
 well, 27 Vt. 157; Soles v. Hickman, 
 20 Penn. St. 180 ; Parker v. Bodley, 4 
 Bibb. (Ky.) 466; Farwell v. Mather, 
 10 Allen (Mass.) 322; Riley v. Wil- 
 liams, 123 Mass. 506; May v. Ward, 
 134 Mass. ; Hodges v. Howard, 5 R. I. 
 149; Parker v. Tainter, 123 Mass. 185. 
 And if the real intent of the parties is 
 not expressed therein, yet, if it con- 
 tains sufficient to enable the courts to 
 carry it out according to a legal in- 
 tent gathered from the instrument 
 itself, it will, in the absence of fraud, 
 be given effect to, if sufficient upon 
 its face, however much it may con- 
 flict with the real intention of the par- 
 ties. Thus, in a Maine case, Williams 
 V. Robinson, ante, a memorandum of a 
 
 contract was made as follows : " Au- 
 gusta, June 8, 1880. I hereby agree 
 to furnish M. P. Williams of New Ha- 
 ven (post-office address West Haven) 
 eight hundred to one thousand tons 
 of ice, delivered on board vessels at 
 Augusta, Maine, properly packed for 
 a voyage to New Haven for the sum 
 of two dollars per ton. 
 
 Bond Brook Ice Co., 
 J. E. Robinson, Augusta, Me." 
 The defendant upon the trial 
 claimed, and introduced evidence to 
 prove, that it was agreed that the ice 
 should all be delivered by the last of 
 the next July, and that the plaintiff 
 was to forward a, draft for seven or 
 eight hundred dollars immediately 
 upon his return home, and before any 
 ice was shipped, and that the ice was 
 to be shipped by successive shipments 
 at different times, and that the plain- 
 tiff was to forward a, draft covering 
 the amount of each shipment before 
 any such shipment was made; and 
 upon this proof, asked the court to in- 
 struct the jury that, inasmuch as the 
 memorandum did not contain these 
 essential elements of the agreement, 
 it was insufficient. But the court re- 
 fused so to charge, and the plaintiff 
 had a verdict which was sustained 
 upon appeal, the court holding that, 
 as the memorandum upon its face 
 contained a sufficient enforceable 
 contract, it must be enforced accord- 
 ing to its legal intent, without the aid 
 of extrinsic facts. It will be observed 
 that in this case, the party who made 
 the memorandum was the one who 
 sought to invalidate it by showing 
 that it did not contain the actual 
 terms of the agreement, so that no 
 claim of fraud in their apprehension 
 could be made, and upon this ground 
 we believe that the decision is right, 
 and in no wise obnoxious to the rule 
 relating to the introduction of parol 
 evidence to avoid a memorandum 
 upon the ground that it does not con- 
 tain the terms of the agreement actu- 
 
SEC. 370.] MEMOEANDTJM OE NOTE IN WRITING. 
 
 716 
 
 another to sell for so much, and the other closes with the 
 terms of his offer, there must be a fair understanding on the 
 part of each as to what is to be the purchase-^money, and how 
 it is to be paid, and also a reasonable description of the subject- 
 matter of the bargain.^ Where a receipt for the deposit 
 
 ally entered into by the parties, as 
 stated post, p. 736, or as is held in El- 
 more V. Kingscote, 5 B. & C. 583 ; 
 Goodman v. Griffith, 1 H. & N. 574 ; 
 Hussey v. Horner Payne, 4 App. Cas. 
 311 ; Wake v. Harrop, 6 H. & N. 768. 
 It would hardly be becoming in a 
 party who drew a memorandum, to 
 set up, when it was sought to be en- 
 forced against liim, as a defence, that 
 it was void because he had neglected 
 to state all the terms of the contract 
 therein, and, if he has stated enough, 
 so that effect can be given to it, he 
 will not be permitted to stultify the 
 instrument upon the ground of his 
 own fraud. Such an objection can 
 only come from the other party. 
 
 1 Kennedy «. Lee, 3 Mer. 447. The 
 general rule of determining the ques- 
 tion in the majority of instances is 
 furnished by the early case of Sea- 
 good V. Meale, Free. Chan. 560, that 
 a letter will never operate as a writ- 
 ten agreement so as to satisfy the 
 statute, unless it distinctly specijies or 
 ascertains the terms of the agreement; 
 for if it contains only evidence of the 
 existence of an agreement, without 
 fully declaring its purport, the sub- 
 stance of the contract is left to be 
 explored tlirough the medium of ver- 
 bal testimony, in direct opposition to 
 the statute of frauds. In the case 
 last mentioned, a person had verbally 
 agreed with another to sell him some 
 houses, and in consequence of such 
 agreement had written a note to a 
 mortgagee of the premises, request- 
 ing him to deliver the writings relat- 
 ing to the property to the bearer, as 
 he had agreed to dispose of them, it 
 was contended that this letter was a 
 recognition of the contract in writing, 
 and ought to be considered as suffi- 
 cient to answer the intention of the 
 statute ; but the court thought other- 
 
 wise, grounding its opinion on the 
 want of a proper specification of the 
 terms in the letter; though some 
 doubts may be entertained whether a 
 letter written to a third person, and a 
 stranger to the contract, could, how- 
 ever explicit it might be in describing 
 the terms of the contract, be received 
 as a memorandum or note within the 
 meaning of the statute. It was said 
 by LoED Hakdwicke in Welford v. 
 Beazely, 3 Atk. 503, that " there have 
 been cases where a letter written to a 
 man's own agent, setting forth the 
 terms of the agreement as concluded 
 by him, has been deemed to be a sign- 
 ing within the statute." But such an 
 act is supposed to be done with the 
 direct purpose of carrying the treaty 
 into effect, and not as a mere commu- 
 nication by letter. See also Ayliffe v. 
 Tracy, 2 P. Wms. 64. In Seagood v. 
 Meale, thougli the letter did not im- 
 mediately pass between the parties to 
 the contract, it directed something to 
 be done in pursuance of the contract, 
 and preparatory to its accomplish- 
 ment, and was tlius, in effect, a me- 
 dium of negotiation between the orig- 
 inal parties. In Clerk v. Wright, 1 
 Atk. 12, the defendant had verbally 
 agreed to sell an estate to the plain- 
 tiff, in confidence of which agreement 
 the plaintiff had been several times 
 to view the premises, and had given 
 orders for conveyances' to be drawn 
 and engrossed. The defendant after- 
 wards sent a letter to the plaintiff, in- 
 forming him, that at the time of his 
 contracting for the sale of the estate, 
 the value of the timber was not known 
 to him, and the plaintiff should not 
 have the estate unless he would give 
 a larger price for it. The bill was 
 brought to have the agreement car- 
 ried into execution, but the statute of 
 frauds was pleaded, and allowed ; the 
 
716 
 
 STATUTE OF FKAITDS. 
 
 [chap. XIII. 
 
 money did not state what the price was, nor what proportion 
 the deposit bore to the price, it was held to be insufficient.^ 
 
 ' Blagden v. Bradbear, 12 Ves. 
 466 ; and see Clerk v. Wright, 1 Atk. 
 12 ; Elmore v. Kingscote, 5 B. & C. 
 
 Chancellor observing that the letter 
 could not be sufficient evidence of the 
 agreement, the terms of the . agree- 
 ment not being therein specified. 
 Jackson v. Titus, 2 John. (N. Y.) 430; 
 Abeel v. Eadcliff, 13 John. (N. Y.) 297 ; 
 Johnson v. Ronald, 4 Munf. (Va.) 77. 
 Upon similar grounds, a letter 
 promising a marriage portion, but not 
 reducing it to any certainty, was con- 
 sidered as insufficient to satisfy the 
 third clause of the 4th section ; and a 
 letter written by. a father to his daugh- 
 ter, promising to give her £ 3,000 on 
 her marriage, but which was not shown 
 to the intended husband, was held to 
 afford no foundation for a decree, as 
 having no ingredient of equity. Ay- 
 liffe V. Tracy, 2 P. Wms. 65. Although, 
 if the intended husband had seen this 
 letter, and had married the daughter 
 on the encouragement it gave him, 
 this would have materially altered 
 the case in respect to the statute ; and 
 it has been held that the statute will 
 not prevail where this is the state of 
 the transaction. See Eq. Ca. Abr. 49 ; 
 Wankeford v. Fottherly, 2 Vern. 822 ; 
 Taylor v. Beech, 1 Ves. 297. But if 
 a letter contains the terms of an agree- 
 ment, distinctly set forth, 3 Atk. 503, 
 or refers to another paper which con- 
 tains the terras of the agreement ex- 
 plicitly stated, even though such prior 
 written document be without a signa- 
 ture, Tawney v. Crowther, 3 Bro. C. 
 R. 318, or if it refers to something 
 in itself certain, as to the custom of 
 the country in an agreement for a 
 lease, Brodie v. St. Paul, 1 Ves. Jr. 
 330, the statute has been held to be 
 satisfied. So in a later case, where an 
 order had been given for a, quantity 
 of goods, and a bill of parcels deliv- 
 ered at the same time to the buyer, a 
 subsequent letter written and signed 
 by the vendor, referring to the order. 
 
 583 ; Clinan v. Cooke, 1 Sch. & Lef . 
 33 ; Morgan v. Milman, 3 D. M. G. 24. 
 
 was connected with the bill of parcels, 
 so as to create a sufficient contract in 
 writing within the statute. Saunder- 
 son V. Jackson, 2 B. & P. 238. But 
 where the parol evidence is to ascer- 
 tain what is referred to, the subject 
 of the reference being not sufficiently 
 decided and distinct upon the face of 
 the document itself, as where a paper 
 is referred to as containing the terms 
 of a lease, if the certainty does not 
 sufficiently appear by referring to the 
 paper without further evidence, the 
 agreement is not ascertained in writ- 
 ing according to the statute ; thus, if 
 parol evidence be necessary to show 
 which of the clauses contained in the 
 paper referred to was read at a meet- 
 ing between the parties, the statute is 
 in direct opposition to such proofs, 
 and accordingly they cannot be admit- 
 ted. Brodie v. St. Paul, 1 Ves. Jr. 
 326. Thus, too, if an instrument has 
 been designed as a deed, but from the 
 omission of circumstances requisite to 
 its validity, or from a change in the 
 relative situation of the parties, it is 
 deprived of its specific operation, it 
 will nevertheless be received in equity 
 as an agreement, or as evidence of an 
 agreement ; as where a woman, being 
 about to marry, gave bond to her in- 
 tended husband, with a condition that 
 in ease the marriage should take effect, 
 she would convey all her lands to her 
 husband and his heirs ; and the mar- 
 riage ' having taken eifect, the wife 
 died, and then the husband died, and 
 the heir of the husband brought his 
 bill against the heir of the wife to 
 compel a conveyance ; it was deter- 
 mined that the bond was a written 
 evidence of the agreement of the 
 party, and that that agreement, being 
 for a valuable consideration, should 
 be executed in equity. Cannel v. 
 Buckle, 2 P. Wms. 242. But to be 
 
SEC. 370.J MEMORANDUM OE NOTE IN WEITIN-G. 717 
 
 Where a lessee agreed to grant an underlease, and signed 
 the following receipt : " Received of Mr. Dolling the sum of 
 £10 as part purchase-money of £390, of four cottages (de- 
 scribing them), the lease and counterpart to be paid for by 
 Mr. Dolling " ; it was held that the receipt was not a suffi- 
 cient memorandum to satisfy the statute, as the interest 
 to be granted was not specified.^ So a letter, from the 
 terms of which the exact quantity of goods said to be con- 
 tracted for can be ascertained by subsequent measurement, 
 hut from which it cannot he ascertained that the goods are the 
 special goods contracted for, is not sufficient.^ Where the 
 agreement was for a sale according to the valuation of two 
 persons, one to be chosen by each party, or an umpire to be 
 appointed by those two in case of disagreement, a bill for 
 specific performance, praying that the court would appoint a 
 person to make the valuation or otherwise ascertain it, was 
 dismissed. "The only agreement," said Sir William 
 Grant, " into which the defendant entered, was to. purchase 
 at a price, to be ascertained in a specified mode. No price 
 ever having been fixed in that mode, the parties have not 
 agreed upon any price. Where, then, is the complete and 
 concluded contract which this court is called upon to exe- 
 cute? The price is of the essence of a contract of sale."^ 
 
 binding within this statute, u, writing were furnished on the faith of the 
 
 should always import the assent and promise to indorse. Held, that tlie 
 
 privity of both the parties in respect to acceptance of the terms of the letter, 
 
 the transaction itself. A mere entry, written on the back of it, was a sufficient 
 
 therefore, in a steward's book of con- writing, within the statute of frauds, 
 
 tracts with the tenants, was not al- to bind the party who thus promised 
 
 lowed to be evidence itself of an to become indorser. Ome v. Cook, 31 
 
 agreement for a lease between a lord 111. 238 ; S. P. Otis v. Hazeltine, 27 
 
 and tenant. Charlewood i/. Bedford, Cal. 80. A dated writing running 
 
 1 Atk. 497. " received of " J. " fifty dollars in part 
 
 1 Dolling t). Evans, 36 L.J. Ch. 474. payment of a house" described. 
 
 2 Carroll v. Cowell, 1 ,Tebb. & Sy. "The full amount is §1,700. This 
 43 ; and see Morgan v. Sykes, cited in bargain is to be closed inside of ten 
 Coats V. Chaplin, 3 Q. B. 486. A days from date hereof," is a sufficient 
 party desiring to purchase goods memorandum of sale within the stat- 
 wrote a letter to his merchant, stating ute. Hurley v. Brown, 98 Mass. 545. 
 the terms upon which he wished to The officer's return of a sale of an 
 buy, and offering a certain person as equity of redemption on execution is 
 the indorser of his notes ; on the back » sufficient memorandum thereof in 
 of this letter, the party offered as in- writing to bind the purchaser under 
 dorser wrote a note accepting the the statute of frauds. Sanborn v. 
 terms mentioned in the letter, and Chamberlin, 101 Mass. 409. 
 
 signed his name to it. The goods ' Milnes v. Gery, 14 Ves. 406 ; and 
 
718 STATUTE OF rKATTDS. [CHAP. Xin. 
 
 Again, an agreement between A, a lessee of a mine, and B, 
 to become partners in the mine, was held not to be suffi- 
 ciently proved by a receipt signed by A, and given to B for 
 a sum as B's share of the head rent of the mine, although 
 the sum Avas exactly one-half of the rent. "Though the 
 court," said Lord Ckanwoeth, "has struggled to bring 
 within the description of a signed agreement any instrument, 
 however informal, which does in truth disclose what the 
 terms of the contract were, it has never repealed the statute 
 of frauds by holding a writing to be within its meaning 
 which has not that effect ; that is to say, which does not hy 
 plain words or reasonable inference disclose what was the con- 
 tract of the parties." ^ In a case where the bill was brought 
 for a specific performance from letters which had passed 
 between the parties, it appeared that a certain number of 
 years' purchase was to be given for the land, but it could not 
 be ascertained whether the rents upon a few cowgates were 
 5s. or Is., and although there was no other doubt, Loed 
 Hakdwicke held that such an agreement could not be car- 
 ried into execution. He said that in these cases it ought to 
 be considered whether at law the party could recover dam- 
 ages ; for, if he could not, the court ought not to carry such 
 agreements into execution.^ An agreement for a lease which 
 does not state the commencement or duration of the pro- 
 posed term, is" not sufficient,^ even when ratified by the 
 proposed lessee.'* Where the plaintiff relied on a letter writ- 
 ten by the defendant, in which the defendant agreed to take 
 a house for seven years on certain terms, but in which the 
 day of the commencement of the lease was not mentioned; 
 and on another letter from the defendant, mentioning a day 
 of commencement, and adding terms to which the plaintiff 
 did not agree ; it was held that there was no memorandum of 
 an agreement sufScient to satisfy the statute." But an agree- 
 
 see Wilks v. Davis, 3 Mer. 507 ; Vick- Davis v. Jones, 25 L. J. C. P. 91 ; 
 
 ers V. Vickers, L. R. 4 Eq. 529. Clarke v. Fuller, 16 C. B. (N. S.) 24; 
 
 1 Caddick u. Skidmore,^2 De G. & Gardner v. Hazleton, 121 Mass. 494. 
 J. 56. ^ * Bayley v. Fitzmaurice, 8 E. & B. 
 
 2 Lord Middleton o. Wilson, Sugd. 679 ; Eitzmaurice v. Bayley, 9 H. L. C. 
 V. & P. 13th ed. 109 ; and see Dart V. 78. 
 
 & P. 5tli ed. 220. = Nesham v. Selby, L. R. 7 Ch. 
 
 8 Cox V. Middleton, 2 Drew. 209; 406, affg. S. C. L. R. 13 Eq. 191 ; and 
 
 Gordon v. Trevelyan, 1 Price, 64 ; see Beaumann v. James,L. R. 3 Ch. 508. 
 
SEC. 371.1 MEMORANDUM OR NOTE IN "WRITING. 719 
 
 nient for a lease at three lives on thirty-one years is not 
 invalid because the agreement does not name the lives, nor 
 provide by whom they are to be nominated, provided the 
 lives nominated by the person seeking specific performance 
 were in existence when the agreement was entered into.^ So 
 an agreement that a royalty of 6 d. per ton should be paid on 
 any minerals, and that any mines required to be left by a 
 certain railway company were to be paid for as if gotten, was 
 held to be too uncertain to be enforced, there being no means 
 provided for ascertaining what amount would have to be paid 
 for.2 So specific performance of an agreement to purchase 
 one-third of a foundry was refused on the ground of uncer- 
 tainty ; the contract not specifying what portion of the pur- 
 chase-money was to be left in the business, but only a "large 
 portion," and not stating when it was to be paid, or how to 
 be secured, nor what interest was to be allowed in the 
 meantime.^ 
 
 In Wood V. Midgley,* a memorandum that A had paid to 
 B £50 as a deposit in part payment of £1,000 for the pur- 
 chase of a house, the terms to be expressed in an agreement 
 to be signed as soon as prepared, was held not to be suffi- 
 cient. But where the agreement was for the sale of an 
 estate for £3,000, "and the further sum of £20 per cent on 
 any sum the property may realize above that sura at the sale 
 by auction advertised to take place " the next day, it was 
 held that the contract was sufficiently certain, and might be 
 enforced;^- and where at the time the contract was entered 
 into, it was agreed that the goods purchased should be paid 
 for by a check on the defendant's brother, it was held that 
 the omission of that stipulation did not vitiate the memoran- 
 dum.® 
 
 Sec. 371. Sale by Auction; Memorandum must be Attached 
 to, or Refer to Conditions of Sale. — Upon a sale hy auction, 
 under conditions of sale, the document signed hy the auctioneer 
 must either he attached to, or clearly refer to, the conditions, in 
 
 1 Fitzgerald o. Vickere, 2 Dr. & * 5 D. M. G. 41 ; and see Ridgway 
 Wal. 298. V. Wharton, 3 D. M. G. 677. 
 
 2 Williamson v. Wootton, 3 Drew. ^ LangstaflE u. Nicholson, 25 Beav. 
 210. 160. 
 
 8 Cooper V. Hood, 26 Beav. 293. « Sarl v. Bourdillon, 1 C. B. (N. 
 
 S.) 188. 
 
720 STATUTE OP PKATJDS. [CHAP. XIII. 
 
 order to constitute a valid contract?- The memorandum of an 
 auctioneer of a sale of real estate must describe the estate 
 with such definiteness, that it can be identified without 
 recourse to parol evidence. Thus, a memorandum as fol- 
 lows: "Lot No. 2, 113 acres, W. R. Scales, at $30 per acre," 
 was held to be insufficient, although a plan having a lot num- 
 bered " 2 " upon it was shown to the bidders.^ So on an 
 order of sale issued on a judgment and decree of foreclosure 
 of a mortgage of real estate, an endorsement thereon by the 
 sheriff, " Sold to A B for $ 2,400, October 16, 1869, C. D. 
 Sheriff," was held insufficient as a memorandum or note.^ 
 But an indorsement made by an auctioneer upon a mort- 
 gage, of the sale of the lands described in, and which were 
 sold by him under it, as follows : " The within property was 
 this day sold by me as agent of G, as administrator of the 
 mortgagee, J, deceased, for $2,300 at public auction, to E, 
 March 23, 1869," was held sufficient.* While an auctioneer 
 may bind the parties by a memorandum of sale, either of 
 goods or land, if made at the time of sale, and after the bid is 
 publicly announced;® yet it seems that this is not the rule 
 when the vendor himself acts as auctioneer, or even when 
 the sale is made by any person who has an interest therein. 
 Thus, a trustee who, at an auction sale, under a deed of 
 trust, acts as his own auctioneer, cannot bind his purchaser 
 by a memorandum of the sale made by himself, because such 
 memorandum is not executed by the "party to be charged 
 "therewith, or some other person by him thereto lawfully 
 
 1 Hinde v. Whitehouse, 7 East, ' Eidgway v. Ingram, 50 Ind. 145. 
 558 ; Kenworthy v. Scofleld, 2 B. & C. « Lewis v. Wells, 50 Ala. 198. 
 945; Coles «. Trecothick, 9 Ves. 234; ''Walker v. Herring, 21 Gratt. 
 Eiley ■■. Farnsworth, 116 Mass. 223; (Va.) 678. In this case an auctioneer 
 Tallman v. Franklin, 14 N. Y. 684. while conducting a sale of real estate 
 
 2 Adams v. Scales, 57 Tenn. 337. entered the name of W in his book as 
 It was also held in this case that where the purchaser of the property. On 
 the owner of the property is present the following day his partner, who 
 at the sale and directing it, the auc- was not present at the sale, entered 
 tioneer engaged merely to cry the the name of H as joint purchaser 
 bids and knock off the property, had with W. He did this without com- 
 no authority to make a memorandum municating with H, and without au- 
 of the sale. But this would depend thority from him. Held that H was 
 upon the circumstances, and ordinarily not bound. Morton v. Dean, 13 Met. 
 such a memorandum would he suifi- (Mass.) 385; Eiley v. Farnsworth, 
 eient. Gill v. Hewitt, 7 Bush. (Ky.) 116 Mass. 223. 
 
 10. 
 
SEC. 371.J MEMORANDUM OB NOTE IN "WRITING. 721 
 
 authorized," as required by the statute of frauds.^ The rule 
 with reference to memorandums of such sales is the same as 
 in reference to others, and a memorandum, to be sufficient 
 within the statute of frauds, must set out the contract with 
 such reasonable certainty that its terms may be understood 
 from the writing itself, without recourse to parol proof. The 
 fact that such memorandum is indorsed on the order of sale, 
 but ivithout any reference to it for the ascertainment of the thing sold, 
 is no better than if indorsed on any other paper.^ A general 
 memorandum entered in a book by the auctioneer at the com- 
 mencement of an auction sale, showing the name of the per- 
 son on whose account the sale is made, the nature of the 
 property, the terms of payment, referring to entries follow- 
 ing for the names of purchasers and lots struck off to each, 
 and signed by the auctioneer, under which he enters the 
 name of each purchaser, the description of the goods sold, 
 and the price, is a sufficient memorandum of each sale within 
 the statute of frauds. It is not necessary that such general 
 memorandum should be made as often as a parcel of goods is 
 sold, even though the sale is adjourned to and continues on 
 the second day without any repetition of the memorandum.^ 
 It must be one which contains, expressly or by necessary 
 implication, all the material terms of the contract. A 
 draft of a deed poll, to be executed by the grantors, and 
 
 ^ TuU V. David, 45 Mo. 444. In sufficient certainty. A memorandum 
 
 Bent V. Cobb, 9 Gray (Mass.) the same sufficient in other respects is not ren- 
 
 rule was adopted where a guardian dered invalid because it omits the 
 
 acted as auctioneer. middle letter of the vendee's name, as 
 
 2 Ridgway v. Ingram, ante; John- "Benjamin Mussey" when his name 
 son V. Buck, 35 N. J. L. 338. In Mor- was Benjamin B. Mussey, if it is 
 ton V. Dean, 13 Met. (Mass.) 385, an shown by parol that he is known by 
 auctioneer on selling real estate to S one name as well as the other. Fes- 
 D at auction, after exhibiting written senden v. Mussey, 11 Cush; (Mass.) 
 conditions of sale made a memoran- 127. Where the buyer of real estate 
 dum as follows : " Sale on account of at auction then signs an agreement of 
 Messrs. Morton and Dean, assignees sale mth a stipulation for a deposit 
 of the Taunton Iron Company, of the in which the amount of deposit an- 
 real estate, nail works, water privilege, nounced by the auctioneer has not 
 buildings, and machinery agreeably been inserted, but which is otherwise 
 to the plans and schedule herewith, sufficient, there is a sufficient memo- 
 Sale to Silas Dean for |30,300 April randum to enable the auctioneer to 
 5th, 1843," and it was held not suffi- sue for the amount of the deposit, 
 cient because it did not contain the Thompson u. Kelly, 101 Mass. 291. 
 essential terms of sale, nor refer to ^ Price v. Durin, 56 Barb. (N. Y.) 
 the written conditions of sale vfith 647. 
 
722 
 
 STATUTE OF FEAITDS. 
 
 [chap. XIII. 
 
 which does not contain the purchaser's obligations, is not 
 sufficient ; still less is such a draft which is only partly 
 completed at the time when the purchaser revokes his bid. 
 The capacity in which the auctioneer acts should appear, the 
 rule being that to make such an execution of a written con- 
 tract for the sale of real estate valid and effectual, it must 
 appear from the paper signed by the agent that the agent 
 acted in that capacity, and it must also appear who the. prin- 
 cipal was.^ In reference to the requirements of a memoran- 
 
 1 InPinckney v. Hagadorn, 1 Duer. 
 (N. Y.) 89, which was affirmed by the . 
 Court of Appeals, it was held that 
 the statute was sufficiently complied 
 with, where the entry by an auction- 
 eer of the sale in which the name of 
 the principal appears, is signed by 
 the auctioneer with his own name, 
 without any reference to his character 
 as agent. The court say : " The auc- 
 tioneer's entry furnishes the name of 
 the principal ; and although that name 
 does not appear in the subscription, 
 the intention to bind him, and not the 
 auctioneer personally, is perfectly 
 plain, and makes it the contract of 
 his principal." It will be seen that 
 the name of the principal was incor- 
 porated in the memorandum, and the 
 intention was manifest. In Tallman 
 r. Franklin, U N. Y. 584, the auc- 
 tioneer attached a letter, signed by 
 the ownfer, which stated the terms of 
 the sale, on a page of his sale book, 
 then made the residue of the entries 
 requisite to constitute a memorandum 
 of the contract and- subscribed his 
 name to it, and it was held that the 
 letter was to be taken as a part of 
 the memorandum subscribed by the 
 auctioneer, and rendered it sufficient 
 within the statute. The name of the 
 principal was here also incorporated 
 in the contract. In Bush v. Cole, 28 
 N. Y. 269, the action was brought by 
 the purchaser against the auctioneers, 
 who sold the house for a less sura, 
 than was authorized by the owner, 
 who refused to give title, and it was 
 held that the contract was not binding 
 upon the owner, for the reason among 
 others, that the contract of sale " did 
 
 not show who the owner of the premi- 
 ses was." 
 
 In Townsend v. Corning, 23 Wend. 
 (N. Y.) 435, it was decided that a 
 covenant for a sale of land, as well 
 as a deed passing an interest in land, 
 where the contract is made by an 
 attorney/ in fact, to be valid, must be 
 executed in the name of the principal 
 by his attorney, and that his own name 
 is not enough. Bronson, J., who de- 
 livered the opinion of the court, cites 
 from Combe's case, 9 Coke, 76, where 
 the rule is laid down " that when any 
 one has authority, as attorney, to do an 
 act, he ought to do it in his name who 
 gives the authority, for he appoints the 
 attorney to be in his place, and to 
 represent his person; and therefore, 
 the attorney cannot do it in his own 
 name, nor as his proper act, but in the 
 name and as the act of him who gives 
 the authority." He also cites from 
 Bac. Abr. and numerous cases sus- 
 taining this doctrine. If this rule be 
 applicable, then the defendant not 
 being named in any way in the con- 
 tract, and it being in the name of her 
 husband, she would not be liable for 
 his acts, even if authorized. 
 
 In St. John v. Grfflth, 2 Abb. (K 
 Y.) 198, there was a part performance 
 of the contract by the defendant and 
 an entire performance by the plaintiff, 
 and it was decided that the defendants 
 would be liable, in an action of this 
 nature, upon the facts presented. It 
 is nowhere decided that an agent or 
 attorney can bind his principal in a 
 contract for the sale of lands where 
 he enters into the contract in his own 
 name, and there is an understanding 
 
SEC. 371.J MEMORANDUM OE NOTE IN "WRITING. 
 
 723 
 
 dum made by an auctioneer, it may be said that in order to 
 be valid, it must have been made contemporaneously ivith the s«Ze,' 
 must contain the names of the vendor and vendee,/^ a description of 
 
 by the vendee that he was the owner 
 of the premises. He may be liable 
 personally in damages for a failure to 
 fulfil, but to hold that such a con- 
 tract is binding upon the party not 
 named or referred to in any form, and 
 not known at all as a contracting 
 party, would be in direct violation of 
 the statute of frauds before cited. 
 Where there is nothing in the body 
 of the instrument, or in the form of 
 a party's signature to indicate that the 
 obligation thereby created was in- 
 tended to be any other than a personal 
 obligation on liis part, parol evidence 
 is inadmissible to show that the agree- 
 ment was in fact the obligation , of 
 third persons, and that such party 
 signed it as their agent. Babbett v. 
 Young, 51 Barb. (N. Y.) 466 ; Chap- 
 pell I. Dann, 21 Barb. (N. Y.) 17; 
 Williams v. Christie, 10 How. (N. Y.) 
 12; Lincoln v. Crandell, 21 Wend. 
 (N. Y.) 101. 
 
 1 Smith V. Arnold, 5 Mass. (XJ. S.) 
 414; Buckmaster v. Harrop, 13 Ves. 
 456; Gill v'. Bickell, 2 Cush. (Mass.) 
 355 ; Horton v. McCarty, 53 Me. 394. 
 And it must have been made by the 
 auctioneer or his clerk. If it was 
 made by the vendor or his agent, it 
 has no validity. Thus, in Bawber v. 
 Savage, 56 Wis. 110; 38 Am. Eep. 
 723, it appeared that soon after real 
 property of the plaintiff had been bid 
 off by defendant at an auction sale, 
 the defendant orally agreed with the 
 plaintiff to pay a certain part of the 
 price the next day, and the remainder 
 a few days later. Soon after the sale, 
 also, the plaintiff's agent requested the 
 defendant to make a deposit with him 
 for the plaintiff of some portion of the 
 purchase-money; and upon the defend- 
 ant's excusing herself from so doing, 
 and promising to make it all right with 
 the plaintiff, he drew up a memoran- 
 dum of the sale, and signed it for the 
 plaintiff ; but this was never delivered 
 to, or accepted, or assented to, by the 
 
 defendant. No other memorandum of 
 the sale was made by the auctioneer 
 or any other person. It was lield that 
 the sale was invalid under the statute. 
 In Price v. Durin, 56 Barb. (N. Y.) 647, 
 the auctioneer's clerk entered the pur- 
 chaser's name as each lot was knocked 
 off, and at the close of each day's sales 
 signed the book, and it was lield to be 
 ii memorandum made at the time of 
 sale, within the statute. The time 
 when a memorandum was in fact 
 made may always be shown by parol. 
 Hewes v. Taylor, 70 Penn. St. 387. 
 That an auctioneer's memorandum 
 should be made at the time, see, in 
 addition to the cases cited, Williams 
 V. Bacon, 2 Gray (Mass.) 387 ; Means 
 c. Carr, 1 H. & N. 484. But this is not 
 the rule as to sales made by sheriffs 
 or other ofllcers upon an execution, 
 and it has been held that it need not 
 in all cases be signed by the identical 
 deputy who made the sale. This would 
 depend upon the provisions of the stat- 
 ute as to who should make the return. 
 Barclay v. Bates, 2 Mo. App. 139 ; 
 Hanson v. Barnes, 3 G. & J. (Jld.) 
 359. 
 
 ^ Knox V. King, ante. See Walsh 
 V. Barton, 24 Ohio St. 28; Grafton 
 V. Cummings, 99 U. S. 100. Where a 
 pew in a church was sold at auction, 
 and the only memorandum of the sale 
 was an entry made by the auctioneer 
 on a chart or plan of the ground floor 
 of the church, exhibited at the sale, of 
 the name of the purchaser, and of 
 the sum bid by him, — held, that the 
 memorandum was not sufficient with- 
 in the requirements of the New York 
 statute ; although, at the time of the 
 auction, a written or printed adver- 
 tisement, containing the conditions of 
 sale, was exhibited and read to the 
 purchasers. Baptist Church v. Bige- 
 low, 16 Wend. (N. Y.) 28. A letter 
 containing the terms of an auction 
 sale was pinned into the auctioneer's 
 book, and entries of purchasers were 
 
724 
 
 STATUTE OF FKATJDS. 
 
 [chap. XIII. 
 
 the property sold and the terms of sale^ so that the resort to 
 extrinsic evidence will be unnecessary ; and if aid is required 
 iiova. the posters, or advertisements of the sale, they must be 
 referred to in the memorandum or they cannot be regarded 
 as a part thereof or used in evidence. Thus at a sale by 
 auction, the plaintiff was declared the purchaser, and the 
 following memorandum was added to the conditions of sale, 
 and handed to the plaintiff : " The property duly sold to Mr. 
 S., butcher, Pinxton, and. deposit paid at close of sale. H. 
 
 afterwards made therein and signed 
 by the auctioneer, and it was held 
 that these papers should be taken 
 together as a memorandum of the 
 sale. Tallman v. Franklin, 14 N. Y. 
 584. A vendee of goods under an 
 oral contract signed an order for 
 them on the terms and conditions of 
 a printed memorandum which was de- 
 livered by the vendor to the vendee 
 as a statement of the bargain, and 
 which spoke of " this contract." The 
 order mentioned a place for delivery, 
 that the vendee would send his own 
 vessels for the goods, and, taken all 
 together, a contract, a seller, a pur- 
 chaser, a thing sold, a price, and 
 terms of payment, appeared. A pre- 
 cisely similar paper was signed simul- 
 taneously by the vendor, except that 
 it did not contain the name of the 
 vendee. Held, that the two papers 
 might be taken together as a memo- 
 randum of the sale so signed by the 
 vendor as to charge him, notwith- 
 standing that both of them con- 
 tained the words " we will send our 
 own vessels," and that after they 
 were signed the vendor wrote on the 
 back of the one signed by the vendee 
 the words " to be shipped immedi- 
 ately, if vessels are not sent." Lerned 
 V. Wannemacher, 9 Allen (Mass.). 
 
 1 Shied V. Stamps, 2 Sneed (Tenn.) 
 172; Doty v. Wilder, 15 111. 407; 
 Stafford v. Lick, 10 Cal. 12 ; Nichols 
 V. Johnson, 10 Conn. 192; Riley v. 
 Farnsworth, 116 Mass. 223. In Cali- 
 fornia and Oregon by statute, an entry 
 by an auctioneer of a sale at auction 
 in his sales-book, at the time of sale, 
 of the kind of property sold, the 
 
 terms of sale, the price, and the 
 names of the purchaser and person 
 on whose account the property is 
 sold, is a good memorandum, and it 
 may be understood that this is the 
 rule as to the elements required in 
 such memorandums in all the States. 
 An imperfect memorandum of the 
 sale of real estate by an auctioneer, 
 and a letter written by the purchaser 
 to the seller, cannot be connected to- 
 gether by parol so as to take the case 
 out of the statute, there being no ref- 
 erence in the one to the other. An 
 auctioneer is the agent of the pur- 
 chaser of either lands or goods at 
 auction, to sign a contract for him 
 as the highest bidder. And if he 
 signs the memorandum of sale in 
 the name of the purchaser immedi- 
 ately on receiving the bid and knock- 
 ing down the hammer, this is a suffi- 
 cient signing of the contract within 
 the statute of frauds. But such 
 memorandum cannot have the effect 
 to take a contract out of the statute 
 where neither the auctioneer, nor his 
 clerk, nor the vendor or vendee has 
 signed the same. A writing, what- 
 ever its particular form, will be a 
 sufficient memorandum or note in 
 writing, as required by the statute 
 of frauds, provided it contains the 
 essential terms of the contract, ex- 
 pressed with such certainty that they 
 may be understood from the instru- 
 ment itself, or from some other writing 
 to which it refers, without recourse to 
 parol proof, and be signed by the 
 party to be charged. If it is a sale 
 of lands, it must state the price. 
 Adams v. McMillan, 7 I"ort. (Ala.) 73. 
 
SEC. 371.] MEMORANDUM OE NOTE IN WRITING. 725 
 
 M., auctioneer." At the same time the auctioneer gave the 
 plaintiff the following receipt: "Received of Mr. S. the sum 
 of £21 as deposit on property purchased at ^£420, at Sun 
 Inn, Pinxton, on the above date. Mr. C. Pinxton, owner. 
 Received by H. M., 29th March, 1880. H. M." The conditions 
 contained no description of the property sold. Posters describing 
 the property to be sold had been previously published, but 
 there was not one of such posters in the room at the sale. 
 In an action by purchaser against the vendor for a declara- 
 tion that the two documents signed by the auctioneer con- 
 stituted a contract, and for specific performance, it was 
 held, first, on the authority of Long v. Millar,^ that the two 
 documents signed by the auctioneer might be taken together ; 
 second, that the word " property " was not a sufficient de- 
 scription of the thing sold ; third, that the poster or parol 
 evidence could not be broi^ght in to supply the description, 
 and the action was dismissed.^ Of course, in a memorandum 
 of this character no formality is required. It is not expected 
 that the terms of sale will be set forth with technical preci- 
 sion, but it is sufficient if it contains within itself, or by 
 reference to other writings, the names of the parties, a de- 
 scription of the property, and the essential terms of the sale 
 stated in any form so that they can be ascertained without 
 resort to parol proof thereof,^ and it may be written with ink, 
 a pencil, or anything which intelligibly sets forth the terms 
 of the agreement.* If the sale is of real estate, in those 
 States where the statute requires authority to sign the mem- 
 orandum to be in writing, neither a sale or memorandum 
 made by an auctioneer has any validity unless authority is 
 conferred upon him in writing, and the matter is not aided 
 by the circumstance that the vendor was himself present at 
 the sale and orally assented thereto. But where no such 
 
 ^ 41 L. T. Kep. (N. S.) 306; L. E. 4 memorandum unless the memoran- 
 
 C. P. Div. 450. dum made by the auctioneer refers 
 
 2 Ogilvie V. Foljambe, 3 Mer. 58; to them. O'Donnell v. Leeman, 43 
 
 Wood V. Scarth, 26 L. T. Eep. 87; Met. 58. The purchaser need not 
 
 Sale V. Lambert, L. E. 18 Eq. 1 ; sign at an auction sale. Bleecker v. 
 
 Potter V. Duffield, id. 4 ; Eossiter v. Franlclin, 2 E. D. S. (N. Y. C. P.) 93. 
 Miller, L. E. 3 App. Cass. 1140 ; » Daly v. Wilder, ante. 
 
 Shardland v. Cotterill, 44 L. T. N. * Clason i>. Bailey, 14 John. (N. Y. ) 
 
 S. 549. The notices of sale, whether 484 ; Merritt v. Clason, 12 id. 102 ; 
 
 posters or newspaper advertisements, Geary v. Physic, 5 B. & C. 234. 
 cannot be used as a part of the 
 
726 STATUTE OF FEAT7DS. [CHAP. XIII. 
 
 statutory provision exists, both in the sale of real and personal 
 estate, the auctioneer acts as the agent of both parties in the 
 making of the memorandum.^ An auctioneer is the agent 
 of the vendor alone until the bid is knocked off, when he 
 becomes also the agent of the vendee for the purpose of 
 perfecting the sale, and it is upon the ground of this dual 
 capacity that his memorandum of a sale made by him at the 
 time thereof, and before this agency ceases, is binding upon 
 both,^ provided, however, that this rule extends only to third 
 persons, acting as auctioneers, either professionally or by 
 authority, and does not extend to sales made by a party 
 himself, or his agent,^ but it does apply to sales made by 
 sheriffs or other public officers, who by law are empowered 
 to sell property at public sale ; * and according to the pre- 
 ponderance of authority, this power extends to auctioneer's 
 clerks, and a memorandum of a sale made by them will bind 
 the parties.^ 
 
 In Pierce v. Corf,^ the plaintiff sent a mare to bie sold by 
 auction at the defendant's repository ; the defendant adver- 
 tised the mare for sale by auction on the 28th March, 1872, 
 and circulated a printed catalogue of the horses to be sold at 
 
 ' Endicott v. Penny, 22 Miss. 144 ; Jenkens v. Hogg, 2 Tread. (S. C.) 821 ; 
 
 McComb V. Wright, 4 John. Ch. (N. Y.) Christie v. Simpson, 1 Rich. (S. C.) L. 
 
 659; Gill u. Hewitt, 7 Bush. (Ky.) 407; Ennis y. Waller, 3 Blackf. (Ind.) 
 
 10 ; Singstack v. Harding, 4 H. & J. 472 ; Conington v. Anderson, 5 Munf . 
 
 (Md.) 186; Adams v. McMillan, 7 (Va.) 32; Robinson w. Garth, 6 Ala. 
 
 Port. (Ala.) 73; Cleaves u. Foss, 4 204; Hutton v. William, 35 id. 503; 
 
 Me. 258; Smith v. Jones, 7 Leigh. Hart v. Woods, 7 Blackf. (Ind.) 568; 
 
 (Va.) 165; White v. Proctor, 4 Gordon u. Sims, 2 McCord (S. C.) Ch. 
 
 Taunt. 209; Parton v. Crofts, 'l6 C. 151. 
 
 B. (N. S.) 11; Stansfield r. Johnson, 1 » Adams f. McMillan, 7 Port. (Ala.) 
 
 Esp. 101. 73; Frost v. Hill, 3 Wend. (N. Y.) 386; 
 
 2 Episcopal Church v. Wiley, 2 Christie v. Simpson, 1 Rich. (S. C.) L. 
 Hill (S. C.) 584; Burke u. Haley, 7 407; Doty r. Wilder, 15 111. 407; Smith 
 111. 614; Baptist Church v. Bigelow, v. Jones, 7 Leigh. (Va.) 165; Alna v. 
 16 Wend. (Mass.) 28; Smith v. Jones, Plummer, 4 Me. 258; Gill ;;. Bicknell, 
 7 Leigh. (Va.) 165; Bennett v. Car- 2 Cush. (Mass.) 355; Coles .-. Treco- 
 ter, Dudly (S. C.) 142; Anderson v. thick, 9 Ves. 234 ; Henderson w. Barn- 
 Chick, 1 Bail. (S. C.) 118; Meadows wall, 1 Y. & J. 387. But this rule has 
 V. Meadows, 3 McCord (S. C.) 458; been held not to apply to brokers' 
 Champlin v. Parrish, 11 Paige Ch. clerks. Johnson v. Mulry, 4 Rob. 
 (N. Y.) 405. (N. Y.) 401 ; Henderson o. Barnwall, 
 
 8 Adams v. Scales, 1 Baxt. (Tenn.) ante; Boardman u. Spooner, 13 Allen 
 
 387 ; Walker y. Herring, 21 Gratt.(Va.) (Mass.) 353. But see Townsend v. 
 
 678. Drakeford, 1 C. & K. 20. 
 
 4 Brent v. Green, 6 Leigh. (Va.) 16; ^ l. r. 9 q, -q 210. 
 
SEC. 371.J MEMOBAJ^DTJM OE NOTE IN WRITING. 727 
 
 his sale, with conditions of sale annexed, in which the plain- 
 tiff's mare was described as " lot 49." The defendant had a 
 sale ledger which was headed, "Sales by auction, 28th March, 
 1872," in which the plaintiff's mare was also numbered 49 ; 
 but neither the catalogue nor the conditions of sale were 
 annexed to the sales ledger, nor were they referred to therein. 
 On the 28th March, 1872, the lots described in the catalogue 
 were put up by the defendant for sale under the conditions. 
 The plaintiff's mare was put up for sale, and knocked down 
 to M for £33, and thereupon the defendant's clerk wrote in 
 the columns of the sales ledger left blank for this purpose 
 the name of M as purchaser, and the price. M afterwards 
 refused to take the mare. It was held that the catalogue and 
 conditions of sale were not sufficiently connected with the 
 entries in the sales ledger to make a note or memorandum in 
 writing of a contract by M to satisfy the statute. The 
 ground upon which a memorandum made by an auctioneer 
 is made binding is, that he acts as the agent of the parties ; 
 therefore it follows that a memorandum in order to be bmd- 
 ing, must be made at the time of the sale, as when the sale is 
 completed and he has left the premises, his agency, and con- 
 sequently his authority, is gone.^ A memorandum made by 
 
 1 Walker w. Herring, anf€ ; Mussey the statute of frauds. But in the nisi 
 V. Fessenden, ante. In the case of prius case of Stansfield v. Jolinson, 1 
 Simon v. Motives, 3 Burr. 1921, Esp 107, where the case of Simon o. 
 it appeared that an auctioneer had Motivos was cited, Eyre, C. J., was of 
 knocked down a lot to the highest opinion that the authority of that 
 bidder, and put down his name in the case applied only to the sale of goods, 
 usual manner as the purchaser of the The same distinction was recognized 
 goods, and the purchaser came the by the court of Common Pleas, in 
 next day and saw the goods weighed; Walker v. Constable, 1 B. & P. 306, 
 an objection was made that the con- and in the case of Buckmaster v. Har- 
 tract not being in writing, was void by rop, 7 Ves. Jr. 344, was ratified by the 
 the statute of frauds ; but the court adoption of Sir William Grant, M. 
 were clearly of opinion that the auc- R., who observed that whatever is the 
 tioneer must be considered as the authority of the case of Simon v. Mo- 
 agent for the buyer after knocking tivos or Metivier, it has been held not 
 down the hammer, as well as for the to extend to land. It appears from 
 seller, and that his setting down the the cases concerning sales by auction, 
 buyer's name and the price was sufli- that the agent's authority need not be 
 cient to take it out of the statute, in writing, which point was directly 
 They laid also some stress upon the determined in Waller v. Hendon, and 
 buyer's coming the next day and sde- Cox, Vin. Abr. tit. contract and agree- 
 ing the goods weighed ; and they in- ment (H) 45, in which the decree of 
 clined generally to think that buying the Master of the Rolls was affirmed 
 and selling at auctions was not within on appeal by Lord Macclesfield, who 
 
728 
 
 STATUTE OP PEAUDS. 
 
 [chap. XIII. 
 
 the auctioneer must be produced, and it will not be presumed 
 that he made one, as the presumptions in favor of the per- 
 formance of official duties will not stand for proof that there 
 was a written memorandum.^ 
 
 said that, an authority to treat or buy 
 for another may be good without writ- 
 ing, though the contract itself must 
 be in writing. Wedderburne v. Carr, 
 in the Exchequer, T. T. 1775, cited in 
 3 Woddeson's Lect. 427. See Coles v. 
 Trecothiclc, 9 Ves. Jr. 251. 
 
 It should be remembered that the 
 ground of the decision of Simon v. 
 Motivos was the constructive agency 
 of the auctioneer for the buyer after 
 knocking down his hammer. Accord- 
 ing to Payne v. Cave, 3 T. E. U8, the 
 bidder might retract his bidding at 
 any time before the hammer was 
 knocked down, till which time there 
 was the locus penitentiae. So that upon 
 a sale of chattels for the price of £W 
 or upwards, within the 17th section of 
 the statute, if the person making the 
 memorandum of the purchase by the 
 best bidder, is not in a capacity to be 
 considered by law as the agent for 
 both parties, the sale cannot be en- 
 forced for want of a memorandum or 
 note in writing, such as the statute 
 requires. Thus in Symonds v. Ball, 
 8 T. E. 151, where the aftermath of 
 land was sold by auction, by the cor- 
 poration of a borough, and the town 
 clerk, who acted as agent for the sel- 
 lers, wrote down the name of the pur- 
 chaser in the printed catalogue, and 
 the price to be given, for which the 
 purchaser at the same time gave his 
 promissory note ; the court were 
 clearly of opinion, that neither the 
 memorandum so made by the town 
 clerk, nor the note given by the pur- 
 chaser, could be deemed a sale or 
 demise in writing to answer the stat- 
 ute, nor could they be coupled together 
 in construction for that purpose. If 
 the inclination of the bench in the 
 above cited case of Simon v, Motivos 
 were to prevail, it would reduce all 
 these cases to a level by taking them 
 all out of the operation of the statute. 
 But that case was decided in favor of 
 
 the seller, not upon the broad ground 
 of treating it as out of the purview 
 of the statute of frauds, but on the 
 inference of agency in the auctioneer 
 on the part of the buyer as well as 
 the seller, and the validity of his 
 entry of the buyer's name, as a mem- 
 orandum and signature to satisfy the 
 requisition of the statute in question. 
 The case in the text of Symonds v. 
 Ball, it is plain, did not adopt the hint 
 afforded by the judges in Simon v. 
 Motivos, of emancipating the case of 
 auctions altogether out of the statute ; 
 for the want of a signing by the defen- 
 dant himself, or by an agent properly 
 authorized by him, was the reason of 
 the judgment of the court in his favor. 
 These cases, with a distinction be- 
 tween sales of land and goods, sup- 
 pose the efficacy of the signature of 
 one of the parties, without that of the 
 other to bind the person signing ; a 
 doctrine recognized expressly in chan- 
 cery in the case of Seton v. Slade, 7 
 Ves. Jr. 265. But are we to hold, 
 that the buyer is bound by such entry 
 of his name by the auctioneer, with- 
 out also understanding that the seller 
 is become bound at such stage of the 
 transaction to the buyer ■? Or are we 
 warranted in concluding that the name 
 of the seller is sufficiently signed by 
 being printed on the particular of sale? 
 The knot in which these and some 
 other difficulties have entangled this 
 question, may be cut by adopting the 
 opinion of the judges in Simon v. 
 Motivos, and understanding it as ex- 
 tending to sales of land as well as of 
 goods ; it is not likely to be unloosed 
 by the multiplication of artificial dis- 
 tinctions. A line of some breadth 
 should be taken in deciding questions 
 upon a law framed for the prevention 
 of fraud and perjury, and for promot- 
 ing honor and certainty in the trans- 
 actions of property. 
 
 1 Baltzer v. Nicolay, 53 N. Y. 467. 
 
SEO. 373.] MEMOEANDUM OE NOTE IN WRITING. 729 
 
 Sec. 372. Sheriffs, Constable's, etc.. Returns of Sale on Execu- 
 tion. — The return of a sheriff or other officer authorized by 
 law to sell property upon mesne or final process, properly made 
 and containing the material elements of the sale, is a suffi- 
 cient note or memorandum thereof to bind the parties under 
 the statute,^ because in such cases the officer's return becomes 
 a matter of record, and is conclusive upon all the parties 
 thereto.^ The certificate required by statute is the proper 
 evidence of a sale of land upon execution, etc., and no other 
 note or memorandum of such sale is required.^ 
 
 Sec. 373. Recognition of Contract. — TVhere a contract in 
 writing, or note, or memorandum exists, which binds one party, 
 any subsequent note in writing signed by the other party is 
 sufficient to bind him, provided it either contains in itself the 
 terms of the contract, or refers to any writing which contains 
 them.* Thus, where the purchaser of lands by auction signed 
 a memorandum of the contract, indorsed on the particulars 
 and conditions of sale, and referring to them, and afterwards 
 wrote to the vendor complaining of a defect in the title, re- 
 ferring to the contract expressly, and renouncing it, and the 
 vendor wrote and signed several letters, mentioning the 
 property sold, the names of the parties, and some of the con- 
 . ditions of sale, insisting on one of them as curing the defect, 
 and demanding the execution of the contract ; it was held 
 that these letters might be connected with the particulars 
 and conditions of sale so as to constitute a memorandum in 
 
 1 Robinson o. Garth, 6 Ala. 204 ; Eq. 151. And also as to an admin- 
 Stewart V. Garvin, 31 Mo. 36 ; Nichol istrator's sale made at auction under 
 V. Redley, 5 Yerg. (Tenn.) 63 ; Hand leave of the ordinary. Wolfe v. 
 V. Grant, 13 Miss. 508; Hanson v. Sharpe, 10 Rich. (S. C.) L. 60. But 
 Barnes, 3 G. & J. (Md.) 359; Seecrist not if the administrator acted as auc- 
 V. Twitty, 1 McMull (S. C.) 255; tioneer. Smith v. Arnold, 5 Mas. 
 Barney v. Patterson, 6 id. 182; Fen- (U. S.) 414. But a memorandum of 
 wick ». Eloyd, 1 H. & G. (Md.) 182; a sale by a commissioner appointed 
 Elf V. Gadsden, 2 Rich. (S. C.) L. 373. hy the court for that purpose is 
 And it has also been held that an binding upon the parties. Jenkens 
 entry by a master in chancery of a u. Hogg, 2 Treadw. (S. C.) Const. 821. 
 sale of land at auction by him under ^ Bott v. Burnell, 11 Mass. 163. 
 a decree is sufficient evidence of the ' Armstrong v. Vroman, 11 Minn, 
 sale, under the statute of frauds, 220. 
 
 whether made in his regular books * Drury v. Young, 58 Md. 546 ; 42 
 
 or on a separate piece of paper. Am. Rep. 343. 
 Gordon o. Sims, 3 McCord (S. C.) 
 
730 STATUTE OF FEAT7DS. [CHAP. XIII. 
 
 writing binding the vendor under the statute, though neither 
 the original conditions and particulars, nor the memorandum 
 signed by the purchaser, mentioned or were signed by the 
 vendor.^ 
 
 Sec. 374. Must be Concluded Agreement. — Although a con- 
 tract may he deduced from letters, or from various documents 
 containing the terms, there must he a clear accession on hoth 
 sides to one and the same set of terms,^ for if it appears that 
 the parties have never got beyond mere negotiation, no relief 
 can be obtained.^ "The court," said Loud Eldon, "is not to 
 decree specific performance unless it can collect, upon a fair 
 interpretation of the letters, that they import a concluded 
 agreement; if it rests reasonably doubtful whether what 
 passed was only treaty, let the progress towards the confines 
 of agreement be more or less, the court ought rather to leave 
 the parties to law than specifically to perform what is doubt- 
 ful as a contract. But it is also clear that the court is to put 
 the same interpretation upon correspondence, with reference 
 to this subject, as other persons would, reading the corre- 
 spondence fairly, with a view to collect ,the sense of it.* 
 
 Where the agent for the purchaser wrote to the agent of 
 the vendor, offering a price for a house, and the vendor wrote 
 across the letter " I agree to sell my house upon these terms," 
 and thereupon his agent wrote to the purchaser's agent, " My 
 employer will take your offer," and added, " Make an appoint- 
 ment to meet and draw the agreements," it was held that 
 there was a sufficient contract.^ When an offer in writing is 
 made to sell on specified terms, and this is unconditionally 
 accepted or acted upon by the party to whom it is made 
 without express acceptance, there is a binding contract, which 
 
 1 Dobell V. Hutchinson, 3 Ad. & El. » See Felthouse o. Bindley, 11 C. 
 355; and see Powell r. Dillon, 2 Ball B. (N. S.) 869; Jordan ^. Norton, 4 
 & B. 416 ; Clinan v. Cooke, 1 Sch. & M. & W. 155 ; Hutchinson v. Bowker, 
 Lef . 33 ; Blagden v. Bradbear, 12 Ves. 6 M. & W. 535 ; Kennedy v. Lee, 3 
 466; Allen v. Bennett, 3 Taunt. 169; Mer. 451; Foster v. Rowland, 7 H. & 
 Verlander v. Codd, T. & R. 352 ; Lay- M. 103. 
 
 thoarp V. Bryant, 2 Bing. (N. C.) 735 ; * Huddlestone v. Briscoe, 11 Ves. 
 
 3 Sc. 238 ; Hammerley v. De Biel, 12 591 ; and see Stratford v. Bosworth, 2 
 
 C. & F. 45 ; Ridgway v. Wharton, 3 V. & B. 341 ; Ogilvie v. Foljamhe, 3 
 
 D. M. G. 696, per Lord Cranwokth. Mer. 53 ; Cheveley v. Fuller, 13 C. B. 
 
 2 Thomas v. Blackman, 1 Coll. 312, 122 ; Archer v. Baynes, 5 Exeh. 625. 
 per Knight BRnoE, "V. C. ^ Cowley v. Watts, 17 Jur. 172. 
 
SEC. 375.] MEMORANDUM OR NOTE IN WRITING. 731 
 
 neither party can vary ; i but if the terms are not settled, 
 and anything remains to be done, the contract will not be 
 binding.2 " If," said Lord "Westbtjry, " there has been a 
 final agreement, and the terms of it are evidenced in a man- 
 ner to satisf}' the statute of frauds, the agreement shall be 
 binding, though the parties may have declared that the writ- 
 ing is to serve only as instructions for a formal agreement, or 
 though it may be an express term that a formal agreement 
 shall be prepared and signed by the parties. As soon as the 
 fact is established of the final mutual assent of the parties to 
 certain terms, and those terms are evidenced by any writing 
 signed by the party to be charged, or his agent lawfully 
 authorized, there exist all the materials which this court 
 requires to make a legally binding contract." ^ 
 
 Where, after negotiations for the purchase of certain 
 tithes, in which the terms were discussed, but not finally 
 settled, the vendor wrote to his solicitor a letter which con- 
 tained the following passage : " Previously to paying the 
 amount (then followed an illegible word) for tithes, glebe, 
 etc., it would be advisable to have some information as to 
 title," it was held that the letter did not amount to a note or 
 memorandum in writing of a contract for the sale of lands 
 within the statute.* 
 
 Sec. 375. Additional Terms. — In order to constitute an 
 agreement, the answer to the written proposal must he a simple 
 acceptance of the terms proposed without the introduction of a 
 new and different term.^ Thus, an offer to grant an under- 
 
 1 Bird V. Blosse, 2 Vent. 361 ; Bac. between the letters and entries, as if 
 Abr. tit. Agreements (c) 3 ; Honey- they describe the quality and quantity 
 man v. Marryat, 21 Beav. 14 ; 1 Jur. of the thing sold differently, or vary 
 (N S.) 857; 6H. L. C. 112; Liverpool in the statement of the terms of the 
 Borough Bank v. Eccles, 4 H. & N. contract, and do not recognize the 
 139. same contract and refer to tlie same 
 
 2 Wood V. Midgeley, 5 D. M. G. transaction, they will, of course, fail 
 41 ; Rummens v. Robins, 3 De G. J. in establishing the bargain. Thus in 
 & S. 88. an action for the price of goods sold, 
 
 8 Chinnock v. The Marchioness of the plaintiff offered in evidence an 
 
 Ely, 4 De G. J, & S. 647. entry in a book of an order for flour, 
 
 * Savile v. Kinnaird, 11 Jur. (N. which had been read over to the de- 
 
 S.) 195. fendant, the alleged purchaser, at the 
 
 s Routledge v. Grant, 4 Bing. 653 ; time of the booking thereof, and 
 
 Hyde v. Wrench, 3 Beav. 334 ; Thorn- which purported to be a mere general 
 
 bury V. Bevill, 1 Y. & C. C. C. 654. order for forty sacks of flour called 
 
 If there is any material discrepancy thirds, at 58 s. per sack, and this order 
 
732 STATUTE OP FRAUDS. [CHAP. XIII. 
 
 lease in reply to a proposal to take an assignment is not 
 sufficient.! So, where an offer by letter to supply goods is 
 accepted, but the answer adds a further stipulation to the 
 effect that goods already supplied shall be paid for at the 
 rate contained in the offer, that is a new term in the agree- 
 ment, and must be shown to be accepted.^ 
 
 Sec. 376. immaterial Addition to Acceptance. — A.n immOr 
 terial addition to an acceptance of an offer will not vitiate a 
 contract? Where a proposal by a purchaser to take the 
 remainder of a lease was answered by a letter which, after 
 acceding to the proposal, added, " We hope to give you pos- 
 session at half quarter-day," it was held that the addition did 
 not introduce a new term, but that the acceptance was un- 
 conditional.* 
 
 Sec. 377. Conditional Acceptance. — If there is a simple 
 acceptance of an offer to purchase, accompanied by a state- 
 ment that the acceptor desires that the arrangement should 
 be put into more formal terms, the mere reference to such a 
 proposal will not prevent the court form enforcing the final 
 agreement arrived at. But if the agreement is made subject 
 to certain conditions then specified, or to be specified by the 
 party making it or by his solicitor, then, until those condi- 
 tions are accepted, there is no final agreement such as the 
 court will enforce.^ Thus, where the vendors of land, in a 
 
 being insufficient as a memorandum that he must take it altogether, and 
 for want of signature, the plaintiff then it was no recognition, but a re- 
 endeavored to satisfy the statute by pudiation of the contract sought to 
 connecting it with a. letter signed by be established by the entry. Cooper 
 the defendant, addressed to him, stat- v. Smith, 15 East, 103 ; Eichards v. 
 ing, " Your not sending the flour I Porter, 6 B. & C. 437 ; Archer u. 
 agreed with you -for, according to Baynes, 5 Exchq. 625; Smith i;. Sur- 
 time, I am now provided for. I ex- man, 9 B. & C. 561. 
 pected yours in the course of a week. i Holland v. Eyre, 2 S. & S. 194. 
 If I buy of any man I expect it ac- 2 Hey ward v. Barnes, 23 L. T. 68 ; 
 cording to time, or the bargain is and see Smith v. Surman, 9 B. & C. 
 void " ; but it was held, that the entry 561 ; 4 Mann. & R. 455. 
 and the letter referred to different s Gibbins v. North East Metropoli- 
 contracts, the one was evidence of an tan Asylum District, 11 Beav. 1. 
 absolute and unconditional contract 4 Clive v. Beaumont, 1 De G. & S. 
 of sale, and the other of a qualified 397. 
 
 and conditional bargain, and that the 6 Crossly v. Maycock, L. R. 18 Eq. 
 plaintiff could not avail himself of 180, per Jessel, M. R. If a memo- 
 the letter for one purpose, to bind the randum is only to become opera- 
 defendant within the statute, and re- tive upon a condition, it is not suffl- 
 nounce it for another purpose ; but cient. Thus, after the defendant had 
 
SEC. 378.] MEMOKANDUM OR NOTE IN WRITING. 733 
 
 letter acknowledging tlie receipt of an offer by intending 
 purcliasers, wrote as follows : " Which offer we accept, and 
 now hand joii two copies of conditions of sale," and there- 
 . with enclosed a formal agreement, with conditions of a special 
 character, it was held that the acceptance was only condi- 
 tional, and that there was no final agreement of which specific 
 performance could be enforced as against the purchasers.^ In 
 Lucas V. James,^ on a treaty for an under-lease, a memorandum 
 of the terms of the intended agreement was prepared, stipulat- 
 ing that the lease should contain all usual covenants, and also 
 the covenants in the leases of the ground landlord ; and the 
 proposed lessee signed the memorandum accompanying his 
 signature, with the qualification that he agreed thereto, sub- 
 ject to there being nothing unusual in the leases of the ground 
 landlord. A draft of the proposed lease was afterwards sub- 
 mitted by the lessor's solicitors to the proposed lessee, who 
 made some alterations and returned the draft with a request 
 that the lessor would at once grant the lease so altered, or 
 refuse it. The lessor's solicitors sent the draft back the same 
 day, assenting to all the alterations except one, whereby the 
 proposed lessee had expunged a clause in the draft restrain- 
 ing any assignment or demise by him without the consent of 
 the lessor. It was held that, upon the return of the draft 
 lease, not acceding to all the alterations, and in the absence 
 of any proof that the lessor was previously bound by the 
 terms as to unusual covenants, introduced by the proposed 
 lessee on his signing the memorandum, the contract was 
 incomplete, and the proposed lessee was at liberty to deter- 
 mine the treaty.* 
 
 Sec. 378. Parol Acceptance of 'Written Offer. — A proposal 
 in writing, containing the terms of the proposed contract, signed 
 
 agreed verbally with the plaintiff's the part of the defendant, and there- 
 agent to transfer shares in a manu- fore parol evidence of his contract 
 facturing corporation to the plaintiff, was not objectionable on that ground, 
 and had written a letter to an agent Tisdale v. Harris, 20 Pick. (Mass.) 9. 
 to transfer the shares into the plain- ^ Crossley v. Maycock, L. R. 18 
 tiff's name, and transmit the certifi- Eq, 180 ; see also Stanley v. Dowdes- 
 cate to the defendant, the plamtiff's well, L. R. 10 C. P. 102. 
 agent signed a memorandum, agree- ^ 7 Hare, 410. 
 ing to pay the defendant the price of ^ And see Warner u. Willington, 
 the shares when the defendant should 3 Drew, 523 ; Ridgway v. Wharton, 6 
 furnish the certificate. Held, that H. L. C. 264; Smith u. Neale, 2 C. B. 
 there was not a contract in writing on (N. S.) 67. 
 
734 STATUTE OF PKAUDS. [CHAP. XIII. 
 
 by the party to he charged, and accepted hy parol, by the party 
 to whom it is made, is a sufficient memorandum or note in 
 writing, to satisfy the statute.^ But a parol proposal, however 
 full and explicit, is not taken out of the statute hy any accept- 
 ance in writing? In Warner v. Willington,^ Kindeeslby, 
 V. C, said : " I think upon principle, that parol acceptance 
 is sufficient ; because when one party has signed - a written 
 proposal, and the other expressly accepts it by parol, as if he 
 says in express terms, ' I accept the proposal,' it appears that 
 that reduces it to a case of parol agreement come to between 
 the parties, and a memorandum of the agreement signed by 
 one, in which case it is clear that the signature of one party 
 is sufficient to bind him, although the other has not signed."-* 
 In a Massachusetts case ^ a memorandum as follows : " Will 
 deliver S. R. & Co. best refined iron, 50 tons within 90 days 
 at 5 cents per pound, 4 per cent cash. Plates to be 10 to 16 
 inches wide and 9 feet to 11 long. This offer good tiU 
 2 o'clock, Sept. 11, 1862. J. H. F., J. B. R," was held suffix 
 cient to bind J. H. F., he having signed the same in behalf 
 of a firm of which he was a member, and the plaintiff having 
 orally accepted the same within the time specified. 
 
 1 Ashcroft V. Morrin, 4 M. & Gr. writing expressed to be made between 
 
 451 ; Reuss v. Picksley, L. R. 1 Exch. the plaintiffs and tlie defendants, in 
 
 342 ; Watts v. Ainsworth, 3 F. & F. consideration of the agreement there- 
 
 12; 1 H. & C. 83; Smith v. Neale, 2 inafter contained on behalf of the 
 
 C. B. {N. S.) 67; Horsfall i'. Gamett, plaintiffs, agreed that they would pay 
 
 6 W. R. 387 ; Peek v. North Stafford- all moneys which then were or at any 
 
 shire Railway Co., 29 L. J. Q. B. 97. time should be due from J. E. & Co. 
 
 ' Washington Ice Co. v. Webster, to the plaintiffs, not exceeding ^£35,000 
 62 Me. 341. A written offer by the by instalments of .£3,000 a year for 
 plaintiff, orally accepted by the de- five years, and two subsequent annual 
 f endant, cannot be enforced under the instalments of £10,000 ; and in con- 
 statute of frauds. Smith v. Gowdy, 8 sideration of the above the plaintiffs 
 Allen (Mass.) 566. But a written agreed that they would not charge 
 offer by the defendant, orally accepted more than five per cent interest to J. 
 by the plaintiff, is a sufficient memo- E. & Co.; and when all debts of J. E. 
 randum within the statute. Lerned v. &, Co., except £15,000, should have 
 Wannemacher, 9 Allen (Mass.) 412; been paid, would grant them a full 
 Sanborn v. Flagler, 9 id. 474. release. This agreement was signed 
 
 8 3 Drew, 532. by the defendants and handed by 
 
 * And see Benecke v. Chadwick, 4 them to the plaintiffs who had pressed 
 
 W. R. 687 ; Forster v. Rowland, 7 for it. The plaintiffs had acted upon 
 
 H. & N. 103; 30 L. J. Ex. 396. but never executed it. It was held 
 
 In Liverpool Borough Bank v. Ec- binding upon the defendants, 
 cles, 4 H. & N. 139, J. E. & Co. ^ Sanborn u. Flagler, 9 Allen 
 
 being indebted to the plaintiffs, who (Mass.) 474. 
 were bankers, the defendants by a 
 
SEC. 383.] MEMOEANDtTM OR NOTE IN WRITING. 735 
 
 Sec. 379. Special Acceptance. — Where a letter contains 
 the entire terms of an agreement, it is not necessary for the 
 plaintiff to prove that he accepted the terms. If it require 
 the plaintiff to supply a term in the agreement, there must 
 be a special acceptance in writing supplying that term, in 
 order to take a case out of the statute.^ 
 
 Sec. 380. Withdrawal of Offer. — When an offer in writing 
 is made by a vendor to sell on specified terms, and this is 
 unconditionally accepted, there is binding contract, which 
 neither party can vary ; but the vendor is entitled, at any 
 time before his offer has been definitely accepted, to with- 
 draw or add any new terms to his proposal. If these be 
 refused the treaty is at an end,^ and this, although a time is 
 fixed for acceptance.^ 
 
 Sec. 381. Determination of Offer. — If the person making 
 an offer dies, becomes bankrupt, or sells before acceptance, 
 the contract is at an end.* 
 
 Sec. 382. Rejection of Offer. — Where an agreement has 
 been commenced by letter, but in the course of the treaty 
 an offer made in writing has been verbally rejected, the party 
 who has made the offer is relieved from his liability unless he 
 consents to renew the treaty.^ And the party who has re- 
 jected an offer cannot afterwards, at his own option, convert 
 the same offer into an- agreement by acceptance without a 
 renewed offer from the other party .^ 
 
 Sec. 383. Acceptance must be in Reasonable Time. — In 
 order that an offer to sell may be binding upon the person 
 making it, it must be accepted within a reasonable time, and if 
 a person communicates his acceptance of an offer within a 
 reasonable time after the offer is made, and if within a rea- 
 sonable time of the acceptance being communicated no varia- 
 
 1 Boys V. Ayerst, 6 Madd. 316 ; and « Meynell v. Surtees, 25 L. J. Ch. 
 see Taylor v. Portington, 7 D. M. G. 257; 1 Jur. (N. S.) 737. 
 
 328. 5 Sheffield Canal Co. v. Sheffield & 
 
 2 Honeyman v. Marryat, 21 Beav. Rotherham Railway Co., 3 Rail. Cas. 
 14; 1 Jur. (N. S.) 857; 6 H. L.C.112; 121; Honeyman v. Marryatt, 21 Beav. 
 Chinnock v. Marchioness of Ely, 4 14; 6 H. L. C. 14. 
 
 De G. J. & S. 647 ; 6 N. R. 1. 6 Sheffield Canal Co. v. Sheffield & 
 
 2 Martin v. Mitchell, 2 Jac. & W. Rotherham Railway Co., 3 Rail. Cas. 
 
 428 ; Routledge v. Grant, 4 Bing. 653 ; 121. 
 Lucas V. James, 7 Hare, 410. 
 
736 STATUTE OP FRAUDS. [CHAP. XIII. 
 
 tioii has been made by either party in the terms of the offer 
 so made and accepted, the acceptance will be taken as simul- 
 taneous with the offer, and both together constituting such 
 an agreement as the court will execute.^ 
 
 Sec. 384. Parol Evidence not Admissible to Add to or Vary 
 Memorandum. — Not Only is it contrary to the statute of 
 frauds, but to the common law before the statute to add 
 anything to an agreement in writing by parol,^ for the court 
 cannot draw distinctions between stipulations that are mate- 
 rial and those that are not.^ So parol evidence cannot be 
 adduced by the plaintiff to show that certain stipulations or 
 terms were to come between the parties at the time of making 
 the contract or afterwards, and that they have been omitted 
 from the writing.* Thus, where the written agreement on a 
 contract of hiring and service provided that the servant's 
 salary should be paid yearly, it was held that, there being 
 this precise stipulation for yearly payments, parol evidence 
 was not admissible to show that at or after the time the 
 contract was entered into in writing it was verbally agreed 
 between the parties that the salary should be paid quarterly, 
 and that the fact of the payments having been made quarterly 
 did not vary the rights of the parties under the agreement.^ 
 So, in an action for a breach of warranty on the sale of goods 
 upon a written contract, parol evidence is not admissible to 
 show that the seller's agent at the time of the sale repre- 
 sented the goods to be of a particular quality. " The rule 
 is," said Maulb, J., "that where a contract, though com- 
 pletely entered into by parol, is afterwards reduced into 
 writing, we must look at that and at that alone, even though 
 part of the terms previously agreed upon are not inserted in 
 the written contract. But, while parol evidence is not admis- 
 sible to add to or vary the terms of the memorandum, it is 
 held to be admissible to show that the memorandum is not a 
 
 1 Kennedy v. Lee, 3 Mer. 455, per * Marshall o. Lynn, 6 M. & W. 
 Lord Eldon ; Thornbury v. Eeyill, 1 116 ; Emmett v. Dewhirst, 21 L. J. 
 Y. & C. C. C. 654; Williams v. Wil- Ch. 497. 
 
 liams, 17 Beav. 213 ; Powers v. Fowler, * See, as to admissibility of evi- 
 
 4 E. & B. 519, n. ; Meynell v. Surtees, deuce on behalf of a defendant resist- 
 
 25 L. J. Ch. 257; 1 Jur. (N. S.) 737. ing specific performance, post, chap- 
 
 2 Parteriche v. Powlet, 2 Atk. 383 ; ter on Specific Performance. 
 Omerod v. Hardman, 5 Ves. 722 ; 5 Giraud v. Richmond, 2 C. B. 835. 
 "WooUam v. Kearn, 7 Ves. 211. 
 
SEC. 385.] MEMOEANDTJM OR NOTE IN WRITING. 737 
 
 record of any antecedent parol bargain because, as was said 
 by Lord Selbourne,^ the statute of frauds is a weapon of 
 defence, not offence, and does not make any signed instru- 
 ment a valid contract by reason of the signature if it is not 
 according to the good faith and real intention of the parties. 
 So parol evidence is admissible to show that the memorandum 
 is not a note of the whole bargain, as that a price was agreed 
 upon which is not stated therein, and therefore that the note 
 is invalid.^ So that the goods were sold by sample,* or as 
 being in a certain condition,* or subject to the purchaser's 
 approval.^ But this evidence is not admissible to add new 
 terms or conditions to the memorandum, but only to show 
 that it is not a complete and valid memorandum, because it 
 does not embrace the terms of the contract.^ Omissions in a 
 memorandum cannot be supplied by parol,^ and if it is defec- 
 tive in any essential particular, it is inoperative as a memo- 
 randum.^ It is by the written contract alone, subject of 
 course to be interpreted by the usages of trade, as in Syers v. 
 Jonas,' that the parties are bound, and more especially is 
 that so in a case where as here the contract is one which by 
 the statute of frauds is required to be in writing. The inten- 
 tion of the legislature was that the writing should be the 
 evidence and the only evidence of the contract, and that 
 tliere should be no occasion to look beyond it." ^^ Nor is 
 parol evidence admissible to show the name of the person to 
 whom a guaranty is given.^^ 
 
 Sec. 385. 'When Parol Evidence Admissible to Prove Stipu- 
 lations of Contract. — But although where there is a concluded 
 
 1 In Jervis v. Berridge, 10 Ch. 360. mon Falls Mf g Co. v. Goddard, 14 
 
 2 Acebal v. Levy, 10 Bing. 376; How. (U.S.) 446; Williams v. Kobin- 
 Elmore v. Kingscote, 6 B. & C. 583; son, 73 Me. 186. 
 
 Goodman v. GriflBths, 1 H. & M. 574. ^ Lee v. Hills, ante ; Boardman v. 
 
 8 McMuUen v. Helberg, 6 L. R. Spooner, ante; May v. Ward, 134 
 
 Jr. 463; Boardman v. Spooner, 18 Mass. 127. 
 
 Allen (Mass.) 358. 9 2 Ex. 111. 
 
 4 Pitts V. Beckett, 13 M. & W. 743. m Harnor v. Groves, 15 C. B. 667 ; 
 
 ^ Boardman v. Spooner, ante; 24 L. J. C. P. 53; and see Boydell v. 
 
 Davis V. Shield, 26 Wend. (N.Y.) 341. Drummond, 11 East, 142; Pitzmau- 
 
 8 McMuUen v. Helberg, ante ; rice v. Bayley, 9 H. L. C. 78 ; Holmes 
 
 Remick v. Sandford, 118 Mass. 102; i,. Mitchell, 7 C. B. (N. S.) 861; 28 L. 
 
 Pitts V. Beckett, ante. J. C. P. 301. 
 
 ' Lee V. Hills, 66 Ind. 474; Jen- " Williams v. Lake, 2 E. & E. 349; 
 
 ness V. Mt. Hope Iron Co., 53 Me. 20 ; 29 L. J. Q. B. 1. 
 Dana v. Hancock, 30 Vt. 616; Sal- 
 
738 STATUTE OF FRAUDS. [CHAP. XIII. 
 
 contract between the parties parol evidence is not admissible 
 to add to or vary the terms, if there has been no actual mem- 
 orandum, but writings are simply offered as evidence of the 
 terms, parol evidence is admissible to show an additional 
 stipulation. Thus in Ford v. Yates ^ the contract was as 
 follows : " Of E. Y. 39 pocket Sussex hops, Springett's five 
 pocket, Kenward's 78 J. Springett's to wait orders," it was 
 held in an action for non-delivery of the hops that the con- 
 tract imported a sale for ready money, and that parol evi- 
 dence was not admissible to show that by the usual course of 
 dealing between the parties, the hops were sold on a credit 
 of six months. And when the memorandum is silent as to 
 the time of payment or delivery, parol evidence is not admis- 
 sible to show that a particular time was agreed upon.^ The 
 memorandum must contain within itself, or by reference to 
 other written evidence, all the essential elements of the con- 
 tract, and neither party will be permitted to show that a 
 different contract was in fact made.^ But where the writing 
 is not sufficient as a memorandum under the statute, and the 
 case has been taken out of the statute by a delivery and 
 acceptance of the goods, parol evidence is admissible to 
 supply terms not provided for in the writing. Thus, in 
 Lockett V. Nocklin,* on the other hand, the defendant ordered 
 goods by letter which did not mention any time for payment, 
 
 1 2 Man. & Gr. 549. ish Oil Co., 8 Ir. Eep. C. L. 17, an 
 
 2 Williams v. Robinson, 73 Me. action was brought for the non-de- 
 186 ; 40 Am. Rep. 352. And if some livery of oil sold by the defendant to 
 of the conditions of the contract are the plaintiff. The contract was for 
 omitted from the memorandum, they 100 barrels to be delivered as wanted, 
 cannot be supplied by parol proof or The plaintiff proved a parol bargain, 
 relied upon by the defendant : Rem- and, in order to take the contract out 
 ick V. Sandford, 118 Mass. 102 ; Small of the statute, gave in evidence a 
 V. Quincy, 4 Me. 497 ; Cabot v. Win- memorandum of the alleged contract 
 sor, 1 Allen (Mass.) 546; Coddington signed by the defendant's agent. The 
 V. Goddard, 16 Gray (Mass.) 4.36; memorandum was silent as to price, 
 Hawkins v. Chace, 19 Pick. (Mass.) which had been agreed on. Some 
 502 ; Warren v. Wheeler, 8 Met. ten casks of oil were delivered to the 
 (Mass.) 97; Ryan v. Hall, 13 id. 523. plaintiff after the contract was made, 
 
 8 Riley v. Farnsworth, 116 Mass. and were accepted and paid for, and 
 
 223 ; Washington. Ice Co. v. Webster, it was held that, though the memoran- 
 
 62 Me. 341 ; 16 Am. Rep. 362 ; O'Don- dum was defective, parol evidence 
 
 nell V. Lehman, 43 id. 158; Horton was admissible as to the price, be- 
 
 V. McCarty, 53 id. 394 ; Jenness v. Mt. cause the statute had been satisfied 
 
 Hope Iron Co., 53 id. 20. by the part performance. 
 
 4 2 Ex. 93. In Jeffcot o. N. Brit- 
 
SEC. 386.] MEMOEANDTJM OR NOTE IN WRITING. 
 
 739 
 
 the plaintiff sent the goods and an invoice. It was held that 
 parol evidence was admissible to show that the goods were 
 supplied on credit, the letter not amounting to a valid con- 
 tract within the statute of frauds. Parol evidence is admis- 
 sible to show the situation of the parties at the time the 
 writing was made, and the circumstances attending the 1;rans- 
 action,! and to show the meaning which certain words have 
 acquired by usage,^ and also to show the time when the bar- 
 gain was made.* 
 
 Sec. 386. Parol Evidence not Admissible to Connect Sepa- 
 rate Bocuments. — Parol evidence is not admissible to connect 
 separate documents, but they must either be actually attached to each 
 other or they m,ust distinctly refer to each other.* In Baumann v. 
 
 1 Sweet !•. Lee, 3 M. & G. 466. 
 
 2 Bold V. Raynor, 1 M. & "W. 343; 
 Sievewright, 17 Q. B. 124; Stewart v. 
 Eddowes, L. E. 9 C. P. 311 ; Salmon 
 Fall Mf'g Co. V. Goddard, 14 How. 
 (U. S.) 455 ; Spioer v. Cooper, 1 Q. B. 
 424. 
 
 3 Lobb V. Stanley, 5 Q. B. 574; 
 Edmunds <,. Downs, 2 C. & M. 459; 
 Hartley v. Wharton, 11 Ad. & EI. 
 934. 
 
 * Tallman v. FrankHn, 14 N. Y. 
 584; Kaitling v. Parkin, 23 N. C. C. P. 
 569 ; Lemed v. Wannemacher, 9 Allen 
 (Mass.) 417 ; Ridgway v. Ingram, 50 
 Ind. 145 ; Williams v. Bacon, 2 Gray 
 (Mass.) 391 ; Smith v. Arnold, 5 Mass. 
 (U. S.) 416; Johnson u. Buck, 35 N. 
 J. L. 344; Freeport v. Bartol, 3 Me. 
 340; Knox v. King, 36 Ala. 367; 
 Fowler v. Radicon, 52 111. 405 ; Moale 
 V. Buchanan, 11 G. & J. (Md.) 314; 
 Kurtz V. Cummings, 24 Penn. St. 35; 
 Morton r. Dean, 13 Met. (Mass.) 385; 
 Adams v. McMillan, 7 Port. (Ala.) 
 73; Rishton v. Whatmore, 8 Ch. D. 
 467 ; Care v. Hastings, 7 Q. B. D. 125 ; 
 Long V. Millar, 4 C. P. D. 450 ; Price 
 V. Griffith, 1 De G. M. & G. 80; 
 Hinde o. Whitehouse, 7 East, 558; 
 Cooper V. Smith, 15 East, 103; Ken- 
 worthy V. Schofield, 2 B. & C. 945; 
 Richards v. Porter, 6 B. & C. 437; 
 Sari V. Bourdillon, 1 C. B. (N. S.) 
 188; Chapman v. Callis, 9 C. B. 
 (N. S.) 769; 30 L. J. C. P. 241 ; Peek 
 
 V. North Staffordshire Railway Co., 10 
 H. L. C. 473; 32 L. J. Q. B. 241; 
 Pierce v. Corf, L. R. 9 Q. B. 210. 
 Hinde i\ Whitehouse, 7 East, 558, was 
 the case of a sale by auction. The 
 auctioneer had a catalogue, headed, 
 " To be sold by auction, for particu- 
 lars apply to Thomas Hinde," and 
 wrote down opposite to the several 
 lots on the catalogue the name of the 
 purchaser. The auctioneer also had 
 a separate paper containing the terms 
 and conditions of the sale, which lie 
 read and placed on his desk. The 
 catalogue contained no reference to 
 the conditions. Held, that the signa- 
 ture to the catalogue was not suffi- 
 cient to satisfy the statute, on the 
 ground that it did not contain the 
 terms of the bargain, nor refer to the 
 other writing containing those terms. 
 Pierce v. Corf, L. R. 9 Q. B. 210. 
 A few years later the same question 
 came before the same court in Ken- 
 worthy c: Schofield, 2 B. & C. 945, 
 and was decided in the same way. 
 HoLKOYD, J., there said ; " It appears 
 to me that >jou cannot call that a mem- 
 orandum of a bargain which does not 
 contain the terms of it. The argument 
 for the plaintiff is, that the conditions 
 being in the room were virtually at- 
 tached to the catalogue ; but I think, 
 as then '"^''^ w' actually attached or 
 clearly referred to, they formed no part 
 of the thing signed. In the case put of 
 
740 
 
 STATUTE OF FRAUDS. 
 
 [chap. xiri. 
 
 James ^ the Lords Justices held that parol evidence was 
 admissible to connect separate documents. In that case a 
 
 1 L. R. 3 Ch. 508. 
 
 the separation of the conditions from 
 the catalogue, during the progress of 
 the sale, I should say that the signa- 
 tures to the latter made after the sep- 
 aration were unavailing. It occurred 
 to me at first that this might be lik- 
 ened to a will, consisting of several 
 detached sheets, when a signature of 
 the last, the whole being on the table 
 at the time would be considered a 
 signing of the whole, but there the 
 sheet signed is a part of the whole. 
 Here the catalogue was altogether 
 independent of the conditions." 
 
 This is still the rule, and neces- 
 sarily must be so long as the statute 
 requires written evidence of the con- 
 tract. To permit different papers to 
 be connected by parol evidence, they 
 containing no internal evidence of 
 any connection with each other, would 
 result in permitting a contract to be 
 made out by parol evidence, which is 
 the very miscnief the statute intended 
 to avoid. In Saunderson v. Jackson, 
 2 B. a B. 238, a, bill of parcels was 
 delivered at the time of the bargain, 
 which was in itself a sufficient memo- 
 randum, but there was some doubt 
 whether it was seized by the defend- 
 ant. The court thought the defect 
 was supplied by a letter signed by 
 the defendant and addressed to the 
 plaintiff as follows : " Sir, we wish to 
 know what time we shall send you a 
 part of your order, and shall be 
 obliged for a little time in delivery of 
 the remainder ; must request you to 
 return our pipes. We are, etc." Lord 
 Eldon, C. J., said : " Although it be 
 admitted that the letter, which does 
 not state the terms of the agreeinenty 
 would not alone have been sufficient, 
 yet as the jury have connected it with 
 something else Which does, and the letter 
 is signed by the defendant, there is then 
 no written note or memorandum of 
 the order which was originally given 
 by the plaintiff, signed by the defend- 
 ants." It is to be regretted that the 
 
 report does not more fully state what 
 were the facts which Lord Eldon 
 allowed to go to the jury, as evidence 
 to enable them to connect the letter 
 with the bill of parcels. In Johnson 
 V. Dodgson, 3 M. & W. 653, there had 
 been a written memorandum made in 
 a book of the defendant's, signed by 
 the plaintiff's agent, as follows : " Sold 
 John Dodgson 27 pockets Playsted 
 1836, Sussex, at 103 s. The bulk to 
 answer the sample, i Pockets Selme 
 Beckleys, at 95 s.; samples and in- 
 voices to be sent per Rockingham 
 Coach ; payment in bankers at two 
 months. Leeds, 19th October, 18-36." 
 There was a doubt whether this was 
 signed by the defendant, and the 
 plaintiffs to meet that doubt proved 
 the f oUovring letter from the defend- 
 ant to them : 
 
 " Leeds, Wednesday Evening, 
 October 19, 1836. 
 
 GiJntlemen : — Please to deliver 
 the 27 pockets Playsted and the 4 
 pockets Selmes, 1836, Sussex, to Mr. 
 Robert Pearson or bearer to be carted 
 to Stanton's Wharf; 20 pockets of 
 Playsted to be forwarded per first 
 ship and the remaining 11 pockets 
 per the second ship, and you will 
 oblige gentlemen your most obedient, 
 John Dodgson." 
 
 The court were unanimously of 
 opinion that the first paper was signed 
 by the defendant, which disposed of 
 the case ; but Lord Abinger said ; 
 " If it depended on the recognition of 
 the contract by the letter, there might 
 be some doubt, though even upon that 
 I should have thought the reference 
 to the only contract proved in the 
 case sufficient." Pakke, B., said : "If 
 the question turned on the recognition 
 by the subsequent letter, I own I 
 should have had very considerable 
 doubt whether it referred sufficiently 
 to the contract. It refers to the sub- 
 ject-matter, but not to the specific 
 contract." In Allen v. Bennett, there 
 
SBC. 386.] MEMORANDUM OR NOTE IN WRITING. 
 
 741 
 
 tenant applied to his landlord's solicitors as to the renewal of 
 
 his lease. The solicitors sent hira a report by a surveyor, 
 
 who recommended the granting of a lease at a given rent if 
 
 certain repairs were done by the tenant. The tenant wrote 
 
 back assenting to the repairs and rent, but asking for a term 
 
 that the same timber is very kind and 
 superior." The defendant replied, " I 
 have tliis moment received a letter 
 from you respecting Mr. Smith's tim- 
 ber, wliielx I bought of him at 1 s. 6 d. 
 per foot to be sound and good, which I 
 have some doubts whether it is or not, 
 but he promised to make it so, and 
 now denies it." It was held that the 
 letters were not consistent, and did not 
 satisfy the statute, Bayley, J., say- 
 ing ; " What the real terms of the 
 contract were is left in doubt, and 
 must be ascertained by verbal testi- 
 mony. The object of the statute was 
 that the note in writing should ex- 
 clude all doubt as to the terms of the 
 contract, and that object is not satis- 
 fied by the defendant's letter." In 
 Pierce i>. Corf, L. R. 9 Q. B. 210, an 
 action to recover damages from an 
 auctioneer, for negligence in not mak- 
 ing a binding contract for tlie sale of 
 the plaintiff's mare, the defendant 
 had a sales ledger, which was headed 
 " Sales by auction, 28th March, 1872," 
 in which the plaintiff's mare was num- 
 bered 49. A printed catalogue of the 
 horses to be sold, with the conditions 
 of the sale annexed, was circulated, 
 and the plaintiff's mare was therein 
 also numbered 49 ; but neither the cata- 
 logue nor conditions were annexed to the 
 sales ledger nor referred to therein. 
 The mare was put up for sale and 
 struck off to Thomas Maguire for 
 thirty-three guineas. Thereupon, the 
 defendant's clerk wrote in the col- 
 umns of the sales ledger, left blank 
 for that purpose, the name of the 
 purchaser and the price. The pur- 
 chaser refused to take the mare, and 
 it was held that the catalogue and 
 sales ledger were not sufficiently con- 
 nected to form a memorandum suffi- 
 cient to satisfy the statute. Eishton 
 0. Whatmore, 8 Ch. Div. 468. 
 
 was a note defective from not giving 
 the name of the purchaser; there 
 was also a correspondence between 
 the parties which is not set out in the 
 report. It appears, however, to have 
 shown that there was a contract of 
 sale of some sort between the parties 
 concerning goods of the same sort as 
 those mentioned in the contract note, 
 and to have been in itself defective 
 as a memorandum, and to have made 
 no specific allusion to the contract 
 note. The court held, that the corre- 
 spondence was sufficiently connected 
 with the note, and supplied its defi- 
 ciencies. Jackson v. Lowe, 1 Bing. 
 9; Cooper v. Smith, 15 East, 103 . 
 Richards u. Porter, 6 B. & C. 437 J 
 Smith V. Surman, 9 B. & C. 561. 
 Lord Westbury, in Peek v. North 
 Staffordshire Railway Company, 
 10 H. L. Cas. 472, clearly stated the 
 general principle, in a case which 
 arose under a similar clause in the 
 railway and canal traffic act in these 
 words : " In order to embody in the 
 letter any other document or memo- 
 randum, or instrument in writing, so 
 as to make it part of a special con- 
 tract contained in that letter, the letter 
 must either set out the writing re- 
 ferred to, or so clearly and definitely 
 refer to the writing, that, by force of 
 the reference, the writing itself be- 
 comes part of the instrument it refers 
 to." Johnson v. Buck, 35 N. J. L. 
 338. In Smith v. Surman, 9 B. & C. 
 561, the written memorandum was 
 contained in two letters, one from the 
 vendor's attorney, who wrote to ask 
 for payment "for the ash timber 
 which you purchased of him. . . . 
 The value at 1 s. 6 d. per foot ampunts 
 to the sum of .£17 Ss. 6d. I under- 
 stand your objection to complete 
 your contract is on the ground that 
 the timber is faulty and unsound, but 
 there is sufficient evidence to show 
 
742 
 
 STATUTE OF FRAUDS. 
 
 [chap. XIII. 
 
 of twenty-one years. No final agreement was come to, but 
 some months afterwards, a negotiation having proceeded 
 between the tenant and the landlord, without the interven- 
 tion of the solicitor, the landlord wrote a letter promising the 
 tenant a lease for fourteen years, " at the rent and terms 
 agreed upon," to which the tenant wrote back an unqualified 
 acceptance. It was argued on the authority of Shelton v. 
 Cole ^ and Clinan v. Cooke ^ that parol evidence was not 
 admissible to connect the report and the tenant's previous 
 letter with the subsequent letters; but the court, on the 
 authority of Ridgway v. Wharton,^ admitted the evidence, 
 and held that its being conclusively established that there 
 never had been any other rent or terms agreed upon than those 
 mentioned in the report, there was a sufficient memorandum 
 in writing to satisfy the statute.* It does not appear, how- 
 ever, from the report that any of the cases referred to above 
 were cited to the court, and it is submitted that the case of 
 Ridgway v. Wharton is not in fact an authority for admitting 
 
 1 1 De 6. & J. 587. 
 
 2 1 Sch. & Lef. 22. 
 8 6 H. L. C. 238. 
 
 < In Beckwith v. Talbot, 95 IT. S. 
 289, Beadle Y, J., said: "It is un- 
 doubtedly a general rule that collat- 
 eral papers, adduced to supply the 
 defect of signature of a written agree- 
 ment under the statute of frauds, 
 should on their face sufficiently de- 
 monstrate their reference to such 
 agreement without the aid of parol 
 proof. But the rule is not absolute. 
 There may be cases in which it would 
 be a violation of reason and common 
 sense to ignore a reference which 
 derives its significance from such 
 proof. If there is ground for any doubt 
 in the matter, the general rule should 
 be enforced. But where there is no 
 doubt, its enforcement would aid 
 instead of discouraging fraud. Sup- 
 pose an agreement be made out and 
 signed by one of the parties, the other 
 being absent. On the following day 
 the latter vprites to the party who 
 signed it, as follows: 'My son in- 
 forms me that you yesterday exe- 
 cuted our proposed agreement as 
 
 prepared by J S. I will write this 
 to let you know that I recognize and 
 adopt it.' Would not this be a suffi- 
 cient recognition, especially if the 
 parties should act under the agree- 
 ment 1 And yet, parol evidence 
 would be necessary to show what 
 agreement was meant." Jenkins v. 
 Harrison, 66 Ala. 345; Work v. Cow- 
 hick, 81 111. 317 ; Thayer v. Luce, 22 
 Ohio St. 62 ; Lerned v. Wannemacher, 
 9 Allen (Mass.) 416; Buxton v. Eust, 
 L. R. 7 Exchq. 279. Doe, C. J., 
 criticises the doctrine expressed by 
 Bkadley, J., supra, in Brown v. 
 Whipple, 58 N. H. 229 (see ante, page 
 705, for full statement of case and 
 opinion), as follows: "In what was 
 said (in Beckwith „. Talbot) of an 
 exception in cases where parol evi- 
 dence leaves no room for doubt, we 
 do not concur." But the drift of 
 authority, especially in the English 
 courts, is the other way. See also 
 Mead v. Parker, 115 Mass. 41.<? ; Hur- 
 ley V. Brown, 9^ id. 545 ; Seanlan v. 
 Geddes, 112 id. 15. But see Farwell 
 u. Mather, 10 Allen (Mass.) 322. 
 
SEC. 388.] MEMORANDUM OR NOTE IN WRITING. 743 
 
 parol evidence to connect separate papers which do not refer 
 to each other. All that was decided in that case was that if 
 there is a signed paper which, though agreeing to do some- 
 thing, leaves the subject-matter of the agreement unexplained, 
 but refers to another paper which contains the full particulars 
 of the explanation, the two may be connected together so as 
 to constitute a valid contract. 
 
 Sec. 387. Parol Evidence Admissible to Explain Imperfect 
 Reference. — Parol evidence is admissible to explain an imper- 
 fect reference in one document to another.^ Thus, where an 
 agreement refers to a plan as the plan agreed upon, parol 
 evidence is admissible to identify it.^ But if the memoran- 
 dum does not refer to any plan, but describes the property as 
 lot " No. 2," it cannot be shown by parol that a plan was 
 used by the vendor at the sale to show the location of the 
 lot in question for the purpose of identifying the land.^ 
 
 Sec. 388. Cases 'where Parol Evidence not Admissible. — 
 Parol evidence is not admissible to show a waiver of or alter- 
 ation in any of the stipulations in a contract,* nor to prove 
 that a portion of the price agreed to be paid for goods was, in 
 ponsideration of an undertaking to deliver them at a specified 
 time, fixed above the market price ; ^ nor to prove a parol 
 agreement for extending the time for delivery of goods,® or 
 for changing the place of delivery of goods, nor, where the 
 memorandum is silent in that respect, to show that a particu- 
 lar time for payment and delivery was agreed upon,^ nor 
 
 1 Saunderson v. Jackson, 2 B. & P. 6 Moore v. Campbell, 10 Ex. 323. 
 238 ; Clinan v. Cooke, 1 Sch. & Let ' In Williams v. Robinson, 73 Me. 
 33 ; Monro v. Taylor, 8 Hare, 56 ; 180 ; 41 Am. Rep. 352, an action was 
 Bolckow V. Seymour, 17 C. B. (N. S.) brought upon a contract as follows : 
 117 ; Jackson v. Oglander, 2 H. & M. " Augusta, June 8, 1880. 
 472. I hereby agree to furnish Mr. F. 
 
 2 Horsfall v. Hodges, 2 Coop. C. C. -Williams, of New Haven (post office 
 115 n. (a.) address West Haven), eight hundred 
 
 8 Harvey v. Grabham, 5 Ad. & El. to one thousand tons of ice, delivered 
 
 61. on board vessels at Augusta, Me., 
 
 * Brady v. Oastler, 3 H. & C. 112, properly packed, for a voyage to New 
 
 per Pollock, C. B., and Bramwell Haven, for the sum of two dollars a 
 
 and Channell, B. B., diss. Martin, ton. 
 B. Bond Brook Ice Company, 
 
 5 Stead V. Dawber, 10 Ad. & El. J. E. Robinson. 
 
 57 ; Marshall v. Lynn, M. & W. 109 ; Augusta, Me." 
 
 Noble V. Ward, L. R. 1 Ex. 117 ; ib. 2 Upon the trial the defendant in- 
 
 Ex. 135, in error. sisted that by the terms of the con- 
 
744 
 
 STATUTE OF FEAtTDS. 
 
 [chap. xin. 
 
 where the number or quantity of articles to be furnished 
 under the contract is indefinite, is parol evidence admissible 
 to show what number or quantity was agreed upon. Thus, 
 a memorandum by which a party agreed to send " the bal- 
 ance of twelve carloads of sheet iron " was held to be insuffi- 
 cient, because it did not state the number of carloads to be 
 sent, and parol evidence was held not to be admissible to 
 supply the defect.^ Where the day for the completion of 
 
 tract as agreed upon the ice was all 
 to be deliyered by the last of July, 
 also that the sum of seven or eight 
 hundred dollars was to be forwarded 
 by the plaintiff immediately on his 
 return home, and that, as the memo- 
 randum contained none of these stipu- 
 lations, the memorandum relied on 
 was insufficient and did not take the 
 contract out of the statute. The 
 plaintiff "had a verdict, which was 
 sustained upon appeal, the court hold- 
 ing that as the memorandum on its 
 face was sufficient to ascertain the 
 rights of the parties, parol evidence 
 was not admissible to vary or change 
 its terms, Vikgin, J., saying : " When 
 a memorandum is made and signed 
 and delivered between the parties as 
 and for a complete memorandum of 
 the essential terms of a contract, and 
 it is capable of a clear and intelligible 
 exposition, it is conclusive between 
 the parties, and parol evidence is in- 
 competent to contradict or vary its 
 terms or construction ; and if in fact 
 some of the conditions actually made 
 be omitted from it, the party defend- 
 ant cannot avail himself of them. 
 Small V. Quincy, 4 Me. 497 ; Codding- 
 ton V. Goddard, 16 Gray (Mass.) 436; 
 Hawkins v, Chace, 19 Pick. (Mass.) 
 502 ; Ryan ./. Hall, 13 Mete. (Mass.) 
 623 J Warren ... Wheeler, 8 id. 97; 
 Cabot V. Winsor, 1 Allen (Mass.) 546, 
 551 ; Eemick v. Sandford, 118 Mass. 
 102. 
 
 Such is the general rule governing 
 written contracts ; and the statute of 
 frauds leaves it together with its ex- 
 ceptions as it found them. Benj. 
 Sales, §205. By the enactment of 
 this statute, the legislature interposed 
 
 a few safeguards against mistakes and 
 frauds in certain kinds of contracts, 
 by making certain additional things 
 indispensable to the remedy. The 
 security thereby afforded makes the 
 remedy depend upon proof which 
 shall not rest upon the recollection or 
 integrity of witnesses, but upon some- 
 thing reliable, to which the parties 
 may resort for a solution of all their 
 doubts and disputes, the signature 
 thereto serving, inter alia, to identify 
 the evidence by which the signer is to 
 be bound. And when a memoran- 
 dum, like the one now before us, has 
 been deliberately made, executed, and 
 delivered in conformity with the staj^ 
 ute, and its terms are sensible and 
 free of all ambiguity, it cannot be 
 varied as to its substance by parol; 
 otherwise the great purpose of the 
 legislature would be thwarted. Ap- 
 plying these principles to the case at 
 bar, and the exceptions, so far as the 
 question of consideration and the 
 three requested instructions are con- 
 cerned, must be overruled. 
 
 The jury must have found under 
 the charge that the memorandum was 
 made, signed and unconditionally de- 
 livered by the defendant to the plain- 
 tiff, as and for a complete memoran- 
 dum of the contract, so far as the 
 matters contained in the request go, 
 and that the consideration was 
 proved. Its terms are clearly ex- 
 pressed, and contain all the elements 
 necessary to give it legal effect as a 
 written contract." 
 
 1 May V. Ward, 184 Mass. 127. 
 But see Ehoades v. Castner, 12 Allen 
 (Mass.) 136, where a written order to 
 ship " cargo loc. Mtn. W. A. Stove 
 
SEC. 389.] MEMOBANDTJM OR NOTE IK WEITING. 745 
 
 the purchase of an interest in land is inserted in a written 
 contract, it cannot be waived by oral agreement and 
 another day substituted in its place, " for to allow the substi- 
 tution of a new stipulation as to the time of completing the 
 contract, by reason of a subsequent oral agreement between 
 the parties to that effect, in lieu of a stipulation as to time 
 contained in the written agreement signed by the parties, is 
 virtually and substantially to . allow an action to be brought 
 on an agreement relating to the sale of land, partly in writ- 
 ing signed by the parties, and partly not in writing, but by 
 parol only, and amounts to a contravention of the statute of 
 frauds." ^ Most of the foregoing cases were discussed in 
 Hickman v. Haynes,^ where Lindley, J., said : " The result 
 of these cases appears to be that neither a plaintiff nor a 
 defendant can at law avail himself of a parol agreement to vary or 
 enlarge the time for performing a contract previously entered into in 
 writing, and required to be so by the statute of frauds." 
 
 So also parol evidence is not admissible to show a verbal 
 agreement between the parties that the vendee should waive 
 his right to a good title as to one of severa;l lots of land sold 
 under an agreement in writing.^ 
 
 Sec. 389. Farol Evidence Admissible to Show that No Con- 
 tract was Intended, or that It was Conditional. — A document pur- 
 porting to be a contract signed by the parties is not necessa- 
 rily so ; and it is competent for either of the parties to show 
 by parol evidence that it was not their intention in signing 
 
 coal, price §6.90 per ton, water 9J number of pounds of "copper, 24^ 
 feet," accepted in writing, signed and a 9 mos. from delivery," sufficiently- 
 dated, was held to be a sufficient shows that the price was twenty-four 
 memorandum ; and that the amount of and a half cents per pound, to be paid 
 coal designated might be shown by parol, in nine months. Coddington v. God- 
 But see Smith v. Gowdy, 8 Allen dard, 16 Gray (Mass.) 436. So a 
 (Mass.) 566, in which A wrote to B mAiorandum of sale of real estate at 
 as follows : " Say how many white, ".9J cts." is not insufficient for want 
 colored and woollen rags you have on of allegation that the price was nine 
 hand, and your prices for them." B and a half cents for each square foot, 
 replied: "I have about a ton each, Gowen u. Klous, 101 Muss. 454. 
 white and colored rags, and my prices i Stowell v. Robinson, 3 Bing. 
 are three and one-half cents for col- (N. C.) 928; 5 Sc. 212. 
 ored and seven cents for white." A 2 L. R. 10 C. P. 598, 605 ; Plevins 
 replied: " I will take the rags at the j,. Downing, L. R. 1 C. P. D. 220. 
 price you name," and it was held that » Goss v. Lord Nugent, 5 B. & 
 there was no written contract. A Ad. 58 ; Harvey v. Grabham, 6 Ad. & 
 memorandum of sale of a certain El. 74. 
 
746 . STATUTE OF FEATJDS. [CHAP. XHI. 
 
 that it should operate as a contract, and that the real contract 
 between them was not in writing,^ or to show that the con- 
 tract was only to bind upon the happening of a certain 
 eveut.2 
 
 Sec. 390. Or that the Agreement does not State Contract.— >- 
 
 So, although parol evidence is not admissible to add to or 
 vary the written agreement, it is admissible on the part of the 
 defendants to show that the writing only contains some of 
 the terms of the contract. Thus, where a sample of wool 
 was left at a broker's for sale, and on the sale it was stipu- 
 lated by the purchaser that the wool should be delivered in 
 good dry condition, and on the same day the broker sent the 
 vendor a sold note of the contract, which, however, omitted 
 all mention of the stipulation that the wool was to be in good 
 dry condition, and no note of it was sent by the broker to 
 the purchaser, parol evidence was admitted to show the omis- 
 sion of the stipulation.^ And where a term is not expressly 
 contained in a contract, but is implied in it, upon the assump- 
 tion of an intention in the parties not declared in the written 
 instrument, parol evidence, with reference to such a term 
 introduced into the contract from an assumed intention of 
 the parties, of extrinsic facts to negative or qualify such 
 intention, is admissible.* 
 
 Sec. 391. To Prove that Price was Agreed Upon.- — Again, 
 where on a sale of goods the price is not stated, parol evi- 
 dence is admissible to show that a price was in fact agreed 
 upon, the result of which is to invalidate the contract ; for it 
 is one of the requisites to the validity of the memorandum 
 that the price if agreed upon should be stated.^ 
 
 Sec. 392. whether Admissible to Shcvir Abandonment of 
 Contract. — It is not quit| clear whether parol evidence is 
 
 1 Rogers v. Hadley, 2 H. & C. 227 ; « Surges e,. "Wickham, 3 B. &. S. 
 and see Bolckow v. Seymour, 17 C. B. 669, per Cockburn, C. J. ; and see 
 (N. S.) 120. Clapham v. Langton, 34 L. J. Q. B. 
 
 2 Pym V. Campbell, 6 E. & B. 370 ; 46. 
 
 25 L. J. Q. B. 277 ; Furness v. Meek, ^ Elmore v. Kingscote, 5 B. & C. 
 
 27 L. J. Ex. 34. 583; Goodman v. Griffiths, 1 H. & N. 
 
 a Pitts V. Beckett, 13 M. & "W. 743. 574 ; 26 L. J. Ex. 145 ; Acebal v. 
 
 See further, post, chapter on Specific Levy, 10 Bing. 376. 
 Performance. But see Williams u. 
 Bobinson, 73 Me. 186. 
 
SEC. 392.] MEMOKANDTJM OK NOTE IN WRITING. 
 
 747 
 
 admissible to show a verbal agreement that a contract in 
 writing shall be abandoned.^ If the parol agreement is invalid 
 under the statute, it will not affect an implied rescission of the 
 contract in writing. "Where," said Willes, J., "parties 
 enter into a contract which woiild have the effect of rescind- 
 ing a previous one, but which cannot operate according to 
 their intention, the new contract shall not operate to affect 
 the previously existing right." ^ In equity it is a well settled 
 
 1 See Bell v. Howard, 9 Mod. 305 
 Goss V. Lord Nugent, 5 B. & Ad. 6i 
 Harrey v. Grabham, 5 A. & E. 61 
 Price !>. Dyer, 17 Ves. 356; Sander- 
 son V. Graves, L. R. 10 Ex. 234. 
 
 2 In Noble v. Ward, L. R. 1 Ex. 
 117, it appeared that the plaintiff was 
 a manufacturer, and the defendants 
 merchants at Manchester. On the 
 12th August, 1864, the defendants 
 gave to the plaintiff's agent an order 
 for 500 pieces of 32-inch gray cloth 
 at 38 s. 9 rf., and 1,000 pieces of 35-inch 
 gray cloth at 42 s. IJrf., the deliveries 
 to commence in three weeks, and to 
 be completed in eight to nine weeks. 
 On the 18th of the same month a sec- 
 ond order was given by the defend- 
 ants for 500 pieces of .32-inch gray 
 cloth at 39 s. and 100 pieces of 35-inch 
 gray cloth at 42 s. 3 d., to be delivered 
 " to follow on after order given 12th 
 instant, and complete in ten to twelve 
 weeks." The plaintiff, on the 10th 
 and 19th September, made a first and 
 second delivery on account of the first 
 order. Considerable discussion en- 
 sued, both as to the time of delivery 
 and as to the quality of the goods 
 delivered ; and eventually, on the 
 27th September, the plaintiff had an 
 interview with the defendants, at 
 which it. was agreed that the goods 
 delivered under the first order should 
 be taken back, that that order should 
 be cancelled, and that the time for 
 delivering the goods under the second 
 order should be extended for a fort- 
 night. Goods were tendered to the 
 defendants by the plaintiff in time 
 either for the fulfilment of the agree- 
 ment of the 18th August or that of 
 the 27th September ; but the defend- 
 
 ants refused to accept them on vari- 
 ous grounds — amongst others, on the 
 ground that they were not of the 
 stipulated quality. The plaintiff 
 thereupon brought this action. The 
 declaration was framed so as to fit 
 either the agreement of the 18th 
 August or that of the 27th September. 
 The judge directed a non-suit to be 
 entered, being of opinion that the 
 contract of the 18th August was no 
 longer in existence, the parol agree- 
 ment of the 27th September having 
 rescinded it; and that the latter 
 agreement could not be resorted to, 
 not being in writing, in accordance 
 with the statute. Upon a rule to set 
 aside the non-suit, it was set aside. 
 
 Bramwell, B., said: "This case 
 was tried before me at Manchester, 
 and the plaintiff was non-suited. The 
 case comes before us on a rule to set 
 aside that non-suit. I think it was 
 wrong, at least on the ground on 
 which it proceeded. The action was 
 for not accepting goods on a sale by 
 the plaintiff to the defendants. The 
 defendants pleaded, among other 
 things, that the contract had been 
 rescinded, and that the plaintiffs were 
 not ready and willing to deliver. The 
 facts were, that a contract for the 
 sale and delivery of goods from the 
 plaintiff to the defendants, at a future 
 day, was entered into on the 12th of 
 August, which may be called contract 
 A ; that another contract for sale and 
 delivery by the plaintiff to the defend- 
 ants, also at a future day, was entered 
 into on the 18th of August, say con- 
 tract B ; that before any of the days 
 of delivery had arrived the plaintiff 
 and defendants agreed, verbally, to 
 
748 
 
 STATUTE OP FEAUDS. 
 
 [chap. XIII. 
 
 rule that a contract required to be in writing to satisfy the 
 statute may be rescinded by a parol agreement, and such 
 
 rescind, or do away with, contract A, 
 and to extend for a fortnight the time 
 for the performance of contract B; 
 that is to say, the plaintiff had. a fort- 
 night longer to deliver, and the de- 
 fendants a fortnight longer to take 
 and pay for those goods. This, on 
 principle and authority, was a third 
 contract, call it C. It was a contract 
 in which all that was to be done and 
 permitted on one side was the consid- 
 eration for all that was to be done 
 and permitted on the other. See per 
 Parke, B., in Marshall v. Lynn, 6 M. 
 & W. 117. It remains to add that the 
 declaration would fit either contract 
 B or contract C, and that goods were 
 tendered by the plaintiff to the de- 
 fendants in time for either of those 
 contracts. My notes, and my recollec- 
 tion of my ruling are that contract B 
 was rescinded, and contract C not 
 enforceable, not being in writing. I 
 think that was wrong. Either con- 
 tract C was within the statute of 
 frauds or not. If not, there was no 
 need for a writing ; if yes, it was be- 
 cause it was a contract for the sale of 
 goods, and so within the 17th section 
 of the statute. That says that no 
 contract for the sale of goods for the 
 price of :£10 or upwards shall be al- 
 lowed to be good, except there is an 
 acceptance, payment, or writing. The 
 expression 'allowed to be good' is 
 not a very happy one, but, whatever 
 its meaning may be, it includes this 
 at least, that it shall not be held valid 
 or enforced. But this is what the 
 defendant was attempting to do. He 
 was setting up this contract C as a 
 valid contract. He was asking that 
 it should be allowed to be good to 
 rescind contract B. 
 
 It is attempted to say that what 
 took place when contract C was made 
 was twofold. First, that the old con- 
 tracts were given up ; secondly, a new 
 one was made. But that is not so. 
 What was done was all done at once 
 — was all one transaction, one bar- 
 
 gain ; and had the plaintiff asked for 
 a writing at the time, and the defend- 
 ants refused it, it would all have been 
 undone, and the parties remitted to 
 their original contracts. 
 
 I think, therefore, that on princi- 
 ple it was wrong to hold that the old 
 contract was gone. Moore v. Camp- 
 bell, 10 Ex. 323 ; 23 L. J. Ex. 310, is 
 an authority to the same effect. It is 
 true that case may te distinguished 
 on the facts, namely, that there what 
 was to be done under the new ar- 
 rangement in lieu of the old was to 
 be done at the same time, so that it 
 might well be the parties meant, not 
 that the new thing should be done, 
 but if done it should be in lieu of the 
 old. Such an argument could not be 
 used in this case. But it was not the 
 ground of the judgment there, which 
 is that the new agreement was void. 
 The cases of Goss v. Lord Nugent, 5 
 B. & Ad. 58 ; Stead v. Dawber, 10 Ad. 
 & El. 57, and others, only show that 
 the new contract C cannot be en- 
 forced, not that the old contract B is 
 gone. I think it was not. Inconven- 
 ience and absurdity may arise from 
 this. For instance, if the defendants 
 signed the new contract, and not the 
 plaintiff, the plaintiff would be bound 
 to the old and the defendants to the 
 new. Or, if in the course of the cause 
 a writing turned up, signed by the 
 plaintiff, then they could first rely on 
 the old and afterwards on the new 
 contract. But this is no more than 
 may happen in any case within the 
 17th section, where there has been 
 one contract only. 
 
 But then it was said before us 
 that the plaintiff was not ready and 
 willing to deliver under contract B. 
 Probably not, and he supposed con- 
 tract C was in force. In answer to 
 this the plaintiff contended before us 
 that this point was not made at the 
 trial, to which the defendants replied 
 neither was the point that the old 
 contract was in force. My recoUec- 
 
SEC. 395.] MEMOKANDTJM OE KOTE IN "WKITING. 749 
 
 rescission would be a sufficient defence to an action by either 
 party for a specific performance.^ 
 
 Sec. 893. Parol Evidence Admissible to Explain Latent but 
 not Patent Ambiguity. — Parol evidence is admissible to 
 explain a latent but not a patent ambiguity in a written 
 agreement. Thus, where to an action for not accepting 
 cotton which the defendant bought of the plaintiff, " to arrive 
 ex Peerless from Bombay," the defendant pleaded that he 
 meant a ship called the " Peerless," wTbich sailed from Bom- 
 bay in October, and the plaintiff was not ready to deliver any 
 cotton which arrived by that ship, but only cotton which 
 arrived by another ship called the " Peerless," which sailed 
 from Bombay in December, it M'as held that the plea was a 
 good answer to the action.^ But where an agreement for a 
 lease of a farm referred to a paper containing the terms, and 
 a bill was filed for specific performance according to such 
 clauses as had been read over to the plaintiff, it was held that 
 parol evidence was not admissible to show what were the 
 clauses.^ 
 
 Sec. 394. Parol Evidence Admissible to Explain Omission in 
 Bought and Sold Notes. — Parol evidence has been admitted 
 to show, in an action of trover for goods, that by the mistake 
 of a broker the bought and sold notes were so worded as not 
 to include stock in trade and materials, which were intended 
 to be included by both the plaintiff and the defendant, and 
 which the plaintiff had taken possession of.* 
 
 Sec. 395. To Show Situation of Parties. — So also parol 
 evidence has been admitted to show the situation of the 
 
 tion is so, — that the case was opened ^ Marsh v. Bellew, 45 Wis. 36 ; 
 
 and maintained as on the new con- Stevens v. Cooper, 1 John. Ch. (N. Y.) 
 
 tract, — but I agree with Mr. Mellish, 425 ; Van Syckel v. Dalrymple, 32 N. 
 
 that a non-suit ought to be main- J. Eq. 233 ; Plielps v. Seely, 22 Gratt. 
 
 tained on a point not taken at the (Va.) 573. 
 
 trial only when it is beyond all doubt. ^ Baffles v. Wiehelhaus, 2 H. & C. 
 
 I cannot say this is. Consequently, I 906; and see Stokes v. Moore, 1 Cox, 
 
 think the rule should be absolute." 221 ; and aa to the admissibility of 
 
 And see Moore c. Campbell, 10 Ex. parol evidence to explain a latent am- 
 
 323 ; see further Ogle v. Earl Vane, biguity in a guaranty, see Haigh v. 
 
 L. E. 2 Q. B. 275 ; Leather Cloth Co. Brooks, 10 A. & E. 309 ; Butcher v. 
 
 V. Hieronimus, L. R. 10 Q. B. 140 ; Stewart, 11 M. & W. 857 ; Goldshede 
 
 Hickman v. Haynes, L. R. 10 C. P. v. Swan, 1 Exch. 154. 
 
 598 ; Plevins v. Downing, L. R. 1 C. » Brodie v. St. Paul, 1 Ves. Jr. 326. 
 
 P. D. 220. * Steele v. Haddock, 10 Ex." 643. 
 
750 
 
 STATUTE OP FEATTDS. 
 
 [chap. XIII. 
 
 parties at the time the writing was made and the circum- 
 stances, e.g. to show the trades carried on by the plaintiff 
 and defendant, in order to prove that the relation of buyer 
 and seller existed ; ^ to explain the meaning of abbreviations 
 used in the written agreement;^ to prove that a written 
 contract for the sale of goods purporting to be made between 
 a vendor and purchaser was on the part of the alleged pur- 
 chaser made by him only as agent for a third party;,* to 
 prove facts material to the construction of the agreement ; * 
 to show that, according to mercantile usage, apparent vari- 
 ances between bought and sold notes are in fact immaterial, 
 and not such as would deceive merchants.* 
 
 Sec. 396. To Explain Subjeot-Matter. — Upon the same 
 principle, parol evidence is admissible to identify the subject- 
 matter of the contract,^ e.g. to explain the meaning of the 
 
 1 Newell V. Eadford, L. R. 3 C. P. 
 62. 
 
 « Sweet V. Lee, .3 Man. & G. 466 ; 4 
 Sc. (N. R. ) 77 ; and see Bainbridge v. 
 "Wade, 16 Q. B. 99 ; Stoops v. Smith, 
 100 Mass. 63. 
 
 8 Wilson I'. Hart, 7 Taunt. 295. 
 
 * Monro v. Taylor, 8 Hare, 56. 
 
 6 Bold V. Rayner, 1 M. & W. 343 ; 
 Sievewright v. Archibald, 17 Q. B. 
 103 ; Rogers v. Hadley, 2 H. & C. 
 227; Kempson v. Boyle, 3 H. & C. 
 763; 34L. J. Ex. 191. 
 
 « Stoops V. Smith, 100 Mass. 63; 
 Caulkins i. Hellman, 14 Hun (N. Y.) 
 330; Pike v. Fay, 101 Mass. 1.34; 
 Sweet V. Shumway, 102 id. 367 ; Hart 
 0. Hammett, 18 Vt. 127. But this 
 class of evidence is admissible only 
 when the writing does not distinctly 
 define the property so as to enable its 
 identity to be seen on its face, and is 
 confined to the question of identity in 
 kind, and will not be extended to com- 
 parisons in degree or quality. Pike 
 V. Fay, ante. Such evidence has been 
 admitted to show what house was 
 owned by a vendor "on Church 
 Street," where the memorandum only 
 described it as " a house on Church 
 Street." Mead v. Parker, 115 Mass. 
 413; Seanlan v. Geddes, 112 id. 15; 
 Slater tf. Smith, 117 id. 96 ; Hurley v. 
 
 Brown, 98 id. 545. But such evidence 
 is only admissible when the memo- 
 randum affords within itself the 
 means of identifying the property 
 beyond a doubt. 
 
 Where the following receipt was 
 given : " Received of James Hender- 
 son $ 300 in part payment of a certain 
 tract of land, being my own head- 
 right, lying on Rush Creek, in cross 
 timbers, this 23d March, 1859." Held, 
 that it was a sufficient memorandum 
 under the statute of frauds, and the ' 
 consideration could be proved by 
 parol. Fulton v. Robinson, 55 Tex. 
 401 . In this case it will be observed 
 that the identity of the lot must be 
 shown by parol. In Farwell v. Mather, 
 10 Allen (Mass.) 322, a memorandum 
 in writing, agreeing to giye a certain 
 sum "for the whole property, from 
 cellar to top, including lease, press, 
 boiler and engine, type, fixtures, fur- 
 niture," etc, and to " pay the ground 
 rent," is not sufficient to avoid the 
 statute, even if a lease containing a 
 sufiicient description of the land be 
 admitted as a part thereof, for want 
 of description of the title to be 
 passed. But the doctrine of this case 
 seems to have been overruled by the 
 cases cited ante in this note. 
 
 As previously stated, the memo- 
 
SEC. 397.J MEMOEANDTTM OE NOTE IN WRITING. 
 
 751 
 
 words "for iron received " in a guaranty; ^ to ascertain the 
 number of acres " to be let " in an agreement for a lease ; ^ to 
 prove the amount of a debt guaranteed,^ the locality over 
 which a covenant in restraint of trade extends,* or what is 
 " the lease " referred to in an agreement to obtain a lease. ^ 
 So parol evidence of a conversation between the plaintiffs 
 and defendant's agents has been admitted to show what was 
 meant by the expression "your wool " in a letter written by 
 defendant's agent to the plaintiff, upon which letter the con- 
 tract was based ; ® and where the vendor of leasehold prem- 
 ises wrote a letter to his solicitor, stating, " I have closed with 
 Mr. W for this place," it was held that parol evidence was 
 admissible to show what " this place " was.'' 
 
 Sec. 397. To Show Trade TTsage. — So parol evidence has 
 been held to be admissible to show that by the custom of 
 the hop trade the following contract, " sold 18 pockets Kent 
 
 randum must point so clearly to the 
 property, and the parol evidence be 
 of such a character as to leave no 
 doubt as to what property was meant 
 to be sold. Thus a written agree- 
 ment to convey " a piece of land in " 
 W. S., not otherwise describing the 
 land, is void under the statute, it ap- 
 pearing that the promisor had other land 
 in W. S. Whelan v. Sullivan, 102 
 Mass. 204. But if the evidence shows 
 that the party had no other land in 
 the town or street named, the memo- 
 randum is good, because the identity 
 is established beyond a doubt. Hur- 
 ley V. Brown, 98 Mass. 545 ; Mead v. 
 Parker, ante ; Scanlan v. Geddes, ante. 
 In a receipt for the purchase-money 
 of land, dated at "Memphis," a de- 
 scription failing to show in what 
 county or State the land was situated, 
 was held not to satisfy the require- 
 ment of the statute of frauds, as in 
 such a case the identity of the land 
 cannot be shown by parol. Holms v. 
 Johnston, 12 Heisk. (Tenn.) 155. So a 
 memorandum dated and signed, " Re- 
 ceived of J. $300 on town lot," is in- 
 sufficient to establish a sale of land. 
 Johnson v. Granger, 51 Tex. 42. So 
 where the only description in a memo- 
 randum of the sale of land was " lot 
 
 adjoining," it was held that the memo- 
 randum did not satisfy the statute of 
 frauds. Scarritt v. St. John's M. E. 
 Church, 7 Mo. App. 174. Because in 
 these cases the memorandum fur- 
 nishes no data wliich enable the 
 identity of the land to be established 
 beyond a doubt. But tlie writing re- 
 lied upon to establish such a contract 
 for the sale of land need not describe 
 the lands which are the subject of 
 the sale, otherwise than by a reference 
 therein to some extrinsic fact or instru- 
 ment by means of which the land can be 
 known with sufficient certainty. Wash- 
 burn V. Fletcher, 42 Wis. 152. 
 
 1 Colbourn u. Dawson, 10 C. B. 
 765. 
 
 2 Shannon v. Bradstreet, 1 Sch. & 
 Lef. 73. 
 
 ' Bateman v. Phillips, 15 East, 
 272 ; Shortrede v. Cheek, 1 Ad. & El. 
 57, 
 
 * Mumford «. Gething, 7 C. B. (N. 
 S.) 305. 
 
 ^ Horsey v. Graham, L. E. 5 C. P. 
 9. 
 
 ' Macdonald v. Longbottom, 1 E. 
 & E. 977 ; affd. Exch. Ch. ib. 987. 
 
 " Waldron v. Jacob, 5 I. R. Eq. 
 131. 
 
752 STATUTE OP FEATJDS. [CHAP. XUI. 
 
 hops at 100 s. ; " a pocket containing more than a cwt. meant a 
 sale at 100 s. per cwt.,i and generally, it may be said that, 
 where a well-known custom or usage exists in reference to a 
 particular business, which is reasonable, and such as the law 
 will recognize and uphold, it may be shown as well to affect 
 contracts affected by the statute, as ordinary contracts in 
 writing,^ as it will be presumed that the parties contracted in 
 reference thereto.^ 
 
 Sec. 398. To Prove Alterations in Articles Ordered. — 
 
 Where an executory contract was entered into for the fabri- 
 cation of goods, parol evidence of alterations and additions 
 ordered by the purchaser in the course of manufacture was 
 admitted, Gaslbe, J., saying that " otherwise every building 
 contract would be avoided by every addition." * 
 
 Sec. 399. To Prove Date. — Where a written instrument 
 contains no date, parol evidence is admissible to show when 
 it was written,^ or from what date it was intended to 
 operate." 
 
 Sec. 400. That Contract Signed by Agent in O-wn Name •was 
 Signed for Principal. — When a contract is signed by an agent 
 
 1 Spicer v. Cooper, 1 Q. B. 424; inson v. Gay, 7 Allen (Mass.) 29 
 and see as to commercial usages Wig- Clark v. Baker, 11 Met. (Mass.) 186 
 glesworth v. Dallison, 1 Sm. L. Cas. Snelling a. Hall, 107 (Mass.) 134 
 546. Marshall v. Perry, 67 Me. 78 ; Barker 
 
 2 Johnson i>. Roylton, 7 Q. B. Div. v. Borzone, 48 Md. 474; Mears a. 
 438 ; Brown v. Foster, 113 Mass. 1-36 ; Waples, 4 Houst. (Del.) 62 ; Converse 
 Smyth V. Ward, 46 Iowa, 339; Has- v. Harzfeldt, 11 Brad. (111.) 173; Coff- 
 kins V. Warren, 115 Mass. 535; Morse man v. Campbell, 87 111. 98; Doane v. 
 V. Brackett, 98 id. 209; Boardman v. Dunham, 71 id. 131; Lyon v. Culbert- 
 Spooner,an(e,- Swift t). Gifford, 2 Low. son, 83 id. 33; Wliite v. Puller, 67 
 (U. S.) 110. If by an oral contract Barb. (N. Y.) 267; Polhemrs v. Heil- 
 goods are sold subject to the pur- man, 50 Cal. 438 ; Swift &c. Co. v. U. 
 chaser's approval of them on delivery, S., 105 U. S. 691 ; Swift's Iron &c. Co. 
 a broker's written memorandum of v. Dewey, 37 Ohio St. 242 ; Branch v. 
 the sale which omits tliat stipulation Palmer, 65 Ga. 210. As to what 
 is insufficient to take the case out of usages are admissible and when, see a 
 the statute ; nor, in such case, can the very excellent treatise on that sub- 
 vendor be allowed to prove a usage ject. Clarke's Beowne on Usages 
 of trade that sales of such goods are and Customs. 
 
 subject to the purchaser's approval of * Hoadly v. McLaine, 10 Bing. 482. 
 
 them on delivery, in order to supple- ^ Edmunds v. Downes, 2 C. & M. 
 
 ment the memorandum. Boardman 459; Hartley rj. Wharton, 11 Ad. & El. 
 
 V. Spooner, 13 Allen (Mass.) 353. 934; 3 P. & D. 529; Lobb v. Stanley, 
 
 » Harris v. Tunbridge, 83 N. Y. 92 ; 5 Q. B. 574, 
 
 Bailey v. Bensley, 87 III. 556; Dick- « Davis v. Jones, 25 L. J. C. P. 91. 
 
SEC. 401.] MBMOEANDTJM OR NOTE IN WETTING. 763 
 
 in his own name, parol evidence, upon an action brought to 
 charge the principal, may be adduced to prove that the con- 
 tract was signed by the agent on behalf of the principal. 
 " Parol evidence," said Lord Denman, C. J., " is always 
 necessary to show that the party sued is the person making 
 the contract and bound by it. Whether he does so in his 
 own name, or in that of another, or in a feigned name, and 
 whether the contract be signed by his own hand or by that 
 of an agent, are inquiries not different in their nature from 
 the question who is the person who has just ordered goods 
 in a shop. If he is sued for the price and his identity made 
 out, the contract is not varied by appearing to have been 
 made by him in a name not his own." ^ But it is not admis- 
 sible on behalf of the agent for the purpose of showing that 
 he merely acted as agent.^ "Where the defendant, a broker, 
 signed a note as broker as follows : " Sold this day for (plain- 
 tiff's broker) to our principals," etc., and the note did not 
 disclose the name of the principal, parol evidence of a custom 
 in the trade that where a broker purchased without disclos- 
 ing the name of his principal he was liable to be looked to as 
 purchaser was admitted, as the evidence did not contradict 
 the written instrument, but only explained its terms.^ An 
 agent may, however, show by parol evidence that the con- 
 tract by mistake described him as principal.* 
 
 Sec. 401. To Prove Assent to Alterations in Memorandum. 
 — Parol evidence is admissible to prove, when alterations 
 have been made in a document signed by one of the parties, 
 that they were assented to by the other ; for as there never 
 was a contract till such assent on his part, the effect of the 
 evidence is not to vary a written contract, but merely to 
 show what was the condition of the document when it 
 became a contract.^ 
 
 1 Trueman v. Loder, 11 Ad. & El. 646; Fleet v. Murton, L. E. 7 Q. B. 
 589, 594; see also Lindus v. Bradwell, 126; Hutchinson v. Tatham, L. E. 8 
 5 C. B. 583; Edmunds v. Bushell, L. C. P. 482. 
 
 E. 1 Q. B. 97. * Wake v. Harrop, 6 H. & N. 768 ; 
 
 2 Higgins V. Senior, 8 M. & W. 1 H. & C. 202 ; 30 L. J. Ex. 273 ; 31 
 834 ; Fawkes u. Lamb, 31 L. J. Q. B. L. J. Ex. 451 ; see further notes to 
 98 ; Cropper v. Cook, L. E. 3 C. P. Thompson v. Davenport, 2 Sm. & C. 
 194 ; Calder v. Dobell, L. E. 6 C. P. 486. 7th ed. 377 ; Benj. on Sales, 2nd ed. 
 
 8 Humfrey y. Dale, 7 E. & B. 266; 159. 
 affd. in Exch. Ch. E. B. & E. 1004 ; ^ Stewart v. Eddowes, L. E. 9 C. P. 
 Mollett V. Eobinson, L. E. 5 C. P. 311. 
 
754 STATTJTK OF FRAUDS. [CHAP. XIH. 
 
 Sec. 402. To Prove Assent of Principal. — When a memo- 
 randum is signed by an agent the assent of the principal 
 thereto may be proved by parol,^ and a written notice to an 
 agent to conclude a sale on certain terms, and a written 
 agreement by a purchaser subscribed thereon to purchase 
 upon those terms constitutes a sufficient memorandum within 
 the statute of frauds to bind the purchaser.^ 
 
 Sec. 403. Parol Variation of a Written Contract affected by 
 the Statute of Frauds. Effect of upon Remedies of the Parties. 
 
 — It appears to be quite well settled that the terms of a writ- 
 ten contract falling within the statute of frauds cannot be 
 altered or varied by parol ^ in any essential respect so as to 
 give a right of action to either party upon the contract as 
 varied.'^ In an early case,^ a contrary doctrine was held, 
 LoKD Ellenborough proceeding upon a distinction between 
 the contract, which the statute requires to be in writing, and 
 the performance of it, to which the statute has no applica- 
 tion ; and, in that case, under a written contract for the deliv- 
 ery of goods, at certain specified times, a verbal change in 
 the time of delivery was made, and it was held that a recov- 
 ery could be had upon the contract as varied.^ But the doc- 
 trine, at least in England, is quite well settled that no verbal 
 changes, in a written contract affected by the statute of 
 frauds, can be made, which are binding upon the parties, and 
 this, whether the change relates to the "performance of the 
 contract, or of its essential terms. Thus, in Goss v. Lord 
 Nugent,'^ by agreement in writing, A contracted to sell B 
 several lots of land, and to make a good title to them ; and a 
 deposit was paid. It was afterwards discovered that a good 
 title could not be made to one of the lots, and it was then 
 
 1 Himrod Furnace Co. v. Cleve- * Goss v. Lord Nugent, 5 B. & Ad. 
 land &c. E. R. Co., 22 Ohio St. 451. 58; Harvey v. Grabham, 5 Ad. & El. 
 
 2 Forbes v. Shattler, 2 Cin. (Ohio) 61 ; Stead v. Dawber, 10 id. 57 ; Noble 
 95. V. Ward, L. R. 1 Exchq. 117; Sander- 
 
 8 Marshall v. Lynn, 6 M. & W. son v. Graves, 10 id. 234. 
 109 ; Goss V. Lord Nugent, 5 B. & Ad. = Cuff v. Penn, 1 M. & S. 21. 
 58 ; Harvey v. Grabham, 5 Ad. & EI. « This ease was overruled by 
 61 ; Blood V. Goodrich, 9 "Wend. (N. Stead v. Dawber, ante. 
 Y.) 68; Grafton Bank v. Woodward, ' Goss v. Lord Nugent, 5 B. & Ad. 
 5 N. H. 99; Dana v. Hancock, 30 Vt. 58. 
 616; Bryan v. Hunt, 5 Sneed. (Tenn.) 
 543. 
 
SEC. 403.] MEMORANDUM OR NOTE IN WRITING. 755 
 
 verbally agreed between the parties, that the vendee should 
 waive the title as to that lot. The vendor delivered posses- 
 sion of the whole of the lots to the vendee, which he ac- 
 cepted. In an action brought by the vendor to recover the 
 remainder of the purchase-money, the declaration stated that 
 the defendant agreed to deduce a good title to all the lots 
 except one, and that the vendee discharged and exonerated 
 him from making out a good title to that lot, and waived his 
 right to require the same. It was held that oral testimony 
 was not admissible to show the waiver of the vendee's right 
 to a good title as to that lot, inasmuch as the effect of such 
 waiver was to substitute a different contract for the one in 
 writing ; and by the statute of frauds, in every action brought 
 to charge a person on a contract for the sale of lands, tlie 
 agreement must be in writing. LoRD Denman, C. J., said : 
 " By the general rules of the common law, if there be a con- 
 tract which has been reduced into writing, verbal evidence 
 is not allowed to be given of what passed between the par- 
 ties, either before the written instrument was made, or dur- 
 ing the time that it was in a state of preparation, so as to 
 add to or subtract from, or in any manner to vary or qualify 
 the written contract; but after the agreement has been 
 reduced into writing, it is competent to the parties, at any 
 time before breach of it, by a new contract not in writing, 
 either altogether to waive, dissolve, or annul the former agree- 
 ments, or in any manner to add to, or subtract from, or vary 
 or qualify the terms of it, and thus to make a new contract ; 
 which is to be proved, partly by the written agreement, and 
 partly by the subsequent verbal terms engrafted upon what 
 will be thus left of the written' agreement. And if the pres- 
 ent contract was not subject to the control of any act of 
 parliament, we think that it would have been competent for 
 the parties, by word of mouth, to dispense with requiring a 
 good title to be made to the lot in question, and that the 
 action might be maintained. . . . But we think the object of 
 the statute of frauds was to exclude all oral evidence as to 
 contracts for the sale of lands, and that any contract which 
 is sought to be enforced must be proved by writing only." 
 In Marshall v. Lynn,^ it appeared that on the 15th of 
 
 1 Marshall v. Lynn, 6 M. & W. 109. 
 
756 STATtTTE OF FEATJDS. [CHAP. XIII. 
 
 December, 1838, the plaintiff and defendant entered into a 
 written contract, as follows : — 
 
 " Wisbech, 15th December, 1838. 
 Bought of Mr. Thomas Marshall, as many potatoes as 
 will load his brig the Kitty, Captain William Scott, say from 
 sixty to seventy lasts, to be shipped on board the above ves- 
 sel on her arrival here the next time — say what pink kid- 
 neys he has at 4 s. 6 d. per sack, and the round, white, and 
 blue ones at 4 s. 6 d. per sack, of fifteen ounces net merchants' 
 ware, free on board the said ship — payment, cash on deliv- 
 ery. 
 
 (For William Lynn), 
 
 Robert Lynn. 
 Witness : 
 
 T. Marshall." 
 
 On the 25th of December, the Kitty arrived at Wisbech, 
 that being the next arrival after the making of the contract, 
 and on the following day, the plaintiff's son informed the 
 defendant that the Kitty would be ready to take in the pota- 
 toes on the 28th, when the defendant requested that the 
 plaintiff would let the vessel go to Lynn and load a cargo of 
 potatoes which he had purchased there, and for which he 
 could not obtain a vessel, and take them to London ; and he 
 then promised the plaintiff to take the plaintiff's potatoes 
 the next time the Kitty came to the port of Wisbech. This 
 proposal was agreed to, on the understanding that the plain- 
 tiff's potatoes should be taken the next time the Kitty came. 
 In pursuance of this arrangement, the Kitty sailed to Lynn, 
 and, after proceeding to London, and there discharging her 
 cargo, she returned to Wisbech, and arrived there on the 7th 
 of February. On the 8th of February the vessel was ready 
 to receive the potatoes, of which the defendant had full 
 notice, and was requested to take them ; but the defendant 
 said he could not take them then, nor did he know when he 
 could ; and he ultimately declined taking them. They were 
 afterwards shipped to London, and there sold by the plain- 
 tiff, who brought this action to recover the loss sustained by 
 the defendant's non-performance of the contract. It was 
 contended at the trial, on the part of the defendant, that the 
 alteration in the time fixed by the terms of the original con- 
 
SEC. 403.] MEMORANDUM OK NOTE IN WRITING. 757 
 
 tract for shipping the potatoes, was a variation of it in a 
 material part, and ought to liave heen in writing. The judge 
 directed the jury to find a verdict for tlie plaintiff, giving 
 the defendant leave to move to enter a non-suit. This ver- 
 dict was set aside and a non-suit ordered. " It seems to me," 
 said Paeke, B., " to be unnecessary to inquire what are the 
 essential parts of the contract, and what not, and that every 
 part of the contract, in regard to which the parties are stip- 
 ulating, must be taken to be material ; and perhaps, therefore, 
 the latter part of the judgment in Stead v. Dawber may be 
 considered as laying down too limited a rule. Every thing 
 for which the parties stipulate as forming part of the con- 
 tract must be deemed to be material. Now, in this case, by 
 the original contract, the defendant was to accept the goods, 
 provided they were sent by the first ship : the parties after- 
 wards agreed by parol that the defendant would accept the 
 goods if they were sent by the second ship, on a subsequent 
 voyage : that appears to me to be a different contract from 
 what is stated before. Such was my strong impression, inde- 
 pendently of any decision on the point : but the case of Stead 
 V. Dawber is precisely in point with the present, and on look- 
 ing at the judgment, it does not appear to proceed altogether 
 upon the time being an essential part of the contract, but on 
 the ground that the contract itself, whatever be its terms, if 
 it be such as the law recognizes as a contract, cannot be 
 varied by parol. It has been said that the adoption of this 
 rule will produce a great deal of inconvenience ; I am not, 
 however, aware of much practical inconvenience that can 
 result from it, and none that furnishes any reason for alter- 
 ing the rule of law in respect of these mercantile contracts. 
 They frequently vary in terms, and admit of some latitude 
 of construction, but the expressions used in them generally 
 indicate the intention of the parties sufficiently well ; there 
 is a sort of mercantile short-hand, made up of few and short 
 expressions, which generally expresses the full meaning and 
 intention of the parties. On the whole, it appears to me 
 that no reasonable distinction can be made between this case 
 and that of Goss v. Lord Nugent. This is a new contract, 
 incorporating new terms, and I think it cannot be enforced 
 by action, unless there is a note in writing, expressing those 
 
758 
 
 STATUTE OF FRAUDS. 
 
 [chap. XIII. 
 
 new terms distinctly, or in the mercantile phraseology which, 
 as I have already said, admits of some latitude of interpreta- 
 tion. This action, therefore, cannot be maintained, and a 
 non-suit must be entered." ^ 
 
 But the original contract remains, and if the plaintiff can 
 show his readiness to perform according to the contract, it can 
 be sued upon the same as though no parol change had been 
 attempted.^ From what has been said it will be seen that 
 
 1 A contrary doctrine is held in 
 Massachusetts, where the parol agree- 
 ment relates merely to the perform- 
 ance of the contract. Cummings c. 
 Arnold, 3 Met. (Mass.) 486; Stearns 
 V. Hall, 2 Cush. (Mass.) 31; Norton v. 
 Simonds, 124 Mass. 19. See also, to 
 the same effect, Gault v. Brown, 48 
 N. H. 183 ; Buell v. Miller, 4 id. 196 ; 
 Eichardsou i). Cooper, 25 Me. 450; 
 Knibs V. Jones, 44 Md. 396 ; Negley v. 
 Jeffers, 28 Ohio St. 90; Eaffensbur- 
 ger V. CuUison, 28 Penn. St. 426. 
 But holding the doctrine of the prin- 
 cipal ease, see Schultz v. Bradley, 57 
 N. y. 646; Ladd .,. King, 1 R. I. 224; 
 Dana v. Hancock, 30 Vt. 616 ; Swain 
 V. Seamans, 9 "Wall. (U.S.) 224; Em- 
 erson V. Slater, 22 How. (U.S.) 42; 
 Musselman u. Storer, 31 Penn. St. 
 265 ; Espy v. Anderson, 14 Penn. St. 
 308 ; Hickman o. Haynes, L. R. 10 C. 
 P. 598 ; WilUams v. Robinson, 73 Me. 
 186. 
 
 2 Noble V. Ward, L. R. 1 Exchq. 
 117 ; Ogle V. Earl Vane, L. E. 3 Q. B. 
 272 ; Hickman v. Haynes, L. E. 10 C. 
 P. 598. But not otherwise : Plevin v. 
 Downing, 1 C. P. Div. 220; Tyers v. 
 Eosedale Iron Co., L. E. 10 Exchq. 
 195. Although neither party can 
 avail himself of a parol agreement to 
 vary or enlarge the time of perform- 
 ance, yet, if the seller has postponed 
 delivery at the verbal request of the 
 buyer J or the buyer has forborne to claim 
 delivery at the verbal request of the 
 seller, neither the seller in the former, 
 nor the buyer in the latter, case is 
 precluded from afterwards suing on 
 the original contract. In Ogle v. 
 Earl Vane, ante, the defendant con- 
 tracted to sell to the plaintiff 500 
 
 tons of iron, delivery to extend to 
 the 25th of July, 1865. Owing to 
 an accident to the defendant's fur- 
 naces, he had delivered none of the 
 iron by that date. Afterwards negoti- 
 ations passed between the parties, 
 but eventually, in February, 1866, the 
 plaintiff went into the market. The 
 price of iron had risen since July, 
 and the plaintiff sought to recover 
 from the defendant the difference 
 between the contract and the market 
 price in February. The defendant 
 paid into court the difference between 
 the contract and the market price in 
 July. The judge at the trial left it 
 to the jury to say whether on the 
 evidence they thought that the de- 
 fendant had held out that he should 
 be able to deliver the iron, and that 
 the plaintiff had waited accordingly, 
 in which case they might return a 
 verdict for damages beyond the 
 amount paid into court. The jury 
 returned a verdict for the full amount 
 claimed. Upon the argument of a 
 rule to enter the verdict for the de- 
 fendant, on the ground that there was 
 no evidence to go to the jury, of then 
 plaintiff being entitled to more dam- 
 ages than were represented by the 
 sum paid into court, it was objected, 
 on behalf of the defendant, that any 
 agreement for postponement ought to 
 have been in writing to satisfy the 
 statute of frauds ; but it was held by 
 the Court of Queen's Bench, and af- 
 firmed by the exchequer chamber, 
 first, that there was evidence from 
 which the jury might infer that the 
 plaintiff's delay in going into the mar- 
 ket was at the defendant's request; 
 and, secondly, that as the evidence 
 
SEC. 403.] MEMORANDUM OR NOTE IN WRITING. 
 
 759 
 
 parol evidence is not admissible to change any of the terms 
 of the contract, all the terms, about which the parties have 
 
 went to show, not a new contract, but 
 simply a forbearance by the pluintiff at 
 the request of the defendant, the statute 
 of frauds did not apply. The cases 
 bearing upon this point are consid- 
 ered in tlie judgment of the Court of 
 Common Pleas in Hickman c. Haynes, 
 ante. The contract was for the sale by 
 the plaintiff to the defendants of 100 
 tons of pig-iron by monthly deliveries 
 of twenty-five tons, in March, April, 
 May, and June, 1873. Seventy-five 
 tons of iron were delivered during 
 the months of March, April, and May, 
 respectively, in accordance with the 
 contract, but early in June the de- 
 fendants verbally requested the plain- 
 tiff, and the plaintiff consented, to 
 postpone delivery of the remaining 
 twenty-five tons. Upon the expira- 
 tion of the contract time the plain- 
 tiff tendered the residue of the iron, 
 but the defendants then refused to 
 accept it. In an action for damages 
 for breach of contract the plaintiff 
 was held entitled to succeed. It was 
 contended, on behalf of the defend- 
 ants, that a new agreement for the 
 delivery and acceptance of the re- 
 maining twenty-five tons of iron had 
 been substituted for the original writ- 
 ten contract, and that this new agree- 
 ment, being verbal, could not be en- 
 forced; but the court held that the 
 original contract still subsisted, and 
 that the plaintiff could maintain an 
 action upon it; that the assent to the 
 defendants' request to give time was 
 not a valid agreement binding the 
 plaintiff, but a voluntary forbearance 
 on his part ; and the same distinction 
 was drawn between a substitution of 
 one agreement for another, and a vol- 
 untary forbearance to deliver at the 
 request of another, which had already 
 been recognized in Ogle v. Earl Vane. 
 In Plevins v. Downing, ante, the plain- 
 tiffs contracted to deliver 100 tons of 
 pig-iron, " 25 tons at once, and 75 tons 
 in July next." By the end of July 
 the plaintiffs had delivered, and the 
 
 defendant had accepted, 75 tons in 
 all. There was no evidence that the 
 defendant had requested the plain- 
 tiffs, before the end of July, to witlihold 
 delivery of the remaining 25 tons; 
 but there was evidence that in October 
 the defendant verbally requested the 
 plaintiffs to forward 26 tons, wliich, 
 when forwarded, he declined to ac- 
 cept. Held, that the plaintiffs could 
 not sue on the original contract, inas- 
 much as they were unable to prove that 
 they were ready and willing to deliver 
 the 25 tons at the end of July, and had 
 only withheld delivery at the defend- 
 ant's request ; neither could they rely 
 upon the request to deliver made to 
 them by the defendant in October, as 
 that would have been to substitute a 
 parol for a written agreement. " It 
 is true," said Buett, J., in delivering 
 the judgment of the court, " that a 
 distinction has been pointed out and 
 recognized between an alteration of 
 the original contract in such cases 
 and an arrangement as to the mode 
 of performing it. If the parties have 
 attempted to do the first by words 
 only, the court cannot give effect in 
 favor of either to such attempt; if 
 the parties make an arrangement as 
 to the second, though such arrange- 
 ment be only jnade by words, it can 
 be enforced. The question is, what 
 is the test in such an action as the 
 present, whether the case is within 
 the one rule or the other. Where 
 the vendor, being ready to deliver 
 within the agreed time, is shown to 
 have withheld his offer to deliver till 
 after the agreed time, in consequence 
 of a request to him to do so made by 
 the vendee before the expiration of 
 the agreed time, and where after the 
 expiration of tlie agreed time, and 
 within a reasonable time, the vendor 
 proposes to deliver, and the vendee 
 refuses to accept, the vendor can re- 
 cover damages . . . but if the alter- 
 ation of the period of delivery were 
 made at the request of the vendor. 
 
760 
 
 STATUTE OP' FRAUDS. 
 
 [chap. XIII. 
 
 seen fit to contract, being regarded as material.^ But the 
 inconvenience of this rule has led even the English courts to 
 look about for means to evade it, and it is held that, while 
 parol evidence is not admissible to prove a substituted con- 
 tract, yet, when performance under the contract is completed, evi- 
 dence of a substituted mode of performance is admissible.^ Thus 
 where by the contract goods were to be forwarded to Ostend, 
 but they were in fact forwarded to Rotterdam, evidence was 
 admitted to show that the purchaser by his conduct had 
 assented to such substituted mode of performance.^ Mk. 
 Benjamin, in his work on sales,* says : " The following prop- 
 ositions may fairly be deduced from the authorities where, in 
 contracts for the delivery of goods by instalments, there 
 have been applications for postponement of deliveries by 
 seller or purchaser, and a subsequent tender of or request 
 for delivery : A. Where the tender or request is within the 
 contract time. 1. The defendant is bound to accept or deliver, 
 although there has been postponement at the plaintiff's re- 
 quest. 2. It has not yet been decided whether the defendant 
 
 though such request were made 
 during the agreed period for delivery, 
 so that the vendor would be obliged, 
 if he sued for a non-acceptance of an 
 offer to deliver after the agreed 
 period, to rely upon the assent of the 
 vendee to his request, he could not aver 
 and prove that he was ready and willing 
 to deliver according to the terms of the 
 original contract. The statement shows 
 that he was not. He would be driven 
 to rely on the assent of the vendee to 
 a substituted time of delivery, that is 
 to say, to an altered contract or a new 
 contract. This he cannot do, so as to 
 enforce his claim. This seems to be 
 the result of the cases which are 
 summed up in Hickman v. Haynes." 
 In Tyers v. The Rosedale Iron Co., 
 ante, the defendants were the sellers, 
 and the plaintiffs the purchasers, of 
 iron, deliverable in monthly quanti- 
 ties over 1871. The defendants with- 
 held delivery of various monthly 
 quantities at the plaintiffs' request. 
 Afterwards, in December, 1871, the 
 last month fixed in the contract for 
 delivery, the plaintiffs demanded im- 
 
 mediate delivery of the whole of the 
 residue of the iron deliverable under 
 the contract. The defendants refused 
 to deliver any more than the monthly 
 quantity for December. In an action 
 by the plaintiffs for non-delivery, it 
 was held by the exchequer chamber, 
 reversing the decision of the majority 
 of the Court of Exchequer, that the 
 defendants were not entitled to refuse 
 to deliver more than the monthly 
 quantity. 
 
 ^ Pakke B., in Marshall v. Lynn, 
 6 M. & W. 116. But see Hoadley v. 
 McLean, 10 Bing. 489, where changes 
 made in a laundalet which the plain- 
 tiff was manufacturing for the de- 
 fendant under a written contract, 
 made by the direction of the purchaser, 
 were permitted to be shown to have 
 been made by the purchaser's direc- 
 tion, as an excuse for not making it 
 according to the contract. 
 
 2 Hoadley v. McLean, 10 Bing. 
 489. 
 
 8 The Leather Cloth Co. v. Hie- 
 ronimus, L. R. 10 Q. B. 140. 
 
 * Benjamin on Sales, § 217. 
 
SEC. 403.] MEMOKANDtJM OE KOTE IN WRITING. 761 
 
 is bound to accept or deliver all the quantities within the 
 contract time, or only within some reasonable time after- 
 wards, though the latter appears to be the better opinion .^ 
 B. Where the tender or request is after the contract time. 
 1. If the postponement has taken place at the defendant's 
 request, he is estopped from denying that the plaintiff 
 was ready and willing to deliver or accept within the con- 
 tract time.^ 2. If the postponement has taken place at the 
 plaintiff's request, he cannot maintain his action on the original 
 contract, because he cannot prove that he was ready and will- 
 ing to deliver or accept pursuant to the contract.^ 3. In the 
 last case, if suing on a substituted contract, such contract must 
 have been reduced to writing in order to satisfy the statute 
 of frauds." * The contrary dictum of Martin, B., in Tyers v. 
 Rosedale Iron Co.,^ must, it is submitted, be considered as 
 overruled in Plevins v. Downing. Proof of approval, after 
 performance of a substituted mode of performance, is a dif- 
 ferent thing from proof of a substituted contract, and may 
 be given by parol.^ And it may be said that these rules, or 
 exceptions, do not contravene the statute, and seem to be 
 justified both in principle and reason. But any parol change 
 ill any of the terms of the contract as they exist in the writ- 
 ing, opens the door to all the mischiefs which the statute 
 was intended to prevent. Because if, after a contract has 
 been reduced to writing so as to avoid the statute, it can be 
 varied by parol, the statute can always be evaded by the very 
 fraud and perjury which the statute was designed to avoid. 
 Where a written contract has been varied by parol, and the 
 parol variation has been performed, equity will enforce the parol 
 modification of the original contract. Thus a purchaser of 
 land under a written contract, which provided that he should 
 build a saw-mill on the land to be conveyed, afterward ob- 
 tained oral permission from the vendor to erect the mill on 
 an adjoining piece of land not mentioned in the contract, and 
 
 1 Tyere v. Eosedale Iron Co., L. R. ' Plevins v. Downing, 1 C. P. D. 
 10 Ex. 195, in Ex. Ch., reversing S. C. 220. 
 
 L. B. 8 Ex. .305. * Plevins <.. Downing, 1 C. P. D. 
 
 2 Ogle V. Earl Vane, L. R. 3 Q. B. 220. 
 
 272, in Ex. Ch., affirming S. C. L. R. 2 ^ l. r. g Ex., at p. 319. 
 
 Q. B. 275 ; Hickman v. Haynes, L. R. " The Leather Cloth Co. v. Hie- 
 
 10 C. P. 598. ronimus, L. R. 10 Q. B. 140. 
 
762 STATUTE OP FRAUDS. [CHAP. XIII. 
 
 the purchaser agreed to pay at a certain rate for the addi- 
 tional land. The mill having been built, it was held that 
 equity would enforce the oral modification of the original 
 contract.^ 
 
 Sec. 404. Lost Memorandum. — The question whether, 
 where a memorandum answering the requirements of the 
 statute has once been made, but is lost before action brought, 
 or the trial, its contents can be proved by parol, is of con- 
 siderable importance. In a Wisconsin case,^ where it was 
 shown that A sent by mail a letter,' making a proposal for a 
 contract with B, and B deposited in the post-office, prepaid, 
 a letter addressed to A at his proper post-office address, 
 accepting such proposal, it was held that the contract was 
 thereby completed, although A never received the letter of 
 acceptance. But it will be observed that in this case, the 
 proof only went to the execution of the contract, and did not 
 involve parol proof of any of its terms. And as the object of the 
 statute seems to be to require proof in writing of the terms of 
 the contract, it is difficult to understand how parol proof can 
 be admitted as a substitute, except possibly, where there is no 
 conflict in the evidence as to what the terms of the lost instrument 
 really were; and where there is any conflict in that respect, 
 although the paper lost is only one of several, going to make 
 up the completed memorandum, it will prevent a recovery.^ 
 
 1 Marsh v. Bellew, 45 Wis. 36. In rescission of a sale of land, the pur- 
 
 Phelps V. Seeley, 22 Gratt. (Va.) 573, chase-money not having been paid, 
 
 it was hold that a written contract, acecompanied by a return of the 
 
 although under seal, rhay be rescinded possession toUhe vendor, is not within 
 
 by a subsequent parol agreement fully the statute. 
 
 carried out. See, also. Marsh v. Bel- ^ Washburn v. Fletcher, 42 Wis. 
 
 lew, 45 Wis. 36, where it was held 152. See also Ryan v. Salt, 3 U. C. 
 
 that a person might waive a provision C. P. 83 ; Davis o. Robertson, 1 Mill, 
 
 of a written contract by parol. In (S. C.) 71 ; Jelks v. Barrett, 52 Miss. 
 
 Arrington v. Porter, 47 Ala. 714, it 315. 
 
 was held that a parol contract for the ^ Ballingall v. Bradley, 17 111. 373. 
 
CHAPTER XIV. 
 
 THK SIGNATURE TO THE MEMOEANDUM. 
 
 405. Need be Signed only by Party to be Charged. 
 
 406. Approval of Draft of Agreement. 
 
 407. By Agent. 
 
 408. Alteration of Draft of Agreement. 
 
 409. What is a SuflSeient Signature. 
 
 410. Signature as Witness. 
 
 411. By Partner. 
 
 412. May be by Pencil, Stamp, or Printed. 
 
 413. Mark or Initials Sufficient. 
 
 414. Instructions for Telegram. 
 
 415. Place of Signature not Material. 
 
 416. Signature at Beginning. 
 
 417. Signature upon Goods in Catalogue or Order-Book. 
 
 418. Signature in the Third Person. 
 
 419. Kule in Caton v, Caton. 
 
 Section 405. Memorandum need only be Signed by the 
 Party to be Charged. — The fourth section of the statute of 
 frauds requires that the note or memorandum shall be signed 
 " by the party to be charged," and the seventeenth " by the 
 parties to be charged." The object of the statute is to 
 afford protection against fraud and perjury, and the means 
 emploj'ed are requiring a written memorandum and prevent- 
 ing a recovery by mere oral proof. The end and object of 
 the statute are attained hy written proof of the obligation of the 
 defendant. He is the party to be charged with a liability, 
 and the one intended to be protected against the dangers of 
 false oral testimony. To say that the plaintiff or the party 
 seeking to enforce a contract is himself a party to be charged 
 therewith is a perversion of language. The term " parties " 
 is used in connection with the words " to be charged thereby," 
 and does not include all the parties to the contract. It is, on 
 the contrary, limited and restricted by the qualifying words 
 to such only of those - parties as are to be bound or held 
 
764 STATUTE OF FEAXIDS. [CHAP. XIV. 
 
 chargeable, and legally responsible on the contract, or on' 
 account of a liability created by or resulting from it. If to 
 include all the parties had been iutended, those words " to be 
 charged thereby " would have been unnecessary and super- 
 fluous. The appropriate language to express such intention 
 would have been that the note or memorandum should be 
 subscribed " by all the parties thereto," or " by the parties 
 thereto," or some such general terms. Mutuality of ohligor 
 tion is not essential to render a party liable upon a contract. 
 If there is a consideration for his undertaking, he is bound ; 
 and the fact that the contract may not be enforceable against 
 one party, because not subscribed by him, is no defence to 
 the other, by whom it is' subscribed.^ Under both these 
 sections it has long been well settled that an agreement signed 
 by one party only is sufficient to charge him within the statute, 
 and therefore, upon a contract for the sale of land or of 
 goods, if the purchaser alone has signed the contract, he 
 cannot refuse to execute the conveyance or to accept the 
 goods upon the ground that the purchaser has not signed 
 also.^ And it is no objection that the party signing can 
 
 1 Justice V. Lang, 42 N. Y. 493. "Wis. . 176 ; Waul v. Kirkman, 27 
 
 2 Shirley v. Shirley, 7 Blackf. Miss. 823 ; Stewart w. Eddowes, L. E. 
 (Ind.) 452; Crutchfield v. Donathan, 9 C. P. 311; Brettel v. Williams, 4 
 49 Tex. 691;. Anderson v. Harold, 10 Exchq. 623; Bird v. Blosse, 2 Vent. 
 Ohio, 399 ; Davis v. Shields, 26 Wend. 361 ; Marqucze t . Caldwell, 48 Miss. 
 (N. Y.) 341 ; Douglass u. Spiers, 2 N. 23 ; Williams v. Eobinson, 73 Me. 
 & M. (S. C.) 207 ; Fenly v. Stewart, 2 186; 42 Am. Eep. 352; Getchell v. 
 Sandf. (N. Y.) 101 ; Morin v. Murtz, Jewett, 4 Me. 350. It is well settled 
 13 Minn. 191 ; McCrea v. Purmort, 16 that under this statute the agreement 
 Wend. (N. Y.) 460; Rhodes v. Cast- need only he signed hy him who is to 
 ner, 12 Allen (Mass.) 130; Penniman he charged by it. Seton u-. Slade, 7 
 V. Hartshorn, 13 Mass. 87 ; Gartnell v. Ves. 265 ; Fowle v. Freeman, 9 id. 
 Stafford, 12 Met. 545 ; Smith v. 351 ; Martin v. Mitchell, 2 Jac. & W. 
 Smith, 8 Blackf. (Ind.) 208; Worrall 426; Laythoarp v. Bryant, 2 Bing. 
 !). Munn, 5 N. Y. 229 ; Ivory w. Mur- N. C. 735; Ballard v. Walker, 3 
 phy, 36 Mo. 534; Mason v. Decker, Johns. Gas. (N. Y.) 60; Clason v. 
 72 N. Y. 595; Newby v. Rogers, 40 Bailey, 14 Johns. (N.Y.) 484; McCrea 
 Ind. 9; Lent w. Paddleford, 10 Mass. v. Purmort, 16 Wend. (N.Y.) 460; 
 236 ; Barstow v. Grey, 3 Me. 409 ; Penniman v. Hartshorn, 13 Mass. 87 ; 
 Justice V. Lang, 52 N. Y. 423 ; Lowry Thayer v. Luce, 22 Ohio St. 62 ; Jus- 
 V. Mehafeey, 10 Watts (Penn.) 503; tice v. Laug, 42 N. Y. 493; 1 Am. 
 De Cordova v. Smith, 9 Tex. 129 ; Eep. 576 ; Lowher v. Connit, 36 Wis. 
 Himrad Furnace Co. v. Cleveland 176. Kent, Ch., in Clason ;;. Bailey, 
 E. E. Co., 22 Ohio St. 451 ; Western ante, said that the weight of the argu- 
 Union Tel. Co., 86 111. 246 ; Griffin v. ment was in favor of the construction 
 Eemhert, 2 S. C. 410 ; Thayer v. Luce, that the agreement concerning lands 
 22 Ohio St. 62 ; lyowber v. Connit, 36 should be mutually binding, and the 
 
SEC. 405.J SIGNATUEE TO THE MEMORANDUM. 
 
 765 
 
 enforce the contract while the other caymot ; ^ for, if it is said 
 that unless the plaintiff also signs there is a want of mutual- 
 
 same views were expressed by Vbb- 
 PLANK, Senator, in the court of errors 
 in Davis v. Shields, 26 Wend. 362, but 
 both agreed that the law was well 
 settled the other way both in this 
 country and England. A change to 
 conform to the views of Chancellor 
 Kent was afterward recommended by 
 the revisers of the New York statutes, 
 but the legislature rejected the alter- 
 ation and adhered to the old words. 
 See Willard's Eq. 267, 8. The same 
 objection was made in the case of 
 Laythoarp v. Bryant, ante, where it 
 was said tliat unless the agreement 
 was signed by both parties there 
 would be a want of mutuality ; but the 
 chief justice said, " Whose fault is 
 that ? The defendant might have 
 required the plaintiff's signature, but 
 the object of the statute was to secure 
 the defendant's. The preamble runs 
 'for prevention of many fraudulent 
 practices which are commonly en- 
 deavored to be upheld by perjury and 
 subornation of perjury,' and the whole 
 object of the legislature is answered 
 when we put this construction upon 
 the statute. Here, when the party 
 who has signed is the party to be 
 charged, he cannot be subject to any 
 fraud. And there has been a little 
 confusion in the argument between 
 the consideration of an agreement and 
 the mutuality of claims. 1 find no 
 case nor any reason in saying that 
 the signature of both parties is that 
 whicli makes the agreement." It is 
 sufficient if the contract or memoran- 
 dum thereof is signed by the party to 
 be charged, that is, by the vendor. 
 Hatton V. Gray, 2 Ch. Ca. 164 ; Seton 
 B. Slade, 7 Ves. 264; Fowle v. Free- 
 man, 9 Ves. 351 ; Western v. Russell, 
 3 V. & B. 187 ; Egerton v. Matthews, 
 6 East, 30.7 ; Boys «. Ayerst, 6 Madd. 
 316; Owen u. Thomas, 3 My. & K. 
 353 ; Field v. BoUand, 1 Dru. & Wal. 
 37 ; Liverpool Borough Bank u. 
 Eccles, 4 H. & N. 139 ; Reuss v. Picks- 
 ley, L. R. 1 Exchq. 342 ; Beer v. Lon- 
 
 don & Paris Hotel Co., L. R. 20 Eq. 
 423. 
 
 1 In Williams v. Robinson, ante, 
 Virgin, J., says ; " The memorandum 
 need be signed only by one of the 
 parties, the party to be charged: Bars- 
 tow V. Gray, 3 Me. 409 ; Getchell o. 
 Jewett, 4 id. 350 ; or by both : Atwood 
 ... Cobb, 10 Pick. (Mass.) 227 ; or coun- 
 terpart memoranda may be made and 
 signed by the respective parties: 
 Sewall V. Quincy, 4 Me. 497. So that 
 if a mutual oral executory contract 
 valid at common law be made, and one 
 of the parties obtain from the other 
 the note or memorandum thereof con- 
 templated by the statute, but does not 
 give a corresponding one, he mag enforce 
 It, although the other cannot, the 
 former having secured while the other 
 has not the evidence which the stat- 
 ute has made indispensable to its en- 
 forcement. Rogers v. Saunders, 16 
 Me. 92 ; Laythoarp v. Bryant, 2 
 Bing. (N.C.)469;" and in Old Colony 
 R. R. Co. V. Evans, 9 Gray (Mass.) 
 25, it was held that a written contract 
 signed bg one partg and acted upon bg 
 both may be enforced in equity against 
 the signer by one who has not signed. 
 Dressel v. Jordon, 104 Mass. 407 ; 
 Slater v. Smith, 117 id. 96. In Jlizell 
 V. Burnett, 4 Jones (N. C.) L. 249, it 
 was held that under the statute of 
 frauds a contract in writing, to sell 
 land, signed by the vendor, is good 
 against him, although the correlative 
 obligation of the buyer to pay the 
 price is not in writing, and cannot be 
 enforced against him. Where an 
 action is brought upon a note given 
 by a vendee, although it may not be 
 such a note or memorandum as satis- 
 fies the statute, the maker cannot 
 avoid the note which he has given, 
 because he has omitted to bind the 
 vendor. Rhodes v. Starr, 7 Ala. 347. 
 In Crutchfield v. Donathan, 49 Tex. 
 691, the defendant executed to the 
 plaintiff a negotiable note which 
 stated that the consideration was land 
 
766 STATUTE OP FRAUDS. [CHAP. XIV. 
 
 ity, the answer is that the defendant might have required the 
 plaintiff's signature to the contract ; or, that if he has not 
 done so it is his own fault ; the object of the statute was to 
 secure the defendant's.^ The party signing may, it appears, 
 require the other to accept or refuse the contract in writing, 
 and if this is not done may himself rescind it,^ at least before 
 the other has done some act to bind himself.^ Where articles 
 of association contained a clause entering into a contract 
 required by the statute to be in writing, and the articles 
 were signed by seven members of the company, but no con- 
 tract was entered into under the seal of the companj-, it was 
 held that the articles were a contract between the sharehold- 
 ers inter se, and did not create any contract between the 
 plaintiff, who was not a party, and the company, and that the 
 signatures to the articles which were afSxed, alio intuitu, 
 were not signatures to a memorandum of the contract within 
 the statute, so as to bind the company.* 
 
 Sec. 406. Approval of Draft Agreement or Conveyance by 
 Parties, "Whether Sufficient Signature. — It seems to be doubt- 
 ful whether the signature, by way of approval, of a draft 
 agreement or conveyance, by a party to be bound, is a suffi- 
 cient signature within the statute.^ Where a draft agree- 
 ment had on the back of it the following memorandum, " We 
 approve of the within draft," and this was signed by the 
 parties, it was argued that this draft, though not of itself an 
 
 sold him by the plaintiff. In an ' Martin v. Mitchell, 2 Jac. & W. 
 
 action thereon it was held that the 428. The foregoing cases overrule 
 
 action was upon the note and not dicta in Lawrenson v. Butler, 1 Sch. 
 
 upon the contract, and that it was en- & Lef . 13 ; and O'Eourke v. Perceval, 
 
 forceable as a note, although not 2 Ball & B. 58. As to when a cov- 
 
 sufficient as a memorandum under the enantee may sue for a breach of 
 
 statute because not signed by the covenant, although he has not exe- 
 
 vendor. McGowen «. West, 7 Mo. cuted the deed, see Wetherell 17. 
 
 569; Gillespie ./. Battle, 15 Ala. 276; Langston, 1 Ex. 634; Pitman v. 
 
 Allen V. Bennett, 3 Taunt. 169 ; Lord Woodbury, 3 Ex. 4 ; Swatman u. 
 
 Ormund u. Anderson, 2 Ball &B. 370; Ambler, 8 Ex. 72; British Empire 
 
 Thornton v. Kempster, 5 Taunt. 786. Mutual Life Assurance Co. v. Browne, 
 
 1 Laythoarp v. Bryant, 2 Bing. (N. 12 C. B. 723 ; Morgan v. Pike, 14 C. 
 C.) 743, per TiNDAL, C. J. See as to B. 473; Taylor on Evid. 6th ed. 904. 
 alterations made after signature by * Eley v. The Positive Assurance 
 one of the parties, Stewart v. Eddowes, Co., L. R. 1 Ex. D. 20. But see Jones 
 L. R. 9 C. P. 311. V. Victoria Graving Dock Co., 2 Q. B. 
 
 2 Lord Ormund u. Anderson, 2 D. 314, holding a contrary doctrine. 
 Ball & B. 371 ; Williams v. Williams, » Parker v. Smith, 1 Coll. 608. 
 17 Beav. 213, 216. 
 
SEC. 408.] SIGNATTJKE TO THE JIEMORANDUJI. 7G7 
 
 agreement, was evidence of an agreement. But the court 
 held the contrary, Lord Tenterden, C. J., saying that the 
 words in question did not import an agreement, for if they 
 did there would not have been any necessity for any other 
 instrument.^ " Where the parties themselves, not being 
 professional persons, sign such a memorandum, it is a ques- 
 tion to be decided in each case Avhether they signed in that 
 form as simply approving of the draft as such, or whether 
 they intended to give validity to it as an agreement." ^ 
 
 Sec- 407. By Agent. — It seems that the written approval 
 by a professional agent of a draft agreement, or conveyance, 
 which recites the agreement, is not sufficient, the signing 
 being alio intuitu? Where, the defendant having proposed 
 to take a lease of certain premises for the term of seven 
 years, a draft lease was prepared to which the defendant 
 made some objections, and ultimately took it away to be 
 settled by his solicitors, who returned it to the plaintiffs 
 solicitors with the following letter : " We have seen our 
 client, and have altered the draft lease in accordance with 
 his instructions. We trust there will be no impediment to 
 prevent an early completion, and shall be glad to receive the 
 draft as soon as you can, that we may engross the counter- 
 part " ; and the plaintiff's solicitors replied, returning the 
 draft and engrossment of the lease and counterpart, stating 
 that, according to the practice where there is no stipulation 
 on the subject, the lessor's solicitor invariably prepares both 
 lease and counterpart, it was held that there was no evidence 
 of any contract binding the defendant to take the lease, and 
 no memorandum of any contract sufficient for that purpose 
 within the statute.* 
 
 Sec. 408. Alteration of Draft Conveyance by Party to it. — 
 The alteration of a draft conveyance by one of the parties in 
 his own hand is not a sufficient signature, even though the 
 
 1 Doe V. Pedgriph, 4 C. & P. 312. Bishop of Norwich, 1 Kop. H. & W. 
 
 2 Sugd. V. & P. 14th ed. 144 ; and by Jac. 308, n. ; Jackson v. Oglander, 
 see Poligno v. Martin, 22 L, J. Ch. 2 H. & M. 472 ; and see Thornbury v. 
 502. Bevill, 1 Y. & C. C. C. 554 ; Card v. 
 
 3 Dart. V. & P. 5th ed. 234, citing JafEray, 2 Sch. & Lef. 374. ' 
 
 Lady Thynne v. Earl of Glengall, 2 « Forster v. Rowland, 7 H. & N. 
 H. L. C. 131; Lord Townshend v. 103. 
 
768 STATUTE OP FEAUDS. [CHAP. XIV. 
 
 seller afterwards executes it, and causes it to be registered,^ 
 nor will it be sufficient if the whole conveyance is drawn by 
 the defendant if not signed, for the statute has made signing 
 absolutely necessary for the completion of the contract,^ and 
 the mere circumstance of the name of a party being written 
 by himself in the body of a memorandum of agreement for 
 a lease will not constitute a signature within the statute.^ 
 The rule therefore appears to be that the mere approval or 
 alteration of a draft agreement or conveyance by one or both 
 of the parties, or by a professional agent, unless with the 
 intention to contract, is not a sufficient signing within the 
 statute. In Shippey v. Derrison,* the defendant had entered 
 into a parol agreement for a lease, and a draft was prepared 
 and sent to him on which he endorsed and signed a memo- 
 randum requesting the plaintiff to relet the premises, and it 
 was held that this was a sufficient signature. The ground of 
 decision was that the defendant admitted that he had entered 
 into the agreement. 
 
 Sec. 409. what is a Sufficient Signature. — It is not enough 
 to identify : there must be a signing, that is to say, either an 
 actual signature of the name or something intended by the 
 writer to be equivalent to a signature, such as a mark by a 
 marksman. Thus a letter from a mother to her son, begin- 
 ning "My dear Robert," and concluding "your affectionate 
 mother," was held not signed so as to constitute a binding 
 contract within the intention of. the statute.^ 
 
 Sec. 410. Signature as Witness. — It appears that a person, 
 whether principal or agent, signing an agreement as witness 
 with knowledge of its contents, and with the intention of authen- 
 ticating the instrument, will he hound.^ In one case,'^ LoRD 
 Eldon said that " where a party principal, or person to be 
 bound, signs as what he cannot be, a witness, he cannot be 
 understood to sign otherwise than as principal." Where, 
 however, an auctioneer's clerk, whose signature if on behalf 
 
 1 Hawkins v. Holmes, 1 P. Wms. ^ Selby v. Selby, 3 Mer. 2 ; and see 
 770. Skelton v. Cole, 1 De G. & J. 587. 
 
 2 Ithel V. Potter, 1 P. Wms. 771. « Welford v. Beazley, 3 Atk. 504 ; 
 8 Stokes u. Moore, 1 Cox, 219 ; 1 Ves. 6 ; Symons v. Symons, 6 Madd. 
 
 Caton V. Cfaton, L. E. 1 Ch. 137; affd. 207. 
 
 L. R. 2 H. L. 127. '' Coles v. Trecothick, 9 Ves. 251. 
 
 * 5 Esp. 190. 
 
SEC. 412.] SIGNATURE TO THE MEMOllANDUM. 
 
 769 
 
 of the vendor would have bound him, attestetl the purchaser's 
 signature to a written memorandum of the contract, it was 
 held that this was not sufficient to bind the vendor. And 
 Lord Denman, C. J., said that " he thought tlie above 
 remark of Lord Eldon open to much observation ; that no 
 such decision had been actually made ; and that if it had, he 
 should pause, unless he found it sanctioned by the very 
 highest authority, before he held that a party attesting was 
 bound by the instrument.^ 
 
 Sec. 411. By Partner. — One of a partnership firm may 
 bind the other partners, on a purchase of goods required by 
 the firm in the course of their business, by signing the usual 
 style of the firm.^ 
 
 Sec. 412. Signature may be in Pencil, by a Stamp, or 
 Printed. — The signature may be written in pencil instead of 
 ink, for signature in pencil is not necessarily deliberative,* or 
 
 question of fact, in view of all the 
 circumstances the principal of which 
 are the purpose for which the writin;^ 
 was stamped, and also whether the 
 stamp had been adopted as a signa- 
 ture. Boardman v. Spooner, 13 Allen 
 (Mass.)353;Druryi'.Young,58Md.540. 
 See Zachrisson v. Poppe, 3 Bos. (N. Y.) 
 171, for instance ii) which a printed 
 signature was held not sufficient. 
 Where the name of a party is written 
 at the commencement of a contract, 
 as "J S hereby agrees, etc.," and is 
 also signed at the end thereof, but the 
 signature is marked off, it cannot be 
 treated as a signed contract by reason 
 of the name at the commencement, 
 nor by reason of the actual signature, 
 unless it is shown that the contract 
 was signed for the purpose of perfect- 
 ing the contract, and that it became 
 a valid contract. McMillen v. Terrell, 
 23 Ind. 168. A memorandum of a 
 sale of land written by the vendor in 
 his own memorandum book, and 
 signed by him and by the agent of the 
 vendee,.h valid, and not open to vari- 
 ance by parol proof, Wierner v. 
 Whipple, 53 Wis. 298 ; but an entry 
 made by the vendor in his memoran- 
 dum book of the name of the pur- 
 
 1 Gosbell V. Archer, 2 Ad. & El. 
 500 ; 5 N. & M. 485 ; and see Doe ;;. 
 Burdett, 9 Ad. & El. 971 ; S. C. 6 M. 
 
 6 Gr. 386; and Bult v. Morrell, 12 
 Ad. & El. 745. Upon these cases 
 LoKD Si. Leonards remarks, Sugd. 
 V. & P. 13th ed. 116, that "there ap- 
 pears to be no foundation for the 
 doubt thus thrown upon the dictum of 
 Lord Eldon, for he cgnfines his ob- 
 servation to the case where the person 
 to be bound signs as, what he cannot be, 
 a witness, and must therefore be con- 
 sidered to sign in his proper charac- 
 ter. By the rule as expressed by 
 Lord Eldon, the person signing is 
 assumed to be really the contracting 
 party. In the case put by way of 
 objection there would be no real con- 
 tract by the party to sign." 
 
 2 Norton v. Seymour, 2 C. B. 792. 
 
 3 Geary v. Physic, 5 B. & C. 234 ; 
 
 7 D. & R. 653; Lucas v. James, 7 
 Hare, 410; Draper v. Pattina, 2 
 Speers (S. C.) 292; Clason v. Bailey, 
 14 John. (N. Y.) 484; Merritt v. 
 Clason, 12 id. 102; McDowell v. 
 Chambers, 1 Strobh. (S. C.) Ch. 347. 
 The question as to whether a. name 
 stamped or printed on a paper was 
 intended as and for a signature is a 
 
770 STATUTE OF FRAUDS. [CHAP. XIV. 
 
 it may be made by means of a stainp.^ The ordinary mode 
 of aii&xing a signature to a document is not by the hand 
 alone, but by the hand coupled with some instrument, such 
 as a pen or a pencil, and there is no distinction between using 
 a pen or a pencil and using a stamp, where the impression is 
 put upon the paper by the proper hand of the party signing. 
 In each case it is the personal act of the party, and to all 
 intents and purposes a signing of the document by him.^ So 
 also the signature may be printed if recognized by the party 
 to be charged, and appropriated by him to the particular 
 contract.^ Thus, in Saunderson v. Jackson, it was held that 
 a bill of parcels in which the vendor's name was printed, 
 delivered to the vendee at the time of order given for the 
 future delivery of goods, was a sufficient memorandum of the 
 contract within the statute ; and at all events, that a subse- 
 quent letter written and signed by the vendor referring to 
 the order might be connected with the bill of parcels so as to 
 take the case out of the statute. In a Maryland case,* the 
 court say : " It is therefore a sufficient signing if the name Ic 
 in print, and in any part of the instrument, provided that the 
 name is recognized and appropriated hy the party to be his. 
 . . . " It is for the jury to determine the question whether the 
 printed names were adopted and appropriated by the defend- 
 ants as theirs." * 
 
 chaser and of the terma of the eon- ' 2 B. & P. .238 ; and see Schneider 
 tract of sale, which was read to the v. Norris, 2 M. & Sel. 286; Drury !>. 
 agent of the vendee, who made the Young, 58 Md. 546. 
 purchase, and assented to hy him as ^ Drury v. Young, ante. 
 correct, is not sufficient, it not being ^ The civil law did not require 
 signed by the party to be charged, or by the signature of a party to a writ- 
 his agent. Bailey v. Ogden, 3 Johns- ten contract of sale if the contract 
 (N. Y.)399. See also Barry 2!. Law, 1 was in his own handwriting. "With 
 Cr. (U. S. C. C.) 77. But where a regard to those contracts of sale and 
 person who has sold land or goods to purchase which are perfected by 
 another, and renders an account to writing, we have ordained," ohserves 
 him in which the price thereof is- the emperor in the Institutes, " that 
 charged, and he signs the account, it they shall not be valid and binding 
 is held a sufficient memorandum ; unless they be written by the contract- 
 otherwise not. . Denton v. McICenzie, ing parties, or signed by them if 
 1 Dessau (S. C.) 289. written by another." Lib. iii. tit. 24. 
 
 1 Bennett v. Brumfitt, L. E. 3 C. Butbythecommonlaw,if thedefendant 
 P. 28; Brayley v. Kelly, 25 Minn, has written the whole contract with 
 160 ; Boardman u. Spooner, 13 Allen his own hand, without signing it as a 
 (Mass.) 353. concluded agreement, this is not suf- 
 
 2 Bennett u. Brumfitt, L. E. 3 C. ficient, as the statute has made signing 
 P. 28, per Bovill, C. J. absolutely necessary for the com- 
 
SEC. 414.] SIGNATURE TO THE MEMOKANDUM. 
 
 771 
 
 Sec. 413. Mark or Initials Sufficient. — It is not necessary 
 that the name of the party to be charged should be actually 
 written by him, but it is sufficient if the memorandum is 
 authenticated by him by means of a mark, or it would appear 
 by his initials, and parol evidence is admissible to apply 
 them.^ In Hubert v. Moreau,^ Best, C. J., said : " Undoubt- 
 edly a signing by a mark would satisfy the meaning of the 
 statute ; but here there is nothing intended to denote a 
 signature." Where an agent, being unable to write, held 
 the top of the pen while another person wrote his name to 
 the agreement, it was held that there was a sufficient signa- 
 ture.* 
 
 Sec. 414. instructions for Telegram. — The signature to 
 instructions for a telegram is sufficient to' bind the person 
 signing, so as to render him liable on a contract accepted by 
 the telegram, whether as principal or agent.* 
 
 pletion of the contract. Ithel v. 
 Potter, cited 1 P. Wms. 771. A party 
 may, under certain circumstances, be 
 bound by his signature, altliough he 
 subscribed in form as a witness. 
 Welford v. Beazley, 1 Ves. 6 ; Goshell 
 «. Archer, 2 Ad. & El. 508. " What, 
 within the legal intent of the statute, 
 will amount to a signing, is the same 
 question in equity as at law." Morri- 
 son V. Turnour, 18 Ves. 183. In the 
 case of contracts for the sale and 
 purchase of goods and chattels and 
 movables it has been held, that if a 
 man writes his name against an entry 
 or memorandum in a book or ledger, 
 or endorses his name on printed par- 
 ticulars of sale, printed handbills, or 
 printed descriptions, or on packages 
 containing goods, with intent to 
 denote that he has purchased the 
 contents, this is a sufficient signature, 
 and the name may, as previously 
 mentioned, be written in pencil as 
 well as in ink. Geary v. Physic, 5 
 B. & C. 234 ; Hodgson v. Le Bret, 1 
 Camp. 283; Jeffrey v. Walton, 1 
 Stark. 267. A man may sign also by 
 his initials, or by his mark : Jacob v. 
 Kirk, 2 M. & E. 221; Hubert u. 
 Moreau, 12 Moo. 219; Hyde v. John- 
 son, 2 Bing. (N. C.) 780 ; Phillmore v. 
 
 Barry, 1 Camp. 513; and it is quite 
 immaterial upon what part of the 
 paper the mark or signature is to be 
 found. But the signature must of course 
 be made with a view of authenticating 
 the document as a concluded contract, 
 and not with a view mere!// of altering 
 or settling a drafl, or approving of 
 propositions and proposals not fnalltj 
 arranged and decided upon. Coldhara 
 V. Shawler, 3 C. B. 320; Hawkins v. 
 Holmes, 1 P. Wms. 770. 
 
 ' Sanborn v. Flagler, 9 Allen 
 (Mass.) 474; and as to initials, see 
 Phillmore v. Barry, 1 Camp. 513; 
 Hyde v. Johnson, 2 Bing. (N. C.) 776; 
 Jacob v. Kirk, 2 Moo. & Rob. 221 ; 
 Sweet V. Lee, 4 Sc. (N. R.) 77 ; Gorrie 
 V. Woodley, 17 Ir. C. L. E. 221 ; Chi- 
 chester V. Cobb, 14 L. T. (N. S.) 433 ; 
 Parker v. Smith, 1 Coll. 608. 
 
 2 12 Moo. 216 ; 2 C. & P. 528 ; in 
 re Field, 3 Curties, 752; Selby v. 
 Selby, 3 Mer. 2; Jackson v. Van 
 Dusen, 5 John. (N. Y.) 144; Schneider 
 V. Norris, 2 M. & S. 286 ; Taylor v. 
 Dening, 3 M. & P. 228; Hubert v. 
 Moreau, 2 C. & P. 528. 
 
 8 Helshawv.Langley.ll L. J.Ch. 17. 
 
 * Godwin v. Francis, L. R. 5 C. P. 
 295; McBlain v. Cross, 25 L. T. (N. 
 S.) 804. 
 
772 STATUTE OF FEAITDS. [CHAP. XIV. 
 
 Sec. 415. Place of Signature Immaterial. — It does not 
 matter in what part of the instrument the signature of the 
 party to be charged is found, whether on one side of tlie 
 paper or the other; provided it is inserted in such a manner 
 as to have the effect of authenticating the instrument, the requi- 
 sition of the act with respect to signature is complied with.i 
 The purposes of the statute are met if the names of the par- 
 ties and the terms of .the contract are authenticated by- 
 written evidence, and this is done when the name of the 
 person sought to be charged is inserted in the instrument in 
 such a way as to indicate that he intended it to stand for his 
 signature.^ In New York, the statute requires that the note 
 or memorandum shall be " subscribed " by the person sought 
 to be charged, and in that State the name of the party to be 
 charged is required to be signed at the end of the instrument.^ 
 
 Sec. 416. Signature at Beginning. — Thus an agreement 
 beginning "I, A B," though not further signed, is good within 
 the statute.* So, where the traveller of the plaintiffs agreed 
 with the defendant for the sale to him by sample of goods, 
 and the defendant wrote in his own book, which he kept, a 
 memorandum of the transaction, commencing "Sold John 
 Dodgson," and this memorandum was signed by the traveller 
 on behalf of the plaintiffs, it was held that there was a sufli- 
 cient memorandum of 'the contract. " The cases have 
 decided," said Lord Abingee, C. B., "that although the 
 signature be in the beginning or middle of the instrument, 
 it is as binding as if at the foot of it; the question being 
 always open to the jury whether the partj-, not having signed 
 
 > Ogilvie V. Foljambe, 3 Mer. 53; v. Mussey, 11 Gush. (Mass.) 127; Bat- 
 
 Coldham v. Showier, 3 C. B. 312; turs t. Sellers, 5 H. & J. (Md.) 117; 
 
 Hararaersley u. De Biel, 12 C. & F. Salmon Falls Mf'g Co. v. Goddard, 
 
 63; Bleakley v. Smith, 11 Sim. 150; 14 How. (U.S.) 446; Anderson k. Har- 
 
 Hawkins v. Chase, 19 Pick. (Mass.) rold, 10 Ohio, 399; Penniman v. 
 
 502 ; Ogilvie v. Foljambe, 3 Mer. 53 ; Hartshorn, 13 Mass. 87. 
 Western v. Russell, 3 V. & B. 187 ; » Viele v. Osgood, 8 Barb. (N. Y.) 
 
 Penniman v. Hartshorn, 13 Mass. 87 ; 130 ; Davis v. Shields, 24 Wend. (N. 
 
 Morrison v. Surman, 18 Ves. 187; Y.) 322. 
 
 Yerby v. Grigsby, ante ; Kronheim v. * Knight ii. Crockf ord, 1 Esp. 190 ; 
 
 Johnson, 7 Ch. D. 60. But see con(ra, Taylor v. Dobbins, 1 Str. 399; Mor- 
 
 Higdon V. Thomas, 1 H. & G. (Md.) ison v. Tumour, 18 Ves. 183; Drury 
 
 139. I'. Young, 58 Md. 546; Lemayne t'. 
 
 2 Coddington v. Goddard, 16 Gray Stanley, 3 Lev. 1 ; Yerby v. Grigsby, 
 
 (Mass.) 444; Argenbright v. Camp- 9 Leigh. (Va.) .387. 
 bell, 3 H. & M. (Va.) 144; Fessenden 
 
SBC. 418.] SIGNATURE TO THE MEMORANDUM. 773 
 
 it regularly at the foot, meant to be bound by it as it stood, 
 or whether it was left so unsigned because he refused to com- 
 plete it. But when it is ascertained that he 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 con- 
 tract, and recognized by him. I think in this case the requi- 
 sitions of the statute are fully complied with. The written 
 memorandum contains all the terms of the contract ; It is in 
 the defendant's OAvn handwriting, containing his name, and 
 it is signed by the plaintiffs through their agent." ^ But the 
 mere circumstance that the instrument is in the handwriting 
 of a party, will not dispense with his signature,^ even though 
 his name is inserted in some part of the instrument, unless 
 it is in such part of the instrument as to authenticate it, and 
 shows an intention on his part to admit his liability under it.^ 
 
 Sec. 417. signature upon Goods or in Catalogue or Order- 
 Book. — A purchaser's signature upon particular goods, 
 denoting that he has purchased them,* or opposite lots in a 
 printed catalogue,^ or in an order-book, the goods being spe- 
 cified in the book, and the signature being made for the pur- 
 pose of authorizing the vendor to send the goods,* may be 
 sufficient to bind him. 
 
 Sec. 418. Signature in Third Person. — So also the signa- 
 ture is enough if the agreement is in the third person and 
 written by the person to be charged himself, though there is 
 no other signature.^ 
 
 Where articles of agreement containing the terms of a 
 contract purporting to be made between certain persons 
 whose names were stated at the commencement of the arti- 
 
 1 Johnson v. Dodgson, 2 M. & W. Stokes v. Moore, 1 Cox, 219; Hubert 
 653 ; see also Saunderson v. Jackson, v. Turner, 4 Scott, 486. 
 
 2 B. & P. 238 ; Schneider v. Norris, 2 * Hodgson v. Le Bret, 1 Camp. 233. 
 M. & Sel. 286; Holmes v. Mackrell, » Phillimore «. Barry, 1 Camp. 513 ; 
 
 3 C. B. (N. S.) 789; Durrellu. Evans, and see Emmerson v. Heelis, 2 Taunt. 
 1 H. & C. 174. 38. 
 
 2 Wade V. Newbem, 77 N. C. 460; « Sari v. Bourdillon, 1 C. B. (N. S.) 
 Anderson u. Harrold, 10 Ohio, 399; 195; 26 L. J. C. P. 78; Newell o. 
 Barry v. Law, 1 Cr. (U. S. C. C.) 77; Radford, L. R. 3 C. P. 52. 
 
 Bawdes v. Amhurst, Finch, P. C. 402; ' Western v. Russell, 3 V. & B. 
 
 Bailey V. Ogden, 3 John. (N. Y.) 399; 187; Propert t>. Parker, 1 R. & M. 
 
 Hawkins v. Holmes, 1 P. Wms. 770. 625; Bleakley v. Smith, 11 Sim. 150; 
 
 3 Walker v. Walker, 1 Mer. 503; Lobb v. Stanley, 6 Q. B. 574. 
 Cabot V. Haskins, 3 Pick. (Mass.) 95; 
 
774 STATUTE OP FEATTDS. [CHAP. XIV. 
 
 cles, and who were described as the contracting parties, con- 
 cluded " as witness our hands," without being followed by 
 any name or signature, it was held that they were not suffi- 
 ciently signed within the statute.^ 
 
 Sec. 419. Rule in Caton v. Caton. — In Caton V. Caton,^ 
 previously to a marriage, the intended husband and wife 
 agreed, by a memorandum drawn up in the husband's hand- 
 writing, that the husband should have the wife's property 
 for life, paying Jier £80 a year for pin-money, and that she 
 should have it after his death : and he gave instructions for 
 a settlement upon that footing. The settlement was accord- 
 ingly prepared, when they agreed that they would have no 
 settlement, the husband promising as the wife alleged, that 
 he would make a will giving her all her property. The 
 name of the husband appeared in various parts of the mem- 
 orandum. It was held that though it is not necessary that 
 the signature of a party should be placed in any particular 
 part of a written instrument, it is necessary that it should be 
 so introduced as to govern or authenticate every material and 
 operative part of the instrument; and where therefore, the 
 name of the party against whom specific performance was 
 sought to be enforced appeared in different parts of the 
 paper, but only in such a way that in each case it merely 
 referred to the particular part where it was found, and that 
 part was in the form of reference or description, and not of 
 promise or undertaking, the signature was not sufficient. 
 Lord Westbuky said : ^ " What constitutes a sufficient sig- 
 nature has been described by different judges in different 
 words. In the original case upon this subject, though not 
 quite the original case, but the case most frequently referred 
 to as of earliest date, that of Stokes v. Moore,* the language 
 
 1 Hubert v. Treherne, 3 M. & Gr. ceived from them a bill of parcels. 
 743 ; S. C. nom. Hubert v. Turner, 4 The heading of the bill was printed 
 Sc. (N. H.) 486. as follows: "London: Bought of 
 
 2 L. R. 2 H. L. 127, affg. S. C. L. Jackson & Hanson, distillers, No. 8 
 R. 1 Ch. 137. Oxford Street " ; and then followed in 
 
 8 L. R. 2 H. L. 127. writing, " 1,000 gallons of gin, 1 in 5 
 
 * 1 Cox, 219 ; Salmon Falls Manuf . gin, 7s., ^£350." There was also a 
 
 Co. V. Goddard, 14 How. (U. S.) 456. letter signed by the defendants, in 
 
 In Saunderson v. Jackson, 2 B. & P. which they wrote to the plaintiff, 
 
 238, the plaintiff, on giving to the about a month later, "We wish to 
 
 defendants an order for goods, re- know what time we shall send you 
 
SEC, 
 
 419.] 
 
 SIGNATURE TO THE MEMORANDUM. 
 
 775 
 
 of the learned judge is, that the signature must authenticate every 
 part of the instrument. Or again, that it must give autheu- 
 
 a, part of your order, and shall be 
 obliged for a little time in delivery of 
 the remainder. Must request you to 
 return our pipes." Lord Eldon said : 
 " The single question is, whether, if a 
 man be in the habit of printing in- 
 stead of writing his name, he may 
 not be said to sign by his printed 
 name as well as his written name ' 
 At all events, connecting this bill of 
 parcels with the subsequent letter of 
 the defendants, I think the case is 
 clearly taken out of the statute of 
 frauds." Thus far the case would 
 not amount to much as an authority 
 on the point under discussion. His 
 lordship went on to say : " It has been ' 
 decided in Knight v. Crockford, 1 Esp. 
 190 (see also, Lobb v. Stanley, 5 Q. 
 B. 474 ; Durrell v. Evans, 1 H. & C. 
 174, and 31 L. J. Ex. 337), that if a 
 man draw up an agreement in his own 
 handwriting, beginning ' I, A B, agree,' 
 and leave a place for signature at the 
 bottom, but never sign it, it maybe con- 
 sidered as a note or memorandum in 
 writing within the statute. And yet 
 it is impossible not to see that the 
 insertion of the name at the beginning 
 was not Intended to be a signature, 
 and that the paper was meant to be 
 incomplete until further signed. This 
 last case is stronger than the one now 
 before us, and affords an answer to, 
 the argument that this bill of parcels 
 was not delivered as a note or memo- 
 randum of the contract." This .last 
 sentence refers to the argument of 
 Lens, Serjt., who admitted that the 
 printed name might have amounted 
 to a signature, if the bill of parcels 
 had been intended to expressi the con- 
 tract, gu'a contract, but contended that 
 this'was not the intention. 
 
 In Schneider i:. Norris, 2 M. & S. 
 286, the circumstances were the same 
 as in Saunderson v, Jackson, ante, ex- 
 cept that the name of the plaintiff as 
 buyer was written in the bill of par- 
 cels rendered to him in the defend- 
 ant's own handwriting, and all the 
 
 judges were of opinion that this was 
 an adoption or appropriation by tlie 
 defendant of the name, printed on 
 the bill of parcels, as his signature to 
 the contract. Lokd Ellenbokouoh 
 said : " If this case had rested merely 
 on the printed name unrecognized by 
 and not brought home to the party as 
 having been printed by him or by his 
 authority, so that the printed name 
 had been unappropriated to the par- 
 ticular contract, it might have afforded 
 some doubt whether it would not have 
 been intrenching upon the statute to 
 have admitted it. But here there is a 
 signing by the party to be charged, 
 by words recognizing the printed name 
 as much as if he had subscribed his 
 mark to it, which is strictly the mean- 
 ing of signing, and by that the party 
 has incorporated and avowed the thing 
 printed to be his ; and it is the same 
 in substance as if he had written 
 ' Norris & Co.' with his own hand. 
 He has by liis handwriting, in effect 
 said, I acknowledge what I have writ- 
 ten to he for the purpose of exhibit- 
 ing my recognition of the written 
 contract." Lb Blanc, J., compared 
 the case to one where a party should 
 stamp his name on a bill of parcels. 
 Bayley, J., put Ills opinion on the 
 ground that the defendant had signed 
 the plaintiffs' names as purchasers, 
 and therebyrecognized his own printed 
 name as that of the seller. And Dam- 
 piEK, J., on much the same idea, that 
 is, that the defendant, by writing the 
 name of the buyer on a paper in which 
 he himself was named as the seller, 
 recognized his name sufficiently to 
 make it a signature. In Johnson v. 
 Dodgson, 2 M. & W. 653, the defend- 
 ant wrote the terms of the bargain in 
 his own book, beginning with the 
 words, " Sold John Dodgson," and 
 required the vendor to sign the entry. 
 The court held this to be a signature 
 by Dodgson, Lord Adinger saying 
 that, "The cases have decided that 
 though the signature be in the begin- 
 
776 
 
 STATUTE OF PKATTDS. 
 
 [chap. 
 
 XIV. 
 
 ticity to every part of the instrument. Probably the phrases 
 ' authentic ' and ' authenticity ' are not quite felicitous, but 
 their meaning is plainly this, that the signature must he so 
 placed as to shoiu that it was intended to relate and refer to, 
 and that in fact it does relate and refer to, every part of the 
 instrument. The language of Sir William Ghant, in 
 Ogilvie V. Foljambe ^ is (as his method was) much more felic- 
 itous. He says it m,ust govern every part, of the instrument. It 
 must show that every part of the instrument emanates from the indi- 
 
 ning or middle of the instrument, it 
 is as binding as if at the foot; the 
 question lieing always open to the 
 jury whether the party, not having 
 signed it regularly at the foot, meant 
 to be bound by it as it stood, or 
 whether it was left so unsigned be- 
 cause he refused to complete it." 
 Parke, B., concurred, on the author- 
 ity of Saunderson v. Jackson and 
 Schneider v. Norris, which he recog- 
 nized and approved. In Durrell u. 
 Evans in the exchequer chamber, 1 
 H. & C. 174; 32 L. J. Ex. 337, the 
 cases of Saunderson v. Jackson, 
 Schneidet v. Norris, and Johnson v. 
 Dodgson, were approved and followed. 
 Beckwith v. Talbot, 95 U. S. 289. In 
 Tourret v. Cripps, 48 L. J. Ch. 567, 
 under the 4th section, a letter con- 
 taining proposed terms of a contract 
 between the defendant and the plain- 
 tiff, written out by the defendant 
 upon paper bearing a printed head- 
 ing, " Memorandum from Kichard L. 
 Cripps," and sent bij him to the plaintiff, 
 was held to be a sufficient note in 
 writing to charge the defendant. 
 
 In Hubert v. Treheme, 3 M. & G. 
 743, which arose under the 4th sec- 
 tion, it appeared that an unincorpor- 
 ated company, called The Equitable 
 Gas Light Company, accepted a tender 
 from the plaintiff for conveying coals. 
 A draft of agreement was prepared 
 by the order of the directors, and a 
 minute entered as follows : " The 
 agreement between the company and 
 Mr. Thomas Hubert for carrying our 
 coals, etc, was read and approved, 
 and a fair copy thereof directed to 
 be forwarded to Mr. Hubert," The 
 
 articles began by reciting the names 
 of the parties, Thomas Hubert of the 
 one part, and Treheme and others, 
 trustees and directors, etc., of the 
 other part; and closed, "As witness 
 our hands." The articles were not 
 signed by anybody, but the paper was 
 maintained by the plaintiff to be suf- 
 ficiently -signed by the defendants, 
 because the names of defendants 
 were written in the document by their 
 authority. On motion to enter non- 
 suit, all the judges held that the in- 
 strument on its face, by the concluding 
 words, showed that the intention was 
 that it should be subscribed, and that 
 it was not the meaning of the parties 
 that their names written in the body 
 of the paper should operate as their 
 signatures. Maule, J., said : " The 
 articles of agreement do not seem to 
 me to be a memorandum signed by 
 anybody. Before tlie statute of frauds 
 no one could have entertained a doubt 
 upon that point. Since the statute 
 the courts, anxious to relieve parties 
 against injustice, have not unfre- 
 quently stretched the language of the 
 act. ... If a party writes I, A B, 
 agree, etc., with no such conclusion as 
 is found here ' as witness overhand,' 
 it may be that this is a sufficient sig- 
 nature within the statute to bind A 
 B. . . . But it would be going a great 
 deal farther than any of the cases have 
 hitherto gone to hold that this was an 
 agreement signed by the party to be 
 charged. This is no more . than if it 
 had been said by A B, that he would 
 sign a particular paper." 
 1 3 Mer. 53, 
 
SEC. 419.] SIGNATUBK TO THE MEMOKANDUM. 777 
 
 vidual so signing, and that the signature was intended to have that 
 effect. It follows, therefore, that if a signature be found in an 
 instrument incidentally only, or having relation and reference only 
 to a portion of the instrument, the signature cannot have that 
 legal effect and force which it must have in order to comply 
 with the statute, and to give authenticity to the whole of the 
 memorandum. . . . An ingenious attempt has been made at 
 the bar to supply that defect (of signature) by fastening on 
 the antecedent words ' In the event of marriage the under- 
 named parties,' and by the force of these words of reference 
 to bring up the signature subsequently found and treat it as 
 if it were found with words of reference. My Lords, if we 
 adopted that device we should entirely defeat the statute. 
 You cannot by words of reference bring up a signature and give it 
 a different signification and effect from that which the signature has 
 in its original place in which it is found. What is contended for 
 by this argument differs very much from the process of incor- 
 porating into a letter or memorandum signed by a party 
 another document which is specially referred to by the terms 
 of the memorandum so signed, and which by virtue of that 
 reference is incorporated into the body of the memoran- 
 dum. There you do not alter the signature, but you apply 
 the signature, not only to the thing originally given, but also 
 to that which, by force of the reference is by the very con- 
 text of the original, made a part of the original memoran- 
 dum. But here you would be taking a signature, intended 
 only to have a limited and particular effect, and by force of 
 the reference to a part of that document you would be 
 making it applicable to the w"hole of the document, to which 
 the signature in its original condition was not intended to 
 apply, and could not, by any fair construction, be made to 
 apply." 
 
CHAPTER XV. 
 
 CONTEACTS BY AGENTS. 
 
 SBCTIOK. 
 
 420. Appointment of Agent. 
 
 421. Contracting Party cannot be Agent for the Other. 
 
 422. Auctioneer at Public Sale. 
 
 423. Authority may be Negatived. 
 
 424. When Agency for Purchaser Begins. 
 
 425. Eyidence to Prove Agency. 
 
 426. Ratification of Agent's Acts. 
 
 427. Signature by Clerk of Auctioneer. 
 
 428. Signature by Telegraph Clerk. 
 
 429. Broker is Agent for Both Parties. 
 
 430. Signed Entry in Books. 
 
 431. Bought and Sold Notes. 
 
 432. Either Note may Prove Contract tTnless. 
 
 433. Variance between Entry and Notes. 
 
 434. Immaterial Variance. 
 
 435. Sale on Credit by Broker. 
 
 436. Broker Employed by Purchaser. 
 
 437. Revocation of Broker's Authority. 
 
 Section 420. Appointment of Agent. — An agent, whether 
 for the purchase or sale of lands or goods, may be appointed 
 by parol,^ unless, as is the case in some of the States, agents 
 
 1 Stansfield t'. Johnson, 1 Esp. v. Blair, 4 Cush. (Mass.) 309; Mc- 
 101 ; Rucker v. Cammeyer, 1 Esp. Whorten v. McMahon, 10 Paige Ch. 
 104; Emmerson t. Heelis, 2 Taunt. (N.Y.) 386; Yerby v. Grigsby, 9 
 38; Clinan v. Cooke, 1 Sch. & Lef. Leigh. (Va.) 387; Codman y. Bailey, 
 22; Coles w. Trecothick, 9 Ves. 234; 4 Bibb. (Ky.) 297; Johnson v. Mc- 
 Mortloek „. BuUer, 10 Ves. 292, Cruder, 15 Mo. 365 ; Talbot v. Bowen, 
 311; Dyas v. Cruise, 2 J. & Lat. 1 A. K. Mar. (Ky.) 436; Graham v. 
 460; Else v. Barnard, 28 Beav. 228; Musson, 5 Bing. (N. C.) 603; Montlock 
 Heard v. Pilley, L. R. 4 Ch. 549. Ex- v. Buller, 10 Ves. 292. The question 
 cept where the statute otherwise pro- of authority is one of fact, and must 
 vides, the agent may be appointed cover the act of signature. Taylor v. 
 andhisauthority established by parol. Merrill, 55 111. 52; Coleman v. Gar- 
 Lawrence V. Taylor, 5 Hill (N.Y.) rignes, 18 Barb. (N.Y.) 60; Ruten- 
 107 ; Ulen v. Kittredge, 7 Mass. 232 ; berg u. Main, 47 Cal. 213 ; Edwards 
 "Worrall v. Munn, 5 N.Y. 229; John- v. Johnson, 3 Houst. (Del.) 435; Rice 
 son u. Dodge, 17 111. 433; Hawkins v. v. Rawlings, Meigs (Tenn.) 496; Glen- 
 Chase, 19 Pick. (N.Y.) 502; Curtis gal u. Barnard, 1 Keen, 769 ; Dixon w. 
 
SEC. 421.] 
 
 CONTRACTS BY AGENTS. 
 
 7T9 
 
 for the sale of lands are by the statute required to be author- 
 ized in writing,! but in any case such an appointment is, of 
 course, inexpedient.'^ Thus, in the case last cited where 
 a memorandum was written by the clerk of the plaintiffs, 
 in the presence of the defendant, stating that the defend- 
 ant had called to say that he would be responsible for 
 the plaintiff, it was held that there was not a sufficient un- 
 dertaking within the statute. But in Watkins v. Vince,^ 
 evidence that the son of the defendant, a minor, had in sev- 
 eral instances signed bills of exchange for his father was held 
 sufficient in an action against the father on a guaranty in the 
 handwriting of the son. 
 
 Sec. 421. Contracting Party cannot be Agent for Other. — 
 One of the parties to a contract cannot sign the name of the 
 other as his agent so as to hind him within the statute ; the 
 signature as agent must be hy a third person and not the other 
 contracting party.'^ Thus, where the plaintiff wrote a memo- 
 
 Bromfield, 2 Chitty, 205. But it may 
 be shown by parol ratification after 
 the signature, although no authority 
 to sign existed when the act was done. 
 Hawkins v. Baker, 46 N. Y. 660; Hol- 
 land !;. Hoyt, 14 Mich. 238 ; Maclean 
 V. Dunn, 4 Bing. 722. Except where 
 the memorandum is to be sealed, in 
 which case authority under seal is 
 required. Blood v. Hardy, 15 Me. 61. 
 Where the authority of an agent to 
 sell land is required by the statute 
 of frauds to be evidenced by a writing, 
 that requirement is not fulfilled by 
 letters written by the owner of the 
 property to his son, showing merely 
 that a certain real-estate agent was 
 employed by him to solicit and nego- 
 tiate for prices, nor by a telegram to 
 such agent to "hold on," in reply to 
 one from him asking if he would take 
 a certain price. Albertson v. Ashton, 
 102 111. 50. 
 
 1 1 Dart. V. & P. 5th ed. 183. 
 
 2 Dixon V. Broomfield, 2 Chit. 205. 
 8 2 Stark, 368. 
 
 * Wright V. Dan^ah, 2 Camp. 203 ; 
 and see Earebrother v. Simmons, 5 B. 
 & Aid. 333 ; Sharman v. Brandt, L. R. 
 6 Q. B. 720 ; Johnson v. Buck, 35 N. 
 J. L. A memorandum made by one 
 
 having authority from both parties 
 to effect a sale, is sufficient to charge 
 both parties. Sale v. Darragh, 2 Hilt. 
 (N. Y. 0. P.) 184. The printed signa- 
 ture of the broker who makes the 
 sale is not a, sufficient signing within 
 the statute. Zachrisson v. Poppc, 3 
 Bosw. (N. Y.) 171. Signing by ini- 
 tials: Salmon Falls Manuf. Co. v. 
 Goddard, 14 How. (U. S.) 443; San- 
 born V. Flagler, 9 Allen (Mass.) 474; 
 Phillimore v. Barry, 1 Camp. 513; 
 Barry v. Coombe, 1 Pet. (U. S.) 640. 
 As to entry in a book, see Barry v. 
 Law, 1 Cr. C. C. (U. S.) 77 ; Cham- 
 pion V. Plummer, 5 Esp. 240 ; Graham 
 u. Musson, 5 Bing. (N. C.) 603. By 
 agent: Higgins v. Senior, 8 M. & W. 
 834; Minard v. Mead, 7 Wend. (N. 
 Y.) 68; Soames v. Spencer, 1 D. & R. 
 32; Stackpole v. Arnold, 11 Mass. 27. 
 In Hawkins v. Baker, 46 N. Y. 453, 
 one R., a broker for the sale of cer- 
 tain kinds of goods, and known to 
 defendants as such, offered ten casks 
 of goods, which they orally agreed to 
 take. R. then purchased the ten 
 casks of plaintiffs, and signed a memT 
 orandum of the sale, and took from 
 plaintiffs a warehouse delivery order. 
 He delivered his order to defendant, 
 
780 STATtTTE 0¥ FEATIDS. [CHAP. XV. 
 
 randum of the contract, in which the defendant's name 
 appeared as purchaser, the defendant having overlooked the 
 plaintifp while writing, it was argued that the defendant had 
 made the plaintiff his agent for the purpose of signing the 
 memorandum by overlooking, and approving of what he had 
 written ; but LoKD Ellenbobough said that the agent must 
 be some third person, and could not be the other contracting 
 party.^ 
 
 Sec. 422. Auctioneer at Public Sale is Agent for Both 
 Parties. — An auctioneer at a public sale is, during the con- 
 tinuance of the sale, by implication, an agent duly author- 
 ized to sign a contract for both parties, whether for the 
 purchase of real estate, or of goods ; and his writing down 
 the name of the highest bidder in the auctioneer's book is a 
 sufficient signature to satisfy the statute. In Emmerson v. 
 Heelis,^ Mansfield, C. J., said : " By what authority does 
 he write down the purchaser's name ? By the authority of 
 the purchaser? These persons bid, and announce their bid- 
 dings loudly and particularly enough to be heard by the 
 auctioneer. For what purpose do they do this? That he 
 may write down their names opposite to the lots ; therefore 
 he writes the name by the authority of the purchaser, and he 
 is an agent for the purchaser." ^ It follows, therefore, that 
 
 who received and retained it, and re- ber i!. Savage, 52 Wis. 110 ; 38 Am. 
 
 quested R. to sell the goods for them Rep. 723. 
 
 if he could get a profit. Afterward ^ Wright v. Dannah, ante. 
 
 defendants went and examined the ^ 2 Taunt. 38. 
 
 goods, and when called upon by the ^ And see Hinde v. Whitehouse, 7 
 
 plaintiffs did not deny liability, but East, 558 ; White v. Proctor, 4 Taunt, 
 
 asked for lenity. The warehouse 209 ; Kemeys v. Proctor, 1 Jac. & W. 
 
 order showed that it came from plain- 350 ; Farebrother v. Simmons, 5 B. & 
 
 tiffs. Held, that R. was defendants' Aid. 333 ; Kenworthy v. Schofield, 2 
 
 agent by adoption, and his sighing B. & C. 945 ; Walker v. Constable, 1 
 
 the memorandum of sale was suffl- B. & P. 306 ; Dnrrell v. Evans, 1 H. & 
 
 cient to bind them. The delivery of C. 174; 31 L. J. Ex. 337. An alie- 
 
 the warehouse receipt and separation tioneer is an agent for both parties, 
 
 of the ten casks from a larger quan- and can bind them by a memorandum 
 
 tity at the warehouse was a sufficient made by him at a public sale, and 
 
 delivery. The agent of the vendor of made at the time. Horton v. McCarty, 
 
 real estate sold at auction cannot 53 Me. 394 ; Alna v. Plummer, 4 id. 
 
 bind the purchaser by a memorandum 258 ; Eliutoft v. Elmore, 18 K. C. C. P. 
 
 thereof made and signed by him for 274; Gill w. Bicknell, 2 Cush. (Mass.) 
 
 the vendor alone, after the sale by 355; Harvey u. Stevens, 43 Vt. 655; 
 
 the auctioneer, and not in any way Cleaves y. Eoss, 4 Me. 1 ; Anderson v. 
 
 assented to by the purchaser. Bam- Chick, 1 Bai. (S. C.) Eq. 118; Hart v. 
 
SEC. 424.J CONTRACTS BY AGENTS. 781 
 
 an auctioneer signing the defendant's name by his authority 
 cannot maintain an action against liim upon such a contract.^ 
 But the rule does not apply to a private sale, for the auc- 
 tioneer then is only the agent of the seller, and the signature 
 of the seller or his agent cannot bind the buyer.^ 
 
 Sec. 423. Authority may be Negatived by Pacts of Case. — 
 The implied authority given to an auctioneer at a public 
 sale, to act as the agent of the purchaser, may be negatived 
 by the facts of the particular case. Thus, where a party to 
 whom money was due from the owner of goods sold by auc- 
 tion agreed with the owner before the auction that the goods 
 which he might purchase should be set against the debt, and 
 became the purchaser of goods, and was entered as such by 
 the auctioneer, it was held that he was not bound by the 
 printed conditions of sale, which specified that purchasers 
 should pay a part of the price at the time of the sale, and 
 the rest on delivery ; Dbnman, C. J., saying : " We do not 
 overrule the former cases, but we consider them inappli- 
 cable." 3 
 
 Sec. 424. When Agency for Purchaser Begins. — Although 
 the auctioneer at a public sale may become the agent of the 
 purchaser for the purpose of signing a memorandum of the 
 agreement, his agency does not commence until the bidding 
 
 Woods, 7 Blackf. (Ind.) 568; O'Don- 1 H. & N. 484; Rosaiter v. Miller, 46 
 
 nell V. Sehman, 43 Me. 158 ; Craig v. L. J. Ch. 228 ; Beers u. London &c. 
 
 Godfrey, 1 Cal. 415 ; Smith v. Arnold, Hotel Co., L. R. 20 Eq. 412 ; and the 
 
 5 Mass. (U. S.) 414; Jenkins y. Hogg, same rule, under peculiar circum- 
 
 2 Tread. (S. C.) 821 ; Linn Boyd To- stances, prevails as to a memorandum 
 
 bacco AYareliouse Co. o. Terrill, 13 made hy an auctioneer's clerk. Bird 
 
 Bush. (Ky.) 413; Adams v. McMillen, ... Boulter, 4 B. & Aid. 443; Johnson 
 
 7 Port. (Ala.) 73; Bent «. Cobb, an<e ; v. Buck, 35 N. J. L. 338; Norris u. 
 
 Burke v. Haley, 7 111. 614 ; Gordon v. Blair, 39 Ind. 90 ; Fiske v. McGregory, 
 
 Sims,2MeCord(S.C.)Eq. 164; Brent 34N.H.414; Gill t. Bickell, 2 Cush. 
 
 V. Green, 6 Leigh. (Va.) 16; Pike v. (Mass.) 355; Meadows ii. Meadows, 3 
 
 Balch, 38 Me. 302; Pugh v. Chessel- McCord (S. C.) 418; Cothcart v. Ker- 
 
 dine, 11 Ohio, 109; White v. Crew, 16 nahan, 5 Strobh. (S. C.) 129. 
 Ga. 416 ; McComb v. Wright, 4 John. ' Farebrother o. Simmons, 5 B. & 
 
 Ch. (N. Y.) 659; Kenworthy v. Scho- Aid. 333. 
 
 field, 2 B. & C. 945 ; Hinde „. White- 2 Mews v. Carr, 1 H. & N. 484 ; 26 
 
 house, 7 East, 558 ; Farebrother v. L. J. Ex. 39. 
 
 Simmons, 5 B. & Aid. 333 ; Emmerson > Bartlett v. Purnell, 4 A. & E. 792 ; 
 
 V. Heelis, 2 Taunt. 38; White v. and see Lord Glengall f. Barnard, 1 
 
 Proctor, 4 id. 209 ; Walker v. Con- Keene, 769. 
 stable, 1 B. & P. 306 ; Mews v. Carr, 
 
782 STATUTE OP FEAUDS. [CHAP. XV. 
 
 is accepted, and until the hammer is knocked down. Both 
 the bidder and the vendor are free and may retract if they 
 choose to do so. Therefore, wlien the owner of a mare sent 
 her to the defendants with instructions to sell her by auction 
 without reserve, and the plaintiff was the highest hona fide 
 bidder, but the mare was knocked down to the owner, who 
 made a higher bid, it was held that the plaintiff could not 
 maintain an action against the defendant on the ground that 
 he was his agent and was bound to complete the contract on 
 his behalf.^ 
 
 Sec. 425. Evidence to Prove Agency. — Except in those 
 States where the statute expressly requires that authority to 
 sign a note or memorandum for another, shall be conferred 
 by writing, as is the case in some of the States as to the note 
 or memorandum relating to the leasing and sale of lands,^ 
 the note or memorandum may be signed by an agent of the 
 party to be charged, as well as by the party himself, and such 
 agency as in other cases may be proved by parol,^ and may 
 be shown by the same class of evidence necessary to estab- 
 lish agency in other cases, that is, by proof of express 
 authority, or subsequent ratification.* 
 
 1 "Warlow V. Harrison, 28 L. J. Q. hon, 10 Paige Ch. (N. Y.) 386; New- 
 B. 18; 29 L. J. Q. B. 14; and see ton v. Bronson, 13 N. Y. 587; Long 
 Payne v. Cave, 3 T. R. 148. Hartwell, 34 N. J. L. 110 ; Johnson v. 
 
 2 Michigan, Montana, New Nevada, Dodge, 17 111. 433; Tomlinson v. Mil- 
 Hampshire, New York, Ohio, Oregon, ler, 1 Sheld. (N. Y.) 197 ; Yourt u. 
 Pennsylvania, Vermont, Utah, and Hopkins, 24 111. 236 ; Doty v. Wilder, 
 Wisconsin. 15 id. 407 ; Shaw v. Nudd, 8 Pick. 
 
 'The authority of an agent to (Mass.) 9; Blacknallw.Pariah.a Jones 
 
 sign a memorandum may be proved (N. C.) Eq. 70 ; Alna v. Plummer, 4 
 
 by parol. Rutenberg v. Main, 47 Gal. Me. 258 ; Blood v. Hardy, 15 id. 61 ; 
 
 213. In the case of a memorandum Worrall v. Munn, 5 N.Y. 229; Goshell 
 
 made by an agent, any letter signed v. Archer, 2 Ad. & El. 500; Titz- 
 
 by the principal, referring to the maurice v. Bayley, 6 E. & B. 868; 
 
 agent's authority to make the con- Graham v. Musson, 7 Scott, 769; 
 
 tract and adopting it, will render the Heard v. Pilley, L. R. 4 Ch. App. 
 
 contract valid. Newton ,>. Bronson, 548; Rucker u. Cammeyer, 1 Esp. 
 
 18 N. Y. 587. If a contract is signed 105 ; Acebal v. Levy, 10 Bing. 378 ; 
 
 by an agent in his own name, it may Harrison z;. Jackson, 7 T. R. 207 ; Dur- 
 
 be shown that he signed as agent, rell v. Evans, 1 H. & C. 174. An 
 
 Washburn v. Washburn, 4 Ired. (N. agent does not require, in the first 
 
 C.) Eq. 306. Instance, authority to sign the note ; 
 
 * Eggleston v. Wagner, 46 Mich, and in Maclean v. Dunn, 4 Bing. 722, 
 
 610 ; Hawkins v. Chace, 19 Pick, it was decided that in this, as well as 
 
 (Mass.) 502; McWhorter v. McMa- in other cases of agency, a subsequent 
 
SEC. 425.] 
 
 CONTRACTS BY AGENTS. 
 
 78-^ 
 
 A clerk or traveller cannot bind his principal without 
 express authority.^ Where a contract for the sale of goods 
 
 1 Blore V. Sutton, 3 Mer. 237. 
 
 ratification was equivalent to » pre- 
 vious authority. The fact of agency 
 may be established, and any person 
 may be proved to be an agent for this 
 purpose, in the same manner, and sub- 
 ject to the same rules, as in cases of 
 agency for any other purpose. It has, 
 indeed, been decided that the one 
 party cannot be an agent for the other, 
 but this is very doubtful law. It is 
 quite right and proper that such an 
 unusual thing as intrusting the other 
 with authority should be clearly 
 proved; but if it be clearly proved, 
 there is nothing either in the statute 
 or in reason to make it void. 
 
 In Wright v. Dannah, 2 Camp. 203, 
 the plaintiff had, in the presence of 
 the defendant, written down the de- 
 fendant's name, the goods, and the 
 price. The defendant looked it over, 
 and said one of the figures was wrong. 
 It seems clear that tliis was no memo- 
 randum; for the plaintiff's name did 
 not appear, and the proof of agency 
 was of the most meagre description. 
 Lord Ellenborough non-suited the 
 plaintiff, and is reported to have said 
 " that the agent must be some third 
 person, and could not be the other 
 contracting party." 
 
 In Farebrother v. Simmons, 5 B. & 
 Aid. 334, the King's Bench decided 
 that an auctioneer, who had taken 
 down the highest bidder's name, could 
 not use this as a signature when suing 
 in his own name ; and Abbott, C. J., 
 on the authority of Wright v. Dannah, 
 said " that the agent contemplated by 
 the legislature, who is to bind a party 
 by his signature, must be some third 
 party, and not the other contracting 
 party on the record." In Wright v. 
 Dannah, Lord Ellenborough seems 
 to have been speaking of the diflSculty 
 of establishing such an agency in fact ; 
 but in Farebrother v. Simmons it was 
 supposed to be impossible in law. The 
 case was much questioned in Bird v. 
 
 Boulter, 4 B. & Aid. 443, but it has 
 not yet been overruled. 
 
 When an agent is authorized to 
 make a contract of sale, he has by 
 implication authority to make it ef- 
 fectually, by signing the note of it ; 
 but there is no reason why a special 
 authority should not be given to sign 
 a. particular contract, without giving 
 any authority to make a contract, or 
 to vary from the particular one al- 
 ready made. The distinction between 
 the two sorts of agency is material ; 
 for if an agent, having authority to 
 make a contract, makes a mistake in 
 reducing it to writing, neither he nor 
 his principal can show that the true 
 contract was different, for that would 
 be contradicting the written agree- 
 ment; but if the agent had only a 
 special authority to sign a particular 
 contract, it is open to the principal to 
 show tliat the agent has not pursued 
 his authority. 
 
 Sharman ^. Brandt, L. R. Q. B. 
 720 ; Graham v. Musson, ante ; Gra- 
 ham !'. Fretwell, 5 Bmg. (N. C.) 603; 
 Bambier v. Savage, 52 Wis. 110 ; Bent 
 V. Cobb, 9 Gray (Mass.) 387 ; John- 
 son V. Buck, 30 N. J. L. 338 ; Smith v. 
 Arnold, 5 Mass. (U. S.) 414. In Dur- 
 rell V. Evans, 1 H. & C. 174, it ap- 
 peared that, on the 19th of October, 
 the defendant, J. C. Evans, called on 
 Messrs. Noakes and asked to see 
 samples of the plaintiff's hops, which 
 were shown to him. Upon asking the 
 price, Mr. J. T. Noakes replied that 
 he was instructed by the plaintiff not 
 to sell under X18 per cwt. The de- 
 fendant, J. C. Evans, said that was 
 too liigh a price for them, and he 
 should not give so high a price for 
 them. He then left Messrs. Noakes's 
 premises. On the afternoon of the 
 same day, Friday (October 19), the 
 plaintiff happened to be in the bor- 
 ough, and met the defendant, J. C. 
 Evans. A conversation took place 
 
784 
 
 STATUTE OF PEAUDS. 
 
 [chap. XV. 
 
 was in the presence and at the desire of the buyer written 
 and signed by the seller's traveller in a book belonging to 
 
 between them with reference to the 
 plaintiff's hops. Mr. J. C. Evans of- 
 fered the plaintiff £16 16 s. per cwt., 
 which the plaintiff refused, but ulti- 
 mately both parties went to Messrs. 
 Noakes's counting-house and saw Mr. 
 J. T. Noakes on the subject. Some 
 further conversation took place as to 
 the purchase of the hops, which ended 
 in Mr. J. C. Evans refusing to give 
 any more than £16 16 s. per cwt. The 
 plaintiff (in the presence and hearing 
 of Mr. Evans) asked Mr. J. T. Noakes 
 whether he would recommend him (the 
 plaintiff) to accept Mr. Evans's offer. 
 Mr. Noakes advised him to do so, and 
 the plaintiff agreed to sell the hops 
 at that price. Mr. Noakes then wrote 
 out a sale-note in duplicate. 
 
 By the custom of the hop trade, 
 hops are payable on the Saturday 
 week following the day of the sale. 
 This transaction took place on Friday, 
 the 19th day of October, and the mon- 
 ey would consequently have become 
 payable, in due course, on Saturday, 
 October 27. Mr. Noakes, therefore, 
 drew out the following memorandum, 
 and dated it the 19th day of October, 
 whereupon Mr. Evans requested him 
 to alter the date to the 20th, in order 
 that he might have another week's 
 time for payment. The plaintiff and 
 Mr. Noakes consented to this, and the 
 alteration was accordingly made by 
 Mr. Noakes, who then gave the said 
 memorandum so altered to Mr. J. 
 C. Evans, who took the same away 
 with him, and he has never yet re- 
 turned it. The said memorandum 
 was torn from a book which con- 
 tained a counterfoil, and which was 
 filled up in the following form, and 
 retained by Messrs. Noakes. 
 
 The following is a copy of the 
 memorandum first referred to : — 
 
 "Messrs. Evans.. 
 
 Bought of J. T. & W. Noakes. 
 
 Bags. Pocks. T. Durrell. ? 
 Ryarsh & Addington. ^ 
 20th 
 Oct. ;^th, 1860." 
 
 £16 16 s. 
 
 The following is a copy of the 
 counterfoil above referred to : — 
 
 " Sold to Messrs. Evans. 
 
 Bags. Pocks. D. Durrell. ) .,„ ^„ 
 Ryarsh & Addington. j ^^^ ^^*- 
 20th 
 Oct. ^^fth, 1860." 
 
 No note or memorandum (except 
 as aforesaid) was signed or given by 
 the defendants or any person on their 
 behalf ; nor was there any writing re- 
 lating to the contract, except as above. 
 Upon the trial, the defendant insisted 
 that he had never signed or author- 
 ized the signing of his name to bind 
 the bargain. The plaintiff insisted 
 that the name " Messrs. Evans & Co.," 
 written on the counterfoil, was so 
 written by Noakes as the defendant's 
 agent ; that if written by himself, it 
 would have been a sufficient signature 
 according to the authority of Johnson 
 t). Dodgson, ante, and that he was as 
 much bound by the act of his agent 
 in placing the signature there as if 
 done by himself. The Court of Ex- 
 cliequer were unanimously of opinion 
 that Noakes, throughout, had acted 
 solely in behalf of the vendor, and 
 that the request of the defendant, that 
 the memorandum should be changed 
 from the 19th to 20th, was to obtain 
 an advantage from the vendor, but in 
 no sense to make Noakes the agent of 
 the purchaser. They, therefore, made 
 absolute a rule for a non-suit, for which 
 leave had been reserved at the trial. 
 The Court of Exchequer Chamber, 
 with equal unanimity, distinguished 
 the case from Graham v. Musson, ante, 
 and held that there was evidence to 
 go to the jury that Noakes was the 
 agent of the defendant, as well as of 
 the plaintiff, in making the entries ; 
 and if so, that the writing of the de- 
 fendant's name on the counterfoil was 
 a sufficient signature according to the 
 whole current of authority. The 
 grounds for distinguishing the case 
 from Graham v. Musson, ante, were 
 stated by the different judges. Ckomp- 
 TON, J.: "I cannot agree with my 
 
SBC. 425.] 
 
 CONTRACTS BY AGENTS. 
 
 785 
 
 the former, as follows : " Of North and Co., 30, Mats Maurs, 
 at 71 s. ; cash two months. Fennings Wharf (signed) Joseph 
 
 brother Wild and Mk. Lush that the 
 document in question was merely an 
 invoice, and that all that the defend- 
 ant did was simply taking an invoice, 
 and asking to have it altered ; and if 
 the jury had found that, a non-suit 
 would have been right. But, on the 
 contrary, I think that there was plenty 
 of evidence to go to the jury on the 
 question whether Noakes, the agent, 
 was to make a record of a. binding 
 contract between the parties, and that 
 there was at least some evidence from 
 which the jury might have found in 
 the affirmative." The learned judge 
 then pointed out that the memoran- 
 dum was in duplicate, — one " sold," 
 the other "bought," — made in the 
 defendant's presence; that the latter 
 took it, read it, had it altered, and 
 adopted it ; all of which facts he con- 
 sidered as evidence for the jury that 
 Noakes was the agent of both parties. 
 Byles, J. : " What does the defend- 
 ant do ? First of all he sees a du- 
 plicate written by the hand of the 
 agent, and he knows it is a counter- 
 part of that which was binding on the 
 plaintiff. He knew what was deliv- 
 ered out to him was a sale-note in 
 duplicate, and accepts and keeps it. 
 The evidence of what the defendant 
 did, both before and after Noakes had 
 written the memorandum, shows that 
 Noakes was authorized by the defend- 
 ant." Blackeukn, J. : " The case in 
 the court below proceeded on what 
 was thrown out by my brother Wilde, 
 and I agree with the decision of that 
 court, if this document were a bill of 
 parcels, or an invoice in the strict 
 sense, viz., a document which the 
 vendor writes out, not on the ac- 
 count of both parties, but as being 
 the account of the vendor, and not a 
 mutual account. But in the present 
 instance I cannot, as a matter of course, 
 look at this instrument as an invoice, 
 a bill of parcels ; as intended orfly on 
 the vendor's account. Perhaps I should 
 draw the inference that it was, but it 
 
 is impossible to deny that there was 
 plenty of evidence that the instrument 
 was written out as the memorandum 
 by which, and by nothing else, both 
 parties were to be bound. There cer- 
 tainly was evidence, I may say a good 
 deal of evidence, that Noakes was to 
 alter this writing, not merely as the 
 seller's account, but as a document 
 binding both sides ... In Graham 
 V. Musson, the name of the defendant, 
 the buyer, did not appear on the doc- 
 ument. The signature was that of 
 Dyson, the agent of the seller, put 
 there at the request of Musson, the 
 buyer, in order to bind the seller ; 
 and, unless the name of Dyson was 
 used as equivalent to Musson, there 
 was no signature by the defendant ; 
 but in point of fact, ' J. Dyson ' was 
 equivalent to ' for or per pro North & 
 Co., J. Dyson,'" In Murphy f. Boese, 
 L. R. 10 Ex. 126, decided in 1875, it 
 appeared that the plaintiff brought 
 an action for the price of clocks sold 
 by him to the defendant ; and the 
 plaintiff's traveller, when he took 
 the order for the goods, wrote out, 
 in the presence of the defendant, 
 upon printed forms, two memoranda 
 of it, putting the defendant's name 
 upon them, and handing one of the 
 papers to the defendant, who kept it ; 
 and it was held (distinguishing Dur- 
 rell V. Evans) that there was no evi- 
 dence that the plaintiff's traveller 
 signed the memoranda as agent of 
 the defendant, so as to bind him 
 within § 17 of the statute of frauds. 
 Pollock, B., said : " I think Durrell 
 V. Evans can only be supported if it 
 decides that the agency did not com- 
 mence till after the memorandum was 
 vrritten out, and that will distinguish 
 it from the facts before us. It might 
 be said that the direction given by the 
 defendant to Noakes, the factor, to 
 alter the instrument, was an adoption 
 of his act in preparing it, or a recog- 
 nition ab initio of the whole document 
 as containing the contract. Or one 
 
786 STATUTE OF FRAUDS. [CHAP. XV. 
 
 Dyson " ; it was held that this was not a sufficient note or 
 memorandum of the bargain to satisfy the statute, Dyson 
 not appearing on the evidence to be authorized to sign it as 
 an agent for the buyer .^ 
 
 But where in an action to recover the price of goods sold 
 by the plaintiff to the defendant, it appeared that the plain- 
 tiffs traveller when he took the order for goods wrote out in 
 the presence of the defendant upon printed forms two mem- 
 oranda of it, putting the defendant's name upon them, and 
 handing one of the papers to the defendant who kept it, it 
 was held, distinguishing Durrell v. Evans, ante, that there 
 was no evidence that the plaintiff's traveller signed the 
 memoranda as agent of the defendant, so as to bind him 
 within the statute. The bare entry of a steward in his lord's 
 contract book with his tenants is not evidence of itself that 
 there was an agreement for a lease between the landlord and 
 tenant.^ 
 
 Sec. 426. Ratification of Agent's Acts. — A subsequent ratifi- 
 cation hy a principal of a contract hy an agent is equivalent to 
 a previous authority? Where, therefore, a broker made a con- 
 tract in writing for the sale of goods, not being authorized 
 by his principals at the time, and the latter afterwards 
 assented to the contract, it was held that the broker was an 
 agent duly authorized to bind his principals under the statute, 
 at the time the contract was entered into.* So where by an 
 agreement a father and son, as mortgagees with power of 
 sale, agreed to sell to the plaintiff all their estate and interest 
 in a certain piece of land adjoining other land ,belonging to 
 the plaintiff, and this agreement was signed by the plaintiff 
 and by the son for himself and his father, and subsequently 
 
 might go farther and say that, from ^ Murphy v. Boese, L. R. 10 Ex. 
 
 the nature of the transaction, and the 126. 
 
 meeting of the parties at the office, it ^ Charlewood v. Diike of Bedford, 
 
 might be thoughts thatNoakes should 1 Atk. 497. 
 
 act as the scribe of both parties in * Maclean v. Dunn, 1 Moo. & P. 
 
 drawing up the memorandum. But 761 ; and see Acebal v. Levy, 4 M. & 
 
 here there is an entire absence of any Se. 217 ; 10 Bing. 376 ; Gosbell v. 
 
 act of recognition by the defendant of Archer, 2 Ad. & El. 500 ; 4 N. & M. 
 
 the traveller as his agent." 485 ; Fitzmaurice v. Bayley, 6 E. & B. 
 
 1 Graham v. Musson, 7 Sc. 769; 5 868; 9 H. L. C. 78; London & Bir- 
 
 Bing. (N. C.) 603; and see Graham v. mingham Railway Co. v. Winter, Cr. 
 
 Fretwell, 4 Sc. (N. R.) 25; 3 Man. & & Ph. 67. 
 Gr. 368. 
 
SEC. 427.] OONTEACTS BY AGENTS. 787 
 
 the father and son sold the land to a third party who had 
 notice of the agreement, it was held that though the evidence 
 was insufficient to show any antecedent authority in the son 
 to bind the father, yet the latter had by his subsequent con- 
 duct ratified the contract.^ 
 
 An agent cannot delegate his authority to another person. 
 But if he does so, the act may be ratified by the principal.^ 
 Where the vendor of goods employed a broker for the pur- 
 pose of selling them, and an intending purchaser authorized 
 the broker's salesman to offer a certain price, who, in conse- 
 quence, brought the parties together, and the parties, having 
 concluded the contract in the absence of the salesman, dic- 
 tated the terms of it to him, and he made an entry of the 
 terms in his master's book, but did not sign it, and after- 
 wards communicated the circumstances to the broker, who 
 directed a clerk to enter and sign the contract in his book, 
 and sent a sale note signed by himself to the vendor, but no 
 sale note was sent to the purchaser, it was held that there 
 was no note or memorandum in writing signed by an agent 
 duly authorized to satisfy the statute.^ 
 
 Sec. 427. signature by Clerk of Auctioneer. — A signature 
 by an auctioneer's clerk is sufficient to bind the purchaser. 
 " It is certainly irregular," said Littlbdale, J., " that the 
 contracting parties should act as each other's agent, but it is 
 very different where the contract is signed by an individual 
 who is not either of the contractors. Were it to be held 
 otherwise, no broker could maintain an action in his own 
 name, for the breach of a contract signed by him ; and at 
 every auction, if the auctioneer or his clerk were not allowed 
 to be the agent of the contracting parties, at ever}"- bidding 
 each purchaser would have to come to the table and sign his 
 own name." * 
 
 1 Biggt>. strong, 4 Jur. (N. S.) 983; Stevens, 43 Vt. 653. But the question 
 and see Dyas v. Cruise, 2 J. & Lat. as to whether he has authority or not 
 460 ; Norris v. Cooke, 7 Ir. C. L. R. must depend upon the circumstances 
 37. of each case. Cormaclc v. Masterton, 
 
 2 Blore V. Sutton, 3 Mer. 237. 3 S. & P. (Ala.) 411 ; AIna v. Plum- 
 ' Henderson v. Barnewall, 1 Y. & mer, 4 Me. 258 ; Frost v. Hill, 3 Wend. 
 
 J. 387. (N. Y.) 386; Eutz v. Mills, 1 McNuU 
 
 * Bird «. Boulter, 1 Nev. &M. 316; (S. C.) 453; Gett v. Bickell, ante; 
 
 4 B. & Ad. 443 ; hut see Peirce v. Hart v. Wood, ante. As to the au- 
 
 Corf, L. E. 9 Q. B. 210 ; Harvey v. thority of a clerk of a telegraph 
 
788 STATUTE OF FEAUDS. [CHAP. XV. 
 
 Sec. 428. Signature by Telegraph Clerk. — Where the in- 
 structions for a telegraphic message were signed by the 
 defendant, but the telegram received by the plaintiff merely 
 contained the names of the sender and receiver written by 
 the company's clerk in the usual printed form, it was held 
 that there was a sufficient signature by the defendant to 
 render him liable to be charged on the contract.^ 
 
 Sec. 429. Broker is Agent for Both Parties. — A broker 
 who is employed to sell goods for any person, and who agrees 
 for the sale of them, and gives to the purchaser and to his 
 employer bought and sale notes of the bargain, is an agent 
 of both parties.^ He has only a special authority, not a 
 general one ; and if he is employed to buy one kind of 
 goods, and he buys another, the principal is not bound by 
 his act.^ Where the plaintiff instructed the defendants to 
 purchase for him fifty bales of cotton, and paid to the de- 
 fendants ^£800, part of the purchase-money, and the defend- 
 ants made a contract in their own names for the purchase of 
 a much larger quantity, viz., 300 bales on account of the 
 plaintiff' and other principals, it was held in an action for 
 money had and received that the plaintiff was entitled to 
 recover back the money paid, as the defendants had not 
 made a contract on which he could sue as principal.* 
 
 Sec. 430. signed Entry in his Books Constitutes Contract. — 
 
 A binding contract between ,t]ie parties employing a broker 
 is constituted by a signed entry in his books of a sale of the 
 goods from the one to the other. 
 
 Company, in signing a despatch, see treated as having such authority, and 
 
 Godwin v. Francis, L. E. 5 C. P. 295. their signature to a momorandum of 
 
 1 Godwin v. Francis, L. E. 5 C. P. sale binds the parties if the memoran- 
 295 ; and see McBlain v. Cross, 25 L. dum is in other respects suflScient. 
 T. (N. S.) 804. Lawrence v. Gallagher, 10 J. & S. (N. 
 
 2 Euckert). Cammeyer, 1 Esp. 104; Y.) 309; Newberry v. "Wall, 84 N. T. 
 Simon v. MotivoS; 3 Burr. 1921 ; 1 W. 576 ; Butler v. Thompson, 96 N. S. 
 Bl. 599. 412 ; Coddington v. Goddard, 16 Gray 
 
 » Pitts V. Beckett, 18 M. & W. 747, (Mass.) 442; Baines v. Ewing, L. E. 
 
 per Parke, B. Brokers and those 1 Exchq. 320; Dickinson v. Silwall, 4 
 
 buying and selling for others, neces- Camp. 279 ; Hinckley v. Arey, 27 Md. 
 
 sarily act as agent for such parties, 362; Shaw u. Finney, 13 Met. (Mass.) 
 
 and are treated as having authority 453. 
 
 to bind such parties in transactions in * Bostock v, Jardine, 34 L. J. Ex. 
 
 which they act for them, upon the 142. 
 same principal that auctioneers are 
 
SEC. 430.] CONTRACTS BY AGENTS. 789 
 
 In Hinde v. Whitehouse,^ the question was whether an 
 entry made by an auctioneer on a catalogue of sale, not 
 attached to the conditions of sale, was a sufficient memoran- 
 dum. Lord Ellenborotjgh said : " In respect to sales of 
 goods it has been uniformly so holden ever since the case of 
 Simon v. Motivos,^ and it would be dangerous to break in 
 upon a rule which affects all sales made by brokers acting 
 between the parties buying and selling, and where the mem- 
 orandum in the broker's book and the bought and sold notes 
 transcribed therefrom, and delivered to the buyers and sellers 
 respectively, have been holden a sufficient compliance with 
 the statute to render the contract of sale binding on each." 
 
 In Heyman v. Neale,^ his Lordship said : " After the broker 
 has entered the contract in his book, I am of opinion that 
 neither party can recede from it. . . . The entry made and 
 signed by the broker, who is the agent of both parties, is 
 alone the binding contract." And in Thornton v. Charles,* 
 Parke, B., expressed an opinion to the same effect, saying 
 with reference to the case of Hawes v. Forster : ^ " Certainly 
 it was the impression of part of the court, that the contract 
 entered in the book was the original contract, and that the 
 bougth and sold notes did not constitute the contract." 
 ~ Lord Abinger, C. B., however, held the contrary opinion, 
 and in Gumming v. Roebuck,^ and Thornton v. Meux,^ Gibbs, 
 C. J., and Abbott, C. J., also stated that the entry in the 
 broker's book was not the original contract. 
 
 In Sievewright v. Archibald,^ however, the question seems 
 
 1 7 East, 569. 9 M. & W. 802. Holding the contrary, 
 
 ^ 3 Burr. 1921 ; 1 W. Bl. 599. Gibbs, C. J., in Gumming v. Roebuck, 
 
 3 2 Camp. 337. Holt, 172 ; Abbott, C. J., in Thornton 
 
 * 9 M. & W. 802. V. Meux, M. & M. 43 ; Denman, C. J., 
 
 5 1 Moo. & Roh. 368. in Townsend v. Drakeford, 1 C. & K. 
 
 8 Holt, 172. 20; and Lokd Abinger in Thornton v. 
 
 ' M. & M. 43. Charles, ante ; but they are all over- 
 
 8 17 Q. B. 103 ; 20 L. J. Q. B. 529. ruled in Seivewright y. Archibald, 
 
 Mr. Benjamin, in his work on Sales, ante. 
 
 after a careful review of the English Second. The bought and sold notes 
 
 cases, lays down the following rules : — do not constitute the contract. Fakke, 
 
 First. The broker's signed entry in B., in Thornton v. Charles, ante; Lord 
 
 his book constitutes the contract be- Ellenborouoh in Heyman v. Neale, 
 
 tween the parties. Heyman v. Neale, ante ; Sievewright o. Archibald, ante. 
 
 2 Camp. 337 ; Sievewright v. Archi- Contra. Thornton v. Meux, ante, and 
 
 bald, 17 Q. B. 115 ; Thompson v. Gard- dicta in Goom v. Afflalo, B. & C. 117 ; 
 
 ner, IC. P.O. 177; Thornton y. Charles, and Trueman w. Lodcr, 11 Ad. & El. 
 
790 
 
 STATUTE OF TEAUDS. 
 
 [chap. XV. 
 
 to have been finally settled. There a broker authorized by 
 the plaintiff, to sell 500 tons of Dunlop iron made a bargain 
 
 689, all of which are disapproved of 
 in Sierewright v. Archibald, ante. 
 
 Third. But the bought and sold 
 notes, when they correspond and state 
 all the terms of the bargain, are com- 
 plete and sufficient evidence to satisfy 
 the statute ; even though there be no 
 entry in the broker's book, or what is 
 equivalent, only an unsigned entry. 
 This was first settled by Goom v. 
 Afflalo, and reluctantly admitted to 
 be no longer questionable in Sieve- 
 ■wright V. Archibald. 
 
 Fourth. Either the bought or sold 
 note alone will satisfy the statute, pro- 
 vided no variance be shown between 
 it and the other note, or between it 
 and the signed entry in the book. 
 This was the decision in Hawes v. 
 Forster, 1 Mood. & Rob. 368, of the 
 common pleas in Parton v. Crofts, 16 
 C.»B. (N. S.) 11; 33 L.J. C. P. 189; 
 Newberry v. Wall, 84 N. Y. 576 ; S. 
 C. 65 ib. 484; Butler v. Thompson, 
 92 U. S. 412 ; and of the common pleas 
 division in Thompson v. Gardiner, 1 
 C. P. D. 777. 
 
 Fifth. Where one note only is 
 offered in evidence, the defendant has 
 the right to offer the other note or the 
 signed entry in the book to prove a 
 variance. Hawes u. Forster, ante, is 
 direct authority in relation to the 
 entry in the book, and in all the cases 
 on variance, particularly in Parton v. 
 Crofts, supra, it is taken for granted 
 that the defendant may produce his 
 own bought or sold note to show 
 that it does not correspond with the 
 plaintiff's. 
 
 Sixth. As to variance. This may 
 occur between the bought and sold 
 notes where there is a signed entry, or 
 where there is none. It may also 
 occur when the bought and sold notes 
 correspond, but the signed entry dif- 
 fers from them. If there be a signed 
 entry, it follows from the authorities 
 under the Jirst of these propositions 
 that this entry will in general control 
 the case, because it constitutes the 
 
 contract of which the bought and sold 
 notes are merely secondary evidence, 
 and any variance between them could 
 not affect the validity of the original 
 written bargain. If, however, the 
 bought and sold notes correspond, but 
 there be a variance between them 
 taken collectively and the entry in 
 the book, it becomes a question of 
 fact for the jury whether the accept- 
 ance by the parties of the bought and 
 sold notes constitutes evidence of a 
 new contract modifying that which 
 was entered in the book. This is the 
 point established by Hawes v. Forster, 
 1 Mood. & R. 368, according to the 
 explanation of that case first given 
 by Pakke, B., in Thornton v. Charles, 
 9 M. & W. 802, afterwards by Patte- 
 SON, J., in Sievewright v. Archibald, 
 17 Q. B. 115; 20 L. J. Q. B. 529, and 
 adopted by the other judges in this 
 last named case. 
 
 Seventh. If the bargain is made 
 by correspondence, and there is a, 
 variance between the agreement thus 
 concluded and the bought and sold 
 notes, the principles are the same as 
 those just stated which govern vari- 
 ance between a signed entry and the 
 bought and sold notes, as decided in 
 Heyworth v. Knight, 17 C. B. (N. S.) 
 298 ; 33 L. J. C. P. 298. 
 
 Eighth. If the bought and sold 
 notes vary, and there is no signed 
 entry in the broker's book, nor other 
 writing showing the terms of the bar- 
 gain, there is no valid contract. 1 
 Chitty Contr. (11th Am. ed.) 551; 
 Suydam v. Clark, 5 Sandf . 133 ; But- 
 ters V. Glass, 31 U. C. Q. B. 379. This 
 is settled by Thornton v. Kempster, 
 5 Taunt. 786 ; Gumming v. Roebuck, 
 Holt, 172 ; Thornton v. Meux, 1 M. & 
 M. 43 ; Grant v. Fletcher, 5 B. & C. 
 436 ; Gregson v. Rucks, 4 Q. B. 747 ; 
 and Sievewright v. Archibald, 17 Q. 
 B. 115 ; 20 L. J. Q. B. 529. The only 
 opinion to the contrary is that of 
 Erle, J., in the last named case. In 
 one case, however, at nisi prius, Rowe 
 
SEC. 431.] CONTRACTS BY AGENTS. 791 
 
 with the defendant to sell it to him for a price exceeding 
 £10. The broker sent a note to the plaintiff expressing that 
 he had sold him 500 tons Dunlop iron, and a note to the 
 defendant expressing that he had bought for him 500 tons 
 Scotch iron. Dunlop's is Scotch iron, but not the only kind of 
 Scotch iron. The broker made no signed entry in his book. 
 After this there was a negotiation between the plaintiff and 
 defendant as to the terms on which the defendant might be 
 let off the contract, in which both treated the contract as 
 binding ; but there was nothing to show whether they con- 
 sidered the contract to be for Scotch iron generally, or only 
 for Dunlop's, or that either was aware of the variance be- 
 tween the notes. The plaintiff brought an action on a con- 
 tract to deliver Dunlop's iron. Non assumpsit was pleaded, 
 and at the trial the variances between the notes appeared. 
 The declaration was then amended so as to make the con- 
 tract be to deliver Scotch iron ; and the jury found that the 
 defendant had ratified the contract contained in the bought 
 note, and the plaintiff obtained a verdict. On a motion to 
 enter a verdict for the defendant, it was held that the vari- 
 ance between the bought and sold notes was material ; and 
 that there was no sufficient memorandum of a contract to 
 satisfy the statute. 
 
 Sec. 431. Bought and Sold Notes do not Constitute Con- 
 tract, but are Proper Evidence of it. — It is now well settled 
 that the bought and sold notes do not constitute the con- 
 tract. In Heyman v. Neale,i Loed Ellbnboeough said: 
 " The bought and sold note is not sent on approbation, nor 
 does it constitute the contract. . . . What is called the 
 bought and sold note is only a copy of (the entry in the 
 broker's book) which would be valid and binding although 
 
 V. Osborne, 1 Stark. 140, Lohd Ellen- of usage is admissible to show that 
 
 BOROUGH held the defendant bound the vendor is not finally bound to the 
 
 by his own signature to a bought note bargain until he has had a reasonable 
 
 delivered to the vendor, which did time, after receiving the sold note, to 
 
 not correspond with the note signed inquire into the sufficiency of the 
 
 by the broker and sent to the defend- purchaser, and to withdraw if he dis- 
 
 ant. approves. Hodgson i). Davies, 2 
 
 Lastly. If a sale be made by a Camp. 531 ; Brandao v. Bamett, 3 C. 
 
 broker on credit, and the name of the & B. 519. 
 
 purchaser has not been previously ^ 2 Camp. 337. 
 communicated to the vendor, evidence 
 
792 STATUTE OF FEAUDS. [CHAP. XV. 
 
 no bought or sold note was ever sent to the vendor and pur- 
 chaser." 1 In Groom v. Afflalo,^ on the other hand, Abbott, 
 C. J., thought the contrary, and in Thornton v. Meux ^ it 
 was expressly decided at nisi prius that the bought and sold 
 notes, and not the entry in the broker's book, were the proper 
 evidence of the contract.* In Sievewright v. Archibald^ 
 these cases were disapproved of. 
 
 Although the bought and sold notes do not constitute the . 
 contract, nevertheless, it appears that they are the proper 
 evidence of the contract,^ but it must be shown that they 
 correspond with each other,^ and the rule applies even though 
 there is no entry in the broker's book or though the entry is 
 unsigned. In Gpom v. Afflalo,^ Abbott, C. J., said : " The 
 entry in the book has been called the original, and the notes 
 copies ; but there is not any actual decision that a valid con- 
 tract may not be made by notes duly signed if the entry be 
 unsigned. . . . We have no doubt that a broker ought to 
 sign his book, and that every punctual broker will do so. 
 But if we were to hold such a signature essential to the 
 validity of a contract, we should go further than the courts 
 have hitherto gone, and might possibly lay down a rule that 
 would be followed by serious inconvenience, because we 
 should make the validity of the contract to depend upon 
 some private act of which neither of the parties to the con- 
 tract would be informed, and thereby place it in the power 
 of a negligent or fraudulent man to render the engagements 
 of parties valid or invalid at his pleasure." ^ 
 
 Sec. 432. Either Note may Prove Contract if no Variance. — 
 
 Where it is sought to establish a contract by means of 
 bought and sold notes, it is not necessary to produce both 
 the bought note and the sold note. If it can be proved by 
 
 ' And see Thornton v. Charles, 9 ' Gumming v. Eoebuck, Holt, 172 
 
 M. & W. 802. Grant v. Fletcher, 5 B. & C. 436 
 
 2 6 B. & C. 117. Thornton v. Kempster, 1 Marsh, 355 
 
 8 M. & M. 43. Thornton v. Meux, M. & M. 43 ; Kemp- 
 
 * See also Trueman v. Loder, 11 Ad. son v. Boyle, 3 H. & C. 763. 
 
 & El. 589. 8 6 B ,j, c 117. 
 
 6 17 Q. B. 103; 20 L. J. Q. B. 529. » And see Sievewright v. Archi- 
 
 e Dickenson u. Lilwal, 1 Stark, bald, 17 Q. B. 103; 20 L. J. Q. B. 
 
 128; Gumming t). Roebuck, Holt, 172; 529; re Thorp, ex parte Thomas, 5 
 
 Goora V. Afflalo, 6 B. & G. 117; New Rep. 230. 
 
 Thornton v. Meux, M. & M. 48; Short 
 
 V. Spackman, 2 B. & Ad. 962. 
 
SEC. 433.] CONTRACTS BY AGENTS. 793 
 
 the plaintiff that there is no variance between the notes them- 
 selves, and between the notes and the entry in the broker's 
 book, there is a sufficient contract. It is, of course, a good 
 defence to prove that there is such a variance. In Hawes v. 
 Forster,! Lord Denman, C. J., said: "I am of opinion that 
 the plaintiffs have proved a contract by producing the bought 
 note. ... It is not shown that the sold note delivered to 
 the defendants differed from the bought note delivered to 
 the plaintiffs : had that been shown to be the case, it would 
 have been very material ; but, in the absence of all proof of 
 that nature, I am clearly of opinion that I must look to the 
 bought note, and to that alone, as the evidence of the terms 
 of the contract." And in Parton v. Crofts, ^ Erlb, C. J., 
 said: "In Sievewright v. Archibald the bought and sold 
 notes differed, and so the evidence of the contract failed. 
 Here the sold note only was produced, and there was nothing 
 to impeach it. That distinguishes the two cases. To satisfy 
 the seventeenth section of the statute, it is enough to pro- 
 duce a memorandum of the contract, signed by the party to 
 be charged thereby, or by an agent thereunto duly autho- 
 rized." 
 
 Sec. 433. Variance betiitreeii Signed Entry and Notes. — 
 
 Where there is a signed entry of the contract in the broker's 
 book, and the bought and sold notes differ from each other, 
 and one agrees with the signed entry, then the entry in the 
 broker's book, together with the note agreeing with it, consti- 
 tutes the contract. But where there is a signed entry, and 
 the bought and sold notes correspond with each other but 
 differ from the entry, then, according to Hawes v. Forster,^ 
 if these documents have been delivered to the parties after 
 the entry in the book has been signed, it becomes a question 
 of fact for the jury to decide whether there has been a new 
 contract made between the parties on the footing of those 
 notes.* 
 
 Where a contract has been entered into by letters, defi- 
 
 1 1 Moo. & Rob. 368. bald, 17 Q. B. 115; 20 L. J. Q. B. 529; 
 
 2 16 C. B. (N. S.) 22 ; 33 L. J. C. Townsend v. Drakeford, 1 Car. & K. 
 P. 189. 22; Goom v. Afflalo, 9 D. & R. 148; 
 
 3 1 Moo. & Rob. 368. 6 B. & C. 117 ; Thornton v. Meux, 1 
 
 4 See also Thornton v. Charles, 9 M. & M. 43. 
 M. & W. 802 ; Sievewright v. Archi- 
 
794 STATUTE OF FKAUDS. [CHAP. XV. 
 
 nitely fixing the terms, and subsequently bought and sold 
 notes containing different terms pass between the parties, 
 the letters, in the absence of any agreement to the contrary, 
 will constitute the contract.^ 
 
 Where there is no signed entry in the broker's books, and 
 no writing from which the terms of the contract can be gath- 
 ered, and the bought and sold notes vary from each other, 
 no contract arises. 
 
 Thus, where a broker, employed by the plaintiff to sell 
 Petersburg clean hemp and by the defendant ts) buy hemp, 
 sold to the defendant, and by mistake gave him a sale note 
 of Riga Rhine hemp, a description of hemp of a different 
 quality from the Petersburg hemp, and gave the plaintiff a 
 note of the sale of Petersburg clean hemp, it was held that 
 no contract for the sale of the hemp in question subsisted 
 between the parties.^ In Grant v. Fletcher,^ Abbott, C. J., 
 said : " The broker is the agent of both parties, and as such 
 may bind them by signing the same contract on behalf of the 
 buyer and seller. But if he does not sign the same contract 
 for both parties, neither will be bound. It has been decided 
 accordingly that where the broker delivers a different note of 
 the contract to each of the contracting parties there is no 
 valid contract." * In Rowe v. Osborne ^ it was held that a 
 vendee of goods was bound by the contract as stated in the 
 note signed by him, and delivered by the broker who effected 
 the sale to the vendor, although this note varied from the 
 note delivered by the broker to the vendee. 
 
 Sec. 434. immaterial Variance does not Avoid Contract. — 
 
 An unimportant or immaterial variation between the bought 
 and sold notes will not avoid a contract. Thus, where a 
 broker delivered to the vendor bought and sold notes written 
 on one sheet of paper, and the day for payment of the goods 
 was inserted at the end of the bought note only, but in those 
 
 1 Heyworth o. Knight, 17 C. B. « 5 B. & C. 437. 
 
 (N. S.) 298; 10 Jur. (N. S.) 866; 33 * And see Thornton w. Meux, M. & 
 
 L. J. C. P. 298, disapproving of the M. 43 ; Ileyman v. Neale, 2 Camp, 
 
 decision of the Privy Council in Cowie 337; Gregson v. Ruck, 4 Q. B. 747; 
 
 V. Kemfry, 5 Moo. P. C. C. 232. and Sieveright v. Archibald, 17 Q. B. 
 
 2 Thornton v. Kempster, 5 Taunt. 103 ; 20 L. J. Q. B. 529. 
 786 ; and see Gumming u. Roebuck, ^ i Stark, 140. 
 Holt, 172. 
 
SEC. 437.] CONTRACTS BY AGENTS, 795 
 
 made out for the purchasers the day. was inserted at the end 
 of the bought as well as of the sold note, it was held that, as 
 the bought and sold notes delivered to the vendor were both 
 written on one sheet of paper, the whole must be considered 
 as forming one contract; and consequently that there was 
 no variance.^ So where the broker made a mistake in the 
 names of the contracting parties, it was held that the con- 
 tract was not thereby avoided, it not being shown that any 
 one was prejudiced thereby .^ 
 
 Sec. 435. Sale on Credit by Broker. Vendor's Right to 
 Retract. — If goods in the City of London are sold by a 
 broker to be paid for by a bill of exchange, the vendor has a 
 right, within a reasonable time, if he is not satisfied with the 
 sufficiency of the purchaser, to annul the contract. But the 
 vendor must intimate his dissent as soon as he has had an 
 opportunity to inquire into the solvency of the purchaser ; 
 and five days has been considered too long a period for this 
 purpose.^ 
 
 Sec. 436. Broker Bmployed by Purchaser, only his Sold 
 Note when Binding. — Where the plaintiff employed a broker 
 to purchase some hemp for him, and the broker having nego- 
 tiated with the defendant, signed and sent to Mm a sold note, 
 and the defendant afterwards signed and sent to the broker 
 a note differing in several material points from the note sent 
 to him, it was held that it was a question for the jury 
 whether both parties intended that the note signed by the 
 defendant should be the contract, in which case there was a 
 sufficient memorandum within the statute of frauds; or 
 whether the defendant never intended to be bound as seller 
 unless the buyer also signed a correlative note to bind him, 
 and if so, there was no valid contract.* 
 
 Sec. 437. Revocation of Broker's Authority. — The author- 
 ity of a broker may be revoked by his employer at any time 
 before he has signed a contract for him. Thus, the authority 
 
 1 Maclean u. Dunn, 1 Moo. & P. 224, citing Brandao v. Barnett, 3 C. B. 
 761. 519; 12 0. &F. 787; and 1 Sm. L. C. 
 
 2 Mitchell V. Lapage, Holt, 253. 549, ed. 1867. 
 
 « Hodgson y. Davies, 2 Camp. 530. * Moore v. Campbell, 10 Ex. 323; 
 As to whether this custom should be 23 L. J. Ex. 310. 
 proved, see Benj. on Sales, 2d ed. 
 
796 
 
 STATUTE OP FKATTDS. 
 
 [chap. XV. 
 
 of a broker employed to effect a policy of insurance may be 
 revoked after the underwriters have signed the sHp, till such 
 time as they have actually subscribed the policy ; and if the 
 broker, having procured a slip to be written on terms within 
 the scope of his original authority, receives an intimation 
 from his principals that they wiU not submit to those terms, 
 and afterwards effects the policy, and pays the premium to 
 the underwriters, he can maintain no action against his prin- 
 cipals for commission or money paid.^ 
 
 1 "Warwick v. Slade, 3 Camp. 127 ; 
 and see Farmer v. Eobinson, 2 Camp. 
 339, li. A broker's note or memo- 
 randum of sale of goods, containing 
 the names of both parties and the 
 terms of sale, and delivered to both 
 parties, makes a valid contract within 
 the statute of frauds. Newberry v. 
 "Wall. 84 N. Y. 576. H a broker 
 makes no entry in his books, the 
 bought and sold notes, together, con- 
 stitute a memorandum. Suydam v. 
 Clark, 2 Sandf. (N. Y.) 133; Peltier 
 V. Collins, 3 "Wend. (N.Y.)459; Davis 
 V. Shields, 26 Id. 341 ; Gregson v. Ruck, 
 4 Q. B. 735 ; Loomis o. Spencer, 1 D. 
 & R. 32 ; Grant v. Fletcher, 5 B. & C. 
 436. But If he makes an entry in his 
 books, the bought and sold notes must 
 agree therewith. Hawes v. Forster, 
 3 Moo. & E. 368; Short v. Spackman, 
 
 2 B. & Ad. 962 ; Loamer v. Dawson, 
 Cheeves (S. C.) 68. If either is pro- 
 duced alone, it will be presumed that 
 they do correspond. Parton v. Crofts, 
 16 C. B. (N. S.) 11 ; Hawes v. Forster, 
 ante. In "Wiener v. Whipple, 53 Wis. 
 298, the agent signed his own name, 
 and. It being shown that he acted as 
 agent, and had authority to do so, the 
 contract was binding on his principal. 
 But in Morgan v. Bergen, 3 Neb. 209, 
 It was held that a memorandum must 
 be signed by the agent in the principal's 
 name, and that if the name of the 
 agent only Is signed thereto, it must 
 be treated as the agent's contract. 
 See also Briggs v. Partridge, 64 N. Y. 
 357, where the same rule was adopted 
 as to a contract under seal. See also 
 Moody V. Smith, 70 N. Y. 598. 
 
SEVENTH, EIGHTH, AND NINTH SECTIONS OF THE 
 STATUTE OF FRAUDS. 
 
 Section 7. All declarations or creations of trusts or confidences, of 
 any lands, tenements, or hereditaments, shall be manifested and proved 
 by some writing signed by the party who is by law enabled to declare 
 such trust, or by his last will in writing, or else they shall be utterly void 
 and of none effect. 
 
 Sec. 8. Provided always, that where any conveyance shall be made 
 of any lands or tenements, by which a trust or confidence shall or may 
 arise or result by the implication or construction of law, or be transfeiTed 
 or extinguished by an act or operation of law; then, and in every such 
 case, such trust or confidence shall be of the like force and effect as the 
 same would have been if this statute had not been made ; anything here- 
 inbefore contained to the contrary notwithstanding. 
 
 Sec. 9. All grants or assignments of any trust or confidence shall 
 likewise be in writing, signed by the party granting or assigning the 
 same, or by such last will or devise, or else shall likewise be utterly void 
 and of none effect. 
 
CHAPTER XVI. 
 
 DECLAEATIONS OF TETJST. 
 
 SECTION. 
 
 438. All Declarations or Creations of Trust shall be in Writing. 
 
 439. Freeholds and Chattels Eeal within Statute. Charitable Uses. 
 
 440. Chattels Personal not. 
 
 441. Volunteer. Declaration must be Clear and Irrevocable. 
 
 442. Trust of Money Secured on Mortgage. 
 
 443. Parol Charge of Trust. 
 
 444. "What is Sufficient Declaration of Trust. 
 
 445. Statute not Allowed to Cover Fraud. 
 
 446. Lands in a Colony. 
 
 447. Pormalities Eequired. 
 
 448. Evidence of Trust. 
 
 449. Eequisites to Proof of Trust. 
 
 450. Signature. 
 
 Section 438. ah Declarations or Creations of Trust shall 
 be in 'Writing. — The seventh section of the statute of frauds 
 provides that " all declarations or creations of trusts or con- 
 fidences of any lands, tenements, or hereditaments shall be 
 manifested and proved by some writing signed by the party 
 who is by law enabled to declare such trust, or by his last 
 will in writing, or else they shall be utterly void, and of none 
 effect." 1 Before the statute of frauds a trust of lands might 
 have been declared by parol.^ 
 
 Sec. 439. Freeholds and Chattels Real within the Statute. 
 Charitable Uses. — Trusts of freeholds, copyholds,^ and of 
 
 1 Adlington v. Cann, 3 Atk. 149, Langfielde v. Hodges, Lofft. 230 
 151 ; Fordyce v. Willis, 3 Bro. C. C. Acherley v. Acherley, 7 Bro. P. C 
 587 ; Thruxton v. Attorney General, 1 273 ; but see Devenish v. Baines, 
 Vern. 341 ; Bellasis v. Compton, 2 Prec. Ch. 5. 
 
 Vern. 294. In some of the States s g^ett v. Whitmore, Freem. 280 
 
 this (7th) section of the statute is Eiddle v. Emerson, 1 Vern. 108; Ec[. 
 
 omitted, as in Kentucky, Virginia, Cas. Abr. 381, pi. 3; Bellasis u 
 
 West Virginia, Wyoming, Tennessee, Compton, 2 Vern. 294 ; Eq. Cas. Abr. 
 
 Texas, Ehode Island, Ohio, North 881, pi. 5; Hutchins v. Lee, 1 Atk. 
 
 Carolina, Delaware, and Connecticut. 447 ; Forster v. Hale, 3 Ves. 696. 
 
 2 Withers v. Withers, Amb. 152; 
 
SEC. 441.J DECLARATIONS OF TEUST. 799 
 
 chattels real are within this section of the statute, and 
 therefore a trust relating to such interests must be proved 
 in the manner provided by the act.^ Gifts to charitable uses 
 are within the statute, and, therefore, a trust for a charity 
 cannot be set up without a declaration in writing, even 
 though there are such circumstances in favor of the charity 
 that a testator could not mean anything else.^ 
 
 Sec. 440. Chattels Personal not. — But chattels personal 
 are not within the statute, and a declaration of trust relat- 
 ing to them may therefore be made by parol, either by the 
 donor declaring himself, or some other person, a trustee.^ 
 
 Sec. 441. Volunteer. Declaration must be Clear and Irre- 
 vocable. — There may be a valid declaration of trust in favor 
 of a volunteer.* The words of the declaration must be clear, 
 unequivocal, and irrevocable,^ and if there is no doubt about 
 it, the court will give effect to the trust as readily as if it 
 were in writing.® Remarks made in the course of conversa- 
 tion are not sufficient. " It may be doubtful," said Sir W. 
 P. Wood, V. C, " whether the court would hold that a vol- 
 untary trust could be created by merely oral expression ; so 
 much might depend on a correct report of the words. If, as 
 part of a verbal communication by a proposed settlor, he had 
 used words of this sort : ' I propose to do so and so,' or, ' it 
 is my present intention to do it,' the effect might be to show 
 that he had not at the time absolutely determined to create 
 the trust ; and in such a case, I can well imagine that the 
 court would require extremely strong evidence before it 
 would say that an irrevocable trust was created." Where a 
 
 1 Lloyd V. Spillett, 3 P. "Wms. 344, Peckham v. Taylor, 31 Beav. 250 ; 
 affd. 2 Atk. 148 ; Barn. 384 ; Adling- Grant v. Grant, 34 Beav. 623 ; Lister 
 ton V. Cann, 3 Atk. 150; Boson v. v. Hodson, L. E. 4Eq. 30; Parker v. 
 Statham, 1 Eden, 513. Stones, 38 L. J. Ch. 46 ; Roberts v. 
 
 2 Fane v. Fane, 1 Vem. 31; For- Roberts, 15 W. R. 117; 15 L. T. (N. 
 dyce V. WilUs, 3 Bro. C. C. 587; Nab S.) 260. . 
 
 V. Nab, 10 Mod. 404 ; Lucas v. Lucas, ' Jones v. Lock, 1 Ch. 28, overrul- 
 
 1 Atk. 270 ; West, 456 ; Bayley o. ing a dictum contra in Scales v. Maude, 
 
 Boulcott, 4 Russ. 347 ; Thorpe «. 6 D. M. G. 51. 
 Owen, 5 Bear. 224 ; Benbow v. Town- * Grant v. Grant, 34 Beav. 623. 
 send, 1 M. &K. 510; George !). Bank ^ Peckham v. Taylor, 31 Bear, 
 
 of England, 7 Price, 646 ; McFadden 254. 
 
 V. Jenkyns, 1 Hare, 461; 1 Ph. 157 
 Hughes V. Stubbs, 1 Hare, 476 
 Hawkins v. Gardiner, 2 Sm. & G. 451 
 
 " Paterson v. Murphy, 11 Hare, 
 88; and see Dipples u. Corles, ib. 
 184. 
 
800 STATUTE OF FEATTDS. [CHAP. XVI. 
 
 father put a check into the hand o£ his son, an infant of nine 
 months old, saying : " I give this to baby for himself," and 
 then took back the check and put it away, and also expressed 
 his intention of giving the amount of the check to the son, 
 and the check was found among his effects after his death ; 
 it was held that there had been no valid declaration of trust.^ 
 
 Sec. 442. Trust of Money Secured on Mortgage. — A parol 
 declaration of a trust of a sum of money secured upon a 
 mortgage of real estate has been supported. Thus, where A 
 took a mortgage in the name of B, declaring that the princi- 
 pal sum should be for the benefit of B, and received the 
 interest during his life, it was held that the money after the 
 death of A belonged to B by force of the parol declaration.^ 
 
 Sec. 443. Parol Change of Trust. — If a trust is once de- 
 clared of personalty by parol, the donor cannot afterwards 
 change it b}'^ a parol declaration.^ 
 
 Sec. 444. ViThat is Sufficient Declaration of Trust. — The 
 parol approval of a draft declaration of trust, subject to 
 instructions as to alterations in some of the particulars, is 
 not a sufficient declaration of a trust of personalty.* Where 
 the settlor of a fund directs an additional sum to be invested 
 in the names of the trustees of the fund, and the dividends 
 are treated as if they accrued from the original fund, there 
 will be no resulting trust for the settlor, but the additional 
 sum will be considered as impressed with the trusts of the 
 settlement as an augmentation of the trust fund.* 
 
 Sec. 445. statute not Allowed to Cover Fraud. — The stat- 
 ute of frauds cannot be used by a defendant to cover a fraud- 
 ulent act. Therefore, where the plaintiff conveyed an estate 
 to the defendant by a deed, in which the conveyance was 
 expressed to be absolute in consideration of a sum of money 
 
 1 Jones b. Lock, L. R. 1 Ch. 25 ; » Crabb v. Crabb, 1 M. & K. 511 ; 
 and see Hughes v. Stubbs, 1 Hare, Kilpin c;. Kilpin, ib. 533, per Sik J. 
 476 ; Maguire v. Dodd, 9 Ir. Ch. Eep. Leach. 
 
 452 ; Moore v. Moore, L. E. 18 Eq. * Re Sykes's Trusts, 2 J. & H. 
 
 476. 415. 
 
 2 Benbow v. Townsend, 1 M. & K. ^ Re Curteis' Trusts, L. E. 14 Eq. 
 506 ; and see Bellasis v. Compton, 2 217. 
 
 Vern. 294. 
 
SEC. 445.] DECLARATIONS OP TRUST. 801 
 
 paid by the defendant, but no purchase-money actually 
 passed, and the plaintiff alleged that he conveyed the estate 
 to the defendant as a trustee for him ; and the defendant in 
 his answer admitted that he gave no consideration for the 
 estate, but stated that the plaintiff made the conveyance, 
 fearing that an adverse decision would be made against him 
 in a suit then pending in chancery ; and that it was under- 
 stood that the defendant should account to the plaintiff for 
 the rents until he could make arrangements for paying the 
 purchase-money, and if no such arrangements could be made, 
 that he should reconvey the estate ; but nevertheless claimed 
 to hold it discharged of any trust, and claimed the benefit of 
 the statute ; it was held that the statute could not be pleaded 
 in answer to the plaintiff's claim, and that the defendant 
 must reconvey the estate to the plaintiff.^ But where A, 
 the owner of estates in the Bedford Level, wishing to give 
 his son a qualification as bailiff, for which, according to the 
 Bedford Level Act, it is necessary to "have" 400 acres in 
 the Level, wrote to the registrar of the Level, stating his 
 wish, and asking him to find a qualification ; and the regis- 
 trar thereupon, without any further instructions, selected out 
 of A's land the smallest lot that exceeded 400 acres, and sent 
 to him a deed, by which he purported to convey it to the son 
 in fee, in consideration of natural love and affection, and the 
 deed was at once executed by A and registered; and the son 
 died soon after without ever having heard of the transaction; 
 it was held on a bill filed by A to establish his title to the 
 land, against the infant heiress-at-law of the son, that, on the 
 ground of trust, or of mistake, or on both grounds, he was 
 entitled to the relief sought, as it clearly appeared that 
 neither he nor the registrar intended or considered the trans- 
 action to have the effect of making the son the beneficial 
 owner, nor intended any fraud or illegality.^ In May v. 
 May,^ a conveyance of property by a father to his son to give 
 him a qualification to vote, was held not invalid, but a bountyr 
 In Groves v. Groves,* property was purchased by one person 
 and conveyed to another, in order to give the latter a vote at 
 parliamentary elections, and the court would not assist the 
 
 1 Haigh V. Kaye, L. K. 7 Ch. 469; ^ Childers v. Childers, 1 De G. & 
 and see Lincoln v. Wright, 4 De G. & J. 482. 
 J. 16 ; Davies v. Otty, 35 Beav. 208. = 33 Beav. 81. ^ 3 Y. & J. 163. 
 
802 STATUTE OF FRAUDS. [CHAP. XVI. 
 
 purchaser, and his bill seeking to make the grantee a trustee 
 was dismissed. 
 
 In Rex V. Portington,i it was held that the statute of frauds 
 did not bind the Crown, but took place only between party 
 and party. In Adlington v. Cann,^ however. Lord Hakd- 
 WICKE said that lie was doubtful as to this doctrine that the 
 king was not bound by a statute unless he was expressly 
 named, but referred to a case upon the sixteenth section of 
 the statute in which it had been determined that he was not. 
 
 Sec. 446. Lands in a Colony. — The statute does not apply 
 to lands in a colony acquired before the statute was passed. 
 English subjects, wherever they go, carry their laws with 
 them, and therefore a new colony is to be governed by the 
 laws of England existing at the time when possession is 
 taken, though afterwards acts of parliament made in England 
 without naming the colony will not be binding there.^ 
 
 Sec. 447. what Formalities Required. — It will be observed 
 that the statute does not require that a trust shall be declared 
 in writing, but that it shall be " manifested and proved " by 
 writing, which must be signed.* " It is not required by the 
 statute," said Lord Alvanley, " that a trust should be cre- 
 ated by a writing ; and the words of the statute are very par- 
 ticular in the clause respecting declarations of trust. It 
 does not by any means require that all trusts shall be created 
 only by writing ; but that they shall be manifested and proved 
 by writing ; plainly meaning, that there should be evidence 
 in writing, proving that there was such a trust. Therefore, 
 unquestionably it is not necessarily to be created by writing, 
 but it must be evidenced by writing, and then the statute is 
 complied with ; and, indeed, the great danger of parol declara- 
 tions, against which the statute was intended to guard, is 
 entirely taken away." ^ 
 
 Sec. 448. Evidence of Trust. — A trust may be manifested 
 and proved by a declaration made by the trustee even after 
 
 1 1 Salk. 162. BORonOH; Davies v. Otty, 35 Beav. 
 
 2 3 Atk. 154. 540 ; Smith v. Matthews, 3 De G. F. 
 8 See 2 P. Wms. 75 ; Gardiner v. & J. 151, per TuRNfiK, L. J. ; Donohoe 
 
 Fell, 1 Jac. & W. 22. > v. Conrahy, 2 J. & Lat. 696. As to 
 
 * Denton v. Davies, 18 Ves. 503. whether these cases carry out the 
 
 6 Forster v. Hale, 3 Ves. 707 ; and intention of the framers of the stat- 
 
 see S. C. 5 Ves. 315, per Lobd Lough- ute, see Lewin on Trusts, 6th ed. 49. 
 
SEC. 450.] DKCLAEATIONS OF TRUST. 803 
 
 the death of the cestui que trust^ by letters written by the 
 settlor,^ by an affidavit,^ a recital in a bond,* or deed,^ even 
 though the deed may be inoperative," or by a mere memoran- 
 dum promising to declare a trust.'^ Where a lease was granted 
 to W, who afterwards committed an act of bankruptcy, and 
 then executed a declaration of trust in favor of R ; it was 
 held, it having been found on an issue directed by the court 
 that Ws name was used in trust for R, that the lease did not 
 pass to Ws assignees.^ 
 
 Sec. 449. Requisites to Proof of Trust. — When it is sought 
 to establish a declaration of trust from informal documents, 
 there must be demonstration that they relate to the subject- 
 matter,^ and the trust must be shown to be certain in its 
 nature and in its object, otherwise it must fail.^<* Parol evi- 
 dence is admissible to show the position in which the writer 
 of letters stood when he wrote them, the circumstances by 
 which to his knowledge he was then surrounded, and the 
 degree of weight and credit which, independently of any 
 question of construction, may belong to the letters.^^ 
 
 Sec. 450. signature. — The declaration of trust must be 
 signed " by the party who is by law enabled to declare such 
 trust " ; and it is now settled that the signature must be by 
 the beneficial owner, and not by a trustee who has the legal 
 estate ; ^^ and the rule applies to personal as well as to real 
 estate.^^ 
 
 1 Ambrose v. Ambrose, 1 P. Wms. * Re Bennett's Settlement Trust, 
 321 ; Crop v. Norton, 9 Mod. 233 ; 2 16 W. R. 831 ; 17 L. T. (N. S.) 438. 
 Atk. 74; Bam. 179. ' Bellamy u. Burrow, Cas. temp. 
 
 2 O'Hara v. O'Neill, 7 Bro. P. C. Talb. 98. 
 
 227 ; Forster v. Hale, 3 Ves. 696 ; S. » Gardner v. Rowe, 2 S. & S. 340, 
 
 C. 5 Ves. 308 ; Gardner v. Rowe, 2 S. affd. 5 Euss. 258 ; see also Earl of 
 
 & S. 354 ; Morton v. Tewart, 2 T. & Plymouth v. Hickman, 2 Vern. 167. 
 
 C. 67 ; Bentley v. Mackay, 15 Beav. » Forster v. Hale, 3 Ves. 708 ; 
 
 12; Childers o. Childers, 1 De G. & Smith v. Matthews, 3 De G. F. & J. 
 
 J. 482. 151. 
 
 3 Barkworth v. Young, 4 Drew, 1. i» Morton v. Tewart, 2 Y. & C. C. 
 Under the old practice an admission C. 80, per Knight Bruce, V. C. ; 
 in an answer was sufficient: Hampton Forster v. Hale, 3 Ves. 707; Smith v. 
 V. Spencer, 2 Vern. 288; Nab v. Nab, Matthews, 3 De. G. F. & J. 151, 2. 
 
 10 Mod. 404; Ryall ;;. Ryall, 1 Atk. " Morton v. Tewart, 2 Y. & C. C. 
 
 59 ; Cottington v. Fletcher, 2 Atk. C. 77. 
 
 155; Wilson v. Dent, 3 Sim. 385. 12 Tierney v. Wood, 19 Beav. 530; 
 
 * Moorecroft v. Dowding, 2 P. Donohoe v. Conrahy, 2 J. & Lat. 688. 
 
 Wms. 314. 18 Ex parte Pye, 18 Ves. 140 , 
 
 5 Deg V Deg, 2 P. Wms. 412. Bridge v. Bridge, 16 Beav. 315. 
 
CHAPTER XVII. 
 
 EESTJLTING TKTJSTS. 
 
 BECTIOK. 
 
 451. Trusts Arising, etc., by Act of Law not within Statute. 
 
 452. Trust of Part of Estate. 
 
 453. Devise of Residue. 
 
 454. Vague Trusts, Lapsed, Unlawful. 
 
 455. Purchase made in Name of Stranger, 
 
 456. Eule Applies to First Purchase. 
 
 457. To Personal as well as Real Estate. 
 
 458. Purchase in Fictitious Name. 
 
 459. Parol Eyidence Admissible on Part of Person Paying Purchase-Money. 
 
 460. On Behalf of Person to Whbm Conveyance is Made. 
 
 461. To Eetut Presumption as to Part of Property. 
 
 462. Not Admissible to Prove Agency. 
 
 463. Conveyance without Consideration. 
 
 464. Purchase in Name of Wife or Child. 
 
 465. Reputed Wife. 
 
 466. Person in Loco Parentis. 
 
 467. Purchase by Mother. 
 
 468. Fiduciary Relationship. 
 
 469. When Avoided as against Creditors. 
 
 470. Rule Applies to Personal Estate. 
 
 471. Surrounding Circumstances to be Considered. 
 
 472. Purchase-Money Unpaid. 
 
 473. Joint Tenancy, when Created. 
 
 474. Purchase in Name of a Child and a Stranger. 
 
 475. Evidence to Rebut Presumption of Advancement. 
 
 476. Possession by Father. 
 
 477. Devise, Bequest, or Lease. 
 
 478. Child fully Advanced. 
 
 479. Purchase in Pursuance of Covenant. 
 
 480. Transfer of Trusts. 
 
 Section 451. Trusts Arising, Resulting, Transferred, or Ex- 
 tinguished by Act of Law Excepted. — The eighth section of 
 the statute of frauds provides " that where any conveyance 
 shall be made of any lands or tenements by which a trust or 
 confidence shall or may arise or result by the implication or 
 construction of law, or be transferred or extinguished by an 
 act or operation of law, then and in every such a case, such 
 
SEC. 453.] RESULTING TRUSTS. 805 
 
 trust or confidence shall be of the like force and effect as the 
 same would have been if this statute had not been made ; 
 anything hereinbefore contained to the contrary notwith- 
 standing." * 
 
 Sec. 452. Trust of Part of Estate. — If a trust is declared 
 of a part only of an estate, and the instrument creating the 
 trust, whether a deed or will, does not mention the residue, 
 the equitable interest therein will result to the settlor.^ 
 
 Where the whole legal interest of a grantor is given for 
 the purpose of satisfying trusts expressed, and those trusts 
 do not in their execution exhaust the whole, so much of the 
 beneficial interest as is not exhausted results to the grantor 
 or to his heir of legal personal representatives. But where 
 the whole legal interest is given for a particular purpose, with 
 an intention to give to the grantee of the legal estate the 
 beneficial interest, if the whole is not exhausted by that 
 particular purpose, the surplus goes to the grantee, and 
 there is no resulting trust. Thus, a devise to A and his 
 heirs charged with the testator's debts is a beneficial devise, 
 subject to a particular purpose, and there will be no result- 
 ing trust ; but if the devise is upon trust to pay debts, that 
 being a devise for a particular purpose only, a trust will 
 result for the heir.^ Where estates are devised to executors 
 upon trust, to sell and to invest part of the proceeds of the 
 sale for a particular purpose, but no trust is declared of the 
 sum so reserved, after the purpose is satisfied, there will be a 
 resulting trust for the heir.* The fact that a trust given for 
 a particular purpose has lapsed will not prevent a trustee 
 from taking beneficially under the rule in Bang v. Denison.^ 
 
 Sec. 453. Devise of Residue. — Under a devise of all the 
 residue of the testator's estate and effects whatsoever and 
 wheresoever, of what nature or kind so ever, to trustees upon 
 
 1 This section does not extend to ' King v. Denison, 1 V. & B. 272, 
 wills; see Lewin on Trusts, 6th ed. per TuO-rd Eldon; and see Wood v. 
 171. Cox, 2 M. & C. 684; Kogers w.Eogers, 
 
 2 Culpepper v. Aston, 2 Ch. Cas. 3 P. Wms. 193. 
 
 115 ; Cook V. Gwavas, cited in Roper * Stonehouse v. Evelyn, 3 P. Wms. 
 
 V. Eadcliffe, 9 Mod. 187 ; Lloyd v. 252 ; Watson v. Hayes, 5 M. & C. 125 ; 
 
 Spillet, 2 Atk. 150; Cottington v. Page v. Leapingwell, 18 Ves. 463; 
 
 Eletcher, ib. 156 ; Northen v. Came- Mariott v. Turner, 20 Beav. 557. 
 
 gie, 4 Drew, 587 ; Mapp v. Elcock, 3 ^ Supra, Tregonwell v. Sydenham, 
 
 H. L. C. 492. 3 Dow. 210. 
 
806 STATUTE OF FRAUDS. [CHAP. XVII. 
 
 trusts applicable only to personal property, the real estate 
 will pass with a resulting trust for the heir.^ But if the 
 trusts may be applicable to real estate, then the real estate 
 will pass.^ 
 
 Sec. 454. Trusts Vague, Lapsed, Unlawful. — If the trusts 
 declared are so vague that they cannot be executed,^ or if 
 they lapse,* or are void because of unlawfulness,^ they will 
 result. So also a trust will result when the instrument 
 creating the trust shows that it was not intended that the 
 grantee should take beneficially, as where the conveyance, 
 devise, or bequest is to A " upon trust," and no trust is de- 
 clared.® 
 
 Sec. 455. Purchases made in the Names of Strangers. — 
 Where property is bought by one person in the name of a 
 stranger, to whom the conveyance is made, there will be a 
 resulting trust for the person who paid the purchase-money. 
 " The clear result of all the cases," said Eyee, C. B., in Dyer 
 V. Dyer,^ " without a single exception, is, that the trust of a 
 legal estate, whether freehold, copyhold, or leasehold ; whether 
 taken in the names of the purchasers or others jointly, or in 
 the names of others without that of the purchaser ; whether 
 in one name or several ; whether jointly or successive, results 
 to the man who advanced the purchase-money. This is a 
 general proposition supported by all the cases, and there is 
 nothing to contradict it ; and it goes on a strict analogy to 
 the rule of the common law, that where a feoffment is made 
 without consideration, the use results to the feoffer."^ No 
 resulfing trust will be created by the mere expression of a 
 
 1 Dunnage v. White, 1 Jac. &W. « Dawson v. Clarke, 18 Ves. 254 ; 
 583 ; Lloyd v. Lloyd, L. R. 7 Eq. 458 ; Penfold v. Bouch, 4 Hare, 271 ; Attor- 
 Lougley v. Longley, L. R. 13 Eq. 183. ney General v. Dean and Canons of 
 
 2 D'Almaine v. Moseley, 1 Drew, Windsor, 24 Beav. 679 ; 8 H. L. C. 
 629; Coard u. Holderness, 20 Beav. 369; Aston v. Wood, L. R. 6 Eq. 
 147. 419 ; Barrs v. Fewkes, 2 H. & M. 60. 
 
 8 Stubbs V. Sargon, 2 Keen, 255 ; 3 '2 Cox, 93. 
 M. & C. 507 ; Williams v. Kershaw, 5 ' As to conveyance taken jointly, 
 C. & F. 111. see Ex parte Houghton, 17 Ves. 253; 
 
 * Ackroyd a. Smithson, 1 Bro. C 
 C. 503; Williams v. Coade, 10 Ves 
 500. 
 
 s Gibbs V. Rumsey, 2 V. & B. 294 
 Page ... Leapingwell, 18 Ves. 463 
 Tregonwell v. Sydenham, 3 Dow. 194. 
 
 Eider v. Kidder, 10 Ves. 367 ; and as 
 to several successive, see Howe v. 
 Howe, 1 Vern. 415 ; Withers v. With- 
 ers, Amb. 151 ; Smith v. Baker, 1 
 Atk. 385 ; Prankard v. Prankard, 1 S. 
 &S. L 
 
SBC. 458.] RESULTING TRUSTS. 807 
 
 wish, on the part of the grantor, that the purchase-money 
 may be applied in a certain way.^ The rights of a purcliaser 
 may be barred by negligence or delay .^ 
 
 Sec. 456. Rule Applies to First Purchase. — The rule that 
 a trust results from the person who pays the purchase-money 
 applies to the case of a joint purchase in the name of one. In 
 Crop V. Norton,^ Lord Hardwicke seemed to think that the 
 application of the rule was confined to an advance by one in- 
 dividual. In Wray v. Steele,* however. Sir P. Plumer de- 
 cided that a resultmg trust arose upon a joint advance, the 
 purchase being taken in the name of one. "Lord Haed- 
 wiCKE," said his Honor, " could not have used the language 
 attributed to him. What is there applicable to an advance 
 by a single individual, that is not equally applicable to a 
 joint advance under similar circumstances ? " 
 
 Sec. 457. To Personal as well as Real Estate. — The fore- 
 going doctrines apply as well to personal as to real estate,^ 
 even though, when the property consists of shares in a com- 
 pany, the rules of the company provide that there shall be 
 no benefit of survivorship.^ 
 
 Sec. 458. Purchase in Fictitious Name. — Where money 
 has been invested in the purchase of stock in a fictitious 
 name, for the purpose of defrauding creditors, the court will 
 order the fictitious name to be erased and the stock to be 
 transferred to the person who paid the purchase-money.'^ 
 Where an intestate had executed transfers of railway shares 
 and stock to a fictitious person, the court, on a bill filed by 
 his administrator, declared that the intestate used the ficti- 
 tious name as another designation of himself, and that the 
 plaintiff, as administrator, was entitled to transfer the shares 
 and stock in questien, and to receive the dividends thereof.** 
 
 1 Delaneu.Delane, 7Bro. P. C.279. Sidmouth, 2 Bear. 447; Soar v. Eos- 
 
 2 Lewis V. Lane, 2 M. & K. 449, ter, 4 K. & J. 152 ; Beecher v. Major, 
 overruling Edwards v. Fidel, 3 Madd. 2 Dr. & Sm. 431 ; Batstone v. Salter, 
 237 ; and see Jeans v. Cooke, 24 L. R. 19 Eq. 250 ; affd. L. R. 10 Ch. 
 Beav. 613. 431. 
 
 8 2 Atk. 74 ; 9 Mod. 233; Bam. 184. » Garrick v. Taylor, 29 Beav. 79; 
 
 * 2 V. & B. 388. affd. 4 De G. F. & J. 163. 
 
 6 Ebrand v. Dancer, 2 Ch. Ca. 26 ; ' Green v. Bank of England, 3 Y. 
 
 Lloyd V. Read, 1 P. Wme. 607 ; Mor- & C. Exch. 722. 
 
 timer v. Davies, 10 Ves. 363 ; Rider ' Arthur v. Midland Railway Co., 
 
 V. Kidder, 10 Ves. 360 ; Sidmoutli v. 3 K. & J. 204. 
 
808 STATUTE OF FBATJDS. [CHAP. XVII. 
 
 Sec. 459. Parol Evidence Admissible on part of Person Pay- 
 ing Purchase-Money. — Parol evidence is admissible on behalf 
 of the person paying the purchase-money to show that it be- 
 longed to him. In Sir John Peacher's case/ Sik Thomas 
 Clakkb, M. R., laid it down, that if A sold an estate to C, 
 and the consideration was expressed to be paid by B, and the 
 conveyance made to B, the court would allow parol evidence 
 to prove the money paid by C.^ But such proofs must be 
 very clear.^ 
 
 Sec. 460. On Behalf of Person to whom Conveyance Made. 
 — Parol evidence is admissible on behalf of the person to 
 whom the conveyance is made, to rebut the presumption of 
 a resulting trust for the person paying the purchase-money. 
 In Beecher v. Major,* where A purchased and transferred 
 .£1,000 stock in the name of her niece, and wrote her a 
 letter stating that she had done so, and that she intended . it 
 for the niece's benefit, and in the letter A inclosed a bank 
 power, which she stated was to enable her to receive the 
 dividends for her life, which power she requested the niece 
 to execute and return to her and also to destroy the letter, 
 both of which the niece accordingly did, it afterwards turned 
 out that the bank power authorized A to sell out the stock 
 as well as receive the dividends. It appeared that A had 
 always been very kind to the niece, and by her will made 
 before the transfer had given her an annuity of £30. It was 
 held that parol evidence of the contents of the letter was ad- 
 missible to rebut the general presumption that the stock still 
 belonged to A. 
 
 Sec. 461. To Rebut Presumption as to Part of Property. — 
 
 Parol evidence is admissible for the purpose of rebutting the 
 presumption of a resulting trust as to a part, as well as to 
 the whole, of the property.^ 
 
 1 Rolls E. T. 1759, M. S. Sugd. V. 103 ; Gascolgne v. Thwing, 1 Ver. 
 & P- 366 ; Willis V. Willis, 2 Atk. 71. 
 
 2 See also Ryall v. Ryall, 1 Atk. ■> 2 Dr. & Sm. 431 ; and see Groves 
 59; Amb. 413; Willis v. Willis, 2 k. Groves, 3 Y. & J. 163. 
 
 Atk. 71; Bartlett v. Pickersgill, 1 6 Bellasis <-. Compton, 2 Vern. 
 
 Eden, 516 ; Lane v. Dighton, Amb. 294 ; Benbow v. Townsend, 1 M. & K. 
 
 409; Groves v. Groves, 3 Y. & J. 506; Deacon w.Colquhoun, 2 Drew, 21; 
 
 163. Garrick v. Taylor, 29 Beav. 79; afid. 
 
 ' Newton v. Preston, Prec. Cli. 4 De G. F. & J. 163. 
 
SEC. 463.J KEStTLTING TRUSTS. 809 
 
 Sec. 462. Not Admissible to Prove Agency. — Parol evi- 
 dence is not admissible to show that, where land has been 
 paid for by one person, the purchase was made on behalf of 
 another. This was decided in Bartlett v. Pickersgill,i where 
 Lord Keeper Henley said : " I think the allowing this evi- 
 dence would be to overturn the statute. The statute says 
 there shall be no trust of land unless by memorandum in 
 writing, except such trusts as arise by operation of law. 
 Where money is actually paid, there the trust arises 'from 
 the payment of the money, and not from any agreement of 
 the parties. But this is not like the case of money paid by 
 one man and the conveyance taken in the name of another ; 
 in that case the bill charges that the estate was bought with 
 the plaintiff's money. If the defendant says he borrowed it 
 of the plaintiff, then the proof will be whether the money 
 was lent or not ; if it was not lent, the plaintiff bought the 
 land ; but as here the trust depends on the agreement, if I 
 establish the one by parol, I establish the other also. ... If 
 the plaintiff had paid any part of the purchase-money, it would 
 have been a reason for me to admit the evidence ; or if there 
 had been any fraud used by the defendant to prevent an exe- 
 cution of the agreement; but as it is, I think that it is a case 
 within the statute, and that the bill must be dismissed with 
 costs." 2 • 
 
 Sec. 463. Conveyance ■without Consideration. — In some 
 cases it has been held that where a conveyance is made 
 to a stranger without any valuable consideration being ex- 
 pressed, that a resulting trust arises for the grantor. ^ In 
 Young V. Peachy, Lord Hardwicke said : * " If a trust by 
 implication was to arise in the present case, it would be to 
 contradict the statute of frauds ; for it might be said in every 
 case where a voluntary conveyance is made, that a trust shall 
 arise by implication ; but that is by no means the rule of the 
 court ;^ trusts by implication, or operation of law, arise in 
 
 1 1 Eden, 516; see also Crop v. Prec. Ch. 80; Warman o. Seaman, 
 Norton, 9 Mod. 235 ; 2 Atk. 74 ; Barn. Freem. 308 ; Sculthorp v. Burgess, 1 
 179; Chadwick v. Maden, 9 Hare, Ves. Jr. 93 ; Davies u. Otty (No. 2), 35 
 188. Beav. 208. 
 
 2 And see Heard v. Pilley, L. E. 4 * 2 Atk. 256. 
 
 Ch. 548. 6 See Fordyce v. WllUs, 3 Bro. C. 
 
 8 Duke of Norfolk v. Browne, C. 577. 
 
810 STATUTE OF FEAtTDS. [CHAP. XVn. 
 
 such eases, where one person pays the purchase-money, and 
 the conveyance is taken in the name of another, or in some 
 other cases of that kind ; but the rule is by no means so large 
 as to extend to every voluntary conveyance." ^ Where a son 
 conveyed an estate to his father nominally as purchaser, but 
 really as a trustee, and in order that the father, who was in 
 better credit than the son, might raise money upon it by way 
 of mortgage for the use of the son; and the father died 
 shortly afterwards and before any money was raised, having 
 by a will subsequent to the conveyance made a general devise 
 of all his real estates ; it was held that the case was within 
 the statute, and that parol evidence was not admissible to 
 prove the trust ; but that the son had a lien on the estate as 
 vendor for the apparent consideration, no part of which was 
 paid.2 
 
 Sec. 464. Purchases in the Name of a VTife or Child no Re- 
 sulting Trust. — No resulting trust arises upon a purchase in 
 the name of a wife alone,^ nor upon a joint purchase in the 
 names of a husband and wife,* nor upon a purchase in the 
 name of a child.^ The presumption in these cases is that a 
 gift to the wife or an advancement for the child was intended. 
 If a mortgage is made in the joint names of a husband and 
 wife, this will be considered as being in the nature of a joint 
 purchase, and the wife will, if the husband dies, be entitled 
 to the mortgage-money by survivorship.® 
 
 Sec. 465. Reputed Wife. — A purchase in the name of the 
 purchaser and of a woman whom in form he has gone through 
 the ceremony of marrying, but who could never become his 
 lawful wife, does not come within the rule, and therefore 
 such a purchase will not raise a presumption that it was in- 
 tended as an advancement or provision for her.'i 
 
 1 And see 1 Sand. Uses, 5th ed. v. Gosling, 3 Drew, 335; Lloyd v. 
 365; Wms. R. P. 10th ed. 159; Lloyd Pughe, L. R. 8 Ch. 88. 
 
 V. Spillet, 2 Atk. 150. 4 Drew v. Martin, 2 H. & M. 130. 
 
 2 Leman v. Whitley, i Euss. 423. 6 Dyer v. Dyer, 2 Cox, 92 ; Finch 
 This case was doubted by Lord St. v. Finch, 16 Ves. 60 ; Murless v. 
 Leonards, Sug. V. & P. 14th ed. 702. Franklin, 1 Swanst. 13 ; Grey v. Grey, 
 
 8 Kingdon v. Bridges, 2 Vern. 67 ; 2 Swanst. 597 ; Finch, 340. 
 Back!). Andrew, 2 Vern. 120; Christ's e Christ's Hospital v. Budgln, 2 
 
 Hospital V. Budgin, 2 Vern. 683 ; Vern. 683. 
 Eider v. Kidder, 10 Ves. 360 ; Gosling ' Soar v. Foster, 4 K. & J. 152. 
 
SBC. 467.] EESULTING TETJSTS. 811 
 
 Sec. 466. Person In Loco Parentis. — The presumption of 
 advancement may arise in the case of a purchase by a person 
 who has placed himself in loco parentis to the person in whose 
 name the purchase is made. Thus the presumption has been 
 held to apply in the case of an illegitimate son,^ of a grand- 
 chUdj^ of the nephew of a wife.^ 
 
 But the presumption of advancement will not arise in the 
 case of a purchase in the name of an illegitimate grandchild, 
 although the grandfather has placed himself in loco parentis 
 to the child.* 
 
 Sec. 467. Purchase by Mother. — In the case of re De 
 Visme,* it was said that a mother does not stand in such a 
 relationship to a child as to raise a presumption of benefit 
 for the child. In Sayre v. Hughes,® a mother, after making 
 her will in favor of her two daughters, transferred stock 
 which had stood in her own name into the names of herself 
 and one of the daughters, and died, and it was held that 
 there was a presumption of intended benefit to the daughter 
 which was unrebutted, and that the stock belonged abso- 
 lutely to her. Me De Visme was cited as an authority for 
 the proposition that there could be no presumption of ad- 
 vancement as between a mother and child, but Stitakt, V. 
 C, pointed out that the word "father" does not occur in 
 Lord Chief Bakon Eyre's judgment in Dyer v. Dyer,^ and 
 said that it was not easy to understand why a mother should 
 be presumed to be less disposed to benefit her child in a 
 transaction of this kind than a father. Where stock was 
 transferred by a mother into the names of herself, her 
 daughter, and her daughter's husband, and the dividends on 
 the stock were received by the son-in-law and paid over to 
 the transferor during her life, and the mother died leaving 
 the son-in-law only surviving, it was held that there was no 
 resulting trust, and that the son-in-law was entitled to the 
 
 1 Beckford v. Beckford, Lofft. 490 
 
 Kilpin V. Kilpin, 1 M. & K. 520; and Jur. (N. S.) 317 ; 13 W. E. 380; see, 
 
 see Soar v. Foster, 4 K. & J. 152 
 Tucker v. Burrow, 2 H. & M. 515. 
 2 Ebrand v. Dancer, 2 Ch. Ca. 26 
 
 515; and see Forrest v. Forrest, 11 
 
 however, Powys v. Mansfield, 3 My. & 
 Cr. 359, as to double portions. 
 6 2 De G. J. & S. 17. 
 
 Lloyd V. Read, 1 P. Wms. 607. " L. B. 5 Eq. 377 ; see also Hep- 
 
 8 Currant v. Jago, 1 Coll. 261. worth v. Hepworth, L. K. 11 Eq. 10. 
 
 * Tucker v. Burrow, 2 Hem. & M. '2 Cox, 92. 
 
812 STATUTE OF FKATJDS. [CHAP. XVII. 
 
 stock, the court being of opinion that the evidence showed 
 that the mother intended to create a beneficial interest in 
 each of the three persons into whose names the stock was 
 transferred.! 
 
 Sec. 468. Fiduciary Relationship. — Where a fiduciary 
 relationship, such as that of solicitor and client, subsists 
 ^between a parent and child, and the parent's money is ad- 
 vanced by the child in her own name, the ordinary presump- 
 tion in favor of the transaction being a gift is excluded, and 
 the onus is thrown upon the child of proving that a gift was 
 in fact intended.^ 
 
 Sec. 469. "When Avoided as against Creditors. — Purchases 
 in the name of a wife or child by way of gift or advance- 
 ment are, it appears, within the 13 Eliz. c. 5, and may be 
 avoided as against creditors,^ but they are not within the 
 27 Eliz. c. 4, and are therefore good as against subsequent 
 purchasers.* 
 
 Sec. 470. Rule Applies to Personal Estate. — The foregoing 
 rules apply also to personal estate, and therefore where a 
 husband transfers stock into the names of himself and his 
 wife, no resulting trust will arise for the husband, but the 
 wife will be entitled to the whole fund by survivorship;^ 
 so also in the case of a transfer of stock into the names 
 of a parent and child, the stock will belong to the child 
 surviving.^ 
 
 Sec. 471. Surrounding Circumstances to be Considered. — 
 The mere circumstance that the name of a wife or child is 
 inserted on the occasion of a purchase of stock is not suffi- 
 cient to rebut a resulting trust in favor of the purchaser, if 
 the surrounding circumstances lead to the conclusion that a 
 trust was intended. Although a purchase in the name of a 
 
 1 Batstone v. Salter, L. R. 19 Eq. K. & J. 110; Drew v. Martin, 2 H. & 
 250, afed. L. R. 10 Ch. 431 ; and see M. 130.' 
 
 Fowkes V. Pascoe, L. R. 10 Ch. 343. i Glaister v. Hewer, 8 Ves. 195; 
 
 2 Garrett v. Wilkinson, 2 De G. & Drew v. Martin, 2 H. & M. 130. 
 
 , S. 244 ; see also Hepworth v. Hep- ' Dummer v. Pitcher, 2 M. & K. 
 
 worth, L. R. 11 Eq. 14. 262 ; Low v. Carter, 1 Beav. 426; 
 
 ' Glaister v. Hewer, 8 "Ves. 195; Vance v. Vance, ib. 605; Poole v. 
 
 Townsend v. Westacott, 2 Beav. 340 ; Odiing, 31 L. J. Ch. 439. 
 
 4 Bear. 58 ; Christy v. Courtenay, 13 ^ Sayre v. Hughes, L. R. 5 Eq. 
 
 Beav. 96; Barrack ■/. McCuUoch, 3 376; BeereDeVisme,2DeG. J.&S. 17. 
 
SEC. 471.J KESTJLTING TKXTSTS. 813 
 
 wife or a child, if altogether unexplained, will be deemed 
 a gift, yet the surrounding circumstances may be taken into 
 consideration, so as to say that it is a trust and not a gift. 
 Thus, in Marshall v. Crutwell,^ the husband of the plaintiff, 
 being in failing health, transferred his banking account from 
 his own name into the joint names of himself and his wife, 
 and directed the bankers to honor checks drawn eitlier by 
 himself or his wife, and he afterwards paid in considerable 
 sums to their account. All checks were afterwards draAvn 
 by the plaintiff at the direction of her husband, and the 
 proceeds were applied in payment of household and other 
 expenses. The husband never explained to the plaintiff 
 what his intention was in transferring the account, but he 
 was stated by the bank manager to have remarked at the 
 time of the transfer that the balance of the account would 
 belong to the survivor of himself and his wife. After the 
 death of her husband (which took place a few months after 
 the transfer) the plaintiff claimed to be entitled to the 
 balance. It was held that the transfer of the account was 
 not intended to be a provision for the plaintiff, but merely a 
 mode of conveniently managing her husband's affairs, and 
 consequently that she was not entitled. Jessel, M. R., said : 
 " In all the cases in which a gift to the wife has been held to 
 have been intended, the husband has retained the dominion 
 over the fund in this sense, that the wife during the lifetime 
 of the husband has had no power independently of him, and 
 the husband has retained the power of revoking the gift. In 
 transferring a sum of stock there is no obvious motive why 
 a man should put a sum of stock into the name of himself 
 and his wife. She cannot receive the dividends, he can and 
 must, and it is difQcult to see any motive of convenience or 
 otherwise which should induce a man to buy a sum of stock 
 or transfer a sum of stock (if there is any difference between 
 the two) in or into the names of himself and his wife, except 
 the motive of benefiting her in case she survives. But here 
 we have the actual fact, that the man was in such a state of 
 health that he could not draw checks, and the wife drew 
 them. Looking at the fact that subsequent sums are paid in 
 
 1 Marshall v. Crutwell, L. R. 20 Fowkes v. Pascoe, L. R. 10 Ch. 343. 
 Eq. 329, per Jessel, M. R. ; and see = l. r. 20 Eq. 329. 
 
814 STATUTE OP PEAUDS. [CHAP. XVII. 
 
 from time to time, and taking into view all the circumstances 
 (as I understand I am bound to do), as a juryman I think 
 that the circumstances show that this was a mere arrange- 
 ment for convenience, and that it was not intended to be a 
 provision for the wife in the event which might happen, that 
 at the husband's death there might be a fund standing to the 
 credit of the banking account." 
 
 Sec. 472. Purchase-Money Unpaid. — Where a purchase 
 either of real or personal property is made in the name of a 
 wife or child, and the purchaser dies before the whole of the 
 purchase-money is paid, the purchase will enure for the ben- 
 efit of the wife or child, and the unpaid purchase-money is 
 payable out of the purchaser's personal estate.'' 
 
 Sec. 473. Joint Tenancy, when Created. — A purchase in 
 the joint names of father and son creates a joint tenancy.^ 
 In one case where the father had no other estate to which a 
 judgment creditor could resort, the creditor was relieved in 
 equity against the survivorship at law.' 
 
 Sec. 474. Purchase in the Name of a Child and a Stranger. 
 
 — If a purchase is made by a parent in the name of a child 
 and of a stranger, whether of real or personal estate, it will 
 be considered as an advancement; the stranger will be 
 treated as a trustee for the child, and there will not be any 
 resulting trust to the father.* 
 
 Sec. 475. Evidence to Rebut Presumption of Advancement. 
 
 — In certain cases where a purchase is made in the name of 
 a child, the presumption of advancement may be rebutted. 
 Thus, where a father tenant, by copy of court roll for his 
 life, took according to the custom of the manor a grant from 
 the lord of the reversion to his sons for the terms of their 
 
 1 Eedington v. Eedington, 3 Ridg. ' Stileman v. Ashdown, 2 Atk. . 
 
 P. C. 106; Vance v. Vance, 1 Beav. 477; see Pole v. Pole, 1 Ves. 76. This 
 
 605 ; Drew v. Martin, 2 H. & M. 130 ; case, however, is doubted by Mr. 
 
 Skidmore v. Bradford, L. E. 8 Eq. Lewia in his work on Trusts, 6th ed. 
 
 134 ; Nicholson v. Mulligan, 3 J. E. 153. 
 Eq. 308 ; see 30 & 31 Vict. c. 69. * Lamplugh v. Lamplugh, 1 P. 
 
 ^ Scroope v. Scroope, Frcem. Ch. Wins. Ill ; Mumma v. Mumma, 2 
 
 171 ; 1 Ch. Cas. 27 ; Back v. Andrews, Vem. 19; Finch v. Pinch, 15 Ves. 43 ; 
 
 2 Vem. 120 ; Grey v. Grey, 2 Swans. Crabb v. Crabb, 1 M. & K. 511 ; Col- 
 
 599 ; Dummer v. Pitcher, 2 M. & K. linson v. CoUinson, 3 D. M. G. 403. 
 272. 
 
SBC. 476.] RESULTING TRUSTS. 816 
 
 lives, in trust for himself " as the purchaser," it was held 
 that the sons were trustees of the reversion for him.' The 
 antecedent and contemporaneous acts and declarations of 
 the parent are admissible in evidence to rebut the presump- 
 tion of advancement, but his subsequent acts and declara- 
 tions are inadmissible for that purpose.^ In Devoy v. Devoy,^ 
 the presumption that the transfer (by a father) of stock into 
 the joint names of himself, his wife, and child, was intended 
 to be an advancement, was allowed to be rebutted by the 
 evidence upon oath of the transferor that no trust was 
 intended, but that the transfer was made under a misappre- 
 hension of its legal effect.* Although subsequent acts and 
 declarations of the parent are not evidence to support the 
 trust, subsequent acts and declarations of the child may be 
 
 Sec. 476. Possession by Father. — The presumption of 
 advancement will not be rebutted by the fact of the father 
 having continued in possession of the estate during his life,® 
 nor by the fact that the father has expended money in re- 
 pairs on the estate.'^ 
 
 Where a father purchases stock or shares in the name of k 
 child, and receives the dividends during his life under a 
 power from the son, this alone will not rebut the presump- 
 tion of advancement.^ In Smith v. Warde,^ a father directed 
 stock to be purchased in the names of himself and his wife 
 in trust for his infant son. The purchase was ma,de in the 
 joint names without any trust being declared, and the father 
 received the dividends down to his decease. It was held 
 
 1 Keats V. Hewer, 10 Jur. (N. S.) ' Sidmouth v. Sidmouth, 2 Beav. 
 1040 ; 13 W. E. 34. 455, per Lord Langdale. 
 
 2 Reddington w. Reddington, 3 « Q^ey v. Grey, 2 Swanst. 600; 
 Ridg. 177 ; Lloyd v. Read, 1 P. Wms. Lamplugh v. Lamplugh, 1 P. Wms. 
 607 ; Murlcss u. Franklin, 1 SwanBt. Ill ; Taylor v. Taylor, 1 Atk. 386 ; 
 13 ; Sidmouth u. Sidmouth, 2 Bear. Christy v. Courtenay, 13 Beav. 96. 
 447; CoUinson v. CoUinson, 3 D. M. ' Shales t>. Shales, Freem. 252 ; see 
 G. 409; Dumper v. Dumper, 3 GifE. further Elliot v. Elliot, 2 Ch. Cas. 
 583; Williams u. Williams, 32 Beav. 231; Scawin o. Soawln, 1 Y. & C. C. 
 370; Tucker v. Burrow, 2 H. & M. C. 65. 
 
 515. 8 Sidmouth v. Sidmouth, 2 Beav. 
 
 8 3 Sm. & G. 403. 447 ; Scawin v. Scawin, 1 Y. & C. C. 
 
 * See Stone v. Stone, 3 Jur. (N. S.) C. 65. 
 708. ' 15 Sim. 56. 
 
816 STATTJTE OP FEAtTDS. [CHAP. XTII. 
 
 that neither his son nor his wife (who survived him) were 
 entitled to the stock, but that it formed part of his assets.^ 
 
 Sec. 477. Devise, Bequest, or Lease. — If, after a purchase 
 of property by a parent or by a husband in the name of a 
 child or wife, the purchaser devises or bequeaths it,^ or leases 
 it,^ the prima facie presumption of advancement will not be 
 rebutted. Where a testator by his will settled £1,000 re- 
 duced annuities on each of his granddaughters, the children 
 of his only son, and two years afterwards he transferred a 
 sum of £3,200 reduced annuities, which was all the property 
 he possessed, into the name of his son, and died at the age 
 of ninety-four, having resided the last ten years of his life 
 with his son, who was a man of considerable property, it was 
 held that the transfer to the son operated as an absolute gift 
 to him free from any trusts.* 
 
 When stock invested in the joint names of a husband and 
 wife is sold out, the proceeds, though retained by the wife, 
 are nevertheless the property of the husband. Thus, where 
 a sum of money was invested in the funds in the joint names 
 of a husband and wife, and she, by power of attorney from 
 him', sold out a portion, and with his knowledge kept it 
 locked up in her own special custody until his death, it was 
 held that the portion which remained in the funds in the 
 joint names of the husband and wife survived to the wife, 
 but that the other portion which was sold out by her and 
 kept in her custody, formed, on the husband's death, a part 
 of his general personal estate.^ 
 
 Sec. 478. Child FuUy Advanced. — If a purchase is made 
 in the name of a child who is already fully advanced, by the 
 parent, there will be a resulting trust for the father ; ^ but if 
 the child be not at all or only in part advanced, the presump- 
 tion of advancement will not be turned into a trust.^ 
 
 1 See also Hayes u. Kindersley, 2 * Hepworth v. Hepworth, L. E. 11 
 Sm. & G. 195; Bone v. Pollard, 24 Eq. 10. 
 
 Bcav. 283, which turned upon the ^ jig Gadbury, 11 W. E. 895. 
 special circumstances of the cases. * Lloyd v. Bead, 1 P. Wms. 608 ; 
 
 2 Crabb .;. Crabb, 1 M. & K. 511 ; Pole v. Pole, 1 Ves. Sr. 76. 
 Dummer v. Pitcher, 2 M. & K. 262; ' Grey v. Grey, 2 Swanst. 600; 
 Jeans v. Cooke, 24 Beav. 513. Elliot v. Elliot, 2 Ch. Cas. 281. 
 
 ' Murless v. Franklin, 1 Sw. 13. 
 
SEC. 480.] RESULTING TRUSTS. 817 
 
 Sec. 479. Purchase in Pursuance of Covenant. — Where 
 lands are purchased in a certain place in the name of a child 
 by a father, but it appears that the father is bound to settle 
 lands so purchased in a particular manner, there will not be 
 any advancement, but the child will be a trustee merely.^ 
 
 Sec. 480. Transfer of Trusts. — By the ninth section of the 
 statute of frauds " all grants and assignments of any trust 
 or confidence shall likewise be in writing signed by the party 
 granting or assigning the same, or by such last will or devise, 
 or else shall likewise be utterly void and of none effect." 
 
 This section refers to assignments by the cestui que trust.^ 
 Before the statute the transfer of an equitable interest might 
 have been made by parol. A writing is all that is now nec- 
 essary, but it is the practice to employ the same species of 
 instrument and the same form of words in the transfer of 
 equitable as of legal estates.^ 
 
 1 Blake v. Blake, 7 Brp. P. C. 241. 
 
 2 Jerdein v. Bright, 2 J. & H. 325. 
 ' Lewin on Trusts, 6th ed. 673. 
 
CHAPTER XVIII. 
 
 SPECIFIC PEEFOEMAJirCB. 
 
 SECTION. 
 
 481. Part Performance as Ground of. 
 
 482. Principles on which Court Acts. 
 
 483. Position of Parties must be Altered. 
 
 484. Acquiescence. 
 
 485. Acts must be Unequivocal. 
 
 486. Part Payment of Purchase-Money. 
 
 487. Effect of Part Payment. 
 
 488. Admission to Possession. 
 
 489. Express Assent not Necessary. 
 
 490. Either Party may Enforce Agreement. 
 
 491. Expenditure of Money. 
 
 492. Expenditure under Terms of Lease not Part Performance. 
 
 493. Acquiescence in Expenditure. 
 
 494. Parol Contract by Tenant for Life under a Power, Remainder Man not 
 
 Bound. 
 
 495. Whether Change of Residence Sufficient Part Performance. 
 
 496. Acts of Part Performance must be Referable to an Agreement. 
 
 497. Trustee with Power of Leasing. 
 
 498. Wrongful Possession. 
 
 499. Contract with Wife Adopted by Husband. 
 
 500. Continuance in Possession not in general Part Performance. 
 
 501. Payment of Increased Rent. 
 
 502. Laying out of Money Part of Consideration. 
 
 503. Agreement must be Complete. 
 
 504. Terms of Contract must be Certain. 
 
 505. Contradictory Evidence, When Specific Performance Decreed. 
 
 506. Surrounding Circumstances Considered. 
 
 507. Immaterial Terms need not be Proved. 
 
 508. Family Arrangements by Parol. 
 
 509. Corporation. 
 
 510. Fraud takes Case out of Statute. 
 
 511. Partnership. 
 
 512. Statute cannot be Pleaded after Admission of Agreement by Defendant. 
 
 513. Demurrer. 
 
 514. Agreement Admitted by Defendant. 
 
 515. Executory Contract. 
 
 516. Statute Insisted upon. 
 
 517. Defendant Denying Agreement but not Claiming Benefit of Statute. 
 
 518. Different Agreement Admitted. 
 
 519. Rule of Law as to Admissibility of Parol Evidence on Behalf of a De- 
 
 fendant before Statute. 
 
SEC. 481.J SPECIFIC PEEFOKMANCE. 819 
 
 SECTION. 
 
 620. When Parol Evidence Admissible on Behalf of Defendant Resisting 
 Specific Performance. 
 
 521. Grounds upon whicli Parol Evidence Admitted on Behalf of Defendant. 
 
 522. Cases where Parol Evidence Admitted. 
 
 523. Grounds upon which Parol Evidence not Admitted on Behalf of Plaintiff. 
 
 524. Whether Parol Evidence Admissible on Behalf of Plaintiff when Objec- 
 
 tion taken before Agreement Signed. 
 
 525. Parol Variation of Written Contract may be Enforced where Part 
 
 Performance. 
 
 526. Parol Evidence not Admissible on Behalf of Plamtiff unless Part 
 
 Performance. 
 
 527. Term Omitted by Mistake may be Proved by Parol by Defendant. 
 
 528. Inadvertent Omission. 
 
 529. Mistake must be Clearly Proved. 
 
 530. Parol Evidence Admissible to Prove Promised Alterations. 
 
 531. Term Omitted, Plaintiff Offering to Perform. 
 
 532. Subsequent Variation, Plaintiff Offering to Perform. 
 
 533. When Parol Evidence not Admissible to add Term. 
 
 534. Terms of Agreement Ambiguous. 
 
 535. Mistake in Law. 
 
 536. Fact that Vendor cannot make Title. 
 
 Section 481. Specific Performance on the Ground of Part 
 Performance. — Notwithstanding the provisions of the fourth 
 section of the statute of frauds, that no action shall be 
 brought whereby to charge any person upon any contract or 
 sale of lands, tenements, or hereditaments, or any interest in 
 or concerning them, unless the agreement 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 thereunto by him 
 lawfully authorized; the court will in some cases decree 
 specific performance of a parol contract, where there have 
 been acts of part performance on the part of the plaintifp. 
 The leading case on this point is Lester v. Foxcraft,^ where 
 
 ' 1 Coll. P. C. 108; S. C. nom. ; of the land so released, was held to 
 Foxcraft v. Lyster, 2 Vern. 456. In be an agreement relating to an inter- 
 Barnes u. Boston & Maine E. R. Co., est in land and the building of fences 
 130 Mass. 388, an oral agreement by the company, afterwards dividing 
 made by a railroad company to re- the land released from that used for 
 lease to a person one of two parcels the railroad, and the digging of a new 
 of land, included in its location and channel for a brook along the divid- 
 owned by him at the time the location ing line between the land, nor the 
 was filed, in consideration that he refraining by the owner from collect- 
 should waive damages for the taking ing compensation for the taking of 
 
820 STATUTE OP FEATTDS. [CHAP. XVIII. 
 
 the acts of part performance consisted in the plaintiff's pull- 
 ing down an old house and building new houses according to 
 the terms of the agreement. 
 
 Sec. 482. Principles on which Court Acts. — The princi- 
 ples upon which the court acts were thus laid down by Loed 
 Redesdale, in Bond v. Hopkins : ^ " The statute of frauds 
 says that no action or suit shall be maintained oii an agree- 
 ment relating to lands which is not in writing, signed by the 
 party to be charged with it, and yet the court is in the daily 
 habit of relieving, where the party seeking relief has been 
 put into a situation, which makes it against conscience in 
 the other party to insist on the want of writing so signed as 
 a bar to his relief. The first case (apparently) of this kind 
 was Foxcraft v. Lyster.^ That case was decided on a prin- 
 ciple a,cted upon in courts of law, though not applicable by 
 the modes of proceeding in a court of law to the particular 
 case. It was against conscience to suffer the party who had 
 entered and expended his money on the faith of a parol 
 agreement to be treated as a trespasser, and the other party 
 to enjoy the advantage of the money he had laid out. At 
 law fraud destroys rights. If I mix my corn with another's, 
 he takes all ; but if I induce another to mix his corn with 
 mine, I cannot then insist on having the whole. The law in 
 that case does not give me his corn. The case of Foxcraft v. 
 Lyster, therefore, I conceive was decided on clear principle, 
 though whether the cases founded on that case have been all 
 so well considered I will not take upon me to saJ^ But it 
 appears from these cases that courts of equity have decided 
 
 the land corered by the agreement, contract, the terms, and the acts of 
 
 and the continued occupation by him part performance, are sustained by 
 
 of the land, was held not to eonsti- clear and satisfactory proof. Hop- 
 
 tute such part performance as to war- kins v. Roberts, 54 Md. 312. The 
 
 rant a decree for specific perform- court will decree specific performance 
 
 ance. In all cases an oral contract of a contract to give a mortgage upon 
 
 for the sale of land, to be specifically lands, where the contract, although 
 
 executed, must be plain, just, reason- by parol, has been executed on com- 
 
 able, bona fide, mutual, and certain in plainant's part. Dean u. Anderson, 
 
 all its parts ; and if it be wanting in 34 N. J. Eq. 496. 
 
 any one of these essentials, it cannot ^ 1 Sch. & Lef. 433. 
 
 be enforced. Nor will a court of ^ Cited 2 Vern. 456 ; and reported 
 
 equity enforce contracts 'depending in CoUes's Pari. Cas. 108 ; Agnew on 
 
 upon parol evidence and part per- Statute of Prauds, 461. 
 formance, unless the existence of the 
 
SEC. 482.J SPECIFIO PEEFOEMANCE. 821 
 
 on equitable grounds, in contradiction to the positive enact- 
 ment of* the statute of frauds, though their proceedings are 
 in words included in it." ^ In the case of the Duke of Leeds 
 V. the Earl of Amherst,^ Shad well, V. C, said : " I take it 
 that the general wisdom of mankind has acquiesced in this, 
 that the author of a mischief is not the party who is to 
 complain of the result of it, but he who has done it must 
 submit to have the effects of it recoil upon himself. This, I 
 say, is a proposition wliich is supported by the Holy Scrip- 
 tures, by the authority of profane writers, by the Roman 
 civil law, by subsequent writers upon civil law, by the com- 
 mon law of this country, and by the decisions in our own 
 courts of equitj'." 
 
 And in McCormick V. Grogan,^ Loed Westbuey defined 
 the principles upon which the court acts in decreeing specific 
 performance as follows : " The Court of Equity has from a 
 very early period decided that even an Act of Parliament 
 shall not be used as an instrument of fraud ; and if in the 
 machinery of perpetrating a fraud an Act of Parliament 
 intervenes, the Court of Equity, it is true, does not set aside 
 the Act of Parliament, but it fastens on the individual who 
 gets a title under that act, and imposes on him a personal 
 obligation, because he applies the act as an instrument for 
 accomplishing a fraud. In this way the Court of Equity has 
 dealt with the statute of frauds." The general rule has long 
 been settled that a part performance by the purchaser, of an 
 oral contract for the sale and purchase of land, may take the 
 contract out of the operation of the statute of frauds, and 
 authorize a court of general equity powers, in the exercise of 
 a sound discretion, to decree specific performance of the con- 
 tract on the part of the vendor.* This is said to be upon 
 
 1 See also Clinan v. Cooke, 1 Sch. and the proof established a contract 
 & Lef . 41 ; Dillwyn v. Llewellyn, 10 materially variant from that set forth 
 W. E. (L. C.) 742. in either the bill or answer, it was 
 
 2 20 Beav. 239. Specific perforin- held that the court might, with the 
 ance of a parol contract will not be plaintiff's consent, decree perform- 
 granled unless it is substantially the ance of the contract as proved, or re- 
 contract set forth in the bill and is scind it, and put the parties in statu 
 clearly proved. Brown u. Brown, 47 quo. 
 
 Mich. 378. But in West Va. Oil Co, 8 l. E. 4 H. L. 97. 
 
 u. Vinal, 14 W. Va. 037, where the * 2 Story's Eq. Jur., § 259 et seq. ; 
 
 contract set up in the bill was denied 1 Sugd. Vend. (8th Am. ed.), ch. 18, 
 
 in the answer to be as there set forth, § 7; 4. Kent's Com. 451. 
 
822 
 
 STATUTJE OF FRAUDS. [CHAP. XVIII. 
 
 the ground that one party shall not interpose the statute of 
 frauds to defraud the other party, it appearing that it would 
 be a fraud upon the latter, who has acted in good faith, rely- 
 ing that the former would do the same, if the "contract is not 
 completed.^ 
 
 Sec. 483. Position of Parties must be Altered. — It is in 
 general of the essence of an act of part performance that the 
 court shall by reason of the act itself, without knowing 
 whether there was an agreement or not, find the parties 
 unequivocally in a position different from that which, accord- 
 ing to their legal rights, they would be in if there were no 
 contract.^ 
 
 Sec. 484. Acquiescence. — Where ' the parties have for a 
 great length of time acted under the impression that a bind- 
 
 1 "Wilton V. Harwood, 23 Me. 131 ; 
 Potter W.Jacobs, 111 Mass. 32; Pul- 
 sifer V. Waterman, 73 Me. 
 
 2 Dale V. Hamilton, 5 Hare, 381, 
 per WiGEAM, V. C. ; see also Att. 
 Gen. V. Day, 1 Ves. Sr. 218 ; Taylor v. 
 Beach, ib. 297. As soon as the fact 
 is established of the final mutual 
 assent of the parties to certain terms, 
 and those terms are evidenced by any 
 writing signed by the party to be 
 charged or his agent, there exist all 
 the materials required to make a 
 legally binding contract, in a case 
 within the provisions of the statute of 
 frauds, so that specific performance of 
 the same may be decreed. Delivery 
 of possession by a vendor or lessor, 
 accepted and acted on by vendee or 
 lessee, is such an act of part perform- 
 ance by the former as to take the 
 contract out of the statute of frauds, 
 and justify a decree of specific per- 
 formance against the latter. Wharton 
 V. Stoutenburgh, 35 N. J. Eq. 266. A 
 parol contract may be specifically 
 enforced although the purchaser is 
 unable to show that he has made im- 
 provements for which he cannot be 
 compensated in damages. As where 
 in pursuance of a contract made in 
 December, 1874, A erected a house 
 on the lot before B, in October, 1875, 
 took possession. Jamison v, Dimock, 
 
 95 Penn. St. 52. In O'Niel v. Martin, 25 
 Kan. 494, O was in possession of 160 
 acres of school land, with the expec- 
 tation of purchasing the same. He 
 made, in 1871, an oral contract with 
 M to sell the latter -6 acres of the 
 tract for a valuable consideration 
 agreed upon. Possession was taken 
 by M, who made payment, and placed 
 lasting and valuable improvements 
 upon the land, agreeing to execute 
 a warranty deed as soon as he should 
 obtain title. In 1872, O purchased 
 the whole quarter-section from the 
 State, paying one-tenth of the pur- 
 chase-money in cash, and receiving a 
 certificate. In 1879, died; his ad- 
 ministrator completed the payment 
 and took a patent from the State for 
 the benefit of O's heirs. Held that 
 M could compel from O's "heirs a 
 specific performance of the agreement 
 made with O. Where the promisor 
 in an oral agreement to convey land 
 died three days after its execution, 
 leaving minor children, and the 
 promisee subsequently entered on 
 the land, and made valuable improve- 
 ments, held, that the performance of 
 such agreement could not be enforced 
 against the children, even though they 
 did not notify the promisee not to put 
 on the improvements. Ryan v. Wil- 
 son, 56 Tex. 36. 
 
SEC. 486.] SPECIFIC PEBFOEMAJ^CE. 823 
 
 ing contract existed, the court will not allow the defence of 
 the statute of frauds to be set up, although the acts of part 
 performance relied on are such as probably would not have 
 been considered sufficient in themselves to take the case out 
 of the statute.^ 
 
 Sec. 485. Acts of Part Performance must be Unequivocal, 
 not Introductory or Ancillary. — An act merely introductory 
 or ancillary to the agreement, though attended with expense, 
 does not amount to part performance,^ and an act which, 
 though in truth done in pursuance of a contract, admits of 
 explanation without supposing a contract, is not in general 
 admitted to constitute an act of part performance taking the 
 case out of the statute.* Thus, the giving instruction to a 
 solicitor to prepare a lease,* or a conveyance,^ even though 
 the defendant has altered the draft in his own hand, and sent 
 it back to be engrossed,® admeasurements by a surveyor,'^ 
 going to view the estate,^ the delivery of an abstract of title,^ 
 the appointment of a person to appraise stock,^" or of an 
 arbitrator to value the land,ii registering the conveyance,^^ 
 are not acts of part performance to take a case out of the 
 statute. Nor will the preparation and signature by the de- 
 fendant of a deed, which has never been parted with by his 
 solicitor amount to an act of part performance.^^ In the case 
 of a purchase of different lots by different parol contracts, 
 part performance as to one of the lots will not take the agree- 
 ments as to the other lots out of the statute.^* 
 
 Sec. 486. Part Payment of Purchase-Money not take Case 
 out of statute. — The payment of part or even the whole of 
 
 1 Blachford D. liirkpatrick, 6 Bear. ' Pembroke t. Thorpe, 3 Swanst. 
 232. 441, n. 
 
 2 Whitbread v. Brockhurst, 1 Bro. s cierk v. "Wright, 1 Atk. 12. 
 
 C. C. 412. « Whitbread v. Brockhurst, 1 Bro. 
 
 » Dale V. Hamilton, 5 Hare, 381, C. C. 412; Thomas u. Blackman, 1 
 
 per WiGRAM, V. C. ; and see Guntcr v. Coll. 301. 
 
 Halsey, Amb. 586 ; Lacon .,■. Mertins, ^ Whitchurch v. Bevis, 2 Bro. C. 
 
 3 Atk. 4; ex parte Hooper, 19 Ves. C. 659. 
 
 479. 11 Cooth V. Jackson, 6 Ves. 17, 41. 
 
 * Cole V. White, cited 1 Bro. C. C. i^ Hawkins u. Holmes, 1 P. Wms. 
 
 409. 770. 
 
 6 Clerk V. Wright, 1 Atk. 12 ; Whit- i» Cooke v. Tombs, 2 Anst. 420 ; 
 
 church V. Bevis, 2 Bro. C. C. 559 ; Whaley v. Bagenal, 1 Bro. P. C. 345 ; 
 
 Eeddmg v. Wilkes, 3 Bro. C. C. 400. Phillips v. Edwards, 33 Beav. 440. 
 
 6 Hawkins v. Holmes, 1 P. Wms. " Buckmaster v. Harrop, 13 Ves. 
 
 770 ; Stokes v. Moore, 1 Cox, 219. 474. 
 
824 
 
 STATUTE OF FEAUDS. 
 
 [chap. xvin. 
 
 the purchase-money is not such an act of part performance as 
 alone to take a case out of the statute?- Thus in Clinan v. 
 Cooke,^ the act of part performance on which the plaintiff 
 relied was the payment to and acceptance by the defendant 
 of the sum of fifty guineas, but it was held that this was not 
 
 1 "Wood V. Jones, 35 Tex. 64; 
 Temple v. Johnson, 71 111. 1-3 ; Glass 
 V. Hulbert, 102 Mass. 28; Lanz v. 
 McLaughlin, 14 Minn. 72; Crouk v. 
 Trumble, 66 111. 428 ; Ham v. Good- 
 rich, 33 N. Y. 32 ; Kidder v. Barr, 35 
 id. 235 ; Thompson 6'. Todd, Pet. (U. 
 S. C. C.) 380; XJnderhill v. Allen, 18 
 Ark. 466; Eaton v. Whittaker, 18 
 Conn. 222 ; Purcell v. Miner, 4 'Wall. 
 (U. S.) 413 ; Allen's Estate, 1 W. & S. 
 (Penn.) 383; Parke v. Leewright, 20 
 Mo. 85; Cole v. Potts, 10 N. J. Eq. 
 67; Hyde v. Cooper, 13 S. C. 250; 
 Glvens v. Calder, 2 Dessau (S.C.) Eq. 
 174; Smith v. Smith, 1 Rich. (S. C.) 
 Eq. 130; Anderson v. Chick, 1 Bail. 
 (S. C.) Eq. 118 ; Church &c. v. Par- 
 ron, 7 Rich. (S. C.) Eq. 378; Litcher 
 V. Crosby, 2 A. K. Mar. (Ky.) 106; 
 McKee v. Phillips, 9 ^yatts (Penn.) 
 85; Rankin v. Simpson, 19 Penn. St. 
 471 ; Parker v. "Wells, 6 "Whart. (Penn.) 
 153 ; "Wilber v. Paine, 1 Hamm. (Ohio) 
 252 ; Sites v. Keller, 6 id. 528 ; Hart 
 V. McClellan, 41 Ala. 251. Mere pay- 
 ment, even if it be payment in full of 
 the consideration, is not such a part 
 performance of a parol contract for 
 the conveyance of land as will justify 
 a decree of specific performance in a 
 case where the payment alleged con- 
 sisted partly of services rendered and 
 partly of moneys advanced. A spe- 
 cific performance will be decreed only 
 where the purchaser has done some 
 other act, such as taking possession 
 of the land under the agreement, or 
 has been induced to act in such man- 
 ner that if the contract be abandoned 
 he cannot be restored to his former 
 position, and the refusal to perform 
 will operate as a fraud. Where the 
 complaint avers that plaintiff ad- 
 vanced moneys and performed ser- 
 vices under an oral agreement with 
 defendants for the conveyance to him 
 of an interest in certain lands, and 
 
 demands judgment against them for 
 a specific performance, and the facts 
 alleged do not show him entitled to 
 the remedy demanded, he cannot have 
 in such action a judgment at law for 
 the amount of such moneys and the 
 value of such services. Horn v. Lud- 
 ington, 32 "Wis. 73 ; Semmes v. "Worth- 
 ington, 38 Md. 298 ; Lane v. Schack- 
 ford, 5 N. H. 130 ; Temple v. Johnson, 
 71 111. 13. It makes no difference that 
 the vendee has been compelled to make 
 sacrifices to obtain the money to pay 
 for the land, and that he made them 
 under an assurance from the vendor 
 that he would convey the land. Thus 
 A, the owner of certain real estate, in 
 order to procure means to purchase 
 certain* other real estate of B, would 
 be compelled to dispose of his own 
 real estate, which could only be done 
 at a certain sacrifice, of which he in- 
 formed B. B verbally agreed with 
 A that if the latter would so dispose 
 of his property, and apply the pro- 
 ceeds of such sale to purchasing B's 
 real estate, he, B, on a certain day, 
 for a fixed price, would sell and con- 
 vey his real estate to A. The latter, 
 thereupon, disposed of his real estate, 
 making such sacrifice, tendered to B 
 the proceeds of such sale, demanded 
 of him that he so convey his said real 
 estate to A, and, upon B's refusal to 
 sell and convey, brought an action 
 for damages for a breach of such 
 agreement. It was held ; 1. That B's 
 agreement to convey was within the 
 statute of frauds, and that such ac- 
 tion could not be maintained. 2. That 
 A's disposal of his property, at such 
 sacrifice, was not such a part perform- 
 ance as would take B's agreement 
 out of the operation of such statute. 
 Parker v. Heaton, 55 Ind. 1. 
 
 2 1 Sch. & Lef. 22 ; and see "Watt 
 V. Evans, 4 Y. & C. 679. 
 
SEC. 486.] SPECIFIC PEKFOEMANCE. 825 
 
 sufficient to take the case out of the statute. " It has always," 
 said Lord Redbsdale,i " been considered that the payment 
 of money is not to be deemed part performance to take a 
 case out of the _statute. Seagood v. Meale^ is the leading 
 case on that subject ; there a guinea was paid by way of earn- 
 est, and it was agreed clearly that that was of no conse- 
 quence in case of an agreement touching lands. Now if 
 payment of fifty guineas would take a case out of the stat- 
 ute, payment of one guinea would do so equally, for it is paid 
 in both cases as part payment, and no distinction can be 
 drawn, but the great reason, as I think, why part payment 
 does not take such agreement out of the statute is that the 
 statute has said, that in another case, viz., with respect to 
 goods, it shall operate as part performance. And the courts 
 have therefore considered this as excluding agreements for 
 lands, because it is to be inferred that when the legislature 
 said it should bind in the case of goods, and were silent as 
 to the case of lands, they meant that it should not bind in 
 the case of lands." So in O'Herlihy v. Hedges,^ the pay- 
 ment of ,£100 fine upon the renewal of a lease was held not 
 to be sufficient ground upon which to decree specific per- 
 formance. In Hughes v. Morris,* the rule was even further 
 extended, Knight Bruce, L. J., saying that " a parol con- 
 tract for the sale of land, though all the money be paid with- 
 out part performance (/or the payment of the money is no part 
 performance'), cannot be carried into effect if the person sued 
 chooses to avail himself of the defect." So the procuring a 
 release from a stranger by the payment of a valuable con- 
 sideration is not an act of part performance.^ But services 
 rendered and money expended in taking care of a person 
 under an agreement that such person will convey his lands 
 to the person rendering such services, etc., is held to be such 
 a part performance as will justify a decree for a specific per- 
 formance, because, although given in payment for the land, 
 they are of such a character that their value cannot be esti- 
 mated in money.® 
 
 1 p. 40. 271 ; see observations on this case 
 
 2 Free. Chanc. 560. in Parker u. Smith, 1 Coll. 624, per 
 
 3 1 Sch. &. Lef. 123. Knight Bruce, V. C. 
 
 * 2 D. M. G. 356. ^ Rhodes i-. Rhodes, 2 Sandf. (N. 
 
 6 O'Reilly u. Thompson, 2 Cox, T.) Ch. 279; Webster o. Gray, 37 
 
826 
 
 STATUTE OF PKAUDS. 
 
 [chap. xvin. 
 
 Sec. 487. Effect of Part Payment on Executory Contract. — 
 
 WTiere the owner of an estate contracts with a purchaser for 
 the immediate sale of it, the ownership of the estate is in equity, 
 transferred hy that contract. Where the contract undoubt- 
 edly is an executory contract, in this sense, namely, that the 
 ownership of the estate is transferred subject to the payment 
 of the purchase-money, every portion of the purchase-money 
 paid in pursuance of that contract is a part performance and 
 execution of the contract, and, to the extent of the purchase- 
 money so paid, does in equity finally transfer to the pur- 
 chaser the ownership of a corresponding portion of that 
 estate.^ 
 
 Sec. 488. Admission to Possession is Part Performance. — 
 
 Admission into possession of land in pursuance of a parol 
 agreement is held by the English courts and most of our own 
 to be a sufficient act of part performance to take a case out 
 of the statute.^ "Admission into possession," said Sir 
 
 Mich. 37 ; Watson v. Maban, 20 Ind. 
 228 ; Gupton v. Gupton, 47 Mo. 37 ; 
 Davison v. Davison, 13 N. Y. Eq. 246. 
 
 1 Rose V. "Watson, 10 H. L. C. 678, 
 per LoKD Westbukt. 
 
 2 Borrett v. Gomserra, Bunb. 94; 
 Earl of Aylesford's Case, 2 Str. 783 ; 
 Pyke V. Williams, 2 Vern. 455 ; Lacon 
 V. Mertins, 3 Atk. 1 ; Wills v. Strad- 
 ling, 3 Ves. 381 ; Bowers v. Cator, 4 
 Ves. 91 ; Gregory v. Mighell, 18 Ves. 
 328; Kine v. Balfe, 2 Ball & B. 343; 
 TJngley ;;. Ungley, 4 Ch. Div. 73; 
 Hunt II. Wimbledon &c., 4 C. P. Div. 
 48 ; Coles v. Pilkington, L. R. 19 Eq. 
 174 ; Pain v. Coombs, 1 De G. & J. 34 ; 
 Coles V. Pilkington, L. R. 19 Eq. 174 ; 
 Clinan i-. Cooke, 1 Sch. & Lef. 22, 41, 
 per LoKD Redebdale ; Morphett v. 
 Jones, 1 Sw. 181 ; Bowers v. Cator, 4 
 Ves. 91 ; Gregory v. Mighell, 18 Ves. 
 328; Shilliber v. Jarvis, 8 De G. M. & 
 G. 79; Butcher v. Stapely, 1 Vern. 
 363; Seagoodw. Meale, Prec.Ch.560; 
 Boardman u. Mostyn, 6 Ves. 467 ; Til- 
 ton V. Tilton, 9 K. H, 386 ; Pindall v. 
 Trevor, 30 Ark. 249; Eaton v. Whita- 
 ker, 18 Conn. 222 ; Murray v. Jayne, 8 
 Barb. (N. Y.) 612; Malins «. Brown, 
 4 N. Y. 403 ; Pugh v. Good, 3 W. & S. 
 
 (Penn.) 56,61; Allen's Estate, 1 W. 
 & S. (Penn.) 383, 386 ; Jones v. Peter- 
 man, 3 S. & R. (Penn.) 543; Reed „. 
 Reed, 12 Penn. St. 17; Johnston v. 
 Johnston, 6 Watts. (Penn.) 370; 
 Rhodes v. Frick, 6 Watts. (Penn.) 315; 
 Stewart v. Stewart, 3 Watts. (Penn.) 
 253; Miller v. Hower, 2 Rawle 
 (Penn.) 53; Bassler v. Niesly, 2 S. & 
 R. (Penn.) 352; Johnston o. Glancy, 
 4 Blackf. (Ind.) 94; Anderson v. 
 Simpson, 21 Iowa, 399 ; White v. 
 Watkins, 23 Mo. 423 ; Catlett v. Ba- 
 con, 33 Miss. 269; Danforth v. La- 
 ney, 28 Ala. 274 ; Reynolds v. Johns- 
 ton, 13 Tex. 214 ; Harris v. Crenshaw, 
 3 Rand. (Va.) 14; Wells v. Stratton, 
 1 Tenn. Ch. 328; Arrington v. Porter, 
 47 Ala. 714; Pindall v. Trevor, 30 
 Ark. 249 ; Reed v. Reed, 12 Penn. St. 
 117 ; Sands v. Thompson, 43 Ind. 18 ; 
 Wharton v. Staughtenbaugh, 35 N. J. 
 Eq. 266; Graham v. Thers, 47 Ga. 
 479. But letting a person into pos- 
 session under a parol gift of land is 
 not enough of itself. The donee must 
 also have made expenditures upon the 
 faith of the gift. Stewart v. Stewart, 
 3 Watts. (Penn.) 253; Shelhame v. 
 Ashbaugh, 83 Penn. St. 24 ; Lower v. 
 
SEC. 488.] SPECIFIC PEEPORMANCE. 827 
 
 Thomas Plttmee, M. R., " having unequivocal reference to 
 contract, has always been considered an act of part perform- 
 ance. The acknowledged possession of a stranger in the 
 land of another is not explicable, except on the supposition 
 of an agreement, and has therefore constantly been received 
 as evidence of an antecedent contract, and as sufficient to 
 authorize an inquiry into the terms, the court regarding what 
 has been done as consequence of contract or tenure." ' 
 Where, upon a verbal agreement for a mortgage, it was 
 agreed that the mortgagor (the plaintiff) should remain in 
 possession of the property, and an absolute conveyance was 
 made, it was held that the plaintiffs continuance in posses- 
 sion after the conveyance, being referable only to the verbal 
 agreement, amounted to part performance of that agreement, 
 and excluded the operation of the statute.^ But in several 
 of the States, merely letting the purchaser into possession 
 under a parol agreement is not treated as sufficient to war- 
 rant a specific performance,^ but something more is required, 
 as possession and part payment,* or the making of valuable 
 and permanent improvements, either with or without part 
 payment of the purchase-money,^ and the instances will be 
 
 WeaTcr, 84 id. 262 ; Bright v. Bright, In this case there was possession, 
 41 III. 97 ; Guyn v. McAuley, 32 Ark. part payment, and improvement. In 
 97. But see, questioning the rule that Ingles v. Patterson, 36 Wis. 373, there 
 possession by the purchaser is sufficient were the same elements. Hoffman r. 
 to warrant a decree for specific per- Fett, 39Cal. 109; Adamsj;. FuUam, 43 
 forraance, Galbreath v. Galbreath, 5 Vt. 592; Wiswell v. Lefft, 5 Kan. 263; 
 Watts. (Penn.) 146; Wood w.Farmare, Moss v. Culvert, 64 Penn. St. 89; 
 10 Watts. (Penn.) 194; Dougan v. Poland i;. O'Conner, 1 Neb. 50; Cag- 
 Blocher, 25 Penn. St. 28 ; Shepherd ger v. Lansing, 43 N. Y. 530 ; Sackett 
 u. Shepherd, IMd. Oh. 244; OwingsiJ. d. Spencer, 65 Penn. St. 89. In Mis- 
 Baldwin, 8 Gill. l(Md.) 337; Morris K. sissippi, no action can be maintained 
 Harris, 9 Gill. (Md.) 19 ; Glass v. Hul- to charge another with a contract for 
 bert, 102 Mass. 25, 32 ; Tatum v. the sale of lands, unless the promise 
 Brooker, 51 Mo. 148. or agreement upon which the action 
 
 1 Morphett v. Jones, 1 Swanst. 81 ; is brought, or some memorandum or 
 
 and see Dale v. Hamilton, 5 Hare, note thereof, is in writing and signed 
 
 381 ; Pain v. Coombs, 3 Sm. & GifE. by the party to be charged, or by his 
 
 449 ; 1 De G. & J. 34. agent. There is no exception con- 
 
 ' Lincoln v. Wright, 4 De G. & J. tained in the statute of frauds, and 
 
 16. the courts will not create any. Hairs- 
 
 8 Glass V. Hulbert, 102 Mass. 32 ; ton v. Jaudon, 42 Miss. 380. 
 Dougan w. Bloucher, 25 Penn. St. 28 ; ' Potter y. Jacobs, 111 Mass. 32; 
 
 Johnson v. Dimock, 95 id. 52 ; Moore Freeman v. Freeman, 43 N. Y. 34. 
 
 c. Small, 19 id. 461. In Richmon v. Foote, 3 Lans. (N. Y.) 
 
 < Green v. Finin, 35 Conn. 178. 244, the court held that "part pay- 
 
828 STATUTE OF FEATJDS. [CHAP. XVIII. 
 
 found to be very rare indeed, where the courts latterly, will 
 decree a specific performance, because of the naked circum- 
 stance that the vendee has been let into possession under a 
 parol contract, as the tendency of the courts is in the direc- 
 tion of requiring something more than that to take the con- 
 tract out of the operation of the statute,^ and the former 
 excuse for this doctrine, that otherwise the vendee would be 
 liable as a trespasser, is regarded as insufficient because he 
 can shield himself from such liability, under the license to 
 enter which, as we have seen, is a complete protection until 
 revoked.^ 
 
 Sec. 489. Express' Assent not Necessary. — It is not neces- 
 sary that there should have been express assent by the ven- 
 dor to the taking possession, if he acquiesces in it, and there 
 have been acts of part performance.^ Thus, where part of 
 the agreement for a lease was that the plaintiff should exe- 
 cute certain repairs before the lease was granted, and he was 
 put into possession by the defendant's solicitors and executed 
 some repairs, it was held that although he might have been 
 let into possession without authority from the defendant, 
 therie was a concluded agreement for a lease on the part of 
 the defendant, and a sufficient part performance to take the 
 case out of the statute.* 
 
 Sec. 490. Either Party may Enforce Agreement. — An agree- 
 ment may be enforced, on the ground of part performance 
 
 ment of the purchase-money, ivith pos- specific performance. Northrop v. 
 
 session and other acts of the vendee," Boone, 66 111. 368 ; Tatum v. Brooke, 
 
 was sufficient. Lowry v. Bufflngton, 51 Mo. 148; Johnson v. Bowden, 37 
 
 6 W. Va. 249. In Tracy a. Tracy, Tex. 621 ; Gregg v. Hamilton, 12 Kair. 
 
 14 id. 243, possession for twenty years, 333 ; McCarger i'. Road, 47 Cal. 138 
 
 and making valuable improvements, was Welsh v. Bayard, 21 N. J. Eq. 186 
 
 held sufficient. See also Hibhert ,;. Neale v. Neale, 9 Wall. (U. S.) 1 
 
 Aylott, 62 Tex. 530. Possession and Peckham v. Barber, 8 E. I. 17 ; Fall 
 
 payment of the purchase-money was v. Hazleregg, 45 Ind. 576. 
 held sufficient in Hanlon ;•. Wilson, i Woodward, J., in Dougan v. 
 
 10 Neb. 138. In Ann Berta Lodge v. Blocher, 24 Penn. St. 28. 
 Lenerton, 42 Tex. 18, tender of pur- 2 Gjags „. Hulbert, 102 Mass. 32. 
 chase-money improvements by the » Qregory v. Mighell, 18 Ves. 328; 
 
 vendee, and possession, it not appear- Pain v. Coombs, 3 Sm. & Giff. 449 ; 
 
 ing that the value of the improve- 1 De G. & J. 34. 
 ments was beyond the value of the * Shillibeer v. Jarvis, 8 D. M. G. 
 
 rents for the time of occupancy, was 79; and see Powell v. Lovegrove, ib. 
 
 held not to be sufficient to warrant a 357. 
 
SEC. 491.J SPECIFIC PEEFOKMANCE. 829 
 
 by admission into possession, by the vendor as well as the 
 vendee.^ 
 
 Sec. 491. Expenditure of Money. — The laying out of money 
 on land and making improvements on the faith of the contract, 
 and with the knowledge of the owner, amounts to part perform- 
 ance.^ Thus, where a tenant entered into possession of a 
 farm, and expended moneys under an agreement that the 
 landlord would grant a lease for twenty-one years, and make 
 such improvements and repairs as he and the landlord should 
 jointly agree, it was held on demurrer to a bill for specific 
 performance, that the stipulation as to repairs was not of 
 the essence of the agreement, and that the impossibility of 
 the strict performance of that stipulation in consequence of 
 the death of the landlord was no reason for allowing a de- 
 murrer to a bUl for specific performance where the plaintiff 
 had so long a possession, and had expended money on the 
 faith of the agreement.^ Although the earlier decisions do 
 not harmonize with each other, yet it is now held in this 
 country that all parol contracts for the sale of lands are not 
 invalidated by the statute of frauds. Where possession has 
 been taken in pursuance of the contract, and there has been 
 such part performance that the purchaser cannot reasonably be 
 compensated in damages, the case is taken out of the statute 
 in equity, so that the contract will be specifically enforced. 
 Possession and payment of purchase-money only are not 
 sufficient, for the vendee may be compensated in damages ; 
 but when to possession are added permanent improvements of 
 considerable value which cannot be reasonably compensated in 
 damages, the rule is held otherwise. This constitutes such a 
 part performance as to take the case out of the statute.* 
 When the plaintiff relies on an equitable title, tender of the 
 money due must generally precede the action. Yet the rule 
 has its exceptions. It does not apply when the vendor, 
 before payment, has put the vendee into possession under 
 
 • Kine v. Balf e, 2 Ball & B. 343. Wheeler v. D'Esterre, 2 Dow. 359 ; 
 
 2 Floyd V. Buckland, 2 Freem. 268 ; Crook v. Corporation of Seaf ord, L. 
 
 Lester v. Foxcraft, 1 CoUes P. C. 108 ; R. 6 Ch. 551. 
 S. C. nom. Foxcraft u. Lyster, 2 Vern. " Norrls v. Jackson, 3 Giff. 396. 
 456 ; Mortimer v. Orchard, 2 Ves. J. * McGibbeny <^. Burmaster, 53 
 
 243 ; Wills o. Stradling, 3 Ves. 381 ; Penn. St. 332. 
 Toole V. Medlicott, 1 Ball & B. 401 ; 
 
830 STATUTE OF PKAtJDS. [CHAP. XVIII. 
 
 the contract, and induced him to make valuable improve- 
 ments, and afterward, by collusion or other unfair practice, 
 regains the possession.^ 
 
 Sec. 492. Expenditure under Terms of Lease not Part Per- 
 formance. — Expenditure by a tenant under the terms of his 
 lease is not an act of part performance. Thus where the 
 plaintiff was in possession, and was under an engagement 
 which bound him to make a fence and wall of a particular 
 description, for which he was to have an allowance, and 
 which ought to have been made during the term of the lease 
 which he had, and they were not completed during the term, 
 but the allowance was made notwithstanding, it was held 
 that this alone would not entitle the plaintiff to a decree.^ 
 
 Sec. 493. Acquiescence in Expenditure. — Where a colliery 
 proprietor constructed a railway from his colliery across the 
 lands of several other persons, by agreement, and his solici- 
 tors wrote a letter to the defendant, across whose lands he 
 desired to carry the railway, referring to the powers of a local 
 act of Parliament, supposed to enable him to take lands 
 within a certain area for roadways, and offering on the part 
 of the plaintiff to pay him for the land at a fair valuation, 
 and the defendant did not reply to the letter, and the rail- 
 way was made across his land without further communicar 
 tion with him, and after three or four years, the parties being 
 unable to agree upon the price to be paid for the land, the 
 defendant brought ejectment ; the action was restrained 
 upon the plaintiff giving judgment in the ejectment and pay- 
 ing a sum not less than the utmost valuation of the land into 
 court.^ 
 
 Again, where a canal was made in 1794 through land of 
 which A was the owner, and B lessee, "with the full consent 
 and approbation of, and in accordance with the wishes of A," 
 and compensation was paid to the lessee but not to A ; his 
 representatives were in 1844, when the tenancy expired, re- 
 
 1 Harris v. Bell, 10 S. & E. (Penn.) 2 Lindsay v. Lynch, 2 Sch. & Lef. 
 
 39; Dixon v. Oliver, 5 Watts. (Penn.) 1 ; and see Frame v. Dawson, 14 Ves. 
 
 509; Gregg n. Patterson, 9 W. & S. 386. 
 
 (Penn.) 197 ; Wykoff v. Wykoff, 3 i^ ? Powell v. Thomas, 6 Hare, 300; 
 
 481 ; D'Arras v. Keyser, 26 Penn. St. and see Clavering's Case, cited 5 Ves. 
 
 249 ; Eberly v. Lehmam, 96 Penn. St. 690 ; Duke of Devon o. Eglin, 14 
 
 000. Beav. 530. 
 
SEC. 494.] SPECIFIC PEEPOEMAKCE. 831 
 
 strained from asserting their legal rights, the court consider- 
 ing that they were entitled to compensation to be deter- 
 mined by the agricultural value of the land taken as calcu- 
 lated in 1844, and not in 1794.^ 
 
 But where a person knowing the rights of the owners of 
 land is induced to build on the land without entering into a 
 binding contract, he will not be entitled to relief. Thus, 
 where the agent of a railway company made a verbal agree- 
 ment with the contractor for the line, that if he would build 
 on land of the company certain cottages more substantially 
 than would be required for his own purposes, and would 
 leave them for the use of the company, then the company 
 would pay him £5,000, and the cottages were built and left 
 on the land, it was held that the contractor could not claim 
 compensation for having been induced to build on the land.^ 
 
 Sec. 494. Parol Contract by Tenant for Life under a Povrer, 
 Remainder Man not Bound. — And it appears that the parol 
 contract under a power of sale of a tenant for life, followed 
 by expenditure on the part of the purchaser, will not bind the 
 remainder man who has not acquiesced in the expenditure.^ 
 " It is," said Sie W. Grant, M. R., " considered as a fraud 
 in a party permitting an expenditure on the faith of his parol 
 agreement to attempt to take advantage of its not being in 
 writing. But of what fraud is a remainder man guilty who 
 has entered into no agreement, written or parol, and has 
 done no act on the faith of which the other party could have 
 relied? The only way in which he could be affected with 
 fraud would be -by showing that an expenditure had been 
 permitted by him, with a knowledge that the party had only 
 a parol agreement from the tenant for life. Without that 
 knowledge there is nothing but the mere circumstance of 
 expenditure. For the prima facie presumption is that he 
 who is making it has a valid lease under the power, or at 
 least a binding agreement for a lease. That the remainder 
 man in this case, or those acting on his behalf, had any such 
 knowledge is neither alleged nor proved. The reason, there- 
 
 » Duke of Beaufort u. Patrick, 17 ^ Trotman v. Flesher, 3 Giff. 1 ; 
 
 Beav. 60. Morgan u. Milman, 3 D. M. G. 33 ; 
 
 2 Crarapton v. Varna Railway Co., Lowry v. Lord Duiferin, 1 Ir. Eq. 
 
 L. R. 7 Ch. 562. Rep. 281. 
 
832 STATUTE OF FEATTDS. [CHAP. XVOI. 
 
 fore, fails, on which the case of a parol agreement in part 
 performed is taken out of the statute of frauds." ^ 
 
 Sec. 495. whether Change of Residence SufBcient Part Per- 
 formance. — In Millard v. Harvey ^ the plaintiff removed his 
 place of business to a house belonging to the defendant, his 
 father-in-law, upon the faith, as he alleged, of a parol promise 
 by the defendant that he should occupy the house rent free 
 during his life. During the period of his occupation he 
 expended money in repairs. Upon a bill to restrain an 
 action of ejectment, it was held that the change of the plain- 
 ' tiff's place of business did not constitute a sufficient consider- 
 ation to support the parol agreement, and that he was not 
 entitled to any lien in respect of the money spent in repairs. 
 In Coles V. Pilkington ^ it was decided that the statute could 
 not be pleaded to a verbal agreement to allow the occupa- 
 tion of a leasehold house for life on payment merely of 
 ground-rent, rates, and taxes, where there had been a part 
 performance by possession under the agreement, and the 
 agreement had affected the mode of living of the occupying 
 party. It does not appear, however, from the report that 
 Millard v. Harvey was cited in this case. 
 
 Sec. 496. Acts of Part Performance must be Referable to an 
 Agreement. — In order that a case may he taken out of the 
 statute hy acts of part performance, the acts must unequivocally 
 refer to a contract the non-execution of which would be a fraud.* 
 "In order," said Sm T. Plttmbe, "to amount to part per- 
 formance, an act must be unequivocally referable to the 
 agreement, and the ground on which courts of equity have 
 
 1 Blore V. Sutton, 3 Mer. 246. 15 ; Wilmer v. Farres, 40 Iowa, 309 ; 
 
 2 10 Jur. (N. S.) 1167. German y. Macliin, 6 Paige, Ch. (N. 
 8 L. R. 19 Eq. 174. Y.) 289 ; Ham v. Goodrich, 33 N. H. 
 * Richmond v. Foote, 3 Lans. (N. 32 ; Hollis v. Edwards, 1 Vern. 159 ; 
 
 Y.) 244; Wood v. Thomby, 58 III. Cox v. Cox, 27 Penn. St. 375; Poor- 
 
 464 ; Robertson v. Robertson, 9 Watts man v. Kilgore, 27 id. 365 ; Hollis v. 
 
 (Penn.) 32; Stoddard u. Tuck, 4 Md. Edwards, 1 Vern. 159; Hawkins v. 
 
 Ch. 475; Moore u. Higbee, 45 Ind. Holmes, 1 P. Wms. 770; Walker v. 
 
 487 ; Hood v. Bowman, Freem. Ch. Walker, 2 Atk. 100 ; Att. Gen. v. Day, 
 
 (111.) 290 ; Welsh v. Bayard, 21 N. J. 1 Ves. 221 ; Whitbread v. Broekhurst, 
 
 Eq. 186 ; Smith v. Smith, 1 Rich. 1 Bro. C. C. 417 ; Wills v. Stradling, 
 
 (S. C.) 130; Edwards v. Fry, 9 Kan. 3 Ves. 378; Buckmaster v. Harrop, 
 
 417; Moore t>. Scriven, 33 Mich. 500; 7 Ves. 346; Frame v. Dawson, 14 
 
 Jacobs V. E. R. Co., 8 Cush. (Mass.) Ves. 386, 
 223; Atkin v. Young, 12 Penn. St. 
 
SEC. 496.] SPECIFIC PERFORMANCE. 833 
 
 allowed such acts to exclude the application of the statute is 
 fraud; a party who has permitted another to perform acts 
 on the faith of an agreement shall not insist that the agree- 
 ment is bad, and that he is entitled to treat those acts as if 
 it had never existed. That is the principle, but the acts 
 must be referable to the contract." ^ And in Clinan v. 
 Cooke ^ Lord Redesdale laid doAvn the principles upon 
 which the court acts,, as follows : " I take it that nothing is 
 considered as a part performance which does not put the 
 party into a situation that is a fraud upon him, unless the 
 agreement is performed ; for instance, if upon a parol agree- 
 ment a man is admitted into possession, he is made a tres- 
 passer, and is liable to answer as a trespasser if there be no 
 agreement. This is put strongly in the case of Foxcraft v. 
 Lyster ; ^ there the party was let into possession on a parol 
 agreement, and it was said that he ought not to be liable as 
 a wrong-doer, and to account for the rents and profits, and 
 why? because he entered into pursuance of an agreement. 
 Then for the purpose of defending himself against a charge 
 which might otherwise be made against him such evidence 
 was admissible, and if it was admissible for such purpose, 
 there is no reason why it should not be admissible through- 
 out. That, I apprehend, is the ground on which courts of 
 equity have proceeded in permitting part performance of an 
 ■agreement to be a ground for avoiding the statute, and I 
 take it, therefore, that nothing is to be considered as part 
 performance which is not of that nature. Payment of money 
 is not part performance, for it may be repaid, and then the 
 parties will be just as they were before, especially if repaid 
 with interest. It does not put a man who has parted with 
 his money into the situation of a man against whom an 
 action may be brought, for in the case of Foxcraft v. Lyster, 
 which first led the way, if the partj' could not have produced 
 in evidence the parol agreement, he might have been liable 
 in damages to an immense extent." In Ramsden v. Dj'^son * 
 
 1 Morphett v. Jones, 1 Swanst. 181 ; Richmond u. Foote, 3 Lans. (N. Y. ) 
 
 and see Farrall v. Davenport, 3 Giff. 244. 
 363; Price v. Salusbury, 32 Beav. ^ i Seh. & Lef. 41. 
 
 459; affd. ib. 461. If there is but s 2 Vern. 456 ; Colles, P. C. 108 ; 
 one contract to which it can relate, it * L. R. 1 H. L. 170. 
 will be presumed that it refers to that. 
 
834 STATUTE OF FBAUDS. [CHAP. XVIII. 
 
 Lord Wensleydalb stated the principle as follows : " If a 
 man under a verbal agreement with a landlord for a certain 
 interest in land, or what amounts to the same thing, under 
 an expectation created or encouraged by the landlord that 
 he shall have a certain interest, takes possession of such land 
 with the consent of the landlord, and upon the faith of such 
 promise or expectation, with the knowledge of the landlord 
 and without objection by him, lays out money upon the land, 
 a court of equity will compel the landlord to give effect to 
 such promise or expectation." ^ And where the possession is 
 fairly referable to an express agreement to give a fair consid- 
 eration, the exact amount of which has not been settled, the 
 court will, in favor of possession, expenditure, and enjoyment, 
 referable to an agreement or to an offer honestly accepted, 
 endeavor by every means within the legitimate bounds of its 
 jurisdiction to ascertain the amount of rent and considera- 
 tion. But this can only be where there is sufficient evidence 
 of essential terms in the agreement to enable the court to 
 reach the amount.^ But if a tenant builds on his landlord's 
 land, he does not, in the absence of special circumstances, 
 acquire any right to prevent the landlord from taking pos- 
 session of the laud and buildings when the tenancy has deter- 
 mined.^ 
 
 Sec. 497. Trustee with Power of Leasing. — In Phillips V. 
 Edwards,* it was said that the doctrine of part performance 
 of a parol agreement is not to be extended by the court, and 
 is inapplicable to a case where a trustee has a power to lease 
 at the request in writing of a married woman, which has not 
 been made. In this case, however, the acts on which the 
 plaintiffs based their case were held not to be acts of part 
 performance, and the point was not expressly decided. 
 
 Sec. 498. 'Wrongful Possession. — Specific performance will 
 not be decreed where the possession of the land has been ob- 
 tained wrongfully.^ Nor where the plaintiff, after filing his 
 bill, but before the hearing, has obtained by an Act of Par- 
 
 1 See also Baukart v. Tennant, L. ' Eamsden v. Dyson, L. E. 1 H. L. 
 R. 10 Eq. 146. 129. 
 
 2 Meynell v. Surtees, 3 Sm. & GifE. * 33 Beav. 440. 
 
 115, per Stuart, V. C. ; and see Greg- ' Cole v. White, cited 1 Bro. C. C. 
 ory V. Mighell, 18 Ves. 333. 409. 
 
SEC. 500.J SPECIFIC PERFORMANCE. 835 
 
 liament the means of securing and keeping his possession 
 without the aid of the court. " The jurisdiction in cases of 
 specific performance is discretionary, and it is sought in this 
 case only as ancillary to quieting the possession. If that 
 purpose has been accomplished, and if by acts of a plaintiff 
 subsequent to the institution of such a suit, he has obtained 
 the means of quieting his possession without further assist- 
 ance from this court, this must materially affect the right to 
 a decree for specific performance where it depends on the 
 principle of protecting the possession." ^ 
 
 Sec. 499. Contract with "Wife Adopted by Husband. — 
 
 Where a wife, unknown to her husband, took £150 out of 
 her private savings to the defendant, and asked him to sell a 
 field for the purpose of pasturing her husband's horse, and the 
 defendant said he would not sell it, but received aud retained 
 the money, and shortly afterwards let the plaintiff into pos- 
 session, telling him he might have it to put his horse in, and 
 the plaintiff remained in possession, and the defendant re- 
 tained the money for ten years, during which time the plain- 
 tiff paid no rent, and the defendant no interest, and at the 
 end of that time the defendant attempted to eject the plain- 
 tiff, it was held that there had been a contract with the wife, 
 adopted by the husband, and such part performance as to 
 justify a decree for specific performance.^ 
 
 Sec. 500. Continuance in Possession not in General Part 
 Performance. — Between landlord and tenant, when the tenant is in 
 possession at the date of the agreement, contimmnce in possession is 
 not an act of part performance.^ In Wills v. Stradling,* Lord 
 
 1 Meynell v. Surteea, 3 Sm. & G v. Blunt, 20 id. 142 ; "Workman v. 
 101, 116, per Stuart, "V. C. ; and see Guthrie, 29 Penn. St. 595 ; Armstrong 
 Somersets. Coal Co. v: Harcourt, 2 k. Katterhorn, 11 Ohio, 265; Greenlee 
 De G. & J. 696. o. Greenlee, 22 Penn. St. 225 ; John- 
 
 2 Millard v. Harvey, 34 Bear. 237. ston „. Glaney, 4 Blackf. (Ind.) 94 
 ' Mophett V. Jones, 1 Swanst. 181. Anthony v. Leftwych, 3 Rand. (Va. 
 
 The possession must be attended by 238; Cole v. Potts, 10 N. J. Eq. 67 
 some act on the part of the tenant "Wills v. Stradling, 3 Ves. 381 ; Kine v. 
 which is of a decisive character and Balfe, 2 B. & B. 343 ; Savage v. Car- 
 connected with the contract. Dan- roll, 1 id. 265 ; "Wilde v. Fox, 1 Rand 
 forth V. Laney, 28 Ala. 474; "West t). ("Va.) 265; "Williams t>. Evans, L. K. 
 Flanagan, 4 Md. 36; Rosenthal v. 19 Eq. 547; Mahon v. Baker, 26 
 Freeburger, 26 Md. 76; Anderson v. Penn. St. 519; Howe v. Hall, 4 Jr. 
 Simpson, 21 Iowa, 399 ; Mahana Eq. 242 ; Mundy v. JollifEe, 5 My. & 
 
 4 8 Ves. 381. 
 
836 
 
 STATUTE OF PKAUDS. [CHAP. XVIII. 
 
 LouGHBOBOTTGH said : " As to . . . the possession in the 
 case of a tenant, who of course continues in possession, 
 unless he has notice to quit, the mere fact of his continuance 
 in possession (which is all the plea can admit, quo animo he 
 continued in possession is not a subject of admission) would 
 not weigh. The delivery of possession by a person having 
 possession to the person claiming under the agreement is a 
 strong and marked circumstance, but the mere holding over 
 by the tenant, which he will do of course, if he has no notice 
 to quit, would not of itself take the case out of the statute, 
 or even call for an answer." ^ But if the tenant in posses- 
 sion upon the faith of an agreement upon the landlord's part 
 to convey to him, when the lease has expired, goes on and 
 makes permanent improvements, this is such part performance 
 as entitles him to a decree for a specific performance of the 
 contract.^ So where a married woman, being entitled under 
 
 C. 167; Spear v. Orendorf, 26 Md. 
 37; Shepheard r. Walker, L. E. 20 
 Eq. 659 ; Williams v. Landman, 8 W. 
 & S. (Penn.) 55; Brown w. Jones, 46 
 Barb. (N. Y.) 400; Morrison v. Pery, 
 21 Ark. 110; Watson a. Mahan, 20 
 Ind. 223; Howe d. Rogers, 32 Tex. 
 218; Edwards o. Fry, 9 Kan. 417; 
 Blunt V. Tomlin,27 111. 93; Holmes w. 
 Holmes, 44 id. 168 ; Lincoln v. Wright, 
 4 De G. & J. 16. 
 
 1 See also Smith v. Turner, Prec. 
 Ch. 561 ; Savage v. Carroll, 1 Ball & 
 B. 282 ; Brennan v. Bolton, 2 Dru. & 
 War. 349. 
 
 2 Hibhert v. Aylott, 52 Tex. 530. 
 See also Brennan v. ^olton, 2 Dru. & 
 W. 349 ; Frame i'. Dawson, 14 Ves. 
 385; Mundy v. JoUiffe, 5 My. & Cr. 
 167 ; Mahon v. Baker, 26 Penn. St. 519. 
 In Sutherland v. Briggs, 1 Hare, 26, 
 the plaintiff was the lessee of a house 
 and other premises for thirty-one 
 years, at rent of .£60, and was bound 
 to make certain improvements. He 
 also held an adjoining meadow be- 
 longing to another owner, from year 
 to year, for .£9 rent. The landlord of 
 the house, etc., bought the meadow, 
 and verbally agreed to grant a lease 
 of the same to the plaintiif. In pur- 
 suance of the stipulations- of this 
 
 parol bargain, the improvements were 
 made more extensive than was before 
 contemplated ; part of the house was 
 made to project over the meadow, 
 and part of the meadow was attached 
 to the original premises of which 
 plaintiff held the lease. One-half of 
 the expense of these alterations was 
 paid by the plaintiff, which far ex- 
 exceeded the amount he had cove- 
 nanted to expend for improvements 
 by his lease, and he also signed a 
 written promise to pay £80 a year 
 rent for the whole property. In a 
 suit for a specific performance of the 
 contract to lease the meadow, Sik 
 James Wigkam, V. C, held that the 
 extension of the house into the meadow 
 by the plaintiff, in connection with the 
 landlord, was evidence of a sufficient 
 consideration for an agreement to 
 lease the meadow ; that the building 
 the house upon the meadow was evi- 
 dence of a right which extended to 
 the whole of that field, and which 
 could not be restricted so as to reach 
 only that part of the meadow upon 
 which the building actually stood; 
 and that the extension of the house 
 into the meadow and the increase and 
 consolidation of the rents into one 
 annual sum was evidence that the 
 
SEC. 500.] 
 
 SPECIFIC PERFORMANCE. 
 
 837 
 
 her marriage settlement to an interest in the settled lands 
 for her separate use for life, with a power of leasing for any 
 term not exceeding twenty-one years in possession, leased 
 part of the lands for fourteen years to D, and about a year 
 and a half before the expiration of that lease, signed and 
 delivered to D a written undertaking by which she engaged, 
 upon the expiration of the existing lease, to grant to D a 
 new lease upon the same terms and for the same period as 
 before, and after the expiration of the lease D continued in 
 possession without taking a new lease, but doing acts on the 
 premises which were solely referable to the written under- 
 taking ; it was held that the transaction between the parties 
 amounted to an agreement which was in part performed by 
 the continuance in possession of the tenant after the expira- 
 tion of the lease. ^ In Shepheard v. Walker,^ at the expira- 
 tion, in July, 1857, of a lease under which, by assignment, he 
 was in possession of property, B signed an agreement to 
 accept from A a new lease for thirty-one years at the same 
 
 meadow was to be had for the same 
 time as the premises of which the 
 plaintiff had the lease. In other 
 words, the verbal agreement coftcern- 
 ing the meadow had been part per- 
 formed by the plaintiff, and should 
 be specifically enforced. On the gen- 
 eral subject of the part performance, 
 the Vice Chancellor said : " The first 
 point suggested, rather than pressed, 
 was that the plaintiff, being in posses- 
 sion of the meadow as tenant from 
 year to year, the expenditure upon 
 the property did not unequivocally 
 show that it had proceeded upon some 
 antecedent contract with the landlord. 
 Undoubtedly it is, in general, neces- 
 sary that an act of part performance 
 which is to take a case out of the 
 statute of frauds, should unequivo- 
 cally demonstrate the existence of 
 some contract to which it must be 
 referred. Morphett v. Jones, 1 Sw. 
 172. But if the act of extending the 
 house, in which the tenant had an 
 interest for a term of years, into the 
 meadow, with the landlord's consent, 
 be not evidence of a contract between 
 them, I know not what act on the 
 part of a tenant in possession of prop- 
 
 erty could possibly be so considered. 
 Circumstances much less stringent 
 have been deemed sufficient ; and if 
 the case of Mundy i;. JoUifte, ante, 
 may be considered as correctly illus- 
 trating the rule of this court, as to 
 the acts of part performance which 
 will take a case out of the statute, the 
 alterations of the garden fence and 
 making the plantation in the meadow 
 would be sufficient. In that case, the 
 expenditure by the tenant was in drain- 
 ing the land, and the court decreed 
 Mr. JoUiffe to grant him a lease upon 
 the promise of which it was said 
 the expense of draining had been in- 
 curred." 
 
 1 Dowell V. Dew, 1 Y. & C. C. C. 
 345; and see Pain u. Coombs, 1 De 
 G. & J. 34, 46 ; Nunn v. Fabian, L. K. 
 1 Ch. 35. It is, of course, open for 
 the vendor to show that the acts of 
 part performance are properly refera- 
 ble to the pre-existing tenancy. Dart. 
 V. & P. 5th ed. 1025. 
 
 2 L. R. 20 Eq. 659; Nunn v. Fa- 
 bian, L. R. 1 Ch. 35 ; Spear v. Oren- 
 dorf, 26 Md. 37; Wilde v. Fox, 1 
 Rand. (Va.) 165; 'Williams u. Land- 
 man, 8 W. & S. (Penn.) 55. 
 
838 STATUTE OF FKAXJDS. [CHAP. XVIII. 
 
 rent as was reserved by the old lease, and payment of ,£600 
 on the day fixed for completion (1st August, 1857), with 
 interest if the lease should not be completed on the day 
 fixed. A draft lease was sent to B for his approval, but was 
 not returned, and no steps were taken by A to press for com- 
 pletion. B remained in possession and paid rent, but no 
 payment of the X600 or interest was ever made or demanded. 
 In 1871 A died. On a bill by her legal personal representa- 
 tives it was held that, as B's possession and payment of rent 
 must be referred to the new agreement, and not to a holding 
 over after the expiration of the former lease, the lapse of 
 time did not operate as a bar to specific performance, which 
 was accordingly decreed, with interest on the £600 from the 
 1st of August, 1857. 
 
 Sec. 501. Payment of Increased Rent. — Payment of in- 
 creased rent, with reference to the contract, is an act of part 
 performance. In Wills v. Stradling,i Lord Loxtghboeough 
 said : " Payment of additional rent, per se, is an equivocal 
 circumstance, it is true. It may be that he shall hold over, 
 from year to year, the lease being expired. There may be 
 other inducements. But how stands the averment upon this 
 plea? It is that the landlord accepted the additional rent 
 upon the foot of the agreement. Then the acceptance upon 
 the ground of the agreement, which is the averment upon 
 this plea, is not equivocal at all. It is incumbent upon the 
 defendant to say whether it was merely accepted upon a 
 holding from year to year, or any other ground. How would 
 it stand at law ? Suppose this averment was proved by parol 
 evidence, it would be a good lease for three years, and would 
 defend the tenant against an ejectment brought within the 
 three first years. Charlewood v. Duke of Bedford,^ which 
 finally turned upon the want of authority in the steward, is 
 an authority upon which, under the circumstances alleged in 
 this bill, the benefit of the plea ought to be saved to the 
 hearing." ^ Where a landlord, who had verbally agreed with 
 his tenant to grant him a lease for twenty-one years at au 
 increased rent, with the option of purchasing the freehold, 
 died before the execution of the lease, and before his death 
 
 1 3 Ves. 382. s And see Lord Desart v. Goddard, 
 
 2 1 Atk. 497. 1 Wallis Rep. by Lyne, 847. 
 
SEC. 502.] 
 
 SPECIFIC PERFORMANCE. 
 
 839 
 
 the tenant had paid one quarter's rent at the Increased rate, 
 it was held that this constituted a sufficient part perform- 
 ance of the agreement to take the case out of tlie statute.^ 
 And wliere the tenant had contracted to sublet, and the 
 sublessee had expended money in alterations and repairs, 
 with the knowledge and approval of the landlord, it was 
 held that the outlay by the sublessee was as much a part 
 performance of the agreement as if made by the tenant.^ 
 
 Sec. 502. Laying out of Money Part of Consideration. — 
 
 If it tvas part of the contract that money should be laid out, 
 and it is one of the considerations for granting the lease (the 
 laying out of which must then be with the privity of the 
 landlord), it is very strong to take it out of the statute.^ 
 
 1 Nunn V. Fabian, L. R. 1 Ch. 35 ; 
 and see Clarke v. Reilly, 2 I. R. 0. L. 
 422 ; Howe v. Hall, 4 I. R. Eq. 242 ; 
 Archbold v. Lord Howth, 1 I. R. C. L. 
 608. 
 
 2 Williams v. Evans, L. R. 19 Eq. 
 547. 
 
 8 AA^ills V. Stradling, 3 Ves. 382, 
 per Lord Loughborough. The mak- 
 ing of valuable improvements upon 
 land is regarded as affording the 
 strongest ground for a specific per- 
 formance, and it would require pecu- 
 liar circumstances to dissuade a court 
 of equity from decreeing a specific 
 performance under that state of facts. 
 Savage v. Foster, 5 Vin. Abr. 524, pi. 
 43, when an intended lessee entered 
 and built ; Sutherland v. Briggs, 1 Ha. 
 26 ; Stockley v. Stockley, 1 V. & B. 
 23 ; Toole v. Medlieott, 1 Ball & B. 
 393; Mundy v. .JoUiffe, 5 My. & Co. 
 167 ; Surcome v. Penniger, 3 De G. 
 M. & G. 571 ; Floyd !■. Buckland, 2 
 Freem. 208; 2 Eq. Gas. Abr. 44; 
 Mortimer u. Orchard, 2 Ves. 243; 
 Wheeler v. D'Esterre, 2 Dow. 359; 
 Norris v. Jackson, 10 W. R. 228; 
 Crook V. Corporation of Seaford, L. 
 R. 6 Ch. 551 ; Williams v. Evans, L. 
 R. 19 Eq. 547; Coles v. Pilkiugton, 
 L. R. 19 Eq. 174; Wilson o. West 
 Harthlepool Ry. Co., 2 De G. J. & S. 
 475; AVilton v. Harwood, 23 Me. 133, 
 1.34 ; Newton v. Swazey, 8 N. H. 9, 14 ; 
 Miller .. Tobie, 41 N. H. 84; Wet- 
 
 more V. White, 2 Caine Cas. (N. Y.) 
 87, 109 ; Parkhurst v. Van Cortlandt, 
 14 Johns. (N. Y.) 15 ; Adams v. Rock- 
 well, 16 Wend. (N. Y.) 285; Harder 
 V. Harder, 2 Sandf. Ch. (N. Y.) 17; 
 Casler v. Thompson, 4 N. J. Eq. 59 ; 
 Martin v. McCord, 5 Watts, 493; 
 Syler v. Eckhart, 1 Bin. (Penn.) 378; 
 Simmons v. Hill, 4 H. & McH. (Md.) 
 252; Harrison v. Harrison, 1 Md. Ch. 
 331; Shepherd v. Bevin, 9 Gill. (Mil.) 
 32; Rowton v. Rowton, 1 H. & M. 
 (Va.) 92; Wilkinson o. Wilkinson, 1 
 Dessau. Ch. (S. C.) 201; Mims v. 
 Lockett, 33 Ga. 9 ; Byrd v. Odem, 9 
 Ala. 756, 764; Cummings u. Gill, 6 
 Ala. 562; Brock v. Cook, 3 Port. 
 (Ala.) 464; Finucane v. Kearney, 1 
 Freem. Ch. (111.) 05 ; Farley v. Stokes, 
 1 Sel. Eq. Cas. (Penn.) 422 ; Blakeney 
 V. Ferguson, 3 Eng. (Ark.) 272; 
 Ottenhouse v. Burleson, 11 Tex. 87; 
 Dugan V. Colville, 8 Tex. 126; John- 
 son V. McGruder, 15 Mo. 365; Des- 
 pain V. Carter, 21 Mo. 331 ; Cummins 
 V. Nutt, Wright (Ohio) 713; More- 
 land V. Le Masters, 4 Blackf. (Ind.) 
 383, 385 ; Underbill v. Williams, 7 id. 
 125 ; School District No. 3 v. McLoon, 
 4 Wis. 79 ; Morin i'. Martz, 13 Minn. 
 191 ; Johnson i;. Glancy, 4 Blackf. 
 (Ind.) 94; Tibbs t-. Barker, 1 Blackf. 
 58 ; Thornton y. Henry, 2 Scam. 218 ; 
 Boraier v. Caldwell, Harr. Ch. (Del.) 67. 
 In Crook v. Corporation of Seaford, 
 L. R. 6 Ch. 551 ; 10 Eq. 678, a muni- 
 
840 STATUTE OF FRAUDS. [CHAP. XVIII. 
 
 Where the plaintiff, in pursuance of a parol agreement for a 
 lease, drained the lands on a farm of which he was tenant 
 from year to year, laid a piece of arable land into pasture, 
 and repaired the farm buildings, it was held that he was 
 entitled to a decree for specific performance.^ " Courts of 
 equity," said Lord Cottenham, " exercise their jurisdiction 
 in decreeing specific performance of verbal agreements where 
 there has been part performance, for the. purpose of prevent- 
 ing the great injustice which would arise from permitting a 
 party to escape from the engagements he has entered into, 
 upon the ground of the statute of frauds, after the other 
 party to the contract has, upon the faith of such engagement, 
 expended his money, or otherwise acted in execution of the 
 agreement. Under such circumstances, the court will 
 struggle to prevent such injustice from being effected ; and 
 with that object it has, at the hearing, when the plaintiff has 
 failed to establish the precise terms of the agreement, en- 
 deavored to collect, if it can, what the terms of it really 
 were." ^ 
 
 In Sutherland v. Briggs,^ the plaintiff was the lessee of a 
 house and other premises for a term of thirty-one years at a 
 rent of £60, and was under a covenant to make certain im- 
 provements on the property. He was also tenant, from year 
 to year, of an adjoining meadow belonging to a different 
 
 cipal corporation passed a resolution expended money in repairs and alter- 
 in 1860, to lease to the plaintifE the ations, with the knowledge and ap- 
 flat part of the sea-beach opposite to proral of the lessor. Held, as much 
 his land for 300 years, at a nominal a part performance as if made by A, 
 rent. He took possession of the who was entitled to a specific per- 
 beach between lines drawn in pro- formance. In Coles v. Pilkington, L. 
 longation of the sides of his lot, R. 19 Eq. 174, a verbal agreement 
 and built a wall and terrace along was made to allow plaintiff to occupy 
 such part. In 1864, the corpo- a leasehold house for her life, on pay- 
 ration gave him notice to quit, and ment merely of the ground rent, 
 in 1869 brought ejectment. He then rates, and taxes. She took posses- 
 sued for a specific performance. Held, sion, and on account of the agree- 
 a good part performance, and the ment, changed her whole mode of 
 corporation bound, although their life; this was held a sufficient part 
 agreement was not under seal, and performance. 
 
 therefore not binding at law, and they i Mundy v. JoUiffe, 5 My. & Cr. 
 
 were ordered to execute a lease. In 167, reversing S. C. 9 Sim. 413. 
 Williams v. Evans, L. R. 19 Eq. 647, 2 ggg also Dale v. Hamilton, 5 
 
 A, a tenant in possession, made a Hare, 381 ; Gregory v. Wilson, 9 
 
 verbal contract for a lease of thirty Hare, 690 ; Ramsden v. Dyson, L. R. 
 
 years with defendant. A had con- 1 H. L. 170. 
 tracte'd to sublet to B, and B had » 1 Hare, 26. 
 
SEC. 502.J SPECIFIC PERFORMANCE. 841 
 
 proprietor, at a rent of £9. The lessor of the house became 
 the purchaser of the meadow, and by arrangement between 
 him and the plaintiff, the improvements were extended, and 
 part of the house was made to project over the field, and part 
 of the field was attached to the demised premises, the plain- 
 tiff paying about half the expense of the alterations, which 
 far exceeded the sum he had originally covenanted to lay 
 out, and also signing a memorandum, which the lessor drew 
 up, whereby he agreed to pay an entire rent of ^80 a year 
 for the consolidated property. It was held that the extension 
 of the house into the meadow by the plaintiff, with the con- 
 currence of his landlord, was evidence of, and was sufficient 
 consideration for, a contract to demise the meadow. That 
 the act of building part of the house upon the meadow, if it 
 was evidence of any right, was evidence of a right which 
 affected the entire tenement, and that it could not be re- 
 stricted so as to affect only the part of the meadow actually 
 built upon. That the extension of the house, part of the 
 demised premises, into the meadow, and the increase and 
 consolidation of the rents, was evidence that the meadow 
 was to be held for the same term as the demised premises, 
 and that the doctrine with regard to the mutuality of con- 
 tracts had no application to such a case. " The first point," 
 said WiGKAM, V. C, "suggested rather than pressed, was 
 that the plaintiff, being in possession of Lock's Meadow, as 
 tenant from year to year, the expenditure upon the property 
 did not unequivocally show that it had proceeded upon some 
 antecedent contract with the landlord. UndOubtedl)'- it is, 
 in general, necessary that an act of part performance, which 
 is to take a case out of the statute of frauds, should unequivo- 
 cally demonstrate the existence of some contract to which it 
 must be referred.^ But if the act of extending the house in 
 which the tenant had an interest for a term of years, into the 
 meadow, with the landlord's consent, be not evidence of a 
 contract between them, I know not what act on the part of 
 a tenant in possession of property cbuld possibly be so con- 
 sidered. Circumstances much less stringent have been 
 deemed sufficient.^ And if the case of Munday v. Jolliffe,^ in 
 which Lord Cottenham differed from the Vice Chancellor 
 
 1 Morphett v. Jones, 1 Swans. 172. « Sugden, V. & P. » 5 My. & Or. 167. 
 
842 STATUTE OF FRAUDS. [CHAP. XVIIl. 
 
 of England, may be considered as correctly illustrating the 
 rule of this court as to the acts of part performance which 
 will take a case out of the statute, the alterations of the 
 garden fence, and making the plantation in the meadow, 
 would be sufficient. In that case the expenditure by the 
 tenant was in draining the land, and the court decreed Mr. 
 JoUiffe to grant him a lease, upon the promise of which it was 
 said the expense of draining had been incurred. It was next 
 said that the justice of the case would be satisfied by giving 
 to the plaintiff so much of the meadow as the house stands 
 upon, which the defendant offered to do. To the suggestion 
 that justice would be satisfied by doing this, I cannot acceed ; 
 for some additional portion of the meadow would be essential 
 to the enjoyment of the house. The rules of this court will 
 not, however, permit me so to consider the case. If the acts 
 done by the plaintiff are to be considered as acts of part 
 performance, taking the case out of the operation of the 
 statute, the rules of the court entitle him to prove the entire 
 agi*eement which the acts relied upon were intended partly 
 to perform. The act of building part of the house upon the 
 meadow was an act affecting the whole tenement — namely, 
 Lock's Meadow — and not that part of it only upon which 
 the house stands. The case of Munday v. JoUiffe will apply 
 also to this part of the present case." ^ 
 
 In Frame v. Dawson ^ it was said that the money expended 
 might be returned, or that it might be got back from the 
 landlord by an action at law. But there the act done was 
 not distinctly referable to any agreement. It might and 
 would have been done without any agreement, — it was a 
 matter of duty independently of any agreement.^ 
 
 In Parker v. Smith,* the landlord of a coal set, having four 
 tenants, partners, holding under a lease, of which there were 
 several years to come, and which reserved a rent that cir- 
 cumstances showed to be beyond the value, entered into an 
 agreement with the four lessees that two of the partners 
 should retire, so that the benefit of the lease and business of 
 the colliery should remain to the other two, that they should 
 
 1 See also Howe v. Hall, 4 1. R. Eq. Knight Bruce, V. C. ; and see "Wil- 
 242. liams v. Evans, L. E. 19 Eq. 557. 
 
 2 14 Ves. 386. « 1 Coll. 623. 
 8 Parker v. Smith, 1 Coll. 624, per 
 
SBC. 504.] 
 
 SPECIFIC PERFOUMANCE. 
 
 843 
 
 release the outgoing partners from all liability, and that the 
 old lease should be surrendered, and a new lease granted at 
 a reduced rent. It was held that specific performance of 
 this agreement could be enforced. " It is part, of the entire 
 agreement," said Knight Beitce, V. C, " that the dissolu- 
 tion and release shall take place. They do take place. It 
 is impossible to treat these acts otherwise than as acts of 
 part performance, taking the case out of the statute of 
 frauds." 
 
 Sec. 503. Agreement must be Complete. — Part perform- 
 ance, in order to take a case out of the statute of frauds, 
 always supposes a completed agreement. There can be no 
 part performance where there is no completed agreement in 
 existence. It must be obligatory, and what is done must be 
 under the terms of the agreement, and by force of the agree- 
 ment.^ 
 
 Sec. 504. Terms of Contract must be Certain. — The terms 
 of contract must be certain;'^ if there is uncertainty, it can- 
 
 1 Johnson v. Johnson, 16 Minn. 
 512 ; Stanton v. Miller, 68 N. Y. 192 ; 
 Graham v. Call, 5 Munf. (Va.) 396; 
 Northfleet v. Southall, 3 Murph. (N. 
 C.) 189; Baker u. Glass, 6 Munf. 
 (Va.) 212; Dike v. Green, 4 R. I. 
 285 ; Frith v. Midland Railway, L. R. 
 20 Eq. 100 ; Wilks v. Davis, 3 Mer. 
 507 ; Darnley v. London &c. Railway 
 Co., L. R. 2 H. L. 4.3; Collins v. Col- 
 lins, 26 Beav. 306; Richardson o. 
 Smith, L. R. 5 Ch. 648; Vickers v. 
 Tickers, L. R. 4 Eq. 529; Darhy v. 
 Whittaker, 4 Drew, 134 ; Morgan v. 
 Milman, 3 De G. M. & G. 24 ; Milnes 
 V. Gerry, 14 Ves. 400; Clark v. Clark, 
 49 Gal. 586; McGlynn v. Maynz, 104 
 Mass. 263 ; Grace v. Dennison, 114 id. 
 16; Riley v. Famsworth, 116 id. 223 ; 
 Nichols V. Williams, 22 N. J. Eq. 63 ; 
 Potts V. Whitehead, 20 id. 55 ; Tiernan 
 V. Gibney, 24 Wis. 190 ; Brown v. 
 Bellows, 4 Pick. (Mass.) 179; Peters 
 V. Newkirk, 6 Cow. 103, and McMahon 
 V. N. Y. & Erie R. R. Co., 20 N. Y. 
 463; Elmendorf v. Harris, 5 Wend. 
 (N. Y.) 521. The New York rule is 
 not adopted in Illinois. McAuley v. 
 
 Carter, 22 111. 53 ; Korf v. Lull, 70 id. 
 420. See also Leeds v. Burrows, 12 
 East, 1 ; Lee v. Hcmmingway, 3 Nov. 
 & M. 860; Collins v. Collins, 26 Beav. 
 306; Garred v. Macey, 10 Mo. 161; 
 Currey v. Lackey, 35 id. 389 ; Garr v. 
 Gomez, 9 Wend. (N. Y.) 049; Mason 
 V. Bridge, 14 Me. 468; Oakes v. 
 Moore, 24 id. 214; Rochester v. 
 Whitehouse, 15 N. H. 468; Norton v. 
 Gale, 95 111. ; Lady Thynne ;;. Earl of 
 Glengall, 2 H. L. C. 158 ; Parker v. 
 Smith, 1 Coll. 623; in re Thomas 
 Ryan, 3 I. R. Eq. 238. 
 
 ^ As a condition precedent to the 
 exercise of such jurisdiction, the con- 
 tract must be complete and certain, 
 and the terms of it so precise as that 
 neither party could reasonably misunder- 
 stand it. If it is vague, indefinite, or 
 uncertain, or the evidence to establish 
 it is Insufficient, this remedy will be 
 withheld. Lockerson v. Stilwell, 13 
 N. J. Eq. 357 ; Bowman v. Stilwell, 78 
 111. 48 ; Colson v. Thompson, 2 Wheat. 
 (U. S.) 336; Minturn v. Bayliss, 33 
 Cal. 129 ; Odell v. Morin, 5 Oreg. 96 ; 
 Thynne v. Glengall, 2 H. L. Cas. 131 ; 
 
844 
 
 STATUTE OF PEAtTDS. [CHAP. XVIII. 
 
 not be carried into execution, even though reduced into 
 writing, as the court cannot compel specific performance, 
 
 Martin u. Holley, 61 Mo. 196 ; Miller 
 V. Cottin, 5 Ga. 341 ; Burke v. Credit- 
 ors, 9 La. An. 57; Fitzpatrick v. 
 Beatty, 6 111. 464 ; and, unless partly 
 performed, the subject-matter must 
 be susceptible of identification from 
 the description in the contract, "the 
 120 acres in Shannon County, Mis- 
 souri," without any other words of 
 identification, was held insufficient, as 
 the land could not be identified with- 
 out a resort to parol evidence. Miller 
 V. Campbell, 52 Ind. 125. But if it 
 had been " the 120 acres of land 
 owned by me in A — , Shannon Coun- 
 ty, Missouri," it would doubtless have 
 been regarded as sufficient. Lynes v. 
 Hayden, 118 Mass. 482 ; Lewis v. 
 Reichy, 27 N. J. Eq. 240; Colerick v. 
 Hooper, 3 Md. 316. So when it was 
 sought to have a contract specifically 
 enforced, where the defendant agreed, 
 in consideration that certain land was 
 conveyed to him, to " erect a certain 
 building," it was held too uncertain. 
 Martin v. Holley, ante. The bill must 
 set out a contract which is clear and 
 definite in all essential details. 
 Wright V. Wright, 31 Mich. 380; 
 Stanton v. Miller, 58 N. Y. 192 ; Keese 
 v. Eeese, 41 Md. 554. Where the 
 contract is incomplete in any essen- 
 tial respect, and furnishes no means 
 of identifying the property with cer- 
 tainty, this remedy will be denied. 
 Patrick v. Horton, 3 W. Va. 23; 
 Hammer v. McEldowney, 46 Penn. St. 
 334 ; Southern Ins. Co. v. Cole, 4 Fla. 
 359; Ohio v. Baum, 6 Ohio, 383; Jor- 
 dan V. Deaton, 23 Ark. 704; Prater k. 
 Miller, 5 Jones (N. C.) Eq. 153. 
 " The houses in Smithfleld St.," with- 
 out other designation, held too uncer- 
 tain. Hammer v. McEldowney, ante. 
 When the writing appears only to be 
 the basis of an agreement and not the 
 agreement itself, there is no binding 
 agreement. Frost v. Moulton, 21 
 Beav. 496 ; or when it provides that 
 any of the terms shall be afterwards 
 settled. Wood u. Midgeley, 6 De G. 
 
 M. & G. 41; Honeyman v. Maryatt, 
 21 Beav. 14 ; or that further negotia- 
 tions are contemplated. Stratford v. 
 Bosworth, 2 V. & B. 341 ; Tawney v. 
 Crowther, 3 Br. & C. C. 318 ; and if it 
 is doubtful whether a positive agree- 
 ment exists, the court will not inter- 
 fere; all the terms must be settled. 
 Huddlestone u. Briscoe, 11 Ves. 592 ; 
 Jackson v. Oglander, 2 H. & M. 465. 
 But if all the terms are settled and 
 agreed upon, the fact that a more 
 formal instrument is contemplated is 
 not sufficient to defeat this relief. 
 Skinner v. McDowall, 2 De G. & S. 
 265. If there is a doubt as to whether 
 the parties understood the contract 
 alike, fairly arising from the language 
 of the contract, it will not be enforced. 
 Cowles V. Bawne, 10 Paige (N. Y.) Ch. 
 526; Buckmaster «. Thompson, 36 
 N. Y. 558. The term or duration of a 
 lease is an essential part of it, and 
 specific perfonnance will not be de- 
 creed when the contract does not 
 specify the term. Myers v. Forbes, 24 
 Md. 599. In an agreement to renew 
 a lease at as much rent as any one 
 else would pay, it was left optional 
 with the lessee to accept it or not, and 
 it was held lacking both in certainty 
 and mutuality. Galston v. Sigmund, 
 27 Md. 334; Heywood v. Cope, 25 
 Beav. 140; Taylor v. Parlington, 7 
 De G. M. & G. 328; Parker v. Taswell, 
 
 2 De G. & J. 559. Where the rent is 
 to be afterwards fixed, and this has 
 not been done, the contract is too 
 incomplete and uncertain. Graham v. 
 Call, 5 Munf. (Va.) 396. When a 
 contract of this character, or any 
 other, is uncertain and vague, the 
 court will leave the parties to their 
 legal remedies. Maddox v. McQueen, 
 
 3 A. K. Mar. (Ky.) 400 ; McKibbin v. 
 Brown, 14 N. J. Eq. 13 ; Dobson v. 
 Litton, 5 Cold. (Tenn.) 616; Sales v. 
 Hickman, 20 Penn. St. 180. Thus, a 
 clause in a lease which reads "and 
 the party of the first part agrees, in 
 case the said parties of the second 
 
SEC. 504.] 
 
 SPECIFIC PEKFORMANCE. 
 
 845 
 
 when according to the agreement there is no contract ; and 
 the rule holds good although there have been acts of part 
 performance. In an early case it was laid down, that wher- 
 ever the court had decreed specified execution of a parol 
 agreement, the same had been supported and made out by 
 letters in writing, and the particular terms, stipulated therein, 
 as a foundation for the decree ; otherwise the court would 
 never carry such an agreement into execution. ' 
 
 part shall then be tenants of said 
 premises, to first offer the property so 
 demised for sale to and purchase by 
 them for the sum of |2,000," was held 
 too uncertain for enforcement, be- 
 cause there was no time fixed within 
 which it was to be performed, nor any 
 agreement that tlie lessor should con- 
 vey to them at any time for that sum 
 while they were tenants. Buckmaster 
 V. Thompson, 36 N. Y. 558. So a 
 stipulation to renew a lease at its ex- 
 piration, " the rent to be proportioned 
 to the valuation of said premises at 
 said time," and providing no method 
 for determining the valuation, was 
 held too uncertain to be specifically 
 enforced. Pray v. Clark, 113 Mass. 
 283. Dobson v. Litton, ante, 113 ; 
 Hammer v. McEldowney, 46 Penn. St. 
 334. By this it is not meant that 
 parol evidence to identify the prop- 
 erty is never admissible, but that the 
 writing must furnish such a basis 
 therefor that by the aid of parol evi- 
 dence absolute certainty can be 
 arrived at. Thus, an agreement " for 
 the sale of houses on Smithflcld 
 Street " was held too uncertain, be- 
 cause the contract furnished no guide 
 by which to arrive at a certainty as to 
 what houses were intended. Hammer 
 V. McEldowney, ante. But if it had 
 been " for the sale of my houses," 
 etc., or " houses owned by me," etc.^ 
 absolute certainty could have been 
 arrived at, because tlie houses owned 
 by him could have been identified. 
 Colerick c. Hooper, 3 Ind. 316 ; Lewis 
 V. Reichy, 27 N. J. Eq. 240 ; Lynes v. 
 Hayden, 118 Mass. 482; Puttman v. 
 Haltey, 24 Iowa, 425. The term and 
 duration of the lease, Myers v. Forbes, 
 
 ante, as well as the amount of rent, 
 must be definitely stated. Gelston c. 
 Sigmund, 27 Md. 345. Lester v. Fox- 
 craft, 1 Coll. C. C. 108. In an Illinois 
 case an agreement to convey a right 
 of way 80 feet wide was held to have 
 become sufficiently certain to be en- 
 forced, after the guarantee, with the 
 acquiescence of the grantor, had 
 entered upon the land and laid out 
 the way. Purinton •/. Northern 111. 
 R. R. Co., 46 111. 297. 
 
 1 Wiswall V. Loft, 5 Kan. 263 ; John- 
 son V. Johnson, 16 Minn. 512 ; Buck- 
 master y. Thompson, 36 X. Y. 558 ; Mc- 
 Guire v. Stevens, 42 Miss. 724 ; Mc- 
 Clintosh .,■. Laing, 22 Mich. 212; 
 Munsell v. Loree, 21 id. 401 ; Hardes- 
 try V. Richardson, 44 Md. 617 ; Agard 
 V. Valencia, 39 Cal. 292 ; Dobson -. 
 Litton, 5 Cold. (Tonn.) 616; Huff u. 
 Shepherd, 58 Mo. 242; Gelston v. 
 Sigismund, 27 Md. 334; Whilan «. 
 Sullivan, 102 Mass. 204; Ferris u. 
 Irving, 28 Cal. 645 ; Matteson v. Sco- 
 field, 27 Wis. 671; Pilling v. Armi- 
 tage, 12 Ves. 78 ; Mortimer v. Orchard, 
 2 Ves. 243; Savage v. Carroll, 1 Ball 
 & B, 265, 551 ; 2 Ball & B. 451 ; Reese 
 V. Reese, 41 Md. 554 ; Townsend v. 
 Hawkins, 45 Mo. 286; Twiss v. George, 
 33 Mich. 253 ; Ackerman v. Acker- 
 man, 24 N. J. Eq. 315; Semmes v. 
 Worthington, 38 Md. 298; Long v. 
 Duncan, 10 Kans. 294 ; Hardesty v. 
 Richardson, 44 Md. 617; Lester v. 
 Kinne, 37 Conn. 9; Huff v. Shepard, 
 58 Mo. 242; Allen v. Webb, 64 111. 
 342 ; Wright v. Wright, 31 Mich. 380 ; 
 Blanchard v. Detroit &c. R. R., 31 
 Mich. 44; Newton v, Swazey, 8 N. H. 
 9, 13 ; Tilton v. Tilton, 9 N. H. 386, 
 391 ; Parkhurst „. Van Cortlandt, 1 
 
846 
 
 STATUTE OF PEATTDS. [CHAP. XVUI. 
 
 The court will endeavor to put a reasonable interpretation 
 upon ambiguous expressions,^ though no decree can be made 
 if the material terms of the contract are left doubtful.^ 
 Thus specific performance has been refused, when it could 
 not be shown whether timber was included in the purchase,^ 
 when the term for which a lease was to be granted was not 
 mentioned in the agreement,* and when the period at which 
 the payment of increased rent was to commence could not 
 be ascertained.^ 
 
 So also the words " land required " have been considered 
 too indefinite.^ Where the contract was for the sale of an 
 
 Johns. Ch. 273, 284; 14 Johns. 15; 
 Phillips V. Thompson, 1 Johns. Ch. 
 (N. Y,) 131; German v. Machin, 6 
 Paige Ch. (N. Y.) 288, 292; Lobdell 
 V. Lobdell, 36 N. Y. 327 ; Wallace v. 
 Brown, 10 N. J. Eq. 308, 311 ; Eyre v. 
 Eyre, 4 N. J. Eq. 102 ; Petrick v. Ash- 
 croft, 4 ib. 339 ; Force v. Dutcher, 4 
 N. J. Eq. 401; Brewer v. Wilson, 17 
 N. J. Eq. 180 ; Brown v. Finney, 53 
 Penn. St. 373 ; Sage v. McGuire, 4 W. 
 & S. (Penn.) 228, 229; Charnley v. 
 Hansbury, 13 Penn. St. 16, 21; 
 Moore v. Small, 19 Penn. St. 461, 470 ; 
 Bankin v. Simpson, 19 Penn. St. 471 ; 
 McCue V. Johnston, 25 Penn. St. 306 ; 
 Cox V. Cox, 26 Penn. St. 375 ; Frye v. 
 Shepler, 7 Barr. 91 ; Greenlee v. 
 Greenlee, 22 Penn. St. 224; Burns v. 
 Sutherland, 7 Penn. St. 103 ; Hugus 
 I'. Walker, 2 Jones (N. C.) 173; 
 Shepherd v. Bevin, 9 Gill. 32; Ow- 
 Ings V. Baldwin, 1 Md. Ch. 120 ; Shep- 
 herd V. Shepherd, 1 Md. Ch. 244; 
 Beard v. Linthicum, 1 Md. Ch. 345 ; 
 Chesapeake & Ohio Canal Co. v. 
 Young, 3 Md. 480; Wingate v. Dail, 
 2 H. & J. (Md.) 76; Minturn v. Bay- 
 lis, 33 Cal. 129 ; Shropshire v. Brown, 
 45 Ga. 175; Rowton v. Rowton, 1 H. 
 & M. (Va.) 91 ; McNeil v. Jones, 21 
 Ark. 277 ; Printup v. Mitchell, 17 Ga. 
 558 ; Kay v. Curd, 6 B. Mon. (Ky.) 
 100 ; • Stoddard v. Tuck, 5 Md. 18 ; 
 Hatcher v. Hatcher, 1 McMull,(S. C.) 
 Eq. 311 ; Goodwin v. Lyon, 4 Port. 
 (Ala.) 297; Bell v. Bruen, 1 How. 
 (U. S.) 169; Pearce «. "Watts, L. R. 
 20 Eq. 492; Allen v. "Webb, 64 111. 
 342 ; Tallraan v. Franklin, 16 N. Y. 
 
 584; Reese v. Reese, 41 Md. 554; 
 Symondson v. Tweed, Prec. Ch. 374 ; 
 Gilb. Eq. Rep. 35 ; see Allen v. 
 Bower, 3 Bro. C. C. 149 ; Clinan v. 
 Cooke, 1 Sch. & Lef. 36; Forster v. 
 Hale, 3 "Ves. 712; Boardman u. Mos- 
 tyn, 6 "Ves. 470; Lindsay v. Lynch, 
 2 Sch. & Lef. 7 ; Daniels v. Davison, 
 16 Ves. 256; Toole v. Medlicott, 1 
 Ball & B. 404; Morphett !•. Jones, 
 Swanst. 182 ; Price v. Assheton, 1 Y. 
 & C. Ex. 82 ; Reynolds ■,-. Waring, 1 
 You.346; Dale!;.Hamilton,6Hare,381. ' 
 
 1 Saunderson v. Cockermouth Rail- 
 way Co., 11 Beav. 497 ; Richardson v. 
 Eyton, 2 D. M. G. 79: 
 
 2 Dart. V. & P. 5th ed. 1033; Mc- 
 Murray v. Spicer, L. R. 5 Eq. 527 ; 
 Kennedy i\ Lee, 3 Mer. 441 ; White v. 
 Henman, 51 111. 243 ; Ross v. Baker, 
 72 Penn. St. 186; Hurley 71. Brocon, 
 98 Mass. 545 ; Fowler v. Radican, 52 
 111. 405 ; Waring v. Ayres, 40 N. Y 
 357 ; Holmes v. Evans, 48 Miss. 247 ; 
 Lynes v. Hayden, 119 Mass. 482; 
 Purinton v. Northern 111. R. R. Co., 
 46 111. 297; Miller v. Campbell, 62 
 Ind. 125; Bell v. Warren, 39 Tex. 
 106 ; King v. Rickman, 20 N. J. Eq. 
 316 ; Carr v. Passaic Land &c. Co., 22 
 id. 85 ; Chidister v. Springfield &c. R. 
 R. Co., 59 111. 87. 
 
 ' Reynolds v. Waring, You. 346. 
 
 * Clinan k. Cooke, 1 Sch. & Lef. 22. 
 
 ^ Lord Ormond v. Anderson, 2 Ball 
 & B. 363 ; and see Blore v. Sutton, 8 
 Mer. 237. 
 
 6 Lord Stuart v. L. & N. W. R. Co., 
 1 D. M. G. 721 ; and see Tatham v. 
 Piatt, 9 Hare, 660. 
 
SEC. 504.] SPECIFIC PERFOEMA.NCE. 847 
 
 estate, the vendor reserving " the necessary land for making 
 a railway " through the estate, it was held that the reserva- 
 tion was void for uncertainty and that the contract could 
 not be enforced.^ And an agreement to take a lease of a 
 house if put into thorough repair, and " the drawing-rooms 
 handsomely decorated according to the present style," was 
 held to be too uncertain for the court to enforce.^ In the 
 absence of special circumstances, the court will not enforce 
 specific performance of a contract for the purchase of land, 
 which is silent as to the means of access to it, when it is 
 reasonably uncertain whether any means of entering on the 
 land at all times can be conferred on the purchaser.^ So 
 also specific performance has been refused when the agree- 
 ment for a mining lease turned on the construction of an 
 " etc." * But in Cooper v. Hood ^ the terms " good will, etc.," 
 in a contract for the sale of a foundry, were held not to be 
 so uncertain as alone to prevent a decree for specific per- 
 formance of it ; for the words et cetera point to things nec- 
 essarily connected with and belonging to the good will and 
 to be defined in the conveyance. 
 
 Where the terms for letting farms provided that all mate- 
 rials required for buildings proposed to be built or that might 
 thereafter be built, should be led at the expense of the 
 tenant; that the landlord should drain, the tenant leading 
 tiles ; that gates, buildings, " etc.," should be left in repair 
 by the tenant ; that the landlord reserved to himself all cus- 
 tomary rights, such as liberty to search for and work mines 
 or minerals, " etc.," it was held that these stipulations did 
 not render the agreement uncertain so as to be incapable of 
 being enforced specifically.^ Again, an agreement for a lease 
 for three lives or thirty-one years may be specifically enforced 
 although the lives are not named in the agreement, and it is 
 not provided by whom they are to be nominated ; ^ and 
 where the contractor was to take a lease of " those two seams 
 of coal known as ' the two-feet coal ' and ' the three-feet coal,' 
 
 1 Pearce v. "Watts, L. E. 20 Eq. 492. « Parker v. Taswell, 2 De G. & J. 
 
 2 Taylor v. Portington, 7 D. M. G. 559. 
 
 328; see, howerer, Samuda v. Law- ^ Fitzgerald v. Vickers, 2 Dr. & 
 
 ford, 8 Jut. (N. S.) 739. "Wal. 298; Kensington u. Phillips, 5 
 
 8 Denne v. Light, 8 D. M. G. 774. Dow. 61 ; overruling, it appears, 
 
 * Price V. Griffith, 1 D. M. G. 80. Wheeler v. D'Esterre, 2 Dow. 360. 
 6 26 Beav. 293. 
 
848 STATUTE OF FEATJDS. [CHAP. XVIir. 
 
 lying under lands hereafter to be defined in the Bank End 
 Estate," and the lessor agreed to let " the before-mentioned 
 seams of coal," the contract was held to be sufficiently 
 definite to be enforced.^ 
 
 Sec. 505. Contradictory Evidence, When Specific Perform- 
 ance Decreed. — Although the evidence is contradictory, specific 
 performance may he decreed, if the court is able satisfactorily 
 to ascertain what the terms are. A reference to ascertain the 
 terms will, however, only be directed when the evidence is 
 contradictory ; not when insufficient evidence has been pro- 
 duced by the person seeking to enforce the contract.^ 
 
 In Mortimer v. Orchard ^ the only witness for the plaintiff 
 proved an agreement different from that stated in the bill ; 
 and two of the defendants by toswer stated an agreement 
 different from both. Lord Loughbokough said, that in 
 strictness the bill ought to be dismissed, but specific perform- 
 ance was decreed according to the agreements stated in the 
 answers. Again, "in a case that came from Malton, in 
 Yorkshire, possession having been delivered in pursuance of 
 a parol agreement, and a dispute arising upon the terms of 
 the agreement, Loed Thurlow thought proper to send it 
 to the master, upon the ground of the possession being de- 
 livered, to inquire what the agreement was. The difficulty 
 there was in ascertaining that. The master decided as well 
 as he could ; and then the cause came before Lord Rosslyn 
 upon further directions; who certainly seemed to thiiik 
 Lord Thtjrlow had gone a great way, and either drove them 
 to a compromise, or refused to go on with the decree upon 
 the principle upon which it was made." * 
 
 In Mundy v. Jolliffe,^ Lord Cottenham said: "Courts 
 of Equity exercise their jurisdiction in decreeing specific 
 performance of verbal agreements, where there has been 
 
 , 1 Hayward v. Cope, 25 Beav. 140 ; * Per Lord Eldon in Boardman v. 
 
 and see Monro v. Taylor, 8 Hare, 61 ; Mostyn, 6 Ves. 470, where his Lordship 
 
 affi'd. 3 Mac. & G. 713. said: "Perhaps if it was res integra 
 
 ^ Savage v. Carroll, 1 Ball & B. the soundest rule would be that if the 
 
 283, 551 ; 2 Ball & B. 451 ; Hurper v. party leaves it so uncertain, the agree- 
 
 Laney, 39 Ala. 398 ; Long r. Duncan, ment is not taken out of the statute 
 
 10 Kan. 294 ; Parkhurst v. Vancort- sufficiently to admit of its being en- 
 
 landt, 11 John. (N. Y.) 15; Rhodes v. forced." 
 Rhodes, 2 Sandf. (N. Y.) Ch. 279. » 5 jiy, & Qj_ I77 
 
 3 2 Ves. Jr. 243. 
 
SEC. 50S.] SPECIFIC PERFORMANCE. 849 
 
 part performance, for the purpose of preventing the great 
 injustice which would arise from permitting a party to escape 
 from the engagements he has entered into, upon the ground 
 of the statute of frauds, after the other party to the contract 
 has, upon the faith of such engagement, expended his money 
 or otherwise acted in execution of the agreement. Under 
 such circumstances the court will struggle to prevent such 
 injustice from being effected ; and with that object, it has at 
 the hearing, when the plaintiff has failed to establish the 
 precise terms of the agreement, endeavored to collect if it 
 can what the terms of it really were." ^ 
 
 In Laird v. The Birkenhead Railway Company ,2 the plain- 
 tiff, in 1855, submitted to the directors of a railway company 
 a project for a private branch line, to be constructed at the 
 plaintiff's cost and for his accommodation ; to which the 
 directors expressed their consent and agreement generally, 
 but the terms and details were left for future arrangements. 
 In the year 1856, the plaintiff, at considerable cost, con- 
 structed the branch, and the company prohibited the user 
 until a definite understanding should be come to. Wood, 
 V. C, thought that at that time the company were bound to 
 assent to reasonable terms, and that the court, if possible, 
 would have decreed specific performance. His Honor said : 
 " Where one set of persons have said to another, ' You desire 
 to construct expensive works for purposes which will require 
 our consent ; we allow you to incur this outlay ; ' I have grave 
 doubts, looking to the authorities, whether these persons, 
 after having allowed the money to be laid out on reasonable 
 terms, can be permitted to say, ' The terms must be such as 
 we dictate ; we are masters of the situation, and all your 
 expenditure must go for nothing unless we can agree about 
 the terms.' " And in Wilson v. West Hartlepool Railway 
 Company ,3 Turner, L. J., said: "Where permission has 
 been given upon the faith of an agreement, it is, I think, the 
 duty of the court, as far as it is possible to do so, to ascertain 
 the terms of the agreement and to give effect to it." * 
 
 1 And see Gregory v. Wilson, 9 ^ Johns. 500. 
 Hare, 690; Pain v. Coombs, 1 De G. » 2 De G. J. & S. 494. 
 & J. 34; Nunn v. Fabian, L. B. 1 Ch. * See also Norris v. Jackson, 1 J. 
 
 35. & H. 319. 
 
850 STATUTE OP FRAUDS. [CHAP. XVIII. 
 
 Sec. 506. Surrounding Circumstances Considered. — The 
 court, having regard to the terms of the agreement, will con- 
 sider the surrounding circumstances, and the conduct of the 
 parties in dealing with the property comprised in it, in the 
 interval between the making of the agreement and the com- 
 mencement of the suit for its enforcement.^ 
 
 Sec. 507. immaterial Terms need not be Proved. — Imma- 
 terial terms need not he proved. Thus, it has been held that 
 the fact that an allegation' in the bill that the plaintiff, the 
 tenant, was to pay taxes and do necessary repairs, was not 
 proved, was no substantial variance, being an admission 
 against himself, and immaterial from the tenant's legal liabil- 
 ity.^ Nor is it necessary to prove matters which are imma- 
 terial so far as relates to anything remaining to be done.^ 
 
 Sec. 508. Family Arrangements by Parol. — In the case of 
 family arrangements involving the giving up, partition, or 
 exchange of land, tlje court will, where there has been long 
 possession under the arrangement, decree specific perform- 
 ance, although the arrangement was made by parol.* Thus, 
 in the recent case of Williams v. Williams,^ A died in 1831 
 possessed of real estates of socage, gavelkind, and borough 
 English tenure, and also of leaseholds, stock-in-trade, and 
 other personal property, leaving a wife and two sons. He 
 made a will by which, after certain provisions for his wife, 
 he gave all his property to his two sons equally, but the will 
 was not admitted to probate, being incomplete. At an inter- 
 view between the brothers, shortly after the will had been 
 refused probate, the elder brother declared that the invalidity 
 of the will should make no difference, and that the property 
 should be " not mine or thine, but ours." No agreement in 
 writing was made, but for twenty years after the death of, A 
 the two sons carried on the partnership together, and dealt 
 with the whole property, real and personal, as if it belonged 
 to them equally, and the widow never insisted on her rights 
 in her husband's property. In 1851 the partnership was dis- 
 
 1 Oxford V. Provand, L. R. 2 P. C. « Stockley v. Stockley, 1 V. & B. 
 135 ; Baumann u. James, L. E. 3 Ch. 23 ; Neale v. Neale, 1 Keene, 672 ; 
 508. Persse v. Persse, 7 C. & F. 279 ; Good 
 
 2 Gregory v. Mighell, 18 Ves. 328. v. Good, 33 Beav. 314. 
 " Mundy v. JollifEe, 5 My. & Gr. ^ l. R. 2 Gh. 294. 
 
 176. 
 
SEC. SIO.] SPECIFIC PERFORMANCE. 851 
 
 solved. The younger brother halving died, his representa- 
 tive filed a bill for the equal division of the property. It 
 was held, affirming the decree of Kinderslby, V. 0.,^ that 
 there was sufficient evidence of a family arrangement which 
 the court would uphold, although there was no formal con- 
 tract between the parties. 
 
 Sec. 509. Corporation. — A corporation may be bound by 
 an agreement not under seal where there have been acts of 
 part performance. In Crook v. Corporation of Seaford^ a 
 municipal corporation by a resolution agreed to let waste 
 land to the plaintiff for 300 years at a nominal rent, the 
 plaintiff to do certain acts, and to expend money on the 
 land, which was to be stumped out by a committee and by 
 the plaintiff. The corporation did not stump out the land, 
 and the plaintiff stumped it out himself, and did the acts 
 required by the corporation, and expended money. He also 
 paid the rent agreed upon. It was held, upon a bill filed to 
 restrain an action of ejectment brought by the corporation, 
 that, though the agreement was not under seal, the corpora- 
 tion was bound by acquiescence, and must perform the agree- 
 ment to grant a lease. Lord Hatherley, L. C, said:* 
 "Upon this bill being filed the corporation raised several 
 objections, one of which was that the agreement was not 
 under seal. But a corporation, although it may not have 
 eyes to see what is going on, has agents who can see, and if 
 the corporation allow a wall to be built and money to be 
 expended on the faith of a resolution regularly entered in 
 their books, they must be answerable. As to the power of 
 this corporation to grant such a lease, they are not within 
 the Municipal Corporations Act, and they get a wall and 
 terrace built upon land which was of no use to them, and 
 they thereby encourage people to build houses. It cannot 
 be said to be an improvident lease." 
 
 Sec. 510. Fraud takes Case out of Statute. — Where the 
 defendant has by his fraud prevented compliance with the 
 requisitions of the statute, he will not be entitled to plead it 
 as a defence to an action for specific performance.* In Mes- 
 
 1 2 Dr. & Sm. 378 ; 6 N. R. 60. » L. R. 6 Ch. 554. 
 
 2 L. R. 10 Eq. 678; aff'd. ib. 6 Ch. * Maxwell v. Montacute, Prec. Ch. 
 551. 526; 1 P. Wme. 618; 1 Str, 235; 
 
862 STATUTE OF FKATJDS. [CHAP. XVIII. 
 
 taer v. Gillespie ^ Loed ELDOiir said : " Upon the statute of 
 frauds, though declaring that interests shall not be bound 
 except by writing, cases in this court are perfectly familiar, 
 deciding that a fraudulent use shall not be made of that stat- 
 ute, where this court has interfered against a party meaning 
 to make it an instrument of fraud, and said he should not 
 take advantage of his own fraud, even though the statute 
 has declared that in case those circumstances do not exist 
 the instrument shall be absolutely void. One instance is 
 the case of instructions upon a treaty of marriage, the con- 
 veyance being absolute, but subject to an agreement for a 
 defeasance, which, though not appearing by the contents of 
 the conveyance, can be proved aliunde, and there are many 
 other instances." Where the plaintiff and defendant had 
 entered into a written agreement for sale by the defendant 
 to the plaintiff of an estate at twenty-five years' purchase, on 
 an annual value to be estimated by referees on or before a 
 certain day, and it appeared that the defendant had pre- 
 vented the valuation from being made, it was held that 
 although the time of valuation was of the essence of the con- 
 tract, the defendant could not set up a defence which grew 
 out of his own misconduct, and that the agreement was to 
 be acted upon as if no time had been limited or the time had 
 not passed.^ 
 
 In Lincoln v. Wright* the facts were as follows: A mort- 
 gagee, with a power of sale of real estate, informed L, the 
 mortgagor, that he should sell it for ^220, unless more wei'e 
 offered. It was thereupon verbally agreed between L and 
 W, that W should buy it on L's behalf for .£230, and have a 
 lien on it for that sum ; that L should pay interest, and con- 
 tinue to occupy the part he then occupied, and that W 
 should receive the rents of the rest to reduce the principal. 
 An offer by W to purchase for £230 was then sent by L's 
 agent to the mortgagee, who accepted it, and under his 
 power of sale conveyed to W's infant daughter by W's direc- 
 
 Thynn v. Tliynn, 1 Vera. 296 ; Old- Amb. 67 ; Hare v. Shearwood, 1 Ves. 
 
 ham u. Litchford, 2 Vern. 506; Sol- 243; Pym v. Blackburn, 3 Ves. 38; 
 
 lack V. Harris, 5 Vin. 521, pi. 31; Whitchurch w. Bevis, 2 Bro. C. C. 565. 
 Walker v. Walker, 2 Atk. 41 ; Joynes i 11 Yes. 627. 
 
 V. Statham, 3 Atk. 388; Eeech v. ^ Morse w. Merest, 6 Madd. 26. 
 Jtennegal, 1 Ves. 123; 1 Wlls. 227; » 4 De G. & J. 16. 
 
SEC. 510.] SPECIFIC PERFORMANCE. 853 
 
 tion. L continued in occupation of the part he was to 
 occupy, and paid interest, W receiving the rents of the rest. 
 This Continued for about ten months, when W died. After 
 his death the daughter by her guardian brought ejectment, 
 claiming to be absolute owner. It was held that, without 
 reference to part performance, the statute was no defence, 
 because Ws insisting on the conveyance as absolute, when 
 it had been agreed that it should be a mortgage, was a fraud, 
 and the statute is not allowed to cover fraud.^ 
 
 It is not fraud on the part of a purchaser, who has ap- 
 proved of a draft agreement and promised to sign a fair copy 
 of it, to refuse afterwards to sign the copy.^ In Jervis v. 
 Berridge^ the plaintiffs agreed to purchase an estate from 
 the Law Life Assurance Society, and to pay a deposit on the 
 signing of the contract. Before it had been signed the plain- 
 tiffs verbally agreed with Berridge to make it over to him 
 on certain terms. In order to enable Berridge to deal with 
 the Society, the plaintiffs signed, and gave to him a memo- 
 randum making over the contract to him in consideration of 
 his paying to the Society the deposit, and engaging to pay a 
 certain sum to the plaintiffs ; the other terms of the bargain 
 between the plaintiffs and Berridge, which were in favor of 
 the plaintiffs being, at Berridge's request, omitted from the 
 memorandum. ' On the same day the contract between the 
 plaintiffs and the Society was signed, and the part signed by 
 the Society was given to Berridge, who paid the deposit. 
 Berridge afterwards repudiated all the stipulations in favor 
 of the plaintiffs which had not been inserted in the memo- 
 randum. The plaintiffs then filed their bill against Berridge 
 and the Society, asking to have the memorandum between 
 Berridge and the plaintiffs cancelled, and for a conveyance 
 from the Society on payment of what was due to them. To 
 this bill Berridge demurred, and it was argued for him that 
 the written agreement was used only for the purpose for 
 which it was given, and that although. he was afterwards 
 advised that he was not bound to carry into effect the parol 
 terms, that was not fraud, and Wood v. Midgley was cited. 
 It was, however, held by the Court of Appeal (affirming the 
 
 1 And see Haigh w. Kaye, L. R. 7 ^ Wood v. Midgley, 5 D. M. G. 41. 
 Ch. 469 ; Booth v. Turle, L. R. 16 Eq. 3 L. R. 8 Ch. 351. 
 
 182. 
 
854 STATUTE OF PEAITDS. [CHAP. XVIII. 
 
 decision of Malins, V. C.) that the demurrer was not sus- 
 tainable on the merits, for that the memorandum was only 
 ancillary to the verbal agreement between the plaintiffs and 
 Berridge, and any use of it by him for a purpose inconsistent 
 with that agreement was fraudulent. Loed Selborne, L. C, 
 in delivering the judgment of the court, p. 359, said : " The 
 written document signed by the plaintiffs was a mere piece 
 of machinery obtained by the demurring defendant from the 
 plaintiffs, as subsidiary to and for the purposes of the verbal 
 and only real agreement under circumstances which would 
 make the use of it, for any purpose inconsistent with that 
 agreement, dishonest and fraudulent." 
 
 Sec. 511. Partnership. — Where a partnership, or an agree- 
 ment in the nature of a partnership, exists between two 
 persons, and land is acquired by the partnership as a sub- 
 stratum for such partnership, the land is in the nature of the 
 stock-in-trade of the partnership, and the partnership being 
 proved as an independent fact, the court, without regarding 
 the statute of frauds, will inquire of what the partnership 
 stock consisted, whether it be of land, or of property of any 
 other nature.-' 
 
 Sec. 512. statute cannot be Pleaded after Admission of 
 Agreement by Defendant. — A defendant cannot, after admit- 
 ting an agreement and submitting to perform it, on the 
 pleadings being amended as to other circumstances, take 
 advantage of the statute,^ and he cannot join a plea of the 
 statute to another defence set up by his statement of defence.^ 
 
 1 Dale V. Hamilton, 5 Hare, 382, (N. Y.) 178; Minns u. Morse, 15 Ohio, 
 per WiGKAM, V. C. ; 2 Ph. 266 ; Darby 568 ; HoUingshead v. McKenzie, 8 Ga. 
 V. Darby, 3 Drew, 495. 457; Dean v. Dean, 9 N. J.Eq. 426; 
 
 2 Spurrier v. Fitzgerald, 6 Ves. 548 ; Houser v. Lamort, 55 Penn. St. 311 ; 
 Beatson v. Nicholson, 6 Jur. 620. Switzer v. Skiles, 8 111. 529 ; Tarlton 
 
 8 Cooth I). Jackson, 6 Ves. 12 ; New- v. Victes, 5 id. 470*; Chetwood v. 
 
 ton V. Swanzey, 8 N. H. 9; Tilton v. Brittain, 2 N. J. Eq. 430; Sneed v. 
 
 Tilton, 9 id. 386; Burt v. Wilson, 28 Bradley, 4 Sneed (Tenn.) 301; Pat- 
 
 Cal. 132; McGowan u.West, 7 Mo. terson v. Ware, 10 Ala. 445; Albert 
 
 569 ; Vanpell v. Woodward, 2 Sandf . v. Ware, 6 Md. 66 ; Argenbright v. 
 
 Ch. (N. Y.) 143; Harris v. Knicker- Campbell, 3 H. & M. (Va.) 144; Kirk- 
 
 bocker, 5 Wend. (N. Y.) 638; Jervis sey t;. Kirksey, 30 Ga. 156; Baker t>. 
 
 V. Smith, HofE. Ch. (N. Y.) 476; Arz HoUobough, 15 Ark. 822; Garner v. 
 
 V. Grove, 21 Md. 456 ; Dyer v. Martin, Shebblefield, 5 Tex. 552 ; Esmay v. 
 
 4 111. 483; Hall v. Hall, 1 Gill. (Md.) Grotser, 18 111. 483; Gunta v. Hulsy, 
 
 383 ; Cozine «. Graham, 2 Paige Ch. Amb. 586. 
 
SEC. 513,] SPECIFIC PEEFORMAIICE. 856 
 
 It does not appear to be settled wliether, when the defendant 
 is not required to put in a statement of defence, he may- 
 plead the statute orally at the hearing. In Lincoln v. 
 Wright^ the statute seems to have been pleaded orally at 
 the hearing ; and in Snead v. Green,^ Loed Romilly allowed 
 the statute of limitations to be so pleaded. But in Holding 
 V. Barton,^ Stuart, V. C, refused to allow a plea of the 
 statute of limitations at the hearing, on the ground that if 
 the statute had been pleaded properly, the plaintiff might 
 have stated matter to countervail the plea. 
 
 Sec. 513. Demurrer. — A defence that there is no written 
 agreeraent within the statute may be taken hy general demurrer 
 where the facts of the case appear on the pleadings^ The 
 function of a demurrer is to insist, summarily and simply, 
 that on the assumption of the truth of the facts alleged by 
 the pleadings the plaintiff is not, according to law, entitled 
 to the relief required, and there is no difference whether the 
 law to which the appeal is made is that which is founded on 
 general principles of law and equity, or that which rests on 
 the authority of a particular statute, or whether the statute 
 on which it rests is one which destroys the right, or only 
 precludes the remedy.® 
 
 Where the bill alleged in effect that the defendant held 
 certain real estate as a trustee for the plaintiff, but contained 
 no allegation that the trust was evidenced by writing, a 
 demurrer was disallowed with costs.* 
 
 If a defendant demurs, on the ground of the statute, to a 
 statement of claim, and the demurrer is overruled, and after- 
 wards the statement is amended, it is not necessary, in order 
 that the objection on the ground of the statute may be taken 
 at the trial, that the defendant should plead the defence on 
 the statute to the amended statement.^ 
 
 1 4 De G. & J. 16. per Kindeksley, V. C. ; and see Pain 
 
 2 10 W. R. 36 ; 8 Jur. (N. S.) 4. v. Croombs, 3 Sm. & G. 449; 1 De G. 
 ' 1 Sm. & G. App. XXV. & J. 34. 
 
 * WoodK.Midgley,2Sm. &G. 115; « Daries v. Otty, 12 TV. R. 682; 
 
 5 D. M. G. 41 ; Middlebrook v. Brom- affd. ib. 896. 
 
 ley, 2 N. R. 224 ; Rummens v. Robins, ' Johnasson v. Bonhote, L. R. 2 
 
 11 Jur. (N. S.) 631. Ch. D. 298. 
 
 5 Barkwortli v. Young, 4 Drew, 9, 
 
856 STATUTE OF FRAUDS. [CHAP. XVIII. 
 
 Sec. 514. Agreement Admitted by Defendant. — Where the 
 defendant admits a verbal contract by his statement of defence, 
 the ease will he taken out of the statute, although there have 
 not been any acts of part performance, as in an action by pur- 
 chaser of lands against the vendor to carry into execution the 
 agreement, though not in writing, nor so stated by the plead- 
 ings, the vendor, by putting in a defence admitting the agree- 
 ment as stated in the pleadings, takes the case out of the 
 mischief sought to be provided against by the statute, there 
 being no danger of perjury, and the court will decree specific 
 performance ; and also, if the vendor should die, upon a bill 
 of revivor against his heir, the principle going throughout, 
 and equally binding on the representative.-' 
 
 A defendant admitting by his defence that at the date of 
 the contract the plaintiff was entitled, cannot at the hearing 
 object that no abstract was delivered and no title shown.^ 
 
 Sec. 615. Executory Contract. — It seems to be doubtful 
 whether, consistently with the statute of frauds, the. court 
 can entertain an action for rectifying an executory contract 
 for the sale of lands, and carrying it, when rectified, into 
 execution, even where the mistake is admitted by the defend- 
 ant. In Attorney General v. Sitwell,^ Aldekson, B., said : 
 "I cannot help feeling that, in the case of an executory 
 agreement, first to reform and then to decree an execution of 
 it would be virtually to repeal the statute of frauds. The 
 only ground on which I think the case could have been put 
 would have been that the answer contained an admission of 
 the agreement as stated in the bill, and the parties mutually 
 agreeing that there was a mistake, the case might have fallen 
 within the principle of those cases at law where there is a 
 declaration on an agreement not within the statute, and no 
 issue taken upon the agreement by the plea ; because, in such 
 case, it would seem as if the agreement of the parties being 
 admitted by the record, the case would no longer be within 
 the statute. . . . But in my present view of the question, it 
 
 1 Gunter v. I-Ialsey, Amb. 586; Atk. 3; Huddleston v. Briscoe, 11 
 
 Child V. Godolphin, 1 Dick, 39 ; Cot- Ves. 583 ; Parker v. Smith, 1 Coll. 
 
 tington V. Fletcher, 2 Atk. 155 ; Att. 615; see ante, p. 000, n. 
 Gen. V. Day, 1 Vcs. S. 221 ; Potter v. = Phipps v. Child, 3 Drew, 709. 
 Potter, lb. 441 ; Whitchurch v. Bevis, ' 1 Y. & C. 559, 683. 
 
 2 Bro. C. C. 559; Lacon v. Merlins, 3 
 
SEC. 517.] SPECIFIC PERPOEMANCE. 857 
 
 seems to me that the court ought not in any case, where the 
 mistake is denied or not admitted by the answer, to admit 
 parol evidence, and upon that evidence to reform an exe- 
 cutory agreement." Where a defendant admits the agree- 
 ment if he means to rely on the fact of its not being in 
 writing and signed, and so being invalid by reason of the 
 statute, he must say so, otherwise he is taken to mean that 
 the admitted agreement was a written agreement, good under 
 the statute, or else that, on some other ground, it is binding 
 on him.i 
 
 Sec. 616. statute insisted Upon. — Although the verbal 
 agreement is admitted by the statement of defence, the 
 statute may be used as a defence to the suit.^ It is imma- 
 terial what admissions are made by a defendant insisting upon 
 the benefit of the statute, for he throws it on the plaintiff to 
 show a complete written agreement, and it can no more be 
 thrown upon the defendant to supply defects in the agree- 
 ment than to supply the want of an agreement.* 
 
 Sec. 517. Defendant Denying Agreement but not Claiming 
 Benefit of Statute. — It seems now to be settled that when a 
 defendant alleges that no formal note of the agreement was 
 made, and denies that any binding agreement ever existed, 
 but does not expressly claim the benefit of the statute, he 
 will not be entitled to claim the benefit of the statute at the 
 hearing.* In Ridgway v. Wharton,^ Lord Craijwokth, C, 
 said that where the defendant denies or does not admit an 
 agreement, he need not plead the statute, and that the 
 burden of proof was altogether on the plaintiff, who must 
 then produce a valid agreement capable of being enforced; 
 but in Heys v. Astley,^ the Lords Justices declined to follow 
 Ridgway v. Wharton.'^ 
 
 ' Ridgway v. Wharton, 3 D. M. G. 375 ; Jackson i-. Oglander, 2 H. & M. 
 
 689 ; 6 H. L. C. 238, per Lord Cean- 465. 
 
 WORTH, C; and see Heys v. Astley, 4 * Skinner v. McDouall, 2 De G. & 
 
 De G. J. & S. 34 ; 3 N. R. 19 ; 12 W. R. Sm. 265 ; Baskett v. Cafe, 4 De G. & 
 
 2 Whitchurch v. Bevis, 2 Bro. C. S. 388. 
 
 C. 559; Moore v. Edwards, 4 Ves. = 8 D. M. G. 689. 
 
 23; Cooth v. Jackson, 6 Ves. 12. « 4 De G. J. & S. 37; 3 N. B. 19; 
 
 3 Blagden v. Bradbear, 12 Ves. 12 W. R. (L. J.) 64. 
 
 471 ; and see Rowe v. Teed, 15 Ves. ' And see Homfray v. Fothergill, 
 
 L. E. 1 Eq. 572. 
 
858 STATUTE OP PBATJDS. [CHAP. XVIII. 
 
 Sec. 518. Different Agreement Admitted. — If the defendant 
 admits a different agreement to that stated in the pleadings, 
 the plaintiff may amend his statement by abandoning the 
 first stated agreement, and may have a decree for that ad- 
 mitted by the defendant.^ If the plaintiff relies on the 
 agreement admitted by the. defendant, he wUl not be allowed 
 to bring parol evidence to vary the term.^ 
 
 Sec. 519. Rule of Iistvr as to Admissibility of Parol Evi- 
 dence on Behalf of a Defendant before Statute. — Before the 
 statute of frauds, a defendant might produce parol evidence 
 as a. defence to a suit for specific performance, and the 
 statute has not altered the law in this respect.^ " It should 
 be recollected," says Lord Redesdale, " what are the words 
 of the statute : ' No person shall be charged upon any con- 
 tract or sale of lands, etc., unless the agreement or some 
 memorandum or note thereof shall be in writing, and signed 
 by the party to be charged therewith, or some other person 
 thereunto by him lawfully authorized.' No person shall be 
 charged with the execution of an agreement who has not, 
 either by himself or his agent, signed a written agreement ; 
 but the statute does not say that if a written agreement is 
 signed, the same exception shall not hold to it that did before 
 the statute. Now, before the statute, if a bill had been 
 brought for specific performance, and it had appeared that 
 the agreement had been prepared contrary to the intent of 
 the defendant, he might have said, ' That is not the agreement 
 meant to have been signed.' Such a case is left as it was by 
 the statute : it does not say that a written agreement shall 
 bind, but that an unwritten agreement shall not bind." * 
 
 Sec. 520. when Parol Evidence Admissible on Behalf of 
 Defendant Resisting Specific Performance. — Parol evidence is 
 admissible on behalf of a defendant resisting an action seek- 
 ing the specific performance of a written agreement to show 
 that, upon the grounds of fraud, mistake, or surprise, the 
 written agreement does not express the real terms.^ 
 
 1 Lindsay v. Lynch, 2 Sch. & Lef . 350, n. ; and the judgment of Eyee, 
 9- C. B., in Davis «. Symonds, 1 Cox, 
 
 2 Pym V. Blackburn, 3 Ves. 34. 402 ; see also Wallis ■;. Littel, 11 C. 
 " Clarke v. Grant, 14 Ves. 524. B. (N. S. ) 369. 
 
 * Clinan v. Cooke, 1 Sch. & Lef. » Rich «. Jackson, 4 Bro. C. C. 
 
 39; see also Eann v. Hughes, 7 T. R. 514; 6 Ves. 334, n. ; Joynes v. Stair 
 
SEC. 522.] SPECIFIC PERFORMANCE. 859 
 
 Sec. 521. Grounds upon which Parol Evidence Admitted 
 on Behalf of Defendant. — Such evidence is admitted, not to 
 explain or alter the agreement, but consistently with its 
 terms to show the circumstances of fraud, mistake, or sur- 
 prise. "There is," said Sir T. Pltjmbe, "however, consid- 
 erable difficulty in the application of evidence under this 
 head, calling for great caution, especiallj-^ upon sales by auc- 
 tion, lest, under this idea of introducing evidence of mistake, 
 the rule should be relaxed by letting it in to explain, alter, 
 contradict, and in effect get rid of a written agreement. In 
 sales by auction the real object of introducing declarations 
 by the auctioneers or other persons is, to explain, alter, or 
 contradict the written contract; in effect, to substitute 
 another contract ; and, independently of authority, I should 
 be much disposed to reject such declarations, as open to all 
 the mischief against which the statute was directed, and also 
 violating the rule of law which prevailed previously, whether 
 offered by a plaintiff seeking a performance, or by a defend- 
 ant to get rid of the contract ; a distinction which it is diffi- 
 cult to adopt, where the evidence is introduced to show that 
 the writing purporting to be the contract is not the contract, 
 that there is no contract between them if that which is 
 proved by parol does not make a part of it." ^ 
 
 Sec. 522. Cases where Parol Evidence Admitted. — In 
 Joynes v. Statham,^ the bill was brought to carry an agree- 
 ment into execution for a lease of a house, and on the face 
 of the agreement the plaintiff was to pay a rent of nine 
 pounds a year. The defendant insisted by his answer that 
 it ought to have been inserted in the agreement that the 
 tenant should pay the rent clear of taxes, but the plaintiff, 
 haxing written the agreement himself, had omitted to make 
 it clear of taxes; and that the defendant, unless this had 
 been the agreement, would not have sunk the rent from £14 
 to .£9; and offered to read evidence to show that this was 
 part of the agreement. For the defendant, it was insisted 
 that the defendant ought not to be admitted to parol proof 
 
 ham, 3 Atk. .388 ; the Marquis Town- Dover K. C, L. R. 2 H. L. 43; Snell- 
 
 shend o. Stangroom, 6 Ves. 328 ; ing v. Thomas, L. E. 17 Eq. 303. 
 Price f. Dyer, 17 Ves. 356 ; Clowes v. i Clowes v. Higginson, 1 V. & B. 
 
 Higginson, 1 V. & B. 524; Earl of 327. 
 Darnley v. London, Chatham, & ^ 3 Atk. 388. 
 
860 STATUTE OP FRATTDS. [CHAP. XVIII. 
 
 toadd to the written agreement, which is expressly guarded 
 against by the statute of frauds. Lord Hardwicke said : 
 " I permitted this point to be debated at large, because it is 
 decisive in the cause, for I am very clear this evidence ought 
 to be read. This has been taken up by way of objection to 
 the plaintiff's bill. The constant doctrine of this court is, 
 that it is in their discretion whether in such a bill they will 
 decree a specific performance or leave the plaintiff to his 
 remedy at law. Now has not the defendant a right to insist, 
 either on account of an omission, mistake, or fraud, that the 
 plaintiff shall not have a specific performance ? It is a very 
 common defence in this court, and there is no doubt but it 
 ought to be received, and quite equal whether it is insisted 
 on as a mistake or a fraud." ^ 
 
 The distinction between the case of a plaintiff seeking to 
 add to or vary a written agreement by parol evidence and 
 that of a defendant producing parol evidence for the same 
 purpose is well illustrated by the case of The Marquis 
 Townshend v. Stangroom,^ where cross bills were filed ; one 
 by the lessor, seeking specific performance of a written agree- 
 ment for a lease, and attempting to prove a variation in the 
 quantity of land to be let, by parol evidence ; the other by 
 the lessee, for a specific performance of the. written agree- 
 ment. Both bills were dismissed, that by the lessor on the 
 ground that parol evidence on behalf of a plaintiff was not 
 admissible to vary the written agreement ; that by the lessee 
 on the ground that the evidence, inadmissible on behalf of 
 the lessor in the character of plaintiff, was admissible on his 
 behalf when resisting specific performance.^ 
 
 1 And see Ramsbottom v. Gosden, buy five acres owned by defendant in 
 
 1 V. & B. 165. a certain section. This offer was 
 
 * 6 Ves. 328. accepted in writing and a valid con- 
 
 * See also Wood v. Scarth, 2 K. & tract established. The writing con- 
 J. 33. Where several writings are tained a description, but a question 
 relied upon to establish a contract for might be raised as to its sufficiency, 
 the sale of land, the relation between In such case, however, it would be 
 the writings must appear on their competent to identify by extrinsic 
 face. The subject-matter of the con- evidence the five acres owned by 
 tract must appear from the memoran- defendant in the section, if he owned 
 dum, and the land must be so described but one five-acre tract, and to show 
 that it may be identified. Its location the identity of different forms of 
 and identification may be by parol, description of the same land. Hurley 
 Thus, in Sanborn I'. Nockin, 20 Minn. v. Brown, 98 Mass. 548. The connec- 
 178, the plaintiff by letter offered to tion and relation of several writings 
 
SEC. 522.] SPECIFIC PBEFOEMANCE. 861 
 
 Again, in Clark v. Grant,i Sm W. GeaiJt, M. R., said : 
 " It has been ruled that it is not open to the plaintiff to 
 supply or correct a term of a written agreement by parol ; 
 but it has never been determined that a defendant cannot 
 set up a parol engagement in opposition to a party who, 
 having entered into it, seeks to have a written engagement 
 specifically performed independently of it. The statute of 
 frauds has not altered the situation of a defendant against 
 whom a specific performance is prayed. A defendant in 
 such a case may give the same evidence now wliich he might 
 have given before." In "Winch v. Winchester ^ an estate was 
 described in the particulars as "containing by estimation 
 forty-one acres, be the same more or less." After the sale 
 the land was measured and it was found that it amounted 
 only to between thirty-five and thirty-six acres. Upon a bill 
 for specific performance, the defendant, submitting to per- 
 form the agreement with an abatement, was allowed to pro- 
 duce parol evidence to prove that at the sale the auctioneer 
 had declared that the property contahied forty-one acres, and 
 that if the purchaser did not like to take it so, it should be 
 measured; and if it proved more, the excess must be paid 
 for ; if less, that an abatement should be made. In Manser 
 V. Back ^ premises were advertised to be sold according to 
 certain printed particulars and conditions of sale. Before 
 the sale took place, several of the printed copies were altered 
 by the vendor's solicitor, who introduced, in writing, a reser- 
 vation of a right of way to other premises belonging to the 
 vendor. Several of the altered copies of the particulars were 
 laid on the table in the auction-room, without any remark 
 with regard to the alteration, and an altered copy was deliv- 
 ered to the auctioneer, who read the same aloud before the 
 biddings commenced; but the party who became the pur- 
 assumed to constitute one contract be receiyed to aid in the interpreta- 
 must appear on their face either from tion of the contract, but the essential 
 the nature of their contents or subject- terms of the writing required by the 
 matter, or by reference, and cannot be statute of frauds cannot be supplied 
 shown by parol. Ridgway k. Ingram, by oral testimony of what the parties 
 50 Ind. 145. Parol evidence, showing intended or understood. Tice v. Free- 
 tlie fact of the delivery and receipt man, Minn. Sup. Ct. 
 of the several writings, including i 14 Ves. 524. 
 time, place, situation of property and ^ j y. & B. 375. 
 parties, and other circumstances, may ' 6 Hare, 443. 
 
862 STATUTE OP FKATJDS. [CHAP. XVIIl. 
 
 chaser did not hear or notice the alteration. The contract 
 was inadvertently signed by the auctioneer and by the pur- 
 chaser, on a copy of the particulars of sale not containing 
 the reservation. After the purchase-money was paid and 
 possession given, the purchaser filed his bill for a specific 
 performance of the contract by a conveyance from the ven- 
 dor, without a reservation of the right of way, but the bill 
 was dismissed, Wigram, V. C, saying : " If the vendors had 
 been plaintiffs asking a decree for specific performance, with 
 an addition to the paper signed by Manser such as they say 
 ought to have been introduced, it is clear that no such decree 
 could have been made. The evidence to prove the additional 
 term would have been inadmissible. . . . The principle, 
 however, is general. Where the fraud, mistake, or surprise 
 cannot be established without evidence, equity will allow a 
 defendant to a bill for specific performance to support a 
 defence founded upon any of those grounds by evidence 
 dehors the agreement.^ 
 
 Sec. 523. Grounds upon which Parol Evidence not Ad- 
 mitted on Behalf of Plaintiff. — The grounds Upon which the 
 court acts in refusing to allow a plaintiff to produce parol 
 evidence to contradict a written agreement were thus stated 
 by SiK W. Geant : " By the rule of law, independent of the 
 statute, parol evidence cannot be received to contradict a 
 written agreement. To admit it for the purpose of proving 
 that the written instrument does not contain the real agree- 
 ment would be the same as receiving it for every purpose. 
 It was for the purpose of shutting out that inquiry that the 
 rule of law was adopted. Though the written instrument 
 does not contain the terms it must in contemplation of law 
 be taken to contain the agreement, as furnishing better evi- 
 dence than any parol can supply." ^ Lord Hakdwicke 
 appears to have thought that by possibility a case might be 
 
 ' And see Price v. Ley, 4 Giffi. Lord Imham v. Child, 1 Bro. C. C. 
 
 235, affd. 32 L. J. Ch. 530; Myers v. 92 ; Lord Portmore v. Morris, 2 Bro. 
 
 Watson, 1 Sim. (N. E.) 523; Eose v. C. C. 219; Hare v. Sherwood, 3 Bro. 
 
 Watson, 10 H. L. C. 672. C. C. 168; Jordan v. Sawklns, ib. 
 
 2 WooUam v. Hearn, 6 Ves. 211, 388 ; Binsted v. Coleman, Bunh. 65 ; 
 
 218; and see Parteriche v. Powlet, 2 Hogg v. Snaith, 1 Taunt. 347; Martin 
 
 Atk. 383; Tinney u. Tinney, 3 Atk. 8; v. Pycroft, 2 D. M. G. 795. 
 Lake u. Pliillips, 1 Ch. Eep. 110; 
 
SEC. 525.] SPECIFIC PEEFORMANCE. 863 
 
 made in which even a plaintiff might be permitted to show 
 an omission in a written agreement either by inistal^e or 
 fraud.^ In Joynes v. Statham ^ his lordship is reported to 
 have said: "Suppose the defendant had been the plaintiff, 
 and had brought the bill for a specific performance of the 
 agreement, I do not see but that he might have been allowed 
 the benefit of disclosing this to the court." 
 
 This case was cited in Clinan v. Cooke,^ for the purpose of 
 showing that Lord Haedwicke thought that there might 
 be an addition to the agreement by parol. Loed Redesdale, 
 however, said : " I have found a reference to a note of the 
 same case by Mr. Brown, who was King's counsel in Lord 
 Hardwicke's time, and in great business, and the manner 
 in which he has put this case is thus : ' But query if, on a 
 bill for performance of an agreement, and an attempt to 
 add to the agreement by parol, whether plaintiff can do it in 
 that case ? ' Therefore Mr. Brpwn certainly did not under- 
 stand Lord Haedwicke as saying that it could be done, and 
 looking attentively at the words used by Atkyns, I do not 
 think they import anything positive." * 
 
 Sec. 524. Wliether Parol Evidence Admissible on Behalf of 
 Plaintiff when Objection Taken before Agreement Signed. — In 
 
 Pember v. Mathers ^ parol evidence was admitted on behalf 
 of the plaintiff, the written agreement having been entered 
 into upon the faith of a parol undertaking by the defendant ; 
 and Lord Thtjelow laid it down that where the objection is 
 taken before the agreement is executed, and the other side 
 promises to rectify it, it is to be considered as a fraud if such 
 promise is not kept.^ 
 
 Sec. 525. Parol Variation of Written Contract may be En- 
 forced where Part Performance. — Where there have been 
 acts of part performance in pursuance of a parol contract 
 varying a written contract, and the defendant has acquiesced, 
 specific performance of the contract as varied by parol may 
 be enforced. In the Anonymous case,'^ W leased a house to 
 
 1 Walker v. Walker, 2 Atk. 98. « 1 Bro. C. C. 54. 
 
 2 3 Atk. 389. ' See, however, Clarke v. Grant, 
 ' 1 Sch. & Lef. 38. 14 Ves. 525. 
 
 * And see Marquis of Townshend ' 5 "Vin. Ahr. pi. 88. 
 
 V. Stangroom, 6 Ves. 338. 
 
864 STATUTE OF PEATJDS. [CHAP. XVIII. 
 
 N for eleven years, and was to allow <£ 20 to be laid out in 
 repairs. The agreement was reduced into writing, signed 
 and sealed by both parties. N repaired the house, and find- 
 ing it to take a much greater sum than £20, told W of it, 
 that he would nevertheless go on, and lay out more money 
 if he would enlarge the term to twenty-one years, or add 
 fourteen, or as many as N should think fit. W replied that 
 they would not fall out about that, and afterwards declared 
 that he would enlarge the term, without mentioning any 
 term in certain. The question was whether this new agree- 
 ment, made by parol, which varied from the written agree- 
 ment, should be carried into execution notwithstanding the 
 statute of frauds ? The Master of the Rolls said, that before 
 the statute written agreements could not be controlled by a 
 parol agreement contrary to it or altering it, but this is a 
 new agreement, and the laying out the money is a perform- 
 ance on one part, and ought to be carried into execution, and 
 built his decree upon these cases : first, where a parol agree- 
 ment was for a building lease, and before it was reduced 
 into writing the lessee began to build, and after differing on 
 the terms of the lease the lessee brought a bill, and the 
 lessor insisted on the statute of frauds, the Lord Keeper dis- 
 missed the bill, but the plaintiff was relieved in Dom. Proc. ; 
 and the second was a case in Lord Jeffkies' time.^ 
 
 Sec. 526. Parol Evidence not Admissible on Behalf of 
 Plaintiff unless Part Performance. — Unless there have been 
 acts of part performance, parol evidence will not be admitted 
 on behalf of a plaintiff to vary a written agreement, although 
 the plaintiff alleges that the variation was fraudulent. Thus 
 parol evidence to prove that a particular estate was left out 
 of a lease under a parol agreement by the joint direction of 
 both parties was refused.*^ So parol evidence is not admissible 
 to prove declarations by an auctioneer at a sale made for the 
 purpose of explaining the particulars or conditions of sale. 
 In Jenkinson v. Pepys,^ upon the sale of an estate by auc- 
 tion, the particular was equivocal as to the woods, but it was 
 
 ' M. S. Rep. Mich. 4 Geo. Cane. ; 2 Lawson v. Laude, 1 Dick. 346 ; 
 
 and see Legal v. Miller, 2 Ves. S. Fell v. Chamberlain, 2 Dick. 484. 
 299; Pitcairn u. Ogbourn, ib.'375; » Cited 6 Ves. 330 ; IV. &B. 528; 
 
 Marquis of Townshend v. Stangroom, 15 Ves. 521. 
 6 Ves. 628. 
 
SEC. 528. J SPECIFIC PERFORMANCE. 865 
 
 clear that the purchaser was to pay for timber and timber- 
 like trees, and there was a large underwood upon the estate. 
 At the sale the auctioneer declared that he was only to sell 
 the land, and everything growing upon the land must be 
 paid for. The defendant, the purchaser, insisted that he was 
 only to pay for timber and timber-like trees, not for planta- 
 tion and underwood. The declaration at the sale was dis- 
 tinctly proved, but it was determined that the parol evidence 
 was not admissible.^ 
 
 Sec. 527. Term Omitted by Mistake may be Proved by 
 Parol by Defendant. — A defendant who has previously had 
 negotiations with other persons in which the terms on which 
 he would sell have been discussed may prove by parol that a 
 term mentioned in the previous negotiations was omitted by 
 mistake from the agreement of which specific performance 
 is sought,^ or that he has by mistake agreed to sell at a less 
 price than the property is worth.^ 
 
 Where the plaintiff agreed to take a lease of a public 
 house from the defendant, a brewer, but the written contract 
 said nothing as to the restrictive covenant of a brewer's 
 lease, and the plaintiff instituted a suit to obtain an unre- 
 stricted lease, the bill was dismissed upon the restricted 
 parol agreement being proved.* 
 
 Sec. 528. inadvertent Omission. — Although specific per- 
 formance of an agreement may not be enforced against a 
 defendant who reasonably misapprehends its terms, a mere 
 case of inadvertant omission to propose an intended term is 
 different ; and therefore where an occupant of land under an 
 expiring tenancy had always paid the tithe rent charge, and 
 afterwards entered into a written agreement with the land- 
 lord for a lease at the old rent, but without any stipulation 
 being introduced as to the tithe rent charge, it was held that 
 the landlord could not insist on such a stipulation being 
 inserted as a condition of specific performance, being enforced 
 against him. "In all the cases," said Loud Chelmsfoed, 
 L. C, " which have been cited on this point, there was clear 
 evidence of mistake. Here there is no evidence that the 
 
 1 See also Higginson v. Clowes, 15 ^ -Wood v. Scarth, 2 IC. & J. 33. 
 Ves. 516, affd. 1 V. & B. 424 ; Hum- » "Webster v. Cecil, 30 Beav. 62. 
 phries r. Home, 3 Hare, 277. * Barnard v. Caye, 26 Beav. 253. 
 
866 STATUTE OF FKAUDS. [CHAP. XVIII. 
 
 parties intended anything, except to leave the payment of 
 the rent charge to be made according to the Act of Parlia- 
 ment." 1 
 
 Sec. 529. Mistake must be Clearly Proved. — Where an 
 agreement has been reduced into writing and signed by the 
 parties, the proof must be very clear which will induce the 
 court to refuse to enforce the written agreement upon the 
 ground that a term of the real agreement has been omitted 
 by mistake.^ 
 
 If when the terms of a parol agreement are reduced into 
 writing it is agreed that a certain term shall be inserted, and 
 the agreement is executed without such term being inserted, 
 and no fraud is alleged, the omission cannot be set up as a 
 defence to an action for specific performance.* 
 
 Sec. 530. Parol Evidence Admissible to Prove Promised 
 Alterations. — If a person is induced to sign an agreement 
 upon representation that certain alterations shall be made in 
 the terms, and the person making the promise refuses after- 
 wards to fulfil it, parol evidence is admissible to show what 
 the promised alterations were, and specific performance will 
 be refused.* 
 
 Sec. 531. Terms Omitted, Plaintiff Offering to Perform. — 
 Specific performance, where there has been no fraud or mis- 
 take, may be decreed where a term has been omitted from 
 the written agreement, upon the plaintiff submitting to per- 
 form the omitted term. Thus, where the defendants agreed 
 in writing to grant the plaintiff a lease at a specified rent and 
 for a specified term, subject to the same covenants, clauses, 
 and agreements as were contained in an expiring lease, under 
 which he then held the property, and the plaintiff" filed a 
 iclaim for specific performance, stating the agreement, and 
 that it was further agreed that he should pay a premium of 
 £200, which he offered to do, it was held that this additional 
 
 1 Parker v. Taswell, 2 De G. & J. C. C. 350; Jackson v. Cator, 5 Ves. 
 659, 575. 688 ; Rich v. Jackson, 4 Bro. C. C. 
 
 2 Clay V. EufEord, 14 Jur. 803, 518. 
 
 805, per Wigeam, V. C. ; and see * Micklethwait v. Nightingale, 12 
 
 Alvanley v. Kinnaird, 1 Mac. & G. 1 ; Jur. 638 ; Clarke v. Grant, 14 Ves. 
 
 Earl of Darnley v. London, Chatham, 519 ; Vouillon v. States, 2 Jur. (N. S. ) 
 
 & Dover E. C, L. R. 2 H. L. 43. 845. 
 ' Shelbume v. Inchiquin, 1 Bro. 
 
SEC. 532.] SPECIFIC PEEFOEMANCE. 867 
 
 term did not render the statute of frauds a valid defence to 
 the claim. " Our opinion is," said Knight Beitce, L. J., 
 " that where persons sign a written agreement upon a subject 
 obnoxious or not obnoxious to the statute that has been so 
 particularly referred to, and there has been no circumvention, 
 no fraud, nor (in the sense in which the term ' mistake ' must 
 be considered as used for this purpose) mistake, the written 
 agreement binds at law and in equity, according to its terms, 
 although verbally a provision was agreed to, which has not 
 been inserted in the document ; subject to this, that either 
 of the parties sued in equity upon it may perhaps be entitled 
 in general to ask the court to be neutral, unless the plaintiff 
 will consent to the performance of the omitted term." ^ 
 
 Where the written agreement only provided that the pur- 
 chaser should bear the expense of the conveyance, parol evi- 
 dence was admitted to show, that by the mistake of the 
 solicitor a provision that the purchaser should also bear the 
 expense of making out the title was omitted, and it was held 
 that the plaintiff must submit to have the agreement per- 
 formed in the way contended for by the defendant, or have 
 his bill dismissed.^ So, where in a suit for specific perform- 
 ance of a written agreement, a parol variation not set up by 
 the answer came out on the cross-examination of the defend- 
 ant's agent, who was one of the plaintiff's witnesses, it was 
 considered that there was a proper subject for inquiry before 
 the court finally disposed of the case ; but the plaintiff con- 
 senting to adopt it as part of the contract, specific perform- 
 ance with the parol variation was decreed.^ 
 
 Sec. 532. Subsequent Variation, Plaintiff Offering to Per- 
 form. — Specific performance with a parol variation cannot be 
 obtained by a plaintiff.* But where a written agreement has 
 been subsequently varied by parol, or by an informal docu- 
 ment, and the plaintiff offers the defendant the benefit of 
 
 1 Martin v. Pycroft, 2 T>. M. 6. ' London & Birmingham Eailway 
 785, 795 ; and see Leslie v. Tompson, Co. v. Winter, 1 Or. & Ph. 57 ; and 
 9 Hare, 268 ; Barnard v. Cave, 26 see Flood v. Finlay, 2 Ball & B. 9 ; 
 Beav. 253 ; Vouillon v. States, 2 Jur. Garrard v. Grinling, 2 Swanst. 244. 
 (N. S.) 847. 4 Robson o. Collins, 7 Ves. 130; 
 
 2 Eamsbottom v. Gosden, 1 V. & Nurse v. Lord Seymour, 13 Beav. 
 B. 165 ; and see Lord Gordon v. Mar- 254. 
 
 quis of Hertford, 2 Madd. 121. 
 
868 STATUTE OF FBATJDS. [OHAP. XVIJI. 
 
 the variations, the court will decree a specific performance of 
 the agreement with the Yariations if the defendant elects to 
 take advantage of them, and if he does not so elect, it will 
 decree a specific performance of the original agreement.^ 
 
 But after an agreement has been correctly reduced into 
 writing, parol evidence is not admissible to add a term 
 omitted from the written agreement.^ 
 
 Sec. 533. when Parol Evidence not Admissible to Add 
 Term. — In Croome v. Lediard,^ by a written agreement be- 
 tween the plaintiff and the defendant, the plaintiff agreed 
 to sell and the defendant agreed to purchase, upon the terms 
 stated, a certain property called the Leigh Estate, and by the 
 same agreement the defendant agreed to sell and the plaintiff 
 agreed to purchase another estate, called the Haresfield 
 Estate, and it was not expressed that the two contracts were 
 to be dependent on each other. The defendant was eventu- 
 ally unable to make a good title to the Haresfield Estate ; it 
 was held that the plaintiff was entitled to a specific perform- 
 ance of the contract as to the Leigh Estate. " The intention 
 of the parties," said Sir J. Leach, M. R., "must be collected 
 from the expressions in the written instrument, and no evi- 
 dence aliunde can be received to give a construction to the 
 agreement contrary to the plain import of those expressions." 
 On appeal the decree was affirmed, Lord Beougham saying : 
 " It had been argued that, although evidence of matter dehors 
 was not admissible for the purpose of raising an equity, and 
 that, therefore, it was competent to the defendant in a suit 
 for specific performance to avail himself of such evidence, 
 though it was not competent to the plaintiff to do so. The 
 distinction was sound within certain limits, and within those 
 limits the rule might be safely adopted. Parol evidence of 
 matter collateral to the agreement might be received, but no 
 evidence of matter dehors was admissible to ■ alter the terms 
 and substance of the contract." His lordship then com- 
 mented on Clarke v. Grant,* and continued : " In the present 
 case, the purpose for which the parol evidence was tendered 
 
 1 Robinson v. Page, 3 Euss. 114 ; Snelling v. Thomas, L. R. 17 Eq. 
 and see Price v. Dyer, 17 Ves. 356 ; 303. 
 
 Van V. Corfe, 3 My. & K. 277. s 2 My. & K. 251 ; see also Lloyd 
 
 2 Omerod v. Hardman, 5 Ves. 722 ; v. Lloyd, 2 M. & C.'192. 
 Jenkins v. Hiles, 6 Ves. 654, 655 ; * 14 Ves. 519. 
 
SEC. 534.] SPECIFIC PEEFOKMANCE. 869 
 
 on the part of the defendant was, not to enforce a collateral 
 stipulation, but to show that the transaction was conducted 
 on the basis of an exchange, a circumstance which, if true, 
 was totally at variance with the language and plain import 
 of the instrument. Nothing could be more dangerous than 
 to admit such evidence ; for if the agreement between the 
 parties was in fact conducted upon the basis of an exchange, 
 why was the instrument so drawn as to suppress the real 
 nature of the transaction?" Upon this case Loed St. 
 Leonaeds remarks : " The decision was probably well 
 founded. The evidence, it is submitted, was inadmissible, 
 not because it was not to enforce a collateral stipulation, but 
 because it did not prove that by fraud, mistake, or surprise, 
 the agreement did not state the alleged real contract, viz., 
 for an exchange between the parties. The defendant was an 
 attorney, and fraud was not alleged, nor indeed was mistake 
 or surprise ; for he had himself prepared the agreement, and 
 he preferred making it a mutual contract for sale and pur- 
 chase instead of an exchange, and of course he could not be 
 permitted to alter its character by parol evidence of the 
 mode in which the negotiation was conducted, and of the 
 views of the parties, in order to avoid the consequences 
 which attached to the nature of the contract which the par- 
 ties, with their eyes open, having regard to other objects, had 
 thought it proper to adopt." ^ 
 
 So in Lord Irnham v. Child,^ parol evidence to prove that 
 it was part of an agreement that a grant of an annuity should 
 be redeemable, a proviso for redemption not having been 
 inserted with the knowledge of both parties, was refused, it 
 not being charged that the omission was fraudulent.* 
 
 Sec. 534. Terms of Agreement Ambiguous. — Where the 
 terms of the written agreement have been ambiguous, so 
 that, adopting one construction, they may reasonably be 
 supposed to have an effect which the defendant did not con- 
 template, the court has upon that ground only refused to 
 enforce the agreement.* Thus the court will not decree 
 
 ' Sugd. V. & P. 13th ed. 134. « Manser v. Back, 6 Hare, 447 ; 
 
 2 1 Bro. C. C. 92 ; 2 Dick. 554. Calverley v. Williams, 1 Ves. Jr. 210 ; 
 
 8 And see Marquis Townshend v. Jenkinson v. Pepys, 15 Ves. 521 ; 1 V 
 
 Stangroom, 6 Ves. 332. & B. 528 ; 6 Ves. 330 ; Clowes v. 
 
870 STATUTE OF FBAUDS. [CHAP. XVIII. 
 
 specific performance of an incomplete gift,^ nor where, by 
 adopting the construction of an ambiguous contract, the 
 effect of the decree would be to compel the vendor to convey 
 property not intended or believed by him to be included in 
 the contract,^ or to compel the defendant to accept less than 
 he actually contracted for.^ So specific performances will 
 not be decreed where the description on the plan of property 
 is misleading, and there is nothing to put the purchaser on 
 inquiry.* But specific performance will only be refused 
 when the description of the property is ambiguous, and the 
 purchaser swears he has made a mistake : if no ground for 
 mistake appears on the particulars, it is not sufficient for the 
 purchaser to swear that he made a mistake.^ So also it is 
 not a ground for refusing specific performance that no solici- 
 tor acted for the vendor, and that the contract was executed 
 under circumstances which might easily have led to fraud, if 
 no fraud is proved against the plaintiff.^ 
 
 If at the time a written contract has been entered into, a 
 verbal contract has also been entered into which has been 
 admitted by the defendant to be a separate contract, a de- 
 fendant cannot resist a suit for specific performance of the 
 written agreement on the ground that the verbal contract 
 has not been executed by the plaintiff J Where the owner 
 of a plot. of ground agreed to grant a lease to A as soon as 
 the latter had erected a villa thereon, but it was stipulated 
 that if A should not perform the agreement on his part, the 
 agreement for a lease was to be void, and that the owner 
 might re-enter, and A was to insure in a particular office, and 
 to have the option of purchasing the fee in two years, and A 
 erected the villa, but insured in the wrong office ; it was held 
 that the contract for a lease was independent of the option 
 to purchase, and that notwithstanding the forfeiture of the 
 
 Higginson, 1 V. & B. 524; Neap v. * Weston v. Bird, 2 W. E. 145 ; 
 
 Abbott, C. P. Coop. 333. See the Swaisland v. Dearsley, 29 Beav. 430 ; 
 
 cases there collected. Denny v. Hancock, L. R. 6 Ch. 1. 
 
 1 Callaghan v. Callaghan, 8 C. & « Swaisland v. Dearsley, 29 Beav. 
 
 F. 374. 430. 
 
 2 Baxendale v. Seale, 19 Beav. « Lightfoot v. Heron, 3 Y. & C. 
 601 ; Alvanley v. Kinnaird, 2 Mac. & 586. 
 
 G. 1. ' Phipps V. ChUd, 3 Drew. 709. 
 ' Moxey v. Bigwood, 8 Jur. (N. S.) 
 
 803, affd. 10 Jur. (N. S.) 597. 
 
SEC. 53S.] SPECIFIC PEEFOEMANCB. 871 
 
 first, the latter still subsisted, and a specific performance of 
 the contract for sale was decreed.i 
 
 Where a purchaser contracts under a natural mistake, 
 which is not attributable to any negligence on his part, it is 
 the duty of the vendor to relieve him from that mistake.^ 
 
 Where a mortgagee with power of sale obtained a fore- 
 closure decree, and then entered into an agreement to sell 
 the estate, with a clause providing that as the vendor was 
 mortgagee with power of sale, she would only enter into the 
 usual covenant that she had not incumbered, the purchaser 
 objected to the validity of the foreclosure decree, and insisted 
 upon having the conveyance under the power of sale, and on 
 the vendor declining to convey in that form, instituted a suit 
 for specific performance, in which the vendor adduced evi- 
 dence showing that the above-mentioned clause was inserted 
 by inadvertence and that she never intended to incur the 
 risk of opening the foreclosure by conveying under the 
 power, it was held, that the misapprehension was a sufficient 
 defence to the enforcement of a conveyance under the power, 
 the court being satisfied that the agreement would not have 
 been entered into, if its true effect had been known.* 
 
 Sec 535. Mistake in Law. — It is a maxim of equity that 
 parties making a mistake in matters of fact shall not be held 
 bound by acts committed by them under such mistake. 
 When, however, they make a mistake in law they cannot 
 afterwards be heard to say that the contract shall on that 
 account be set aside.* In the maxim " ignorantia juris haud 
 excusat" the word '■'■jus" is used in the sense of denoting 
 general law, the ordinary law of the country. But when the 
 word '■'■jus " is used in the sense of denoting a private right, 
 that maxim has no application.^ The court has refused an 
 injunction to restrain plaintiffs in an action-at-law from 
 taking money out of court, which the defendants-at-law had 
 paid into court in the action, in ignorance that upon such 
 payment the plaintiffs-at-law were entitled to stay their 
 
 1 Green v. Low, 22 Beav. 625. * Mildmay v. Hungerford, 2 Vern. 
 
 2 Moxeyi). Bigwood, 8 Jur. (N. S.) 243; Marshall v. CoUett, 1 Y. & 0. 
 803 ; affd. 10 Jur. (N. S.) 597. Exch. 232, 238. ' 
 
 3 Watson V. Marston, 4 D. M. G. ^ Cooper v. Phibbs, L. E. 2 H. L. 
 230. 149, 170, />cr Lobd Westbujiy. 
 
872 STATUTE OF FRAUDS. [CHAP. XVIH. 
 
 action, and take the sum so paid.^ So where a lessor's agent 
 had contracted to grant a lease for seven or fourteen years, 
 which the lessor understood to mean a lease determinable at 
 the lessor's option, and alleged that the agent had acted 
 without authority, it was held that the lessee was entitled to 
 have the agreement specifically performed, and to have a 
 lease for fourteen years, determinable at his own option at 
 the end of seven years.^ 
 
 But where the heir-at-law of a shareholder in a company, 
 the shares in which were personal estate, being ignorant of 
 that circumstance, and supposing himself to be liable in 
 respect of the ancestor's shares, executed a deed of indemnity 
 to the trustees of the company, it was held that he was en- 
 titled in equity to have his execution of the deed cancelled, 
 as having been obtained under a mistake of fact and law.* 
 
 Sec. 636. Fact that Vendor cannot make Title. — That a 
 vendor has put himself in a position where he cannot make 
 title is no defence against an action for specific performance. 
 In such action the vendee is entitled to judgment that the 
 vendor make reasonable efforts to reacquire the title and 
 convey to him. In Love v. Camp, 6 Ired. (N. C.) Eq. 209, 
 Peakson, J., uses this language : " If the vendee does not 
 know that the vendor has not the title, there is then no 
 reason why he should not be decreed to perform his agree- 
 ment, and if he is put to great inconvenience and expense to 
 enable him to obey the decree, it will be the consequence of 
 his own act, and he will not be allowed to offer such an 
 excuse for not doing justice." "It is a defence that the 
 vendor is unable to convey the title, for want of it in him- 
 self, after reasonable efforts to obtain it."^ The rule prevails 
 when the vendor, after making his contract, sells to a bona 
 fide purchaser without notice.^ If the conveyance after con- 
 tract were made to one cognizant of its existence and pro- 
 visions, and a person, sui juris, the reconveyance can be 
 coerced from the purchaser.^ The party is not by such 
 
 1 Great "Western Railway Co. v. 449 ; Fry on Spec. Perf ., § 658 ; Pom. 
 Crippa, 5 Hare, 91. Cont., § 203. 
 
 2 Powell V. Smith, L. R. 14 Eq. 85. « Swepson v. Johnson, supra ; Den- 
 8 Broughton v. Hutt, 3 De G. & J. ton v. Stewart, 1 Cox, 258. 
 
 601. « Laverty v. Mason, 33 N. Y. 658 ; 
 
 * Swepson v. Johnson, 84 N. C. Foes v. Haynes, 31 Me. 81. 
 
SEC. 536.] SPECIFIC PEBFOEMANCB. 873 
 
 means tlirown back upon his action for compensatory- 
 damages for a breach of the obligation, but he has a remedy 
 in its specific enforcement. "While on the one hand," 
 remarks Pearson, J., "the vendee is not obliged to take 
 compensation in damages, but may insist on having the 
 thing contracted for, so on the other, the vendor is not 
 obliged to make compensation in damages, but may insist on 
 the vendee's taking the thing contracted for." ^ 
 
 1 Bryson v. Peak, 8 Ired. (N. C.) Eq. 310; Welbom v. Sechrist, 88 N. C. 67. 
 
CHAPTER XIX. 
 
 PLEADING. 
 
 SECTIOK. 
 
 537. Statute should be PJead. 
 
 538. Demurrer. 
 
 Section 537. statute should be Pleaa. — Although not 
 required in all the States, yet correct practice requires that 
 if a party intends to rely upon the statute of frauds as a 
 defence, he should set it up, either by plea or answer, and in 
 most of the States he must do so, or he is treated as having 
 waived the defect. Especially is this the case in those States 
 where the contract is not declared to be void but only that 
 no action shall be maintained thereon.^ But this is the rule 
 only in that class of actions where the declaration or com- 
 
 1 Boston V. Mcholls, 47 111. 353; 
 Lear v. Chateau, 23 id. 39 ; Burke v. 
 Haley, 7 id. 614 ; Thornton v. Vaughan, 
 
 3 id. 218 ; Patrick v. Ashcroft, 20 N. 
 J. Eq. 198; Lawrence v. Chase, 54 
 Me. 196 ; Thayer v. Reeder, 45 Iowa, 
 172; Adams v. Patrick, 30 Vt. 516; 
 Montgomery v. Edwards, 46 id. 151 ; 
 Talbot V. Bowen; 1 A. K. Mar. (Ky.) 
 436; Gwynn a. McCauley, 32 Ark. 
 97; Newton v. Swazey, 8 N. H. 9; 
 Harrison i.. Harrison, 1 Md. Ch. 331 ; 
 Huffman v. Ackley, 34 Mo. 277; 
 Vaupell V. Woodward, 2 Landf. Ch. 
 (N. Y.) 143; Clarke v. Callaw, 46 L. 
 J. Q. B. Div. 53 ; Williams v. Leper, 3 
 Burr. 1890; Dappa u. Mayo, 1 Wm. 
 Saund. 380, n.; Young w. Austin, L. R. 
 
 4 C. P. 553 ; Forth v. Stanton, 1 Wm. 
 Saund. 226, n. ; Myers v. Morse, 15 
 John. (N. Y.) 425; Rann v. Hughes, 
 7 T. R. 350, n. That the statute of 
 frauds must be pleaded in order to 
 avail as a defence to an action, see 
 
 Rabsuhl v. Lack, 35 Mo. 316 ; Patter- 
 son V. Ware, 10 Ala. 444 ; Osborne v. 
 Endicott, 6 Cal. 149; Tarleton v. 
 Vietes, 6 111. 470 ; Warren v. Dickson, 
 27 m. 115; Lingan t;. Henderson, 1 
 Bland (Md.) 236; Kinzie v. Penrose, 
 
 3 111. 520 ; Thornton v. Henry, id. 218. 
 To the contrary, Amburger v. Marvin, 
 
 4 E. D. S. (N. Y. C. P.) 393. If a 
 contract is set up in a petition which 
 is good at common law, the defence 
 that it is not in writing, as required 
 by the statute of frauds, etc., must be 
 pleaded by him who would avoid it ; 
 and if not so pleaded, it is waived. 
 Gardner v. Armstr(Jng, 31 Mo. 535. 
 When the statute of frauds is pleaded 
 in defence, it is not sufficient to allege 
 that the account stated is barred by 
 the statute of frauds ; the facts relied 
 upon in defence, under the statute 
 should be set out. Dinkel v. Gundel- 
 finger, 35 Mo. 172. 
 
SEC. 537.] 
 
 PLEADING. 
 
 876 
 
 plaint sets forth the contract upon which the plaintiff seeks 
 recovery, and has no application in actions of book account 
 or general assumpsit where the nature of the claim is not 
 set forth, and does not appear until the evidence is actually- 
 put in ; and in this class of cases the statute may be relied 
 upon in defence, although not raised by any pleadings.^ So 
 too it has been held that the statute may be relied upon 
 under the general issue which denies that any such contract as 
 is set forth in the declaration was ever made, because in such 
 a case the plaintiff must, in cases where the statute requires 
 it, produce a contract in writing, or show such a special state 
 of facts as takes the case out of the statute if the contract 
 is by parol,^ and the same rule prevails as to an answer to a 
 bill in equity which denies the making of such a contract as 
 is set forth in the bill,^ unless the bill also sets up facts which, 
 if true, avoid the statute, in Avhich case, as well in the first 
 instance as when the answer sets up the statute in defence, 
 the answer must also traverse such allegations.* 
 
 1 Durant v, Rogers, 71 111. 121 ; 
 Hunter v. Randall, 61 Me. 423; Boston 
 Duck Co. u. Dewey, 6 Gray (Mass.) 
 446; Duffy v. O'Donovan, 46 N. Y. 
 226. In Alger v. Johnson, 4 Hun 
 (N. Y.) 412, it was held that it is only 
 where a complaint sets forth a con- 
 tract, and the answer admits that 
 allegation, that the plaintiff must 
 plead the statute of frauds. Beard 
 V. Converse, 84 111. 512. 
 
 2 Hotehkiss „. Ladd, 36 Vt. 593. 
 In an action for goods sold and de- 
 liTcred to the defendant, the defendant 
 may prove that the goods were sold 
 and delivered to a third person, and 
 that the defendant's promise to pay 
 for them was merely collateral, with- 
 out pleading the statute of frauds. 
 Boston Duck Co. v. Dewey, 6 Gray 
 (Mass.) 446. Buttermere v. Hayes, 5 
 M. & W. 456; Reade v. Lamb, 6 
 Exchq. 130 ; Elliott v. Thomas, 3 M. 
 & W. ] 70 ; Johnson v. Dodgson, 2 M. 
 & "W. 653. But now, in England, 
 under the new rules of pleading, the 
 statute must be plead specially. 
 When the defendant in his answer 
 denies the agreement or contract 
 
 alleged in the bill, it is not necessary 
 for him to insist in his answer upon 
 the statute of frauds. Trapnall v. 
 Brown, 19 Ark. 39 ; Wynn v. Garland, 
 19 id. 23; Hacker v. Gentry, 3 Met. 
 (Ky.) 463. 
 
 ' Cozine v. Graham, 2 Paige Ch. 
 (N. y.) 181; Gwins v. Calder, 2 
 Dessau (S. C.) Eq. 171 ; Small v. 
 Owings, 1 Md. Ch. 363 ; Wynn v. Gar- 
 land, 19 Ark. 23 ; Trapnall v. Brown, 
 19 Ark. 39 ; Fowler v. Lewis, 3 A. K. 
 Mar. (Ky.) 343; Kay v. Curd, 6 B. 
 Mon. (Ky.) 100; Myers v. Morse, 15 
 John. (N. Y.) 425; Ontario Bank v. 
 Root, 3 Paige Ch. (N. Y.) 478; 
 Chicago &c. Coal Co. v. Liddell, 69 
 lU. 639. 
 
 1 Meach v. Stone, 1 D. Chip. (Vt.) 
 182; Hall v. Hall, 1 Gitt. (Md.) 383; 
 Chambers i. Massey, 7 Ired. (N. C.) 
 Eq. 286 ; Cooth v. Jackson, 6 Ves. 12 ; 
 Taylor v. Beech, 1 Ves. Sr. 297; 
 Rowe V. Leed, 15 Ves. 378 ; Bowers v. 
 Cator, 4 id. 91 ; Tarleton v. Vietes, 6 
 111. 470; Champlin <;. Parrish, 11 
 Paige Ch. (N. Y.) 405; Miller v. Cot- 
 ten, 5 Ga. 341; Harris v. Knicker- 
 bocker, 5 Wend. (N. Y.) 638. 
 
876 
 
 STATUTE OF FKATJDS. 
 
 [chap. XIX. 
 
 Sec. 538. Demurrer. — If the declaration, complaint, or 
 bill, expressly states that the contract was made by parol, as 
 " entered into a parol contract with the plaintiff to sell and 
 deliver to him ... at and for the price of five hundred dol- 
 lars," advantage may be taken of the statute, by demurrer, 
 because upon its face it appears that no cause of action 
 exists ; ^ but if the declaration, complaint, or bill, simply sets 
 forth a contract, which if by parol would be within the 
 statute, but omits to state whether it is by parol or in writ- 
 ing, the statute must be plead, and cannot be availed of by 
 demurrers.^ In England, prior to the Supreme Court of 
 
 1 Lawrence u. Chase, 54 Me. 196 ; 
 Thomas v. Hammond, 47 Tex. 42; 
 Sanborn v. Chamberliu, 101 Mass. 417 ; 
 Richards v. Richards, 9 Gray (Mass.) 
 313; Randall v. Howard, 2 Black 
 (U. S.) 585; Price v. Weaver, 13 Gray 
 (Mass.) 272; ICibby v. Chetwood, 4 
 T. B. Mon. (Ky.) 91. 
 
 2 Burkham v. Mastin, 54 Ala. 122 ; 
 Dayton v. Williams, 2 Doug. (Mich.) 
 31; Elliott V. Jenness, 111 Mass. 29; 
 Walker v. Richards, 39 N. H. 259; 
 Walsh V. Kattenburgh, 8 Minn. 127; 
 Ecker v. Bohn, 45 Md. 278 ; Brown v. 
 Barnes, 6 Ala. 694 ; Cranston v. Smith, 
 6 R. I. 231 ; MuUaly v. Holden, 123 
 Mass. 583; Cross v. Everts, 28 Tex. 
 523 ; Carraway v. Anderson, 1 Humph. 
 (Tenn.) 61; Perrine v. Leachman, 10 
 Ala. 140 ; Richards v. Richards, 9 
 Gray (Mass.) 313; Price v. Weaver, 
 13 id. 272. But in those States where 
 the plaintiff is required to set forth 
 the fact whether the contract is in 
 writing or not, a demurrer would be 
 proper. Babcock v. Meek, 45 Iowa, 
 157. In Langford v. Preeman, 60 
 Ind. 46, it was held that, where a con- 
 tract is not alleged to be in writing, it 
 will be presumed to be by parol ; see 
 also Walsh v. Kattenbaugh, 8 Minn. 
 127. But in most of the States, if the 
 contract is not stated to be in writing 
 it sets forth a good cause of action, 
 until the contrary appears from the 
 proof. Price v. Weaver, ante ; Mul- 
 laly V. Holden, 123 Mass. 583 ; Elliott 
 V. Jenness, 111 id. 201. The rule 
 generally adopted is that, in declaring 
 
 upon a contract within the statute of 
 frauds, compliance with the statute 
 need not be alleged. Robinson v. 
 Tipton, 31 Ala. 595 ; Miller v. Upton, 
 6 Ind. 53 ; Baker v. Jameson, 2 J. J. 
 Mar. (Ky.) 547. In Cross v. Everts, 
 28 Tex. 523, it was held that a con- 
 tract for the sale of lands declared 
 upon generally will be presumed to 
 be in writing, and if the defendant 
 would avail himself of the statute as 
 a defence, he must plead it specially. 
 Gist V. Eubank, 29 Mo. 248 ; Daggett 
 V. Patterson, 18 Tex. 158; Lear v. 
 Choteau, 23 111. 39; Yourt v. Hopkins, 
 24 id. 326. The rule of the common 
 law, that it is not necessary, in de- 
 claring upon a contract which the 
 statute of frauds requires to be in 
 writing, to allege in terms that it was 
 reduced to writing, is changed by the 
 Code. Under the Code, if the con- 
 tract is in writing, a copy of it must 
 be filed with the complaint. If, there- 
 fore, the contract sued on is not 
 alleged to be in vrriting, and no copy 
 is filed with the complaint, the pre- 
 sumption arises that the contract is 
 not a written one. If, then, the con- 
 tract is such as is required by the 
 statute of frauds to'be in writing, the 
 objection may be taken by demurrer. 
 If, however, the contract is one which 
 may or may not be valid without a 
 writing, the demurrer will not be sus- 
 tained. Thus, as a contract for the 
 sale of goods, although not reduced 
 to writing, may have been rendered 
 valid by a part payment or by delivery, 
 
SEC. 538.] PLEADING. 877 
 
 Judicature Act,^ the tendency was to hold that unless the 
 contract was stated in the bill to be in writing to permit 
 advantage to be taken of the statute by demurrers.^ But 
 now, the defence of the statute must be raised by pleading, 
 and cannot be availed of by demuiTer,* and such also is the 
 ^ule in tills country unless the contract is expressly stated 
 to be by parol, and no further facts are stated taking it out 
 of the statute.* The statute does not alter the rules of 
 pleading. If the complainant, in his bill, states the making 
 of a contract, without alleging that it was by parol, the court 
 will presume that it was in writing, etc., if necessary ; and 
 defendant cannot demur. Where the agreement stated in 
 the bill is denied by the answer of the defendant, the com- 
 plainant must prove such an agreement as will be valid within 
 the statute of frauds ; although nothing is said in the answer 
 on that subject. But if the making of the agreement is 
 admitted by the answer, the defendant, in such answer, must 
 insist that it was not in writing, and therefore not binding 
 upon him.* The mere fact that the defendant admits the 
 making of the contract in his answer will not prevent him 
 from insisting upon the benefit of the statute.® The plea of 
 
 a complaint upon such a contract will verbal agreement is still an agree- 
 
 be sustained on demurrer, notwith- ment. You cannot, from a mere alle- 
 
 standing it does not aver that the gation of an agreement, infer or 
 
 contract was. reduced to writing. As presume that it was in writing; and 
 
 the statute operates as a rule of evi- as the fact that it was in writing is 
 
 dence, and not upon the pleadings in neither expressly alleged in the bill, 
 
 this respect, it is not necessary to arer nor necessarily to be inferred or pre- 
 
 in the complaint the receipt by the sumed from what the bill does allege, 
 
 purchaser of a part of the property, the mere allegation of an agreement 
 
 or the giving by him of something in amounts to nothing more than the 
 
 earnest or in part payment. Harper allegation of a verbal agreement, and 
 
 V, Miller, 27 Ind. 277. When it ap- then the defence was onli/ demurrer." 
 
 pears from the petition that the Jerdera v. Bright, 2 John. & H. 325 ; 
 
 promise is within the statute of Whitchurch v. Bevis, 2 Bro. C. C. 566. 
 
 frauds, the pleading of the statute But if a written agreement is alleged, 
 
 in avoidance is not waived by failure the statute must be plead. Spurrier 
 
 to answer or demur in the court be- u. Pitzgerald, 6 Ves. 555. 
 
 low, nor can judgment be rendered ^ Cotting i<. King, 5 Ch. Div. 660 ; 
 
 against the defendant in the court Lawle v. Lapham, .37 L. T. N. S. 309. 
 
 above. Smith o. Tah, 15 B. Mon. * Middlesex Co. v. Osgood, 4 Gray 
 
 (Ky.) 443. (Mass.) 447. 
 
 1 36 & 37 Vict. Chap. 66, and sub- ' Lewin v. Stewart, 10 How. (N. 
 sequent amendments thereto. Y.) Pr. 509; Coquillard v. Suydam, 8 
 
 2 Daniel's Ch. Prac. 306. In Bark- Blackf. (Ind.) 24; "Whiting v. Gould, 
 worth V. Young, 26 L. J. N. S. Ch. 2 Wis. 552, 
 
 156, KiNDERSLET, V. C, said: "A " Ashmore v. Evans, 11 N. J. Eq. 
 
878 STATUTE OP PEAUDS. [CHAP. XIX. 
 
 the statute is a personal privilege which the party may waive, 
 and another cannot plead it for him, or compel him to plead 
 it, as, if he chooses to do so, a party may voluntarily perform 
 the contract.! It will not be advisable to discuss here the 
 method of pleading the statute, or the allegations necessary 
 to be set forth in the plea or answer, as those are mattei;^ 
 belonging more properly to works upon pleadings. It is suf- 
 ficient to say that the plea or answer should clearly set forth 
 the fact, that the ground of action set forth by the plaintiff 
 is within the statute, and the facts that make it so, and if the 
 complaint or bill sets forth any facts which tend to take the 
 case out of the statute, these also should be traversed.^ 
 
 151; Thompson v. Jameson, 1 Cr. Edwards, 4 Ves. 23; Whitchiirch v, 
 
 (U. S. C. C.) 296; Thompson v. Ladd, Bevis, 2 Bro. C. C. 559. 
 Pit. (U.S. C. C.)380; Winn K.Albert, ' McCoy v. Williams, 6 111. 584; 
 
 2 Md, Ch. 169; Stearns v. Hubbard, 8 Rickand v. Cunningham, 10 Neb. 417; 
 
 Me. 320; Barnes v. League, 3 Jones Chicago Dock Co. v. Kinzie, 49 111. 
 
 (N. C.) Eq. 277; Argenbright v. 289; Crawford v. Woods, 6 Bush. 
 
 Campbell, 3 H. & M. (Va.) 144; Hoi- (Ky.) 200; Godden k. Pierson, 42 Ala. 
 
 lingshead v. McKenzie, 8 Ga. 457 ; 370 ; Aicarde v. Craig, 42 id. 311. 
 Luckett V. Williamson, 37 Mo. 388; = Taylor v. Beech, 1 Ves. Sr. 297; 
 
 Burt V. Wilson, 28 Cal. 632 ; Walters Chambers v. Massey, 7 Ired. (N. C.) 
 
 V. Morgan, 2 Cox, 369; Bladgen v. Eq. 286; Hall v. Hall, 1 Gitt. (Md.) 
 
 Bradbear, 12 Ves. 466 ; Kine v. Balfe, 383 ; Miller v. Gotten, 5 Ga. 341 ; 
 
 2 B & B. 343; Whitbred v. Brack- Champlin v. Parrish, 11 Paige Ch. 
 
 hurst, 1 Bro. C. C. 416; Moore v. (N. Y.) 405. 
 
APPENDIX. 
 
 STATUTE 29 CAR. II. CAP. 3. 1689. 
 An Act for Prevention of Frauds and Perjuries. 
 
 Foe prevention of many fraudulent practices which are com- 
 monly endeavored to be upheld by perjury and subornation of 
 perjury be it enacted by the King's most excellent Majest}-, by and 
 with the advice and consent of the Lords, spiritual and temporal, 
 and the Commons in this present Parliament assembled, and by 
 the authoritj- of the same, that from and after the four-and-twen- 
 tieth day of June, which shall be in the year of our Lord one thou- 
 sand six hundred seventy and seven, all leases, estates, interests 
 of freehold, or terms of years, or any uncertain interest of, in, to 
 or out of, any messuages, manors, lands, tenements or heredita- 
 ments, made or created by livery and seisin only, or by parole and 
 not put in writing and signed by the parties so making or creating 
 the same, or their agents thereunto lawfully authorized by writing, 
 shall have the force and effect of leases or estates at will onlj-, and 
 shall not, either in law or equity, be deemed or taken to have any 
 other or greater force or effect, any consideration for making any 
 such parol, leases or estates, or any former law or usage to the 
 contrary notwithstanding. 
 
 n. Except, nevertheless, all leases not exceeding the term of 
 three years from the making whereof, whereupon the rent reserved 
 to the landlord during such term shall amount unto two third parts 
 at the least of the full improved value of the thing demised. 
 
 III. And, moreover, that no leases, estates or interests, either 
 of freehold or terms of years, or any uncertain interest not being 
 copyhold or customary interest of, in, to or out of, any messuages, 
 manors, lands, tenements or hereditaments, shall, at any time 
 after the said four-and-twentieth day of June, be assigned, granted 
 or surrendered, unless it be by deed or note in writing signed by 
 the party so assigning, granting or surrendering the same, or then- 
 agents thereunto lawfully authorized by writing or by act and 
 operation of law. 
 
880 STATUTE OP PKAUDS. 
 
 IV. And be it further enacted by the authority aforesaid that 
 from and after the said four-and-twentieth day of June no action 
 shall be brought whereby to charge any executor or administrator 
 upon any special promise to answer damages out of his own estate, 
 [2] or whereby to charge the defendant upon anj' special promise 
 to answer for the debt, default or miscarriages of another person, 
 [3] or to charge any person upon any agreement made upon con- 
 sideration of marriage, [4] or upon any contract or sale of lands, 
 tenements or hereditaments, or any interest in or concerning them, 
 [5] or upon any agreement that is not to be performed within the 
 space of one j^ear from the making thereof, [6] unless the agree- 
 ment upon which such action shall be brought, or some memoran- 
 dum or note thereof shall be in writing and signed by the party to 
 be charged therewith, or some other person thereunto by him law- 
 fully authorized. 
 
 VII. And be it further enacted by the authority aforesaid that 
 from and after the said four-and-twentieth day of June declara- 
 tions or creations of trusts or confidences of any lands, tenements 
 or hereditaments shall be manifested and proved by some writing 
 signed by the party who is by law enabled to declare such trust, 
 or by his last will in writing, or else they shall be utterly void and 
 of none effect. 
 
 VIII. Provided always that where any conveyance shall be 
 made of lands or tenements, by which a trust or confidence' shall 
 or may arise or result by the implication or construction of law or 
 be transferred or extinguished by an act or operation of law, then 
 and in every such case such trust or confidence shall be of the like 
 force and effect as the same would have been if this statute had 
 not been made, anything hereinbefore contained to the contrary 
 notwithstanding. 
 
 IX. And be it further enacted that all grants and assignments 
 of any trust or confidence shall likewise be in writing signed by 
 the party granting or assigning the same [or] by such last will or 
 devise, or else shall likewise be utterly void and of none effect. 
 
 XVI. And be it further enacted by the authoi-ity aforesaid that 
 from and after the said four-and-twentieth daj' of June no contract 
 for the sale of any goods, wares or merchandises, for the price of 
 ten pounds sterling or upwards, shall be allowed to be good except 
 the buyer shall 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, or that some note or memorandum in writ- 
 ing of the said bargain be made and signed by the parties to be 
 charged by such contract or their agents thereunto lawfully author- 
 ized. 
 
APPENDIX. 881 
 
 STATUTE 9 GEO. IV. Cap. 14. 
 Lord Tenterden's Act. 
 
 V. And be it further enacted, that no action shall be main- 
 tained whereby to eh.arge anj' person upon anj' promise made after 
 full age to pay any debt contracted during infancj', or upon any 
 ratification after full age of any promise or simple contract made 
 during infancy, unless such profnise or ratification shall be made 
 by some writing signed by the party to be charged therewith. 
 
 VI. And be it further enacted, that no action shall be brought 
 wherebj' to charge any person upon or by reason of any represen- 
 tation or assurance made or given concerning or relating to the 
 character, conduct, credit, ability, trade, or dealings of any other 
 person, to the intent or purpose that such other person may obtain 
 credit, money, or goods upon, unless such representation or assur- 
 ance be made in writing, signed by the party to be charged there- 
 with. 
 
 VII. " And whereas, by an act passed in England in the twentj-- 
 ninth j-ear of the reign of King Charles the Second, entitled An 
 Act for the Prevention of Frauds and Perjuries., it is, among other 
 things, enacted that from and after the twentj'-fourth daj- of June, 
 one thousand six hundred and seventy-seven, no contract for the 
 sale of any goods, wares and merchandises, for the price of ten 
 pounds sterling or upwards, shall be allowed to be good, except 
 the buyer shall accept part of the goods so sold and aetuall}' receive 
 the same, or give something in earnest to bind the bargain, or in 
 part of payment, or that some note or memorandum in writing of 
 the said bargain be made and signed by the parties to be charged 
 by such contract, or their agents thereunto lawfully authorized " : 
 and "whereas a similar enactment is contained in an act passed 
 in Ireland in the seventh 3-ear of the reign of King William the 
 Third : and whereas it has been held that the said recited enact- 
 ments do not extend to certain executory contracts for the sale of 
 goods, which nevertheless are within the mischief thereby intended 
 to be remedied ; and it is expedient to extend the said enactments 
 to such executory contracts " ; be it enacted, that the said enact- 
 ments shall extend to all contracts for the sale of goods of the 
 value of ten pounds sterling and upwards, notwithstanding the 
 goods may be intended to be delivered at some future time, or 
 may not at the time of such contract be actually made, procured, 
 or provided, or fit or ready for delivery, or some act may be requi- 
 site for the making or completing thereof, or rendering, the same 
 fit for delivery. 
 
882 STATUTE OF PKAUDS. 
 
 X. And be it further enacted that this act shall commence and 
 take effect on the first day of January, one thousand eight hundred 
 and twenty-nine. 
 
 MERCANTILE LAW AMENDMENT ACT, 19 & 20 Vict. Cap. 97. 
 
 III. No special promise to be made by any person after the 
 passing of this act to answer for the debt, default, or miscarriage 
 of another person, being in writing, and signed by the party to be 
 charged therewith, or some other person by him thereunto law- 
 fully authorized, shall be deemed invalid to support an action, 
 suit, or other proceeding, to charge the person by whom such 
 promise shall have been made, by reason only that the considera- 
 tion for such promise does not appear in writing, or by necessary 
 inference from a written document. 
 
 SUPREME COURT OF JUDICATURE ACT AMENDMENT, 1873. 
 38 §• 39 Vict. Ch. 77. 
 
 23. "When a contract is alleged in any pleading, a bare denial 
 of the contract by the opposite , party shall be construed onl}- as 
 a denial of the making of the contract, in fact, and not of its legal- 
 ity or its sufficiency in law, whether with reference to the statute 
 of frauds or otherwise. 
 
 ALABAMA. Revised Code, 1876. 
 
 § 2199. No trust concerning lands, except such as results by 
 implication, or construction of law, or which may be transferred 
 or extinguished by operation of law, can be created, unless by 
 instrument in writing, signed by the partj' creating or declaring 
 the same, or his agent or attorney, lawfully authorized thereto in 
 writing. 
 
 § 2200. No such trusts, whether implied by law or created or 
 declared by the parties, can defeat the title of creditors, or pur- 
 chasers for a valuable consideration, without notice. 
 
 § 2121. In the following cases every agreement is void, unless 
 such agreement, or some note or memorandum thereof, expressing 
 the consideration, is in writing, tind subscribed b}' the party to be 
 charged therewith, or some other person by him thereunto law- 
 fully authorized in writing : 
 
 1. Every agreement which, by its terms, is not to be performed 
 within one year from the making thereof. 
 
 2. Every special promise, by an executor or administrator, to 
 answer damaaies out of his own estate. 
 
APPENDIX. 
 
 3. Every special promise to answer for the debt, default, or 
 miscarriage of anotlier. 
 
 4. Every agreement, promise, or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 5. Every eoatraet for the sale of lands, tenements, or heredita- 
 ments, or of any interest therein, except leases for a term not 
 longer than one year, unless the purchase money, or a portion 
 thereof, be paid, and the purchaser be put in possession of the 
 land by the seller. 
 
 § 2122. When lands, tenements, or hereditaments are sold or 
 leased at public auction, and the auctioneer, hia clerk or agent, 
 makes a memorandum of the property, and price thereof at which 
 it is sold or leased, the terms of sale, the name of the purchaser 
 or lessee, and the name of the person on whose account the sale 
 or lease is made, such memorandum is a note of the contract, 
 within the meaning of the preceding section. 
 
 § 2123. No action can be maintained to charge any person, by 
 reason of any representation or assurance made, concerning the 
 character, conduct, ability, trade, or dealings of any other person, 
 when such action is brought by the person to whom such represen- 
 tation or assurance was made, unless the same is in writing, signed 
 by the party sought to be charged. 
 
 § 2948. A seal is not necessary to convey the legal title to land, 
 to enable the grantee to sue at law. Any instrument in writing, 
 signed by the grantor, or his agent having a written authority, is 
 effectual to transfer the legal title to the grantee, if such was the 
 intention of the grantor, to be collected from the entire instru- 
 ment. 
 
 § 2145. Conveyances for the alienation of lands must be written 
 or printed, on parchment or paper, and must be signed at their 
 foot by the contracting party, or his agent having a written au- 
 thority ; or if he is not able to sign his name, then his name must 
 be written for him, with the words "his mark" written against 
 the same or over it ; the execution of such conveyance must be 
 attested by one, or where the part}' cannot write, by two witnesses 
 who are able to write, and who must write their names as wit- 
 nesses. 
 
 ARKANSAS. Gantt's Digest, 1874. 
 Chaptee 72. 
 
 Sec. 2951. No action shall be brought : 
 
 First. To charge any executor or administrator, upon any 
 special promise, to answer for any debt or damage out of his own 
 estate. 
 
884 STATUTE OF FBATJDS. 
 
 Second. To charge any person, upon any special promise, to 
 answer for the debt, default or miscarriage of another. 
 
 Third. I'd charge any person upon an agreement made in con- 
 sideration of marriage. 
 
 Fourth. To charge any person upon any contract for the sale of 
 lands, tenements or hereditaments, or any interest in or concern- 
 ing them. 
 
 Fifth. To charge any person upon any lease of lands, tene- 
 ments or hereditaments for a longer terra than one year. 
 
 Sixth. To charge any person upon any contract, promise or 
 agreement that is not to be performed within one year from the 
 making thereof, unless the agreement, promise or contract upon 
 which such action shall be brought, or some memorandum or note 
 thereof, shall be made in writing, and signed by the party to be 
 charged therewith, or signed by some other person by him there- 
 unto properly authorized. 
 
 Sec. 2952. No contract for the sale of goods, wares and mer- 
 chandise, for the price of thirty dollars or upward, shall be binding 
 on the parties unless, first, there be some note or memorandum, 
 signed by the party to be charged ; or, second, the purchaser shall 
 accept a part of the goods so sold, and actually receive the same ; 
 or, third, shall give something in earnest to bind the bargain, or 
 in part payment thereof. 
 
 Sec. 2960. All leases, estates, interest of freeholds, or lease of 
 years or any uncertain interest of, in, to or out of any messuages, 
 lands or tenements, made or created by liverj' and seizin only, or 
 by parol, and not put in writing and signed by the parties so 
 making or creating the same, or their agents lawfully authorized 
 by writing, shall have the force and effect of leases or estates at 
 will only, and shall not, either in law or equity, be deemed or 
 taken to have any other or greater effect or force than as leases 
 not exceeding the term of one jear. 
 
 Sec. 2961. No leases, estates or interests, either of freehold or 
 of term of years, in, to or out of any messuages, lands or tene- 
 ments, except leases for a term not exceeding one year, shall at 
 any time hereafter be assigned, granted or surrendered, unless it 
 be by deed or notice in writing, signed by the party so assigning, 
 granting or surrendering the same, or by their agents lawfully 
 authorized bj- writing, or by operation of law. 
 
 Sec. 2962. All declarations or creations of trusts or confidences 
 of any lands or tenements shall be manifested and proven by some 
 writing signed by the party who is or shall be by law enabled to 
 declare such trusts, or by his last will in writing, or else they shall 
 
APPENDIX. 885 
 
 be void ; and all grants or assignments of any trusts or confidences 
 shall be in writing, signed by the part}- granting or assigning the 
 same, or bj- his last will in writing, or else they shall be void. 
 
 Sec. 2963. When any conveyance shall be made of anj- lands 
 or tenements, by which a trust or confi;dence may arise or result 
 b}- implication of law, such trust or confidence shall not be affected 
 by anything contained in this act. 
 
 CALIFORNIA. Civil Code. 1875. 
 
 Sec. 852. No trust in relation to real propertj- is valid unless 
 created or declared : 
 
 1. By a written instrument, subscribed by the trustee, or by his 
 agent thereto authorized by writing ; 
 
 2. By the instrument under which the trustee claims the estate 
 affected ; or 
 
 3. By operation of law. 
 
 Sec. 853. When a transfer of real property is made to one per- 
 son, and the consideration therefor is paid by or for anotlier, a 
 trust is presumed to result in favor of the person by or for whom 
 such payment is made. 
 
 Sec. 856. No implied or resulting trust can prejudice the rights 
 of a purchaser or incumbrancer of real property for value and 
 without notice of the trust. 
 
 Sec. 1058. Redelivering a grant of real property to the grantor, 
 or cancelling it, does not operate to re-transfer the title. 
 
 Sec. 1091. An estate in real property, other than an estate at 
 will or for a term not exceeding one j'ear, can be transferred onlj- 
 by operation of law, or by an instrument in writing, subscribed by 
 the party disposing of the same, or by his agent thereunto author- 
 ized by writing. 
 
 Sec. 1095. When an attorney in fact executes an instrument 
 transferring an estate in real property, he must subscribe the name 
 of his principal to it, and his own name as attorney in fact. 
 
 Sec 1624. The following contracts are invalid, unless the same, 
 or some note or memorandum thereof, be in writing, and sub- 
 scribed by the party to be charged, or by his agent. 
 
 1. An agreement that by its terms is not to be performed within 
 a year from the making thereof ; 
 
 2. A special promise to answer for the debt, default or mis- 
 carriage of another, except in the cases provided for in section 
 twenty-seven hundred and ninety-four of this code ; 
 
 [Sec. 2794. A promise to answer for the obligation of another, 
 "in any of tlie following cases, is deemed an original obligation 
 of the promisor, and need not be in writing : 
 
886 STATUTE OF FRAUDS. 
 
 1. Where the promise is made by one who has received property 
 of another upon an undertaking to apply it pursuant to such a 
 promise ; or by one who has received a discharge from an obliga- 
 tion in whole or in part, in consideration of such promise ; 
 
 2. Whei-e the creditor parts with value, or enters into an obli- 
 gation, in consideration of the obligation, in respect to which the 
 promise is made, in terms or under circumstances such as to ren- 
 der the party making the promise the principal debtor, and the 
 person in whose behalf it is made his suretj' ; 
 
 3. Where the promise, being for an antecedent obligation of 
 another, is made upon the consideration that the party receiving 
 it cancels the antecedent 'obligation, accepting the new promise as 
 a substitute therefor ; or upon the consideration that the party 
 receiving it releases the propertj- of another from a levy, or his 
 person from imprisonment under an execution on a judgment ob- 
 tained upon the antecedent obligation ; or upon a consideration 
 beneficial to the promisor, whether moving from either party to the 
 antecedent obligation, or from another person ; 
 
 4. Where a factor undertakes, for a commission, to sell mer- 
 chandise and guaranty the sale ; 
 
 5. Where the holder of an instrument for the payment of money, 
 upon which a third person is or may become liable to him, trans- 
 fers it in payment of a precedent debt of his own, or for a new 
 consideration, and in connection with such transfer, enters into a 
 promise respecting such instrument.] 
 
 3. An agreement made upon consideration of marriage, other 
 than a mutual promise to marry ; 
 
 4. An agreement for the sale of goods, chattels, or things 
 in action, at a price not less than two hundred dollars, un- 
 less the buyer accept or receive part of such goods and chat- 
 tels, or the evidences, or some of them, of such things in action, 
 or pay at the time some part of the purchase-money ; but when 
 a sale is made bj' auction, an entry by the auctioneer in his 
 sale-book, at the time of the sale, of the kind of property sold, the 
 terms of sale, the price, and the names of the purchaser and person 
 on whose account the sale is made, is a sufficient memorandum ; 
 
 5. An agreement for the leasing for a longer period than one 
 year, or for the sale of real property, or of an mterest therein ; 
 and such agreement, if made by an agent of the party sought to be 
 charged, is invalid, unless the authority of the agent be in writing, 
 subscribed by the party sought to be charged. 
 
APPENDIX. 887 
 
 COLORADO. Revised Statutes, 1868. 
 
 Statute substantially the same as Sub-Division 1 and 2 of Section 
 1624, and Sub-Division 4 of same Section of California Statute. 
 
 See page 339, Sections 12 and 13, except that, as to sales, the 
 statute applies where the price, etc., is fifty dollars or more. 
 
 CONNECTICUT. Revised Statutes, 1875. 
 
 Title 18. Chapter 6. 
 
 Sec. 5. All conveyances of lands shall be in writing, sealed by 
 the grantor, and subscribed with his own hand, or with his mark 
 with his name thereto annexed, or bj- his attorney authorized for 
 that purpose by a power executed and acknowledged in the man- 
 ner provided for conveyances, and attested bj- two witnesses with 
 their own hands, and acknowledged by the grantor or by such 
 attorney to be his free act and deed, if in this State, before a 
 judge of a court of record of this State or of the United States, 
 justice of the peace, Commissionef of the School Fund, Commis- 
 sioner of the Superior Court, notarj- public, either with or without 
 his official seal, town clerk, or assistant town clerk ; and if in any 
 other State or Territory of the United States, before a commis- 
 sioner appointed by the Governor of this State and residing therein, 
 or anj'^ officer authorized to take the acknowledgment of deeds in 
 such State or Territory ; and if in a foreign country, before any 
 consul of the United States, or notar}- public, or justice of the 
 peace, in sucli foreign country ; but no officer shall have power to 
 take such acknowledgment, except within the territorial limits in 
 which he may perform the proper duties of his office. 
 
 Title 19. Chapter 12. 
 
 Sec. 40. No civil action shall be maintained upon any agree- 
 ment, whereby to charge any executor or administrator, upon a 
 special promise, to answer damages out of his own estate, or anj- 
 person .upon any special promise, to answer for the debt, default, 
 or miscarriage of another ; or upon any agreement made upon 
 consideration of marriage ; or upon anj- agreement for the sale of 
 real estate, or any interest in or concerning it ; or upon any agree- 
 ment that is not to be performed within one year from the making 
 thereof, unless such agreement, or some memorandum thereof, be 
 made in writing, and signed by the party to be charged therewith, 
 or his agent ; but this section shall not apply to parol agreements 
 for hiring or leasing real estate, or any interest therein, for one 
 
888 STATUTE OF FRAUDS. 
 
 year or less, in pursuance of which the leased premises have been, 
 or shall be, actually occupied by the lessee or any person claiming 
 under him during any part of such term. 
 
 Sec. 41. No agreement for the sale of any personal property 
 for fifty dollars or upwards, shall be good, unless the buyer shall 
 accept and actually receive part of the property sold, or give 
 something to bind the bargain, or in part-payment, or unless some 
 memorandum in writing of such agreement shall be signed by the 
 parties to be charged therewith or their agents. 
 
 DAKOTA. 
 
 Statute substantially same as in California. 
 
 DELAWARE. Revised Code, 1852. 
 Chapter 63. 
 
 Sec. 5. All promises and assumptions, whereby any person 
 shall undertake to answer, or pay, for the default, debt, or mis- 
 carriage, of another, anj- sum under five dollars, being proved by 
 the oath, or affirmation, of the persons to whom such promise and 
 assumption shall be made, are good and available in law to charge 
 the party making such promise or assumption. 
 
 Sec. 6. No action shall be brought, whereby to charge anj- 
 executor, or administrator, upon any special promise to answer 
 damages out of his own estate, or whereby to charge any-defend- 
 ant, upon any special promise, to answer for the debt, default, or 
 miscarriage of another person, of the value of five dollars, and 
 not exceeding twenty-five dollars, unless such promise and assump- 
 tion shall be proved by the oath or affirmation, of one credible 
 witness, or some memorandum, or note in writing, shall be signed 
 by the party to be charged therewith. 
 
 Sec. 7. No action shall be brought whereby to chai'ge any per- 
 son upon any agreement made upon consideration of marriage, or 
 upon any contract or sale of lands, tenemen.ts, or hereditaments, 
 or any interest in, or concerning them, or upon anj' agreement 
 that is not to be performed within the space of one j-ear from the 
 making thereof, or to charge any person whereby to answer for 
 the debt, default, or miscarriage, of another in any sum of the 
 value of twenty-five dollars and upwards, unless the same shall be 
 reduced to writing, or some memorandum, or note thereof, shall 
 be signed by the party to be charged therewith, or some other 
 person thereunto by him lawfully authorized, except for goods, 
 wares, and merchandise, sold and delivered, and other matters 
 which are properly chargeable in an account, in which case the 
 
APPENDIX. 889 
 
 oath or affirmation of the plaintiff, together with a book regularly 
 and fairly kept, shall be allowed to be given in evidence, in order 
 to charge the defendant with the sums therein contained. 
 
 Chapter 120. 
 
 Sec. 3. No demise, except it be by deed, shall be effectual for 
 a longer term than one year. 
 
 FLORIDA. Digest op Laws, 1822-1881. 
 Chapter 32, p. 214. 
 
 Sec. 1. No estate or interest of freehold, or for a term of years 
 of more than two years, or any uncertain interest of, in, or out 
 of any messuages, lands, tenements, or hereditaments, shall be 
 created, made, granted, conveyed, transferred, or released, in any 
 other manner than by deed in writing, sealed and delivered in the 
 presence of at least two witnesses, by the party or parties creating, 
 making, granting, conveying, transferring, or releasing such 
 estate, interest, or term of years, or by his, her, or their agent 
 thereunto lawfully authorized, unless by last will and testament, 
 or other testamentary appointment duly made according to law ; 
 and that from and after the day and year aforesaid, no estate or 
 interest, either of freehold or term of years, other than terms of 
 years for not more than two years, or any uncertain interest of, 
 in, to, or out of any lands, tenements, messuages, or heredita- 
 ments, shall be assigned or surrendered, unless it be by deed sealed 
 and delivered in the presence of at least two witnesses, by the 
 party or parties so assigning or surrendering, or by his, her, or 
 their agent thereto lawfully authorized, or by the act and opera- 
 tion of law. 
 
 2. All declarations and creations of trust and confidence of, or 
 in, any messuages, lands, tenements, or hereditaments, shall be 
 manifested and proved by some writing signed by the party 
 authorized by law to declare or create such trust or confidence, or 
 by his or her last will and testament, or else they shall be utterly 
 void and of none effect: Provided, always, that where any con- 
 veyance shall be made of any lands, messuages, or tenements, by 
 which a trust or confidence shall, or may arise, or result, by the 
 implication or construction of law, or be transferred or extinguished 
 by the act or operation of law, then, and in every such case, such 
 trust or confidence shall be of the like force and effect as the same 
 would have been if this statute had not been made, anything 
 herein contained to the contrary thereof in any wise notwith- 
 standing. 
 
890 STATITTB OP FBATJDS. 
 
 3. All grants, conveyances, or assignments of trust or conii- 
 dence of or in anj' lands, tenements, or hereditaments, or of any 
 estate or interest therein, shall be by deed sealed and delivered in 
 the presence of two witnesses, by the party granting, conveying, 
 or assigning the same, or by his or her attorney or agent there- 
 unto lawfully authorized, or by last will and testament duly made 
 and executed, or else the same shall be void and of none effect. 
 
 Chapter 29, p. 208. 
 
 Sec. 1. No action shall be brought whereby to charge any exec- 
 utor or administrator upon any special promise to answer, or pay 
 any debt or damages out of his own estate, or whereby to charge 
 the defendant upon any special promise to answer for the debt, 
 default, or miscarriage of another person, or to charge anj^ person 
 upon any agreement made upon consideration of marriage, or 
 upon any contract for the sale of lands, tenements, or heredita- 
 ments, or of any uncertain interest in, or concerning them, or for 
 anjr lease thereof for a longer term than one year, or upon any 
 agreement that is not to be performed within the space of one 
 year from the making thereof, unless the agreement or promise 
 upon which such action shall be brought, or some note or memo- 
 randum thereof, shall be in writing, and signed by the party to be 
 charged therewith, or by some other person by him thereunto law- 
 fully authorized. 
 
 Sec. 2. That no contract for the sale of any personal property, 
 goods, wares, or merchandise, shall be good unless the buyer shall 
 accept the goods or part of them so sold, and actually receive the 
 same or give something in earnest to bind the bargain, or in part- 
 pa3'ment, or some note or memorandum in writing of the said 
 bargain or contract be made, and signed by the parties to be 
 charged by such contract, or their agents thereunto lawfully 
 authorized. 
 
 GEORGIA. Code, 1882. Part 2, Tit. 3, Chap. 2, Art. 1. 
 
 § 1950. To make the following obligations binding on the 
 promisor, the promise must be in writing, signed by the party to be 
 charged therewith, or by some person by him lawfully authorized, 
 viz. : 
 
 First. A promise by an executor, administrator, guardian, or 
 trustee, to answer damages out of his own estate. 
 
 Second* A promise to answer for the debt, default, or miscar- 
 riage of another. 
 
APPENDIX. 891 
 
 Third. Any agreement upon consideration of marriage except 
 marriiage articles as hereinbefore provided . 
 
 Fourth. Any contract for the sale of lauds or any interest in or 
 concerning them. 
 
 Fifth. Any agreement (except contracts with overseers) that is 
 not to be performed within one year from the making thereof. 
 
 Sixth. Any promise to waive a debt barred by the acts of limi- 
 tation. 
 
 Seventh. Any contract for the sale of goods, wares, and mer- 
 chandise in existence or not in esse to the amount of fifty dollars 
 or more, except the buyer shall accept part of the goods sold, and 
 actually receive the same or give something in earnest to bind the 
 bargain or in part-payment. 
 
 Eighth. An acceptance of a bill of exchange. 
 
 § 1951. The foregoing section does not extend to the following 
 cases : — 
 
 First. When the contract has been fully executed. 
 
 Second. When there has been performance on one side accepted 
 bj- the other in accordance with the contract. 
 
 Third. Where there has been such part performance of the con- 
 tract as would render it a fraud of the party refusing to comply, 
 if the court did not compel a performance. 
 
 ILLINOIS. Revised Statutes, 1883. 
 Chapter 59. 
 
 § 1. No action shall be brought, wherebj' to charge any exec- 
 utor or administrator upon anj' special promise to answer any 
 debt or damages out of his own estate, or whereby 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 
 agreement that is not to be performed within the space of one 
 year from the making thereof, unless the promise or agreement 
 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 thereunto by him lawfully 
 authorized. 
 
 § 2. No action shall be brought to charge any person upon any 
 contract for the sale of lands, tenements or hereditaments, or any 
 interest in or concerning them, for a longer term than one year, 
 unless such contract or some memorandum or note thereof shall 
 be in writing, and signed by the party to be charged therewith, or 
 
892 STATUTE OP FKAUDS. 
 
 some other person thereunto by him lawfuUj- authorized in writ- 
 ing, signed by such party. This section shall not apply to sales 
 upon execution or by any officer or person pursuant to a decree or 
 order of any court of record in this State. 
 
 § 3. The consideration of any such promise or agreement need 
 not be set forth or expressed in the writing, but may be proved or 
 disproved by parol or other 'legal evidence. 
 
 § 9. All declarations or creations of trusts or confidences of any 
 lands, tenements or hereditaments, shall be manifested and proved 
 by some writing signed by the party who is by law enabled to 
 declare such trust, or by his last will in writing ; or else they shall 
 be utterly void and of no effect: Provided, that resulting trust 
 or trusts created by construction, implication or operation of law, 
 need not be in writing, and the same may be proved by parol. 
 
 INDIANA. Revised Statutes, 1881. 
 Chapter 65. 
 
 Sec. 4904. No action shall be brought in any of the following 
 cases : — 
 
 First. To charge an executor or administrator, upon any special 
 promise, to answer damages out of his own estate ; or 
 
 Second. To charge any person, upon anj- special promise, to an- 
 swer for the debt, default, or miscarriage of another ; or 
 
 Third. To charge any person upon any agreement or promise 
 made in consideration of marriage ; or 
 
 Fourth. Upon any contract for the sale of lands ; or 
 
 Fifth. Upon any agi-eement that is not to be performed within 
 one year from the making thereof: unless the promise, contract, or 
 agreement, upon which such action shall be brought, or some memo- 
 randum or note thereof, shall be in writing and signed by the party 
 to be charged therewith, or by some person thereunto by him law- 
 fully authorized ; excepting, however, leases not exceeding the 
 term of three j-ears. 
 
 Sec. 4905. The consideration of any such promise, contract, or 
 agreement need not be set forth in such writing, but may be 
 proved. 
 
 Sec. 4906. Every convej'ance of any existing trust in lands, goods, 
 or things in action, unless the same shall be in writing, signed by 
 the party making the same, or his lawful agent, shall be void. 
 
 Sec. 4907. Nothing contained in any law in this State shall be 
 construed to prevent any trust from arising, or being extinguished, 
 by implication of law. 
 
 Sec. 4908. Nothing contained in any statute of this State shall be 
 
APPENDIX. 
 
 construed to abridge the powers of courts to compel the specific 
 performance of agreements in cases of part-performance of such 
 agreements. 
 
 Sec. 4909. No action shall be maintained to charge any person by 
 reason of any representation made concerning the character, con- 
 duct, credit, ability, trade, or dealings of any other person, unless 
 such representation be made in writing, and signed by the party 
 to be charged thereby, or by some person thereunto by him legally 
 authorized. 
 
 Sec. 4910. No contract for the sale of any goods for the price of 
 fifty dollars or more shall be valid, unless the purchaser shall 
 receive part of such property, or shall give something in earnest 
 to bind the bargain, or in part-payment, or unless some note or 
 memorandum in writing of the bargain be made and signed by 
 the party to be charged thereby, or by some person thereunto by 
 him lawfully authorized. 
 
 Sec. 4925. All conveyances, bonds, and powers of attorney for 
 the conveyance of real estate, or of any interest therein, shall be 
 executed with a seal. 
 
 IOWA. Code, 1880, Page 865. 
 
 Sec. 1934. Declarations or creations of trusts or powers in rela- 
 tion to real estate must be executed in the same manner as deeds 
 of conveyance, but this provision does not ai)ply to trusts resulting 
 from the operation of construction of law. (Page n-24.) 
 
 Sec. 3663. Except when otherwise specially provided, no evi- 
 dence of the contracts enumerated in the next succeeding section 
 is competent, unless it be in writing and signed by the party 
 charged or by his lawfully authorized agent. 
 
 Sec. 3664. Such contracts embrace, 
 
 1. Those in relation to the sale of personal property, when no 
 part of the property is delivered, and no part of the price is paid ; 
 
 2. Those made in consideration of marriage ; 
 
 3. Those wherein one person promises to answer for the debt, 
 default, or miscarriage of another, including promises by executors 
 to pay the debt of their principal from their own estate ; 
 
 4. Those for the creation or transfer of any interest in lands, 
 except leases for a term not exceeding one year ; 
 
 5. Those that are not to be performed within one year from the 
 making thereof. 
 
 Sec. 3665. The provision of the first subdivision of the preced- 
 ing section does not apply when the article of personal property 
 sold is not at the time of the contract owned by the vendor and 
 
8&4 STATUTE 0¥ FEATJDS. 
 
 ready for delivery, but labor, skill, or money are necessary to be 
 expended in producing or procuring the same ; nor do those of the 
 fourth subdivision of said section apply where the purchase-money, 
 or any portion thereof, has been received by the vendor, or when 
 the vendee, with the actual or implied consent of the vendor, has 
 taken and held possession thereof under and by virtue of the 
 contract, or when there is any other circumstance, which, by the 
 Jaw heretofore in force, would have taken a case out of the Statute 
 of Frauds. 
 
 Sec. 3666. The above regulations relating merely to the proof 
 of contracts, do not prevent the enforcement of those which are 
 not denied in the pleadings, unless in cases where the contract is 
 sought to be enforced, or damages to be recovered for the breach 
 thereof, against some person olher than him who made it. 
 
 KANSAS. Compiled Laws, 1879. 
 
 Chapter 22. 
 
 Sec. 8. Declarations or creations of trust or powers, in relation 
 of real estate, must be executed in the same manner as deeds of 
 conveyance ; but this provision does not apply to trusts resulting 
 from the operation or construction of law. 
 
 Chapter 43. 
 
 Sec. 5. No leases, estates or interests, of, in or out of lands, 
 exceeding one year in duration, shall at any time hereafter be as- 
 signed or granted, unless it be by deed or note, in writing, signed 
 by the party so assigning or granting the same, or titieir agents 
 thereunto lawfully authorized, by writing, or by act and operation 
 of law. 
 
 Sec. 6. No action shall be brought whereby to charge a part}' 
 upon any special promise to answer for the debt, default, or mis- 
 carriage of another person, or to charge any executor or adminis- 
 trator upon any special promise to answer damages out of his own 
 estate, or to charge any person upon any agreement made upon 
 consideration of .marriage, or upon any contract for the sale of 
 lands, tenements or hereditaments, or any interest in or concern- 
 ing them, or upon any agreement that is not to be performed 
 within the space of one year from the making thereof, unless the 
 agreement 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 thereunto 
 by him or her lawfully authorized. 
 
APPENDIX. 895 
 
 KENTUCKY. General Statutes, 1873. 
 Chapter 22. 
 
 § 1. No action shall be brought to charge any person — 
 
 First, for a representation or assurance concerning the character, 
 conduct, credit, ability, tirade, or dealings of another, made with 
 intent that such other may obtain thereby credit, money, or goods ; 
 nor, 
 
 Secondly, upon a promise to pay a debt contracted during in- 
 fancy, or a ratification of a contract or promise made during 
 infancy ; nor, 
 
 Thirdly, upon a promise of a personal representative as such to 
 answer any liability of his decedent out of his own estate ; nor, 
 
 Fourthly, upon a promise to answer for the debt, default, or 
 misdoing of another ; nor. 
 
 Fifthly, upon any agreement made in consideration of marriage, 
 except mutual promises to marry ; nor. 
 
 Sixthly, upon any contract for the sale of real estate, or any 
 lease thereof for longer term than one year ; nor. 
 
 Seventhly, upon any agreement which is not to be performed 
 within one year from the making thereof. Unless the promise, 
 contract, agreement, representation, assurance, or ratification, or 
 some memorandum or note thereof, be in writing, and signed 
 by the party to be charged therewith, or bj- his authorized agent. 
 But the consideration need not be expressed in the writing ; it 
 may be proved when necessary, or disproved by parol or other 
 evidence. 
 
 § 2. A seal or scroll shall in no case be necessary to gi\e effect 
 to a deed or other writing. All unsealed writings shall stand 
 upon the same footing with sealed writings, having the same force 
 and effect, and upon which the same actions may be founded. 
 But this section shall not apply nor shall it alter any law requiring 
 the State or county seal, or the seal of a court, corporation, or 
 notary to any writing. 
 
 § 20. No person shall be bound as the surety of another, by 
 the act of an agent, unless the authority of the agent is in writing 
 signed by the principal ; or if the principal do not write his name, 
 then by his sign or mark, made in the presence of at least one 
 creditable attesting witness. 
 
 Chapter 24. 
 
 § 2. No estate of inheritance, or freehold, or for a term of 
 more than one year, in lands, shall be conveyed, unless by deed 
 or will. 
 
896 STATUTE OF PKAUDS. 
 
 MAINE. Revised Statutes, 1871. 
 Chapter 73. 
 
 Sec. 10. There can be no estate created in lands greater than 
 tenancy at will, and no estate in them can be granted, assigned, 
 or surrendered, unless by some writing signed by the grantor, or 
 maker, or liis attorney. 
 
 Sec. 11. There can be no trust concerning lands, except trusts 
 arising or resulting by implication of law, unless created or de- 
 clared by some writing, signed by the party or his attorney. 
 
 Sec. 15. Deeds and contracts, execnted by an authorized agent 
 of an individual or corporation in the name of his principal, or in 
 his own name for his principal, are to be regarded as the deeds 
 and contracts of such principal. 
 
 Sec. 29. Pews and rights in houses of public worship are 
 deemed to be real estate. Deeds of them, and levies by execu- 
 tion upon them, maj' be recorded by the town clerk of the town 
 where the houses are situated, with the same effect as if recorded 
 in the registry of deeds. 
 
 Chaptek 111. 
 
 Sec. 1. No action shall be maintained in any of the following 
 cases : 
 
 First. To charge, an executor or administrator upon any special 
 promise to answer damages out of liis own estate. 
 
 Second. To charge any person upon any special promise to 
 answer for the debt, default, or misdoings of another. 
 
 Third. To charge any person upon an agreement made in con- 
 sideration of marriage. 
 
 Fourth. Upon any contract for the sale of lands, tenements, or 
 hereditaments, or of any interest in or concerning them. 
 
 Fifth. Upon any agreement that is not to be performed within 
 one j-ear from the making thereof. 
 
 Sixth. Upon any contract to pay a debt after a discharge there- 
 from under the bankrupt laws of the United States, or assignment 
 laws of this State. 
 
 Unless the promise, contract, or agreement, on which such 
 action is brought, or some memorandum or note thereof, is in 
 writing and signed by the party to be charged therewith, Or by 
 some person thereunto lawfully authorized ; but the consideration 
 thereof need not be expressed therein, but may be proved 
 otherwise. 
 
 Sec. 3. No action shall be maintained to charge any person by 
 
APPENDIX. 897 
 
 reason of any representation or assurance concerning tlie char- 
 acter, conduct, credit, ability, trade or dealings of another, unless 
 made in writing, and signed by the party to be charged thereby or 
 by some person by hira legally authorized. 
 
 Sec. 4. No contract for the sale of anj^ goods, wares, or mer- 
 chandise, for thirty dollars or more, shall be valid, unless the pur- 
 chaser accepts and receives part of the goods, or gives something 
 in earnest to bind the bargain, or in part payment thereof, or some 
 note or memorandum thereof is made and signed by the party to 
 be chai^d thereby, or by his agent. 
 
 MASSACHUSETTS. Public Statutes, 1882. 
 Chapter 78. 
 Sec. 2. Estates or interests in lands, created or conveyed with- 
 out an instrument in writing signed by the grantor or his attornej-, 
 shall have the force and effect of estates at will onlj', and no 
 estate or interest in lands shall be assigned, granted, or surren- 
 dered, unless by a writing signed as aforesaid, or by the operation 
 
 of law. 
 
 Chapter 100. 
 
 Sect. 19. No trust concerning lands, except such as may arise 
 or result by implication of law, shall be created or declared, unless 
 by an instrument in writing signed by the party creating or declar- 
 ing the same, or his attorney. 
 
 Chapter 78. 
 
 Section. 1. No action shall be brought in any of the following 
 cases, that is to say : — 
 
 First. To charge an executor, administi-ator, or assignee under 
 any insolvent law of this commonwealth, upon a special promise 
 to answer damages out of his own estate : 
 
 Second. To charge a person upon a special promise to answer 
 for the debt, default, or misdoings of another : 
 
 Tliird. Upon an agreement made upon consideration of mar- 
 riage : 
 
 Fourth. Upon a contract for the sale of lands, tenements, or 
 hereditaments, or of any interest in or concerning them : or 
 
 Fifth. Upon an agreement that is not to be performed within 
 one year from the making thereof : 
 
 Unless the promise, contract, or agreement, upon which such 
 action is brought, or some memorandum or note thereof, is in 
 writing and signed by the party to be charged therewith, or by 
 some person thereunto bj' him lawfully' authorized. 
 
898 STATUTE OF FBAUDS. 
 
 Sect. 2. The consideration of such promise, contract, or agree- 
 ment, need not be set forth or expressed in the writing signed by 
 the party to be charged therewith, but may be proved by any other 
 legal evidence. 
 
 Sect. 3. No promise for the payment of any debt made by an 
 insolvent debtor who has obtained his discharge from said debt 
 under proceedings in bankruptcy or insolvency, shall be evidence 
 of a new or continuing contract, whereby to deprive a party of 
 the benefit of relying upon such discharge in bar of the recovery 
 of a judgment upon such debt, unless such promise is made by 
 or contained in some writing signed by the party sought to be 
 charged, or by some person thereunto by him lawfully authorized. 
 
 Sect. 4. No action shall be brought to charge a person upon or 
 by reason of anj- representation or assurance made concerning the 
 character, conduct, credit, ability, trade, or dealings, of any other 
 person, unless such representation or assurance is made in writing 
 . and signed by the party to be charged thereby, or by some person 
 thereunto by him lawfully authorized. 
 
 Sect. 5. No contract for the sale of goods, wares, or merchan- 
 dise, for the price of fifty dollars or more, shall be good or valid, 
 unless the purchaser accepts and receives part of the goods so 
 sold, or gives something in earnest to bind the bargain, or in part- 
 payment ; or unless some note or memorandum in writing of the 
 bargain is made and signed by the party to be charged thereby, or 
 b}' some person thereunto by him lawfully authorized. 
 
 Sect. 6. Every contract, written or oral, for the sale or transfer 
 of a certificate or other evidence of debt due from the United States 
 or from an individual State, or of stock or a share or interest in 
 the stock of a bank company, city or village, incorporated under a 
 law of the United States or of an individual State, shall be void, 
 unless the party contracting to sell or transfer the same is, at the 
 time of making the contract, the owner or assignee thereof, or his 
 agent to sell or transfer the certificate or other evidence of debt, 
 share or interest, as contracted for. 
 
 MICHIGAlSr. Compiled Laws, 1871. 
 
 Chapter 166. 
 
 Sec. 6. No estate or interest in lands, other than leases for a 
 term not exceeding one year, nor any trust or power over or con- 
 cerning lands, or in any manner relating thereto, shall hereafter be 
 created, granted, assigned, surrendered, or declared, unless by act 
 or operation of law, or by a deed or conveyance in writing, sub- 
 
APPENDIX. 899 
 
 scribed by the party creating, granting, assigning, surrendering, or 
 declaring the same, or by some person thereunto by him lawfully 
 authorized by writing. 
 
 Sec. 7. The preceding section shall not be construed to affect 
 in any manner the power of a testator, in the disposition of his 
 real estate by a last will and testament ; nor to prevent any trust 
 from arising, or being extinguished, by implication or operation of 
 law. 
 
 Sec. 8. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, be in writing, and signed, by the party by whom the lease 
 or sale is to be made, or by some person thereunto by him lawf uUj' 
 authorized by writing. 
 
 Sec. 9. The consideration of any contract or agreement, re- 
 quired by the provisions of this chapter to be in writing, need not 
 be set forth in the contract or agreement, or in the note or mem- 
 orandum thereof, but may be proved by any other legal evidence. 
 
 Sec. 10. Nothing in this chapter contained shall be construed 
 to abridge the powers of the court of chancery to compel the spe- 
 cific performance of agreements, in cases of part performance of 
 such agreements. 
 
 Chapter 167. 
 
 Sec. 2. In the following cases, specified in this section, every, 
 agreement, contract, andpromise shall be void, unless such agree- 
 ment, contract, or promise, or some note or memorandum thereof, 
 be in writing, and signed by the party to be charged therewith, 
 or by some person by him thereunto lawfully- authorized, that is 
 to say: 
 
 First. Every agreement that, by its terms, is not to be per- 
 formed in one year from the making thereof ; 
 
 Second. Every special promise to answer for the debt, default, 
 or misdoings of another person ; 
 
 Third. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry ; 
 
 Fourth. Every special promise made by an executor, or admin- 
 istrator, to answer damages out of his own estate. 
 
 Sec. 3. No contract for the sale of any goods, wares, or mer- 
 chandise, for the price of fifty dollars or more, shall be valid, un- 
 less the purchaser shall accept and receive part of the goods sold, 
 or shall give something in earnest to bind the bargain or in part 
 payment, or unless some note or memorandum, in writing, of the 
 
900 STATUTE or FKAtJDS. 
 
 bargain be made and signed by the party to be charged thereby, 
 or by some person thereunto by him lawfully authorized. 
 
 Sec. 4. Whenever any goods shall be sold at auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a mem- 
 orandum specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser, and the name of the 
 person on whose account the sale is made, such memorandum shall 
 be deemed a memorandum of the contract of sale, within the mean- 
 ing of the last section. 
 
 Sec. 6. No action shall be brought to charge anj' person, upon 
 or bj' reason of any favorable representation or assurance made 
 concerning the character, conduct, credit, ability, trade, or deal- 
 ings of any other person, unless such representation or assurance 
 be made in writing, and signed by the party to be charged thereby, 
 or by some person thereunto by him lawfully authorized. 
 
 Sec. 6. The consideration of any contract, agreement, or prom- 
 ise, required by this chapter to be in writing, need not be expressed 
 in the written contract, agreement, or promise, or in any note or 
 memorandum thereof, but may be proved by any other legal 
 evidence. 
 
 Chapter 168. 
 
 Sec. 2. Every grant or assignment of any existing trust in lands, 
 goods, or things in action, unless the same shall be in writing and 
 signed by the party making the same, or by his agent lawfully 
 authorized, shall be void. 
 
 MINNESOTA. Revised. 
 Chapter 41. 
 
 Sec. 6. No action shall be maintained in either of the following 
 cases upon any agreement unless such agreement or some note or 
 memorandum thereof expressing tbe consideration, is in writing, 
 and subscribed by the party charged therewith : 
 
 First. Every agreement that by its terms is not to be performed 
 within one year from the making thereof; 
 
 Second. Every special promise to answer for the debt, default, 
 or doings of another ; 
 
 Third. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promise to marry. 
 
 Sec. 7. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or more, shall be 
 void, unless, 
 
APPENDIX. 901 
 
 First. A note or memorandum of such contract is made in 
 writing and subscribed b^' the parties to be charged therewith ; 
 or, 
 
 Second. Unless the buyer accepts and receives part of such 
 goods, or the evidences, or some of them, of such things in 
 action ; or. 
 
 Third. Unless the buj-er at the time pays some part of the 
 purchase-monej'. 
 
 Sec. 8. Whenever goods are sold at public auction, and the 
 auctioneer, at the time of sale, enters into a sale-book a memoran- 
 dum specifying the nature and price of the property sold, the 
 terms of the sale, name of the purchaser, and the name of the 
 person on whose account the sale is made; such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section. 
 
 Sec. 9. Eveiy grant or assignment of any existing trust in 
 goods, or things in action, unless the same is in writing, sub- 
 scribed by the party making the same, or by his agent, lawfully 
 authorized, shall be void. 
 
 Sec. 10. No estate or interest in lands other than leases for a 
 term, not exceeding one year, nor any trust or power over or con- 
 cerning lands, or in any manner relating thereto, shall hereafter 
 be created, granted, assigned, surrendered or declared, unless by 
 act or operation of law, or by deed or conveyance in writing, sub- 
 scribed by the parties creating, granting, assigning, surrendering 
 or declaring the same, or by their lawful agent thereunto author- 
 ized by writing. 
 
 Sec. 11. The preceding section shall not be construed to affect 
 in any manner the power of a testator in the disposition of his real 
 estate by a last will and testament ; nor to prevent any trust from 
 arising or being extinguished by implication or operation of law. 
 
 Sec. 12. Everj- contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, shall 
 be void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, is in writing, and subscribed by the 
 party by whom the lease or sale is to be made, or by his author- 
 ized agent. 
 
 Sec. 13. Nothing in this chapter contained shall be construed 
 to abridge the power of courts of equity to compel the specific 
 performance of agreements in cases of part performance of such 
 agreements. 
 
902 STATUTE OP FEATTDS. 
 
 MISSISSIPPI. Revised Code, 1880. 
 Chapter 49. 
 
 § 1292. No action shall be brought whereby to charge any 
 executor or administrator, upon any special promise, to answer 
 any debt or damages out of his own estate, or whereby to charge 
 the defendant, upon any special pi'omise, to answer for the debt 
 or default, or miscarriage of another person, or to charge anj' per- 
 son, upon any agreement, made upon consideration of marriage, or 
 upon any contract for the sale of laud, or the making any lease 
 thereof, for a longer term than one year, or upon any agreement 
 which is not to be performed within the space of one year from 
 the making thereof, unless the promise or agreement, 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 or her thereunto lawfully authorized. 
 
 § 1293. No contract, for the sale of any personal property, goods, 
 wares and merchandise, for the price of fifty dollai'S or upwards, 
 shall be allowed to be good and valid, unless the buyer shall 
 receive part of the personal property, goods, wares, and merchan- 
 dise, or shall actually pay or secure the purchase money, or part 
 thereof, or unless some note or memorandum, in writing, of the 
 bargain, be made and signed by the party to be charged by such 
 contract, or his agent, thereunto lawfully authorized. 
 
 § 1294. Hereafter, all declarations or creations of trusts or con- 
 fidence, of or in any land, shall be made and manifested by writing, 
 signed by the party who declares or creates such trust, or by his 
 last will, or else they shall be utterlj' void ; and every writing, 
 declaring or creating a trust, shall be acknowledged or proved as 
 other writings, and shall be lodged with the clerk of the chancery 
 court of the proper county, to be recorded, and shall only take 
 effect from the time it is so lodged for record : provided, that where 
 any trust shall arise or result, by implication of law, out of a con- 
 veyance of land, such trust or confidence shall be of the like force 
 and effect as the same would have been, if this article had not been 
 passed. 
 
 § 1295. All grants, assignments or transfers of any trust or 
 confidence, shall likewise be in writing, signed by the party grant- 
 ing or assigning the same, or by last will and testament, or else 
 they shall likewise be utterly void ; and such grant or assignment 
 shall also be acknowledged or proved and recorded, and shall only 
 take effect from the time it is lodged with the clerk for record. 
 
APPENDIX. 903 
 
 MISSOURI. Eevised Statutes. 
 Chapter 35, Page 420. 
 
 Sec. 2509. All leases, estates, interests of freehold or term of 
 years, or any uncertain interest of, in, to, or out of any messuages, 
 lands, tenements or hereditaments, made or created by liverj- and 
 seizin only, or by parol, and not put in writing and signed by the 
 parties so making or creating the same, or their agents lawfully 
 authorized by writing, shall have the force and effect &f leases or 
 estates at will only, and shall not, either in law or equity, be deemed 
 or taken to have any other or greater force. 
 
 Sec. 2610. No leases, estates, 'interests, either of freehold or 
 term of j'ears, or any uncertain interest of, in, to, or out of any 
 messuages, lands, tenements, or hereditaments, shall at any time 
 hereafter be assigned, granted or surrendered, unless it be by deed 
 or note in writing, signed by the party so assigning, granting or 
 surrendering the same, or their agents lawfully authorized by writ- 
 ing, or by operation of law. 
 
 Sec. 2511. All declarations or creations of trust or confidence of 
 any lands, tenements or hereditaments shall be manifested and 
 proved by some writing, signed by the party who is, or shall be, 
 by law, enabled to declare such trusts, or by his last will in writ- 
 ing, or else they shall be void ; and all grants and assignments of 
 any trust or confidence shall be in writing, signed b3' the party 
 granting or assigning the same, or by his or her last will in writing, 
 or else they shall be void. 
 
 Sec. 2512. Wiiere any conveyance shall be made of any lands, 
 tenements or hereditaments, by which a trust or confidence may 
 arise, or result by implication of law, such trust or confidence shall 
 be of like force as the same would have been if the act had not been 
 made. 
 
 Sec. 2513. No action shall be brought to charge any executor or 
 administrator, upon any special promise, to answer for any debt 
 or damages out of his own estate, or to charge an}- person upon 
 any special promise to answer for the debt, default or miscarriage 
 of another person, or to charge any person upon any agreement 
 made in consideration of marriage, or upon any contract for the 
 sale of lands, tenements, hereditaments, or anj^ interest in or con- 
 cerning them, or upon any agreement that is not to be performed 
 within one j-ear from the making thereof, unless the agreement 
 upon which the action shall be brought, or some memorandum or 
 note thereof, shall be in writing, and signed by the party to be 
 
904 STATUTE OP FKAUElS. 
 
 charged therewith, or some other person by him thereto lawfully 
 authorized. 
 
 Sec. 2514. No contract for the sale of goods, wares, and mer- 
 chandise, for the price of thirty dollars or upwards, shall be allowed 
 to be good, unless the buyer shall accept part of the goods so sold, 
 and actually receive the same, or give something in earnest to bind 
 the bargain, or in part payment, or unless some note or memoran- 
 dum, in writing, be made of the bargain, and signed by the parties 
 to be charged with such contract, or their agents lawfully author- 
 ized. * 
 
 Sec. 2515. No action shall be brought to charge an}' person upon, 
 or by reason of, anj"^ representation or assurance made concerning 
 the character, conduct, credit,' ability, trade, or dealings of anj- 
 other person, unless such representation or assurance be made in 
 writing, and subscribed by the party to be charged therebj-, or by 
 some person thereunto bj- him lawfully authorized. 
 
 Sec. 2516. No action shall be maintained whereby to charge 
 any person upon any promise made after full age, to pay any debt 
 contracted during inf ancj', or upon any ratification after full age of 
 any promise or simple contract made during infancy, unless such 
 promise or ratification shall be made by some writing signed by the 
 party to be charged thereby. 
 
 MONTANA. Codified Statutes, 1872. 
 Chapter XVI. 
 
 Sec. 6. No estate or interest in lands other than for leases for 
 a term not exceeding one year, or any trust or power over or con- 
 cerning lands, or in any manner relating thereto, shall hereafter 
 be created, granted, assigned, surrendered, or declared, unless by 
 act or operation of law, or by deed or conveyance, in writing sub- 
 scribed by the party creating, granting, assigning, surrendering, or 
 declaring the same, or by his lawful agent thereunto authorized by 
 writing. 
 
 Sec. 7. The preceding section shall not be construed to affect 
 in any manner the power of a testator in the disposition of his real 
 estate by a last will and testament, nor prevent any trust arising 
 or being extinguished by operation of law. 
 
 Sec. 8. Every contract for the leasing for a longer term than 
 
 •one 3-ear, or for the sale of any lands, or interest in lands, shall be 
 
 void, unless the contract, or some note or memorandum thereof 
 
 expressing the consideration, be in writing, and be subscribed by 
 
 ■ the ■paxty by whom the lease or sale is to be made. 
 
APPENDIX. 905 
 
 Sec. 9. Eveiy instrument required to be subscribed by any per- 
 son mentioned in the last preceding section may be subscribed by 
 the agent of the party lawfully authorized. 
 
 Sec. 10. Nothing contained in this act shall be construed to 
 abridge the power of the court to compel the specifle performance 
 of such agreements. 
 
 Sec. 12. In the following cases any agreement shall be void 
 unless such agreement, or some note or memorandum thereof ex- 
 pressing the consideration, be in writing, and subscribed by the 
 party charged thereunto : First. Every agreement that by the terms 
 is not to be performed within one year from the making thereof. 
 Second. Every special promise to answer for the debt or default 
 or miscarriage of another. Third. Every agreement, promise, or 
 undertaking, made upon consideration of marriage, except mutual 
 promise to marry. 
 
 Sec. 13. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of two hundred dollars and over 
 shall be void, unless : First. A note or memorandum of such con- 
 tract be made in writing, and be subscribed by the parties to be 
 charged therewith ; or second, unless they shall accept or receive 
 a part of such goods or the evidences or some of them of such 
 [things] in action. Third. Or unless the buj-er shall at the time 
 pay some part of the purchase-money. 
 
 Sec. 14. Whenever goods shall be sold at auction, and the 
 auctioneer shall at the time of the sale enter in a sale-book a mem- 
 orandum specifying the nature and the price of the property sold, 
 the term of sale, the names of the purchasers, and name of the 
 person on whose account the sale is made, such memorandum 
 shall be deemed a note of the contract of sale within the meaning 
 of the last section. 
 
 Sec. 17. Every instrument of writing required by any of the 
 provisions of this act to be subscribed by any party may be sub- 
 scribed by the lawful agent of such party. 
 
 Sec. 23. The term " conveyance," as used in this act, shall be 
 construed to embrace any instrument in writing except a last will 
 and testament, whatever may be its form and by whatever name 
 it may be known in law, by which any estate or interest in land 
 is created, alienated, assigned, or surrendered. 
 
 Chapter XVII. 
 
 Sec. 34. The term ' ' real estate," as used in this act, shall be con- 
 strued as co-extensive in meaning with lands, tenements, heredita- 
 ments, and possessory titles to public lands in this territory. 
 
906 STATUTE OF FRAUDS. 
 
 Sec. 35. The term " conveyance," as used in this act, shall be 
 construed to embrace every instrument in writing by which any 
 real estate, or interest in real estate, is created^ alienated, mort- 
 gaged, or assigned, except wills, leases for a term not exceeding 
 one year, and executory contracts for the sale or purchase of lands. 
 
 NEBRASKA. General Statutes, 1873. 
 Chapter 25. 
 
 Sec. 3. No estate or interest in land, other than leases for a 
 term not exceeding one year, nor any trust or power over or con- 
 cerning lands, or in any manner relating thereto, shall hereafter 
 be created, granted, assigned, or surrendered or declared, unless 
 b.y act or operation of law, or by a deed or convej-ance in writing, 
 •subscribed by the party creating, granting, assigning, surrendering 
 or declaring the same. 
 
 Sec. 4. The preceding section shall not be construed to affect 
 in any manner the power of a testator in the disposition of his 
 real estate by a last will and testament, nor to prevent any trust 
 from arising or being extinguished by implication or operation of 
 law. 
 
 Sec. 5. Every contract for the leasing, for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, shall 
 be void unless the contract, or some note or memorandum thereof, 
 be in writing, and be signed by the party by whom the lease or 
 sale is to be made. 
 
 Sec. 6. Nothing in this chapter contained shall be construed to 
 abridge the powers of the court of chancery to compel the specific 
 performance of agreements in cases of part performance. 
 
 Sec. 8. In the following cases every agreement shall be void, 
 unlegs such agreement, or some note or memorandum thereof, be 
 in writing, and subscribed by the party to be charged there- 
 with : 
 
 First. Every agreement that, by its terms, is not to be per- 
 formed within one year from the making thereof. 
 
 /Second. Every special promise to answer for the debt, default 
 or misdoings of another person. 
 
 Third. Every agreement, promise or undertaking made upon 
 consideration of marriage, except mutual promises to marry. 
 
 Fourth. Every special promise by an executor or administrator 
 to answer damages out of his own estate. 
 
 Sec. 9. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or more, shall be void, 
 unless — 
 
APPENDIX. 907 
 
 First. A note or memorandum of such Contract be tnade in 
 writing, and be subscribed by the party to be cliarged tliereby ; 
 or, 
 
 Second. Unless tlie buyer stiall accept and receive part of such 
 goods or the evidences, or some of them, of such things in action ; 
 or, 
 
 Third. Unless the buyer shall, at the time, pay some part of the 
 purchase money. 
 
 Sec. 10. Whenever goods shall be sold at public auction, and 
 the auctioneer shall, at the time of sale, enter in a sale book, a 
 memorandum specifying the nature and price of the property sold, 
 the terms of the sale, the name of the purchaser, and the name of 
 the person on whose account the sale is made, such memorandum 
 shall be deemed a note of the contract of sale, within the meaning 
 of the last section. 
 
 Sec. 18. Everygrant or assignment of any existing trust in lands, 
 goods, or things in action, unless the same shall be in writing, 
 subscribed by the party making the same, shall be void. 
 
 Sec. 22. The term " lands," as used in this chapter, shall be 
 construed as co-extensive in meaning with " lands, tenements, and 
 hereditaments," and the terms " estate and interest in lands," 
 shall be construed to embrace every estate and interest, freehold 
 and chattel, legal and equitable, present and future, vested and 
 contingent, in lands, as above described. 
 
 Sec. 23. The term " conveyance," as used in this chapter, shall 
 be construed to embrace every instrument in writing (except a 
 last will and testament) whatever may be its form, and by what- 
 ever name it may be known in law, by which any estate or interest 
 in lands is created, aliened, assigned, or surrendered. 
 
 Sec. 24. The consideration of am' contract or agreement, re- 
 quired by the provisions of this chapter to be in writing, need 
 not be set forth in the contract or agreement, or in the note or 
 memorandum thereof, but may be proved by any other legal 
 evidence. 
 
 Sec. 25. Every instrument required by any of the provisions of 
 this chapter to be subscribed by any party, may. be subscribed by 
 his agent, thereunto authorized by writing. 
 
 NEVADA. Compiled Laws, 1873. 
 
 Chapter 26. 
 
 Sec. 55. No estate, or interest in lands, other than leases for 
 a term not exceeding one year, nor any trust or power over or 
 
908 STATUTE OF FRAUDS. 
 
 concerning lands, or in any manner relating thereto, shall hereafter 
 be created, granted, assigned, surrendered, or declared, unless by 
 act or operation of law, or by deed or conveyance, in writing, sub- 
 scribed by the party creating, granting, assigning, surrendering, or 
 declaring the same, or by his lawful agent thereunto authorized in 
 writing. 
 
 Sec. 56. The preceding section shall not be construed to affect 
 in any manner the power of a testator in the disposition of his 
 real estate, by a last will and testament, nor to prevent any trust 
 from arising or being extinguished by implication or operation of 
 law. 
 
 Sec. 57. Every contract for the leasing for a longer period than 
 One year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and be sub- 
 scribed by the party by whom the lease or sale is to be made. 
 
 Sec. 58. Every instrument required to be subscribed bj- any 
 person under the last preceding section, may be subscribed by the 
 agent of such party lawfully authorized. 
 
 Sec. 59. Nothing contained in this act shall be construed to 
 abridge the powers of courts to compel the specific performance 
 of agreements in cases of part performance of such agreements. 
 
 Sec. 61. In the following cases every agreement shall be void, 
 unless such agreement,, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and subscribed b}' the 
 party charged therewith : First, every agreement that, by the 
 terms, is not to be performed within one year from the making 
 thereof; second, every special promise to answer for the debt, 
 default, or miscarriage of another ; third, every promise or under- 
 taking made upon consideration of marriage, except mutual prom- 
 ises to marry. 
 
 Sec. 62. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of fifty dollars or over, shall be void 
 unless : First, a note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged therewith ; 
 or second, unless the buyer shall accept or receive part of such 
 goods, or the evidences, or some of them, of such things in action ; 
 or third, unless the buyer shall at the time pay some part of the 
 purchase-money. 
 
 Sec. 63. "Whenever goods shall be sold at auction, and the auc- 
 tioneer shall, at the time of sale, enter in a sale-book a memoran- 
 dum specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser, and the name of 
 
APPBKDIX. 909 
 
 the person on whose account the sale is made, such memorandum 
 shall be deemed a note of the contract of sale, within the mean- 
 ing of the last section. 
 
 Sec. 70. Ever}- grant or assignment, of any existing trust in 
 land, goods, or things in action, unless the same shall be in writ- 
 ing, subscribed bj' the person making the same, or by his agent 
 lawfully authorized, shall be void. 
 
 Sec. 74. The term " conveyance," as used in this act, shall be 
 construed to embrace every instrument in writing, except a last 
 will and testament, whatever may be its form, and by whatever 
 name it may be known in law, by which any estate or interest in 
 lauds is created, aliened, assigned, or surrendered. 
 
 Sec. 75. The term " lands," as used in this act, shall be con- 
 strued as co-extensive in meaning with lands, tenements, and 
 hereditaments, and shall include in its meaning all possessory 
 right to the soil for mining and other purposes, and the term 
 "estate and interest in lands" shall be construed and embrace 
 every estate and interest, present and future, vested and contin- 
 gent, in lands as above defined. 
 
 Sec. 78. No lands within this Territory shall hereafter be 
 convej-ed by lease, or otherwise, except in fee and perpetual suc- 
 cession, for a longer period than ten years ; nor shall any town or 
 city lots, or other real property, be so convej-ed for a longer time 
 than twenty' years. All leases hereafter made, contrary to the 
 provisions of this act, shall be void. 
 
 Act or Dec. 17, 1862. 
 
 Section 1. The signature of a party, when required to a written 
 instrument, shall be equally valid if the party cannot write, pro- 
 vided the person make his mark, the name of the person making 
 the mark being written near it, and the mark being witnessed by 
 a person who writes his own name as a witness. 
 
 NEW HAMPSHIRE. General Laws, 1878. 
 Chapter 135. 
 
 Sec. 12. Every estate or interest in lands, created or convej-ed 
 without an instrument in writing signed by the grantor or his 
 attorney, shall be deemed an estate at will only ; and do estate or 
 interest in land shall be assigned, granted, or sun-endered except 
 bj' writing signed as aforesaid, or by operation of law. 
 
 Sec. 13. No trust concerning lands, excepting such as may 
 arise or result by implication of law, shall be created or declared 
 unless by an instrument signed by the party creating the same or 
 by his attorney. 
 
910 STATUTE OF FEAUDS. 
 
 Chapter 220. 
 
 Sec. 14. No action shall be maintained upon a contract for the 
 sale of land, unless the agreement upon which it is brought or 
 some memorandum thereof is in writing, and signed by the party 
 to be charged, or by some person thereto authorized by writing. 
 
 Sec. 15. No action shall be brought to charge an executor or 
 administrator upon a special promise to answer damages out of 
 his own estate, nor to charge any person upon a special promise 
 *i,o answer for the debt, default, or miscarriage of another, or upon 
 any agreement made in consideration of marriage, or that is not 
 to be performed within one year from the time of making it, unless 
 such promise or agreement, or some note or memorandum thereof, 
 is in writing and signed bj' the party to be charged, or by some 
 person by him thereto authorized. 
 
 Sec. 16. No contract for the sale of goods, wares, or merchan- 
 dise, for the price of thirty-three dollars, or more, is valid unless 
 the buj-er accepts and actually receives part of the propertj- sold, 
 or gives something in part payment or in earnest to bind the bar- 
 gain, or unless some note or memorandum thereof is in writing, 
 and signed by the party tp be charged or by some person by him 
 thereto authorized. 
 
 NEW JERSEY. Revision of 1877. 
 Page 444. 
 
 1. That all leases, estates, interests of freehold or term of 
 years, or any uncertain interests of, in, to, or out of any messuages, 
 lands, tenements or hereditaments, made or created, or hereafter 
 to be made or created, by livery or seisin only, or by parol, and 
 not put in writing, and signed by the parties so making or creating 
 the same, or their agents thereunto, lawfully authorized by writ- 
 ing, shall have the force and effect of leases or estates at will only, 
 and shall not, either in law or equity, be deemed or taken to have 
 any other or greater force or effect, any consideration for making 
 such parol leases or estates notwithstanding ; except nevertheless 
 all leases not exceeding the term of three years from the making 
 thereof. 
 
 2. No lease, estate or interest, either of freehold or term of 
 years, or any uncertain interest of, in, to, or out of any messuages, 
 lands, tenements or hereditaments, shall be assigned, granted, or 
 surrendered, unless it be by deed or note in writing, signed by the 
 party so assigning, granting or surrendering the same, or his, her, 
 
APPENDIX. 911 
 
 or their agent or agents thereunto, lawfully authorized by writing, 
 or by act and operation of law. 
 
 3. All declarations and creations of trust or confidence of or in 
 any lands, tenements or hereditaments shall be manifested and 
 proved bj- some writing, signed by the party, who is or shall be 
 by law enabled to declare such trust, or by his or her last will in 
 writing, or else they shall be utterly void and of no effect ; x>^o- 
 vided always, that where any conveyance hath been, or shall be 
 made of anj' lands, tenements or hereditaments, by which a trust 
 or confidence shall or may arise or result by implication or con- 
 struction of law, or be transferred or extinguished by act or oper- 
 ation of law, such trust or confidence shall be of the like force 
 and effect, as the same would have been if this act had not been 
 made. 
 
 4. All grants and assignments of any trust or confidence shall 
 likewise be in writing, signed by the party granting or assigning 
 the same, or bj- his or her last will in writing, or else shaU be 
 utterly void and of no effect. 
 
 5. No action shall be brought (1,) to charge anj' executor or 
 administrator, upon any special promise, to answer damages out 
 of his own estate ; or (2,) to charge the defendant, upon any 
 special promise, to answer for the debt, default or miscarriage of 
 another person; or (3,) to charge any person upon anj- agreement 
 made upon consideration of marriage; or (4,) upon any contract 
 or sale of lands, tenements or hereditaments, or any interest in or 
 concerning them ; or (5,) upon any agreement, that is not to be 
 performed within one year from the making thereof ; unless the 
 agreement upon which such action shall be brought, or some mem- 
 orandum or note thereof, shall be in writing, and signed by the 
 party to be charged therewith, or some other person thereunto by 
 him or her lawfully authorized. 
 
 6. Every contract for the sale of goods, wares and merchandise, 
 for the price of thirty dollars or upwards shall be void ; unless 
 (1,) a note or memorandum of such contract be made in writing, 
 and signed by the party to be charged thereby or by his agent 
 thereunto lawfully authorized ; or (2,) unless the buyer shall 
 accept part of the goods so sold, and actually receive the same ; 
 or (3,) unless the buyer shall give something in earnest to bind 
 the bargain or pay some part of the purchase-money. 
 
 9. The consideration of any promise, contract or agreement, 
 required by this act to be put in writing, need not be set forth or 
 expressed in such writing, but may be proved by any other legal 
 evidence. 
 
912 STATUTE OF FKAUDS. 
 
 NEW YORK. Revised Statutes, 1830. Pakt II. 
 Chap. I. Article Second. 
 
 § 51. "Where a grant for a valuable consideration shall be made 
 to one person, and the consideration therefor shall be paid by 
 another, no use or trust shall result in favor of the person by 
 whom such payment shall be made ; but the title shall vest in the 
 person named as the alienee in such conveyance, subject only to 
 the provisions of the next section. 
 
 § 52. Every such conveyance shall be presumed fraudulent, as 
 against the creditors, at that time, of the person paying the con- 
 sideration ; and where a fraudulent intent is not disproved, a trust 
 shall result in favor of such creditors, to the extent that may be 
 necessary to satisfy their just demands. 
 
 § 53. The provisions of the preceding fifty-first section shall not 
 extend to cases, where the alienee named in the conveyance, shall 
 have taken the same as an absolute conveyance, in his own name, 
 without the consent or knowledge of the person paying the con- 
 sideration, or where such alienee, in violation of some trust, shall 
 have purchased the lands so conveyed with monies belonging to 
 another person. 
 
 Chapter 7. Title 1. 
 
 § 6. No estate or interest in lands, other than leases for a term 
 not exceeding one year, nor anj' trust or power over or concerning 
 lands, or in any manner relating thereto, shall hereafter be created, 
 granted, assigned, surrendered or declared, unless bj- act or opera- 
 tion of law, or by a deed or conveyance in writing, subscribed by 
 the party creating, granting, assigning, surrendering or declaring 
 the same, or by his lawful agent, thereunto authorized by writing. 
 • § 7. The preceding section shall not be construed to affect in 
 any manner, the power of a testator in the disposition of his real 
 estate, bj^ a last will and testament ; nor to prevent anj' trust from 
 arising, or being extinguished, by implication or operation of law ; 
 [nor to prevent any declaration of trust from being proved by any 
 writing subscribed by the party declaring the same ;] nor to pre- 
 vent, after a fine shall have been levied, the execution of a deed 
 or other instrument, in writing, declaring the uses of such fine. 
 
 § 8. Every contract foi' the leasing for a longer period than one 
 year, or for the sale of any lands, or any interest in lands, shall be 
 void, unless the contract, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and be subscribed by 
 the party, by whom the lease or sale is to be made. 
 
APPENDIX. • 913 
 
 § 9. Every instrument required to be subscribed bj- any partj', 
 under the last preceding section, may be subscribed by tiie agent 
 of such party lawfully authorized. 
 
 § 10. Nothing in this title contained, shall be construed to 
 abridge the powers of Courts of Equity, to compel the specific 
 performance of agreements, in cases of part-performance of such 
 agreements. 
 
 Title 2. 
 
 § 2. In the following cases, every agreement shall be void unless 
 such agreement, or some note or memorandum thereof, expressing 
 the consideration, be in writing, and subscribed by the party to be 
 charged therewith. 
 
 1. Every agreement that, by its terms, is not to be performed 
 within one j-ear from the making thereof : 
 
 2. Every special promise to answer for the debt, default, or mis- 
 carriage of another person : 
 
 3. Every agreement, promise, or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 § 3. Every contract for the sale of any goods, chattels, or things 
 in action, for the price of fifty dollars or more, shall be void, 
 unless, 
 
 1. A note or memorandum of such contract, be made in writ- 
 ing, and be subscribed by the parties to be charged thereby : or, 
 
 2. Unless the buyer shall accept and receive part of such goods, 
 or the evidences, or some of them, of such things in action : or, 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase-money. 
 
 § 4. Whenever goods shall be sold at public auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book, a memo- 
 randum specifying the nature and price of the property sold, the 
 terms of the sale, the name of the purchaser, and the name of the 
 person on whose account the sale is made, such memorandum shall 
 be deemed a note of the contract of sale, within the meaning of the 
 last section. 
 
 Title 3. 
 
 § 2. Every grant or assignment of any existing trust in lands, 
 goods or things in action, unless the same shall be in writing, sub- 
 scribed by the party making the same, or by his agent, lawfully 
 authorized, shall be void. 
 
914 STATTXTB OF FEATJDS. 
 
 NORTH CAROLINA. Battle's Revisal, 1873. 
 Chapter 50. 
 
 8. No action shall be brought whereby to charge an executor 
 or administrator upon a special promise to answer damages out of 
 his own estate, or to charge any defendant upon a special promise 
 to answer the debt, default or miscarriage of another person, 
 unless the agreement, upon which such action shall be brought, or 
 some memorandum or note thereof, shall be in writing, and signed 
 by the party charged therewith or some other person thereunto by 
 him lawfully authorized. 
 
 10. All contracts to sell or convey any lands, tenements or 
 hereditaments, or any interest in or concerning them, shall be void 
 and of no effect unless such contract, or some memorandum or 
 note thereof, shall be put in writing and signed by the party to be 
 charged therewith, or by some other person by him thereto law- 
 fully authorized. 
 
 OHIO. Revised Statutes, 1880. 
 Title IV. Chapter 4. 
 
 Sec. 4198. That no leases, estates or interests, either of free- 
 hold or terms for years, or any uncertain interest of, in," or out of 
 lands, tenements, or hereditaments, shall at any time hereafter be 
 assigned, or granted, unless it be by deed, or note in writing, 
 signed by the party so assigning or granting the same ; or their 
 agents thereunto lawfully authorized, by writing, or by act and 
 operation of law. 
 
 Sec. 4199. That no action shall be brought whereby to charge 
 the defendant, upon any special promise, to answer for the debt, 
 default or miscarriage, of another person ; or to charge any exec- 
 utor or administrator upon any special promise, to answer damages 
 out of his own estate ; or to charge any person upon any agree- 
 ment made upon consideration of marriage, or upon any contract 
 or sale of lands, tenements or hereditaments, or any interest in, 
 or concerning of them ; or upon any agreement that is not to be 
 performed within the space of one year from the making thereof ; 
 unless the agreement 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 there- 
 unto by him or hfer lawfully authorized. 
 
APPENDIX, 916 
 
 OKEGON. Civil Code. 
 Title VIII. Chapter 8. 
 
 § 771. No estate or Interest in real property- other than a lease 
 for a term not exceeding one year, nor any trust or power con- 
 cerning such property, can be created, transferred or declared 
 otherwise than by operation of law, or by a conveyance or other 
 instrument in writing subscribed by the party creating, transfer- 
 ring or declaring the same, or by his lawful agent, under written 
 authority, and executed with such formalities as are required by 
 law. 
 
 § 772. The last section shall not be construed to affect the 
 power of a testator, in the disposition of his real property by a 
 last will and testament, nor to prevent a trust from arising, or 
 being extinguished by implication or operation of law, nor to 
 affect the power of a court to compel specific performance of an 
 agreement in relation to such property. 
 
 § 775. In the following cases the agreement is void, unless the 
 same, or some note or memorandum thereof, expressing the con- 
 sideration, be in writing and subscribed by the partj- to be charged, 
 or by his lawfully authorized agent; evidence therefore of the 
 agreement shall not be received other than the writing, or second- 
 ary evidence of its contents, in the cases prescribeil by law : 
 
 1. An agreement that, by its terms, is not to be performed 
 within a year from the making thereof ; 
 
 2. An agreement to answer for the debt, default or miscarriage 
 of another ; 
 
 3. An agreement by an executor or administrator to pay the 
 debts of his testator or intestate out of his own estate ; 
 
 4. An agreement made upon consideration of marriage, other 
 than a mutual promise to marry ; 
 
 5. An agreement for the sale of personal propertj', at a price 
 not less than iifty dollars, unless the buyer accept and receive 
 some part of such personal property, or pay at the time some part 
 of the purchase money ; but when the sale is made by auction, an 
 entry by the auctioneer, in his sale-book, at the time of the sale, 
 of the kind of property sold, the terms of the sale, the price, and 
 the names of the purchaser and person on whose account the sale 
 is made, is a sufficient memorandum ; 
 
 6. An agreement for the leasing, for a longer period than one 
 year, or for the sale of real property, or of any interest therein ; 
 
 7. An agreement concerning real property, made by an agent 
 
916 STATUTE OF FRAUDS. 
 
 of the party sought to be charged, unless the authority of the 
 agent be in writing. 
 
 § 776. No evidence is admissible to charge a person upon a 
 representation, as to the credit,- skill or character of a third person, 
 unless such representation, or some memorandum thereof, be in 
 writing, and either subscribed by, or in the hand-writing of the 
 party to be charged. 
 
 PENNSYLVANIA. Brightley's Purdon (10th Ed. 1872), 723. 
 
 1. AH leases, estates, interest of freehold or term of years, or 
 any uncertain interest of, in or out of any messuages, manors, 
 lands, tenements or hereditaments, made or created by livery and 
 seisin only, or by parol, and not put in writing and signed by the 
 parties so making or creating the same, or their agents, thereunto 
 lawfully authorized by writing, shall have the force and effect of 
 leases or estates at will only, and shall not, either in law or equity, 
 be deemed or taken to have anj"- other or greater force or effect, 
 any consideration for making any such parol leases or estates, or 
 any former law or usage, to the contrary notwithstanding ; except, 
 nevertheless, all leases not exceeding the term of three years from 
 the making thereof. 
 
 2. And moreover, no leases, estates or interests, either of free- 
 hold or terms of j-ears, or any uncertain interest of, in, to or out 
 of any messuages, manors, lands, tenements or hereditaments, 
 shall at any time be assigned, granted or surrendered, unless it be 
 by deed or note in writing, signed by the party so assigning, 
 granting or surrendering the same, or their agents, thereto law- 
 fully authorized bj' writing, or by act and operation of law. 
 
 3. All declarations or creations of trusts or confidences of any 
 lands, tenements or hereditaments, and all grants and assignments 
 thereof shall be manifested by writing, signed by the party hold- 
 ing the title thereof, or by his last will in writing, or else to be 
 void : Provided, that where any conveyance shall be made of any 
 lands or tenements, by which a trust or confidence shall or may 
 arise or result by implication or construction of law, or be trans- 
 ferred or extinguished by act or operation of law, then and in 
 every such case, such trust or confidence shall be of the like force 
 and effect as if this act had not been passed. 
 
 4. No action shall be brought whereby to charge any executor 
 or administrator, upon any promise to answer damages out of his 
 own estate, or whereby to charge the defendant, upon any special 
 promise, to answer for the debt or default of another, unless the 
 
APPENDIX. ■ 917 
 
 agreement 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 
 authorized. 
 
 5. This act shall not go into eflfect until the first day of January 
 next ; or apply to or affect any contract made or responsibility 
 incurred prior to that time ; or for any contract the consideration 
 of which shall be a less sum than twenty dollars. 
 
 RHODE ISLAND. Public Statutes, 1882. 
 Chapter 173. 
 
 Sec. 3. No estate of inheritance or freehold, or for a term ex- 
 ceeding one year, in lands or tenements, shall be conveyed from 
 one to another by deed, unless the same be in writing, signed, 
 sealed, and delivered by the party making the same, and acknowl- 
 edged before a senator, judge, justice of the peace, notary pub- 
 lic, or town clerk, by the party or parties who shall have sealed 
 or delivered it ; . . . and recorded or lodged to be recorded in the 
 office of town clerk of the town where the said lauds or tenements 
 do lie. 
 
 Sec. 4. All bargains, sales, and other conveyances whatsoever 
 of any lands, tenements, or hereditaments, whether they be made 
 for passing any estate of freehold or inheritance, or for term of 
 years, exceeding the term of one year, and all deeds of trust and 
 mortgages whatsoever, which shall hereafter be made and executed, 
 shall be void unless they shall be acknowledged and recorded as 
 aforesaid : Provided, that the same, between the parties and their 
 heirs, shall be valid and binding. 
 
 Chapter 204. 
 
 Sec. 8. No action shall be brought, — 
 
 First. Whereby to charge any person upon any contract for the 
 sale of lands, tenements, or hereditaments, or the making of any 
 lease thereof for a longer time than one year. 
 
 Second. Whereby to charge any person upon any agreement 
 made upon consideration of marriage. 
 
 TJiird. Whereby to charge any executor or administrator upon 
 his special promise to answer any debt or damage out of his own 
 estate. 
 
 Fourth. Whereby to charge any person upon his special prom- 
 ise to answer for the debt, default, or miscarriage of another 
 person. 
 
918 STATUTE OF FEATJDS. 
 
 Fifth. Whereby to. charge any person upon any agreement which 
 is not to be performed within the space of one year from the making 
 thereof. 
 
 Unless the promise or agreement upon which such action shall 
 be brought, or some note or memorandum thereof, shall be in writ- 
 ing, and signed by the party to be charged therewith, or by some 
 other person by him thereunto lawfully authorized. 
 
 TENNESSEE. Compiled Laws, 1871. 
 Chapter 2, Article 1. 
 
 1758. No action shall be brought — 
 
 1. "Whereby to charge any executor or administrator upon any 
 special promise, to answer any debt or damages out of his own 
 estate ; 
 
 2. Whereby to charge the defendant upon an}' special promise 
 to answer for the debt, default, or miscarriage of another person ; 
 
 3. Whereby to charge any person upon any agreement made 
 upon consideration of marriage ; 
 
 4. Upon any contract for the sale of lands, tenements, or here- 
 ditaments, or the making any lease thereof for a longer term than 
 one year ; 
 
 5. Upon any agreement or contract which is not to be performed 
 within the space of one year from the making thereof ; 
 
 Unless the promise or agreement, upon which such action shall 
 be brought, or some memorandum or note thereof, shall be in writ- 
 ing, and signed by the party to be charged therewith, or some other 
 person by him thereunto lawfully authorized. 
 
 TEXAS. Revised Statutes, 1879. 
 Title XL VI. 
 
 Article 2464. No action shall be brought in any of the courts 
 in any of the following cases, unless the promise or agreement 
 upon which such action shall be brought, or some memorandum 
 thereof, shall be in writing and signed by the party to be charged 
 therewith, or by some person by him thereunto lawfully author- 
 ized : , 
 
 1. To charge any executor or administrator upon any special 
 promise to answer any debt or damages due from his testator or 
 intestate, out of his own estate ; or, 
 
 2. To charge any person upon a promise to answer for the debt, 
 default, or miscarriage of another ; or, 
 
APPENDIX. 919 
 
 3. To charge any person upon anj- agreement made upon con- 
 sideration of marriage ; or, 
 
 4. Upon any contract for the sale of real estate or the lease 
 thereof for a longer term than one year ; or, 
 
 5. Upon any agreement which is not to be performed within the 
 space of one year from the making thereof. 
 
 VERMONT. Revised Laws, 1880. 
 Chapter 97. 
 
 Sect. 1932. Estates or interests in lands, created or conveyed 
 without au instrument in writing, signed by the grantor or by his 
 attorney, shall have the force and effect of estates at will onlj' ; 
 and no estate or interest in land shall be assigned, granted, or sur- 
 rendered, unless by a writing signed as aforesaid, or by operation 
 of law. 
 
 Sect. 1933. No trust concerning lands, excepting such as may 
 arise or result by implication of law, shall be created or declared, 
 unless by an instrument in writing, signed by the party creating or 
 declaring the same, or by his attornej'. 
 
 Sect. 1934. The assignment of any lease of lands, if the lease 
 shall be for a longer term than one year, shall be b}- deed, signed, 
 sealed, and witnessed, acknowledged and recorded, as is provided 
 in the case of deeds in the fourth section of this chapter ; and any 
 assignment, otherwise executed, shall be void as against all persons 
 but the assignor, his heirs or devisees. 
 
 Sect. 1935. No deed or other conveyance of any lands, or of any 
 estate or interest therein, made by virtue of a power of attornej-, shall 
 be of any effect, or admissible in evidence, unless such power of 
 attorney shall have been signed, sealed, attested, and acknowledged 
 and recorded in the ofHce where such deed shall be required to be 
 recorded, as provided in this chapter. 
 
 Chapter 57. 
 
 Section 981 . No action at law or in equity shall be brought in any 
 of the following cases : 
 
 Upon a special promise by an executor or administrator upon any 
 special promise to answer damages, out of his own estate. 
 
 Upon a special promise to answer for the debt, default or mis- 
 doings of another. 
 
 Upon an agreement made upon consideration of marriage. 
 
 Upon a contract for the sale of lands, tenements or hereditaments, 
 or of an interest in or concerning them. 
 
920 STATUTE OF FEAUDS. 
 
 Upon an agreement not to be performed within one year from 
 the making thereof ; 
 
 Unless the promise, contract or agreement, 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 there- 
 with, or by some person thereunto by him lawfully authorized ; and 
 if the contract or agreement relate to the sale of real estate, or to 
 any interest therein, such authority shall be in writing. 
 
 Sect. 982. No contract, for the sale of any goods, wares, or mer- 
 chandise, for the price of forty dollars or more, shall be valid, 
 unless the purchaser accepts and receives part of the goods so sold, 
 or shall give something in earnest to bind the bargain, or in part- 
 payment, or unless some note or memorandum of the bargain be 
 made in writing, and signed by the party to be charged thereby, 
 or by some person thereunto by him lawfully authorized. 
 
 Sect. 983. No action shall be brought to charge any person upon, 
 or by reason of any representation or assurance made, concerning 
 the character, conduct, credit, ability, trade, or dealings of another 
 person, unless such representation or assurance be made in writing, 
 and signed by the party to be charged thereby, or by some person 
 thereunto by him lawfully authorized. 
 
 Sect. 984. "Where the performance of a contract is secured by 
 the obligation of a surety, no agreement made between the creditor 
 and the principal debtor for the extension of the time of payment 
 or the performance of the contract shall have at law, or in chan- 
 cery, anj- binding effect, unless such agreement is made upon a 
 valuable consideration, and is in writing, or some note or memo- 
 randum thereof is in writing, and signed by such creditor or per- 
 son thereunto duly authorized reciting briefly the consideration 
 upon which such contract is founded. 
 
 UTAH. Compiled Laws, 1876. 
 Title XV. Act Approved February 18, 1876. 
 
 (1010.) Sec. 1. That no estate or interest in lands, other than 
 leases for a term not exceeding one year, nor any trust or power 
 over or concerning lands, or in any manner relating thereto, shall 
 hereafter be created, granted, assigned, surrendered or declared, 
 unless by act or operation of law, or by deed or conveyance in 
 writing, subscribed by the party creating, granting, assigning, 
 surrendering or declaring the same, or by his lawful agent there- 
 unto authorized by writing. 
 
 (1011.) Sec. 2. The foregoing provision shall not be construed 
 
APPENDIX. 921 
 
 to affect the power of a testator ia the disposition of his real 
 estate by last will and testament ; nor to prevent any trust from 
 arising or being extinguished by implication or operation of law ; 
 nor to abridge the powers of courts to compel the specific per- 
 formance of agi-eements in case of part performance thereof. 
 
 (1012.) Sec. 3. Everj' conve3-ance of any estate or interest in 
 lands, or the rents or profits of lands, and every charge upon 
 lands, or the rents and profits thereof made or created with intent 
 to defraud prior or subsequent purchasers thereof, for a valuable 
 consideration, shall be void as against such purchasers. 
 
 (1014.) Sec. 5. In the following cases every agreement shall 
 be void, unless such agreement or some note or memorandum 
 thereof, expressing the consideration be in writing and subscribed 
 by the party, to be charged therewith. 
 
 First. — Everj- agreement that by its terms is not to be per- 
 formed within one year from the making thereof. 
 
 Second. — Every promise to answer for the debt, default or 
 miscarriage of another. 
 
 Third. — Every agreement, promise or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 (1015.) Sec. 6. Every contract for the sale of anj' goods, 
 chattels, or things in action, for the price of three hundred dol- 
 lars, or over, shall be void, unless : 1st, a note or memorandum of 
 such contract be made in writing and subscribed by the parties to 
 be charged therewith ; or 2d, Unlerss the buyer shall accept or 
 receive part of such goods, or the evidences, or some of them, of 
 such things in action ; or 3d, Unless the buyer shall at the time 
 pay some part of the purchase money. 
 
 (1019.) Sec 10. Every instrument requu'ed by the provisions 
 of this act to be subscribed by any party may be subscribed by 
 the lawful agent of such party. 
 
 VIRGINIA. Code, 1873. 
 Chapter CXL. 
 
 1. No action shall be brought in any of the foUowinng cases : 
 First. To charge any person upon or by reason of a representa- 
 tion or assurance concerning the character, conduct, credit, ability, 
 trade, or dealings of another, to the intent or purpose that such 
 other may obtain thereby credit, money, or goods ; or, 
 
 Secondly. To charge any person upon a promise made, after 
 full age, to pay a debt contracted during infancy, or upon a ratifi- 
 cation after full age of a promise or simple contract made during 
 infancy ; or. 
 
922 STATUTE OP FEAUDS. 
 
 Thirdly. To charge a personal representative upon a promise to 
 answer any debt or damages out of his own estate ; or, 
 
 Fourthly. To charge any person upon a promise to answer for 
 the debt, default, or misdoings of another ; or. 
 
 Fifthly. Upon any agreement made upon consideration of mar- 
 riage ; or, 
 
 Sixthly. Upon any contract for the sale of real estate, or the 
 •lease thereof for more than a }'ear ; or. 
 
 Seventhly. Upon any agreement that is not to be performed 
 within a year; 
 
 Unless the promise, contract, agreement, representation, assur- 
 ance, or ratification, or some memorandum or note thereof, be in 
 writing and signed by the party to be charged thereby, or his 
 agent ; but the consideration need not be set forth or expressed in 
 the writing, and it may be proved (where a consideration is neces- 
 sary) by other evidence. 
 
 2. Any writing to which the person making it shall affix a scroll 
 by way of seal, shall be of the same force as if it were actually 
 sealed. 
 
 WEST VIRGINIA. Kevised Statutes. 
 
 Chapter 95. 
 
 Same as in Virginia except that subdivison 2 as to seals is not embraced 
 
 therein. 
 
 WISCONSIN. Revised Statutes, 1878. 
 Title 22. Chapter CIV. 
 
 Sectiok 2302. No estate or interest in lands, other than leases 
 for a term not exceeding one year, nor any trust or power over or 
 concerning lands, or in any manner relating thereto, shall be 
 created, granted, assigned, surrendered or declared, unless by act 
 or operation of law, or by deed or conveyance in writing, sub- 
 scribed by the party creating, granting, assigning, surrendering, 
 or declaring the same, or by his lawful agent, thereunto author- 
 ized by writing. 
 
 Section 2303. The preceding section shall not be construed 
 to affect in any manner the power of a testator, in the disposition 
 of his real estate by a last will and testament, nor to prevent any 
 trust from arising or being, extinguished by implication or opera- 
 tion of law. 
 
 Section 2304. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or any interest in 
 
APPENDIX. 923 
 
 lands, shall be void unless the contract, or some note or memoran- 
 dum thereof, expressing the consideration, be in writing, and be 
 subscribed by the party by whom the lease or sale is -to be made, 
 or by his lawfully authorized agent. 
 
 Section 2305. Nothing in this chapter contained shall be con- 
 strued to abridge the powers of courts to compel the specific per- 
 formance of agi-eements, in cases of part performance of such 
 agreements. 
 
 Chapter CV. 
 
 Section 2307. In the following case every agreement shall be 
 void, unless such agreement, or some note or memorandum thereof, 
 expressing the consideration, be in writing, and subscribed by the 
 party charged therewith : 
 
 1 . Every agi-eement that by its terms is not to be performed 
 within one j-ear from the making thereof. 
 
 2. Everj' special promise to answer for the debt, default or mis- 
 carriage of another person. 
 
 3. Every agreement, promise or undertaking made upon con- 
 sideration of marriage, except mutual promises to marry. 
 
 Section 2308. Every contract for the sale of any goods, chat- 
 tels or things in action, for the price of fifty dollars or more, shall 
 be void, unless : 
 
 1 . A note or memorandum of such contract be made in writing, 
 and be subscribed by the parties to be charged therewith ; or 
 
 2. Unless the buyer shall accept and receive part of such goods, 
 or the evidences, or some of them, of such things in action; or 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase money. 
 
 Section 2309. Whenever goods shall be sold at public auction, 
 and the auctioneer shall, at the time of sale, enter in a sale book 
 a memorandum specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person for whose account the sale is made, such mem- 
 orandum shall be deemed a note of the contract of sale, within 
 the meaning of the last section. 
 
 Chapter CVI. 
 
 Section 2321. Every grant or assignment of any existing trust 
 in lands, goods or things in action, unless the same shall be in 
 writing, subscribed by the party making the same, or by his agent 
 lawfully authorized, shall be void. 
 
 Section 2327. Every instrument required under any of the 
 provisions of this title to be subscribed by any party, may be sub- 
 scribed by the agent of such party lawfully authorized thereto. 
 
924 STATUTE OP FEAtTDS. 
 
 WYOMING. Compiled Laws, 1876. 
 Chap. 57. 
 
 Section 1 . In the following cases every agreement shall be void 
 unless such agreement, or some note or memorandum thereof be 
 in writing, and subscribed by the party to be charged therewith : 
 
 First. Every agreement that by its terms is not to be per- 
 formed within one year from the making thereof ; 
 
 Second. Every special promise to answer for the debt, default 
 or miscarriage of another person ; 
 
 Third. Every agreement, promise or undertaking made upon 
 consideration of marriage, except mutual promises to marry, and 
 no action shall be brought to charge any person upon any breach 
 of promise of marriage, either upon mutual promises or promise 
 in writing, unless such action shall be brought within one year 
 after the making of such promise ; 
 
 Fourth. Every special promise by an executor or administrator, 
 to answer any demand out of his own estate ; 
 
 Fifth. Every agreement or contract for the sale of real estate, 
 or the lease thereof, for more than one year. 
 
 Sec. 2. Every contract for the sale of any goods, chattels or 
 things in action, for the price of .fifty dollars or more, shall be 
 void, unless : 
 
 First, a note or memorandum of such contract be made in writ- 
 ing, and be subscribed by the party to be charged thereby, or, 
 second, unless the buyer shall accept and receive part of such 
 goods, or the evidences or some of them, of such things in action 
 or, third, unless the buyer shall, at the tiniie, pay some part of 
 the purchase moneJ^ 
 
 Sec. 3. TJo charge any person upon, or by reason of, a repre- 
 sentation or assurance concerning the character, conduct, credit, 
 ability, trade or dealings of another, to the intent or purpose that 
 such other may obtain thereby credit, money, or goods. 
 
INDEX. 
 
 ABANDONMENT, 
 
 of premises by tenant, operates as surrender, when, 97-107. 
 See Reeve v. Bird, 98. 
 Pier V. Carr, 100. 
 uses of premises by landlord which amount to acceptance of posses- 
 sion and surrender, 97-107. 
 of contract, parol evidence admissible, when, to prove, 746. 
 
 ACCEPTANCE, 
 
 offer to guarantee does not bind untU there is, 190. 
 
 offer may be withdrawn before, 191. 
 
 implied when, 191. 
 
 express, 191. 
 
 waiver of references, 191. 
 
 of goods, what is, 556-616. 
 
 See Acceptance and Receipt. 
 
 of contract, how may be made, 733, 734 notes. 
 
 of terms of written contract by parol, effect of, 733. 
 
 special, 735. 
 
 when must be made, 735. 
 
 See Memorandum. 
 ACCEPTANCE OF GOODS. See Acceptance and Receipt. 
 
 ACCEPTANCE AND RECEIPT, 
 must be shown, 557. 
 statutory provisions as to, 557. 
 both must exist, 557, 571 n. 5. 
 acceptance may be without receipt, 557. 
 may be receipt without acceptance, 557. 
 can be no acceptance so long as buyer has right to reject, 557, 558, 
 
 561-568. 
 may be before receipt, 559. 
 need not be contemporaneous, 559 n. 1. 
 
 See Cusack v. Robinson, 560. 
 goods must be ascertained and identified, 561, 566 n. 1, 568. 
 right of rejection must be gone, 561. 
 may be waived, 561-568. 
 
926 STATUTE OP FRAUDS. 
 
 ACCEPTANCE AND HECEIPT — Continued. 
 
 See Bog Lead Mining Co. v. Montague, 561. 
 Kershaw i'. Ogden, 563. 
 Hunt V. Hecht, 563. 
 Knight V. Mann, 565. 
 
 United States Reflector Co. v. Kushton, 566. 
 if article is not complete, can be no, 567. 
 See Maberley v. Sheppard, 567. 
 after action brought, 568, 569. 
 test of acceptance, 569-572. 
 mere words not sufficient to constitute, 570. 
 must be decisive acts of both of the parties, 570, 571, 577, 578. 
 
 See Calkins v. Lockwood, 571. 
 must be, with intention of taking possession as owner, 571. 
 
 See Phillips v. Bistoli, 571. 
 taking samples from bulk, amounts to, ■when, 572. 
 See Foster v. Frampton, 572. 
 Hinde v. Whitehouse, .573. 
 Gaillairt v. Roberts, 573. 
 Gardner v. Grout, 574. 
 when receipt of sample does not amount to, 572, 574. 
 See Gorman v. Boddy, 572. 
 Simonds v. Fisher, 574. 
 constructive, may be, what is, 575, 584-616. 
 
 See Baines v. Jevons, 575 n. 4. 
 acts, amounting to acceptance, 577-601. 
 
 See Hewes v. Jordan, 578. 
 acts of ownership by vendee, amount to acceptance, 580, 585. 
 receipt of part of goods, evidence of, but not necessarily acceptance, 
 
 580. 
 unpacking goods not necessarily, 580. 
 See Curtis v. Pugh, 580 n. 4. 
 using more of goods than is necessary for ascertaining quality, effect 
 of, 580. 
 
 See Parker v. Wallis, 582. 
 Kent V. Huskinson, 583. 
 must be acceptance affirming the contract, 584, 
 need not be express, 584. 
 constructive, instances of, 584-615. 
 by retention of bill of lading, 584. 
 by selling or offering to sell the goods, 585. 
 See Chaplin v. Rogers, 585. 
 
 Marshall v. Green, 587 n. 1. 
 Baines v. Jevons, 575 n. 4. 
 Morton v. Tibbetts, 588. 
 using goods as owner, though understood they were to be returned, 
 587. 
 
 See Beaumont v. Brengari, 587. 
 
INDEX. 927 
 
 ACCEPTANCE AND KECFATT — Continued. 
 See Acraman v. Morrell, 588. 
 But see Mabeiiey v. Sheppard, 588. 
 Morton v. Tibbetts, statement of doctrine, and analysis of, 588-593. 
 Taylor v. Mueller, 593. 
 question of, for jury, 587. 
 
 marking goods ia name of vendee, effect of, 597. 
 See Anderson v. Scott, 597. 
 Proctor V. Jones, 598. 
 of one, of several articles, acceptance of all, when, 598. 
 rule when the contract is not entire, 601. 
 of goods not made, 601. 
 of goods sold by principal, as if agent, 602. 
 of goods under mixed contract, 602. 
 
 vendee must have opportunity to judge whether goods correspond 
 with order, 603. 
 
 See Hunt v. Hecht, 603. 
 or must have waived the right, 603. 
 
 vendee may keep goods a reasonable time for examination, 603. 
 use of a portion, to ascertain quality, does not amount to, 604. 
 goods need not be returned, 604. 
 delay in refusing, may amount to, 605. 
 See Bushel v. Wheeler, 605. 
 Norman v Phillips, 606. 
 Cunliffe v. Harrison, 606. 
 purchaser cannot withdraw, except, 607. 
 vendor's consent to, necessary, 607. 
 when contract is disaffirmed by vendor, effect of, 608. 
 by agents, rules as to, 608. 
 
 See Eogers u. Jones, 610. 
 
 Jordan v. Norton, 609 n 4. 
 by broker, 609. 
 
 person cannot act as agent of both parties, as to, 612. 
 carrier cannot accept, 613. 
 disputed terms though acceptance, 615. 
 
 See Tompkinson v. Staight, 615 n 7. 
 receipt of goods, does not take contract for, out of statute, 613 n 1. 
 by carrier, effect of, 613 n. 1, 614. 
 delivery on shipboard, 615. 
 
 delivery at railway station designated by vendee, 615. 
 what is actual, 616. 
 
 distinction between, and acceptance, 616. 
 test of, whether vendor's lien is gone, 616 n. 1. 
 special lien, effect of, 621. 
 
 See Dodsley v. Varley, 622. 
 lien for price under conditional sale, effect of, 624. 
 
 See Pinkham v. Mattox, 624. 
 goods in possession of vendee at time of sale, is when, 624. 
 
928 STATUTE OP FEATJDS. 
 
 ACCEPTANCE AND B.ECE,IPT — Continued. 
 See Edan v. Dudfield, 624. 
 goods in hands of third person, 626. 
 by acceptance of delivery order, 627. 
 by acceptance of dock warrant, 627. 
 See Bentnall v. Burn, 627. 
 Farina v. Home, 629. 
 possession taken by vendee although goods not removed, 629. 
 symboUeal delivery of goods, what is, 630-641. 
 goods in possession of vendor as agent of vendee, 630-641. 
 See on this point Webster v. Anderson, 631. 
 Ex parte SafEord, 631. 
 Green v. Merriam, 631. 
 Vincent v. Germond, 631 n. 5. 
 Elmore v. Stone, 632. 
 Janvrin v. Maxwell, 632 n. 1. 
 however, holding that something more than words are 
 
 necessary, Shindler v. Houston, 632 n. 3. 
 Also Fallo V. Miller, 684 note. 
 Dale V. Stimpson, 634 n. 2. 
 Marvin v. Wallis, 634. 
 Tempest v. Fitzgerald, 634. 
 Carter v. Touissant, 685. 
 Castle V. Sworder, 635 n. 3. 
 rule as to, 637-641. 
 
 what must be done to make complete, 640. 
 delivery of goods to carrier may be, 641-644. 
 
 See Sales; Symbolical Delivery. 
 
 ACCOUNT STATED, 
 
 good as memorandum, 635. 
 
 ACT OP LAW, 
 
 surrender by, what is, 92. 
 instances of surrender by, 92-134. 
 
 ACQUIESCENCE, 
 
 when defence of statute barred by, 830. 
 
 ACTIONS, 
 
 respecting void contracts, 424. 
 
 will not lie upon void, although executed by one party, 424. 
 
 will lie upon special promise made after the contract has been exe- 
 cuted, 424-435. 
 
 See Van Valkenburgh v. Croffut, 425. 
 
 effect of admission by defendant of indebtedness under the contract, 
 425. 
 
 against principal, for purchase-money paid by agent for land, 425. 
 
 for money spent by person under voidable contract for land, lies, 
 when, 428. 
 
INDEX. 929 
 
 ADMISSION, 
 
 of assets by executor, 138. 
 
 See Executors. 
 of agreement set up in bill for specific performance, effect of, 854, 
 
 856, 857. 
 of different agreement, 858. 
 ADMISSION INTO POSSESSION, 
 part performance, when, 826. 
 
 See Specific Performance. 
 ADMINISTRATOR, 
 
 sales of land by, at auction, under leave of court, within statute, 460. 
 See Executors. 
 ADVANCE, 
 
 payment o£ rent in, under void lease, effect of, 67. 
 AFFIDAVIT, 
 
 good as memorandum, when, 700. 
 AGENT, 
 
 for sale of land need not be appointed by writing, 44. 
 except, 44. 
 
 surrender made to, good, when, 76 n. 1. 
 acceptance by, binding, when, 608. 
 See Rodgers v. Jones, 610. 
 Jordan v. Norton, 609 n. 4. 
 cannot act for both parties, 612. 
 
 See Calkins v. HeUman, 612 n. 2. 
 contracts by, 778-796. 
 appointment of, 778. 
 parties cannot be, for each other, 779. 
 agency maybe shown by subsequent ratification, 779 note, 782 n. 4. 
 
 by adoption, 789 note, 
 may be appointed by parol, except, 779 n. 4, 782 n. 3. 
 may bind both parties, when, 779 n. 4, 780. 
 evidence to prove authority of, 782-787. 
 ratification of acts of, 786. 
 signature of telegraph clerk, 788. 
 See Acceptance and Receipt ; Auctioneer ; Evidence. 
 
 AGREEMENT, 
 
 for lease or sale may operate as license, 42. 
 
 for lease, effect of entry under, 46. 
 
 when enforced, 63-65. 
 
 to abate tenant's rent, within statute, 414. 
 
 that arbitration shall determine terms of lease, 414. 
 
 to establish title to land, 414. 
 
 to release covenant, 414. 
 
 to sell land at future day, 414. 
 
 to make mutual wills devising lands, 415. 
 
 for exchange of lands, 415. 
 
930 STATUTE OP rEAUDS. 
 
 AGREEMENT — Continued. 
 
 for partition of lands, 415. 
 
 as to disputed boundaries, 420. 
 
 not performable in a year, 463-499. 
 
 not to do certain things, 497-500. 
 
 for sale of chattels, 500. 
 
 See Sales. 
 
 admission of, by defendant, effect of upon specific performance, 854. 
 See Contracts ; Specific Pekpormance; Collaterai. Agreements. 
 
 ALIENATION OF LAND, 
 
 historical view of, 346. 
 
 -Xlteration, 
 
 in memorandum, effect of, 678, 679. 
 
 See Memorandum ; Specific Performance. 
 AQUEDUCT, 
 
 license to lay on lands revocable at will, 9, 19 n. 10. 
 
 landowner may forcibly remove, 19 n. 10. 
 ARBITRATION, 
 
 parol agi-eement to submit terms of lease to, within statute, 414. 
 ASSETS, 
 
 what amounts to admission of, by executor, 138. 
 
 need not be alleged, 148. 
 ASSIGNMENT, 
 
 of lease, how may be made, 73. 
 
 effect of statute on, 73. 
 
 of tenancy from year to year, 74. 
 
 demise of whole term may be, or lease when, 74. 
 
 of dower, whether within the statute or not, 422. 
 ATTACHMENT, 
 
 discharge of, in consequence of promise of third person to pay the 
 debt, within the statute, 266. 
 ATTORNEY, 
 
 verbal guaranty by, 305. 
 
 promise by, to pay client's debt out of funds to be collected by, 231 
 .n. 1, 241 n. 1. 
 
 AUCTION, 
 
 sale of lands at, within the statute, 456. 
 
 judicial sales, not, 457. 
 
 sales of land at, by sheriff, are, when, 457. 
 
 by loan officers, 457. 
 
 foreclosure sales, 458 n. 3. 
 
 by administrator under leave of court, 460. 
 
 sales of several articles at, to same person at distinct prices, treated 
 
 as one sale, 512. 
 memorandum of sales at, how may be made out, 719-725. 
 See Auctioneer ; Memorandum ; Sales. 
 
INDEX. 931 
 
 AUCTIONEER, 
 
 memorandum of sale made by, how may be made, 719-725. 
 
 when must be made, 720 n. 5, 721, 723, 727. 
 
 by sheriffs, etc., may be made after sale, 723 n. 1. 
 
 what must contain, 721-729. 
 
 by party himself acting as, not good, 720, 726. 
 
 memorandimi may be made by his clerk, 723 n. 1, 726. 
 
 See Memorandum. 
 is agent of both parties, 78, 726. 
 authority may be negatived by facts of the case, 781. 
 when his agency for purchaser begins, 781. 
 clerk of, powers of, 787. 
 BAIL, 
 
 parol promise to indemnify person against consequences of becoming, 
 
 289, 290-293 and notes, 
 in criminal proceedings, promise to indemnify against, 290 n. 2, 292. 
 in civil cases, 290 n. 2, 293. 
 to execute bail bond, 286-296. 
 
 BANKRUPTCY, 
 
 sales of land by assignee in, within statute, 456. 
 
 BARTER, 
 
 contracts for exchange of, for, within statute, 506. 
 
 BILL OF PARCELS, 
 
 good as memorandum, 655. 
 
 BOARD AND LODGING, 
 
 contracts for, not within statute, 348. 
 
 BOND, 
 
 for title to land, parol sale of, within statute, 411. 
 
 of reference to surveyor good as memorandum when, 698. 
 
 BOOK, 
 
 of broker, signed entry, insufficient as memorandum, 788-791. 
 of tradesman, evidence as to whom credit was given for goods, 165 
 n. 1, 216. 
 
 BOUGHT AND SOLD NOTE. 
 
 evidence of contract only, 789 n. 8, 791-793. 
 
 variance between, and signed entry, effect of, 793, 794. 
 
 by broker employed by purchaser only, binding, when, 795. 
 
 either bought or sold note satisfies statute, when, 790 note. 
 
 how variance may be shown, 790 note. 
 
 how variance may occur, 790 note. 
 
 BOUNDARIES, 
 
 disputed, parol agreements as to, within statute, when, 420. 
 under order of court, 421. 
 
 what must be shown to give validity to parol agreement for settle- 
 ment of, 421. 
 
932 STATUTE OF PKAITDS. 
 
 BILL OF LADING, 
 
 receipt and retention of, as evidence of acceptance, 584 n. 6. 
 
 BRICK, 
 
 contract to make, on and from soil of another, not within statute, 
 when, 367 n. 1. 
 
 BRIDGES, 
 
 license to build, does not give right to rebuild, 6 note. 
 See Hall v. Boyd, 6 note. 
 BROKER, 
 
 promise to pay, 227. 
 
 acceptance by, binding, when, 607. 
 
 agent for both parties, 788. 
 
 signed entry in his book, contract, when, 788-791. 
 
 bought and sold notes, eSect of, 789 n. 8, 791-793. 
 
 variance between signed entry and bought and sold notes, effect of, 
 
 793. 
 immaterial variance, 794. 
 sale on credit by, vendor may retract, 795. 
 employed by purchaser only, his sold note binding, when, 795. 
 
 BUILD, 
 
 agxeement to, not within statute, when, 399, 400 n. 5. 
 
 BUILDINGS, 
 
 license to erect, confers easement, 5 n. 7. 
 
 license by parol revocable at will, 9. 
 
 parol sale of, not within statute, when, 402. 
 
 CANCELLATION, 
 
 of deed, effect of, 412. 
 
 CARRIER, 
 
 receipt of goods by, not acceptance by purchaser, 558, 641-645. 
 
 CHANCERY, 
 
 sales of land by order of court of, not within the statute, 456-461. 
 
 CHANNEL, 
 
 parol license to dig, revocable at will, 9. 
 
 CHATTEL, 
 
 specific, action against executor for, 148. 
 
 CHOSES IN ACTION, 
 
 whether goods or not, 501-506. 
 
 CHURCHES, 
 
 pews in, are treated as land, 422. 
 
 CIRCUMSTANCES, 
 
 attendant, to be considered in cases of guaranty, when, 166. 
 COAL, 
 
 right to dig, parol sale of, within statute, 411. 
 
INDEX. 933 
 
 COLLATERAL AGREEMENTS, 
 
 to a lease, 68. 
 
 must be existing debt, 150, 220. 
 
 what are, 150, 156, 104 n. 1, 193. 
 
 tests for determining, 156, 166, 193-197. 
 
 ■where debt is created in consequence of promise, not, 194 n. 1. 
 
 illustrating, see Proprietor &c. v. Abbott, 194 n. 1. 
 Morehouse v. Crangle, 193. 
 
 if any credit is given to person promised for, is, 194. 
 
 what is essential to make a, 156. 
 
 instances of, 203-205 and notes. 
 
 may be, although made before debt is created, 206 n. 1. 
 
 in case of guaranty, statute only applies to, 150. 
 
 to an intended transfer of land, 407, 423. 
 COLLATERAL PROMISE, 
 
 See Collateral Agreements ; Promise. 
 CONNECTION, 
 
 between papers making up memorandum, how must appear, 739-745. 
 See Ilinde v. Whitehouse, 739 n. 4. 
 Pierce v. Cory, 739 n. 4. 
 Johnson v. Dodgson, 740 n. 4. 
 CONSIDERATION, 
 
 when must be stated in memorandum, 61 n. 
 
 when need not be, 61 n. 2. 
 
 forbearance to sue, as, 144, 173. 
 
 not goods as, when, 143. 
 
 moral obligation, 146. 
 
 of promise relating to marriage, 316. 
 
 for guaranty, must be, when, 162 n. 1, 171. 
 
 instances of, 171-179. 
 
 new and independent, rule as to, 160 n. 1, 175, 224. 
 
 rule in Tomlinson v. Gill, 152 notes. 
 
 rule in Reed v. Nash, 152 notes. 
 
 when promise springs from new transaction, 151 n. 1. 
 
 superadded inducement as, 153 notes. 
 
 See Williams v. Leper, 153 notes. 
 
 original, takes promise out of statute, 159, 161 n. 1. 
 See Buekmyr v. Darnall, 160. 
 
 need not appear in guaranty except, 176. 
 
 rule when promise is contemporaneous with contract, 171 n. 4. 
 
 special, not necessary, 177. 
 
 statement of, 179. 
 
 amount of, 179. 
 
 instances of good, 181. 
 
 contract in relation to marriage need not express, 316. 
 CONSTRUCTIVE ACCEPTANCE, 
 
 of goods, what is, 575. 
 
 See AccEPTA]s[CB and Receipt. 
 
934 STATUTE OF FEATJDS. 
 
 CONSTRUCTIVE SEVERANCE, 
 
 of growing trees and crops, what is, 368-403. 
 
 CONVEYANCE, 
 
 of land by licensor, revokes license, 8, 31-41. 
 
 CONTRACTS, 
 
 relating to lands, what are, 347. 
 
 instances of, 348. 
 
 to support owner, for use or title of land, not within the statute, 400. 
 
 parol, for work to be done on land not within statute, when, 404. 
 
 to pay for services in land, 404, 410. 
 
 to pay for services by devise of land, 404. 
 
 to pay for services in selling laud, 404, 410. 
 
 to pay taxes on land, 407. 
 
 to pay price of land in a particular way, 407. 
 
 not to use premises for certain purposes, 407. 
 
 parol, to pay additional price for land on a contingency, 408. 
 
 illustrations, 408-410. 
 
 to sell lands, 410. 
 
 to sell lands on commission, 410. 
 
 to locate lands, 410. 
 
 to locate land warrants, 410. 
 
 for sale of land warrants, 411. 
 
 for sale of possessory rights, 411. 
 to establish title, is within the statute, 414. 
 to release a covenant running with the land, 414. 
 to execute agreement to sell land, 414. 
 to purchase land, 414. 
 
 only voidable, unless otherwise provided in statute, 414. 
 to abate a tenant's rent, 414. 
 to submit to arbitration as to terms of lease, 414. 
 to convey equitable interest, 414. 
 parol, for making of mutual wills, 415. 
 
 for exchange of lands, 415-420. 
 
 for partition of lands, 415-420. 
 
 as to disputed boundaries, 420. 
 for release or assignment of dower, 422. 
 for sale of pews in churches, 422. 
 for partnership in land, 422. 
 actions in respect to void, 424. 
 merely collateral to transfer of land, 423. 
 purchaser taking property under, liable on implied, 436. 
 statute does not apply to implied, 436. 
 for goods, wares, and merchandise, what is, 502. 
 to manufactijre goods, whether within statute or not, 527-555. 
 
 See Executory Sales. 
 to make up materials and annex to land, effect of, 504. 
 of sale, what is, 506. 
 defeasible, of sale, effect of, 507. 
 
INDEX. 936 
 
 CONTRACTS— Continued. 
 
 how compliance with statute in relation to, may be shown, 649. 
 parol evidence admissible to show that none was made, 745. 
 or that it was conditional, 735. 
 or that writing does not state the, 746. 
 to show that price was agreed on, 746. 
 to show waiver or abandonment of, 762 n. 1. 
 party to, may waive statute, 878. 
 
 signed by one and acted on by both may be enforced in equity, 
 661 n. 1. 
 
 See Contracts not Performablb in a Year. 
 CONTRACTS NOT PERFORMABLB IN A YEAR, 
 general rule as to, 463-466, 471-479. 
 must be one not to be completed in one year, 463, 474. 
 
 See Boydell v. Drummons, 463. 
 not to be performed in one year, 474. 
 for rent of house for one year from future day, 463 n. 
 to pay money after one year, for land presently conveyed, 463 n. 
 to marry within five years, 463 n. 
 to labor for another three years, 463, 472. 
 to sell crop raised the present and succeding year, 463 n. 
 for board for one year from a future day, 463 n. 
 to pay money in annual instalment, 465 n. 1. 
 
 to labor for another one year from a future day, 471, 472 n. 7, 485, 
 489. 
 
 See Tuttle v. Sweet, 472 n. 4. 
 
 Snelling v. Huntingford, 472 n. 4, 474. 
 Hall I'. Rowley, 473 n. 
 Nones v. Homer, 473 n. 4. 
 Bracegirdle v. Heald, 473 n. 4. 
 Giraud v. Richmond, 474 n. 
 to pay debt in labor at a certain sum a year, 472. 
 rule, when may possibly be performed in a year, 466, 490. 
 to maintain child at a certain sum a year, 467. 
 to work for another as long as he lives, 467, 470. 
 to work for another so long as a certain person remains agent for 
 
 hun, 467. 
 to work for salary as they mutually agree, 482. 
 to pay money on the return of a certain ship, 468. 
 dependent upon uncertain event, 468 n. 2. 
 to be performed on a contingency, 468 n. 2, 471. 
 illustrations, 469-471. 
 ■ to work for another for a reasonable time, 469. 
 to work for another as long as he chooses, 483. 
 to pay money within five years, 463. 
 
 to employ a person until he recovers from a certain disease, 470. 
 to pay money when a certain suit is ended, 470. 
 to work for another as long as both agree, 470. 
 
936 STATUTE OP FEATJDS. 
 
 CONTRACTS NOT PERFORMABLE IN A Y'EAR— Continued. 
 to support a person as long as he lives, 470. 
 to pay a debt when a certain person dies, 470. 
 to marry when a certain voyage is ended, 470. 
 to pay a person a certain sum annually, as long as he lives, 470. 
 not to carry on a certain trade at a certain place, 470, 483-485. 
 instances of, dependent upon contingency, which are within the 
 
 statute, 471. 
 for a general hiring, 472. 
 
 rule, when may or may not be performed in a year, 479. 
 instances of, 480 n., 486. 
 rule in Penton v. Emblers, 480. 
 rule in Peter v. Compton, 482. 
 rule in Hodges v. Richmond Mf'g Co., 482 n. 
 implied, statute does not apply to, 485. 
 presumed to commence at once, when, 486-492. 
 
 See Russell v. Slade, 486 n. 3. 
 when not, 487. 
 
 See Sutcliffe v. Atlantic Mills, 487 n. 1. 
 void, when contract may be shown to ascertain value of services, 489. 
 parol, to maintain division fence not within statute, 489. 
 parol, by railroad company to stop trains at certain place, within 
 
 statute, when, 489. 
 void, performance of, entered upon, either may terminate at any 
 
 time, 490. 
 
 See King v. Welcome, 490 n. 3. 
 cannot be enforced, 491. 
 
 recovery for part performance on quantum meruit, 491. 
 for services for one year, rule if party remains longer, 492. 
 part performance by one does not take out of statute, 492. 
 rule as to contract defeasible within a year, 494. 
 rule when fully executed by one party, 494. 
 not to do certam thhigs, not within statute, when, 497. 
 vendition of right, 500. 
 
 CONTRACTS RELATING TO LANDS. See Interest in Land. 
 
 CO-PARCENERS, 
 
 parol partition of land by, 417, 418 n. 4. 
 
 CORPORATIONS, 
 
 promise to pay debt of, within statute, 308. 
 
 records of, good as memorandum, when, 675. 
 
 bound by acts of part performance of contracts relating to lands, 851. 
 
 COSTS, 
 
 of suit, promise to indemnify against, 296. 
 illustrations, 296-298. 
 
 COURT, 
 
 sales under order of, not within statute, when, 456. 
 
INDEX. 937 
 
 COVENANTS, 
 
 implied in parol leases, 66-69. 
 
 running with land, parol agreement to release, within statute, 414. 
 statute does not apply to implied, 436. 
 CREDIT, 
 
 if any is given to debtor, guarantor not liable upon parol guaranty, 
 
 202-214 and notes. 
 if terms of, agreed upon, must be stated in memorandum, 656. 
 but if contract has been performed on both sides and memorandum 
 is defective, rule, 738. 
 
 See Lockett v. Nocklin, 738. 
 CROPS, 
 
 raised the present and succeeding year, contract for sale of, within 
 statute, 463 n. 
 
 CROPS, INTERMEDIATE, 
 
 what are, 370. 
 
 rule as to, 379. 
 
 rule in Graves v. Weld, 379. 
 DAMAGES TO LAND, 
 
 agreement not to claim, for certain acts, when not within the statute, 
 349 n. 5. 
 
 agreement to pay, not within statute, 399-402. 
 DATE, 
 
 of memorandum may be proved by parol, 752. 
 DEATH, 
 
 of licensor revokes parol license, 9. 
 DEBT, 
 
 cause of, need not be shown in case of guaranty, 143. 
 
 to be transferred, promise to pay, 230. 
 
 promise to pay one's own, not within statute, 245. 
 
 meaning of, in statute, 182. 
 
 purchase of, or guaranty, 268. 
 "DEBT, DEFAULT, OR MISCARRIAGE," 
 
 meaning of, in statute, 182. 
 
 DEBTOR, 
 
 original, discharged guarantor liable, 214. 
 
 illustrations, 214 notes 1, 4. 
 
 must be principal, to make guaranty, 218. 
 
 promise to pay debt out of funds of, 230. 
 
 proniise to pay debt out of proceeds of property of, 230. 
 
 when promisor estopped from denying that he has funds, 240. 
 
 promise made to, to pay his debt to another, 235. 
 
 DECLARATION OF TRUSTS. 5ee Trusts. 
 
 DEED, 
 
 signature not necessary, when, 43. 
 reservation of growing crops, etc., effect of, 42. 
 
938 STATUTE OF FEATJDS. 
 
 DEED — Continued. 
 
 retujn or destruction of, does not operate to reconvey the title, 
 
 except, 412 and notes, 
 easement can only be created by, 5, 6. 
 necessary for leases in some cases, 4. 
 assignment and surrender must be, by, when, 89-92. 
 equitable mortgage, by deposit of, 441-456. 
 parol agreement to deposit, 452. 
 
 DEFEASIBLE CONTRACT, 
 of sale, what is, 507. 
 efiect of, 507-509. 
 
 DEL CREDERE, 
 
 agency, not a guaranty, 302. 
 
 DELIVERY, 
 
 receipt of goods by carrier is, 558. 
 
 must be, to constitute acceptance, 569-572. 
 
 symbolical, what is, 571, 630-641. 
 
 See Calkins v. Lockwood, 571. 
 may be without acceptance, 557. 
 if articles not complete, can be no, 567. 
 after action brought, 568. 
 to carrier, 613 n. 1, 614, 641. 
 on ship-board, 615. 
 
 at railway station, designated by vendee, 615. 
 test of, 616 n. 1, 621. 
 
 of goods in possession of vendee at time of sale, 624. 
 goods in hands of third person, 626. 
 by acceptance of deliveiy order, 627. 
 by acceptance of dock warrant, 627. 
 of goods in possession of vendor, 629-641. 
 
 See Symbolical Delivery; Acceptance and Receipt. 
 
 DELIVERY ORDER, 
 
 acceptance of, amounts to receipt of goods, when, 627. 
 DEMISE, 
 
 paroL 
 
 See Assignment ; Licenses ; Leases. 
 DEMURRER, 
 
 claiming protection of statute, effect of, 493. 
 
 advantage of statute may be taken by, when, 493, 855. 
 
 DEPOSIT OF DEEDS, 
 
 creates equitable mortgage, when, 441-456. 
 
 DESCRIPTION OF PROPERTY, 
 
 in memorandum, what is sufficient, 680-688. 
 
 DETERMINATION, 
 
 of tenancy from year to year, 94. 
 ineffectual notice to quit, effect of, 94. 
 
INDEX. 939 
 
 DISCLAIMER, 
 
 by tenant does not amount to sui-render, when, 93. 
 DISPUTED BOUNDARIES. -See Boundaries. 
 DISTRESS, 
 
 refraining from, on faith of guaranty, 268. 
 
 DITCHES, 
 
 license to dig, revocable, 14 n. 2. 
 
 DOCK WARRANT, 
 
 acceptance of, amounts to receipt of goods, when, 627. 
 
 DOWER, 
 
 right of, interest in land, 422. 
 
 parol agreement by widow not to claim, within statute, 422. 
 
 parol release of, by widow, 422. 
 
 assignment of, 422. 
 
 DRAINS, 
 
 license to lay, revocable, though right is paid for, 10. 
 
 EARNEST, 
 
 efEect of payment of, at common law, 514. 
 alters the property conditionally, 515. 
 what is, and efEect of, since the statute, 519. 
 efEect of statute on bargains and sale of goods, 517. 
 
 EASEMENTS, 
 
 can only be created by deed, 5. 
 rule in Hewlins v. Shippam, 5. 
 rule in Crocker v. Cowper, 6. 
 rule in Wood v. Leadbitter, 6. 
 license is, when, 5. 
 instances of, 5 n. 7. 
 license to lay drain, 10. 
 to license to dig channel, 9. 
 
 to pass over lands with teams, etc., 9. 
 
 to flood lands, 14 n. 2. 
 
 to connect with public drain, 14 n. 2. 
 ENTRY, 
 
 under void lease, efEect of, 47. 
 
 EQUITABLE INTEREST, 
 
 in land, parol sale of, within statute, 414. 
 
 EQUITABLE MORTGAGE, 
 
 equitable mortgage by deposit of title-deeds, etc., 441. 
 
 special agreement not necessary, 443. 
 
 what interest passes, 443. 
 
 explanation of extent of charge, 444. 
 
 deposit of copies of court roll, etc., 444. 
 
 deposit of shares in companies, 444. 
 
 deposit of insurance policy, 445. 
 
940 STATUTE OP FRAUDS. 
 
 EQUITABLE MORTGAGE — Continued. 
 deeds,relatmg to property abroad, 445. 
 ■whether mortgagor bound to execute a legal mortgage, 446. 
 adverse possession, 446. 
 subsequent advances, 447. 
 sub-mortgage, 448. 
 
 legal mortgage not security for subsequent advances, 449. 
 rectification of accompanying instruments, 449. 
 deposit of deeds to have legal mortgage drawn, effect of, 449. 
 presumption of mortgage may be rebutted by evidence, 450. 
 parol evidence to contradict memorandum, 451. 
 sale in banki-uptcy, 452. 
 
 parol agreement to deposit deeds, effect of, 452. 
 delivery to wife of depositor, 452. 
 deeds remaining in possession of debtor, 453. 
 deposit with firm, 454. 
 
 whether all the title-deeds should be deposited, 454. 
 good titles need not be shown, 454. 
 part of deeds deposited with one creditor, and part with another, 
 
 effect of, 455. 
 deeds relating to part of an estate, 455. 
 memorandum refering to different deeds from those deposited, effect 
 
 of, 456. 
 direction to third person to hand over deeds, effect of, 456. 
 
 EQUITY, 
 
 when parol license binding in, as to third persons, 15 n. 1. 
 sales of land by order of court of, not within statute, 456-461. 
 
 ESSENCE RULE, 
 
 as to executory sales, what is, 549. 
 
 ESTOPPEL, 
 
 application of, in case of surrenders, 92. 
 
 EVIDENCE, 
 
 cancelling of lease does not amount to prima facie evidence of sui-- 
 
 render, 90. 
 fact that goods are charged to third person, not conclusive that credit 
 
 was given to him exclusively, 165 n. 2. 
 circumstance attending transaction admissible as, to determine 
 
 whether promise is original or collateral, 166. 
 to identify subject-matter of a guaranty, 178. 
 as to whom credit is given in case of guaranty, what is, 218. 
 parol, admissible to prove contract relating to marriage, when 
 writings are lost, 329. 
 not admissible to contradict memorandum relating to equita- 
 ble mortgage, 451. 
 admissible to explain ambiguity in memorandum, when, 704. 
 admissible to identify documents referred to in, 704. 
 
INDEX. 941 
 
 EVIDENCE — Continued. 
 
 parol, to explain meaning of terms used in memorandum,.when, 704. 
 as "instructions," 704. 
 
 " terms agreed upon," 704. 
 "purchase," 704. 
 " our arrangement," 704. 
 "pm-chased," 704. 
 to show that certain unsigned paper is referred to, when, 704. 
 not admissible to connect papers to make memorandum, 704. 
 admissible when reference is ambiguous, 704. 
 See Long v. Millar, 705. 
 
 Ridgway v. Wharton, 705. 
 however, contra, Brown v. Whipple, 705 n. 2. 
 not admissible to supply defect in memorandum, 711 n. 1, 714 n. 
 
 See Archer v. Baynes, 711 n. 1. 
 admissible to identify agreement referred to in memorandum, 
 
 647 n. 3. 
 not admissible to show who is buyer and who seller in memo- 
 randum, 649. 
 not admissible to identify property described in memorandum, 
 except, 659 n. 1. 
 when contract, void under statute, has been performed on one side, in 
 action for recovery, the terms of the contract may be proved by 
 parol, 436 n. 5. 
 competency of, for court, 576. 
 
 See Holmes v. Hoskins, 576 n. 4. 
 parol, not admissible to vary contract, 736. 
 
 admissible to prove stipulation of, when, 737. 
 not, to connect separate documents, 739. 
 when, to explain imperfect reference, 743. 
 cases when not admissible, 743. 
 is, to show that no contract was intended, 745. 
 to prove that price was agTeed on, 746. 
 show abandonment of contract, 746. 
 explain latent ambiguity, 749. 
 explain omission in bought and sold notes, 749. 
 show situation of parties, 749, 861 n. 
 explain subject-matter, 750. 
 show usage of trade, 751. 
 show alteration in article ordered, 752. 
 show date of contract, 752. 
 
 show that contract signed by agent was signed for prin- 
 cipal, 752. 
 prove assent to alterations in memorandum, 753. 
 prove assent of principal, 754. 
 admissible to show that goods were sold by sample, 737. 
 or as in a certain condition, 737. 
 or subject to approval, 737. 
 
942 STATUTE OF FRAUDS. 
 
 'EVID'ENCB— Continued. 
 
 parol, not, to show names of parties, 737. 
 
 of trust, what is, 802. 
 
 requisites to prove trust, 803. ^ 
 
 parol, admissible to create trust, when, 808. 
 
 to rebut presumption as to part of property, 808. 
 not admissible to prove agency, 809. 
 
 admissible to prove acceptance of written proposal, 666, 733. 
 admissible on behalf of defendant resisting specific perform- 
 ance, when, 858, 865. 
 grounds on which admitted, 859. 
 instances in which it is admitted, 859-862. 
 why not admitted on behalf of plaintiff, 862. 
 when admissible on part of plaintiff, 863, 864. 
 parol variation of agreement may be shown and specifically en- 
 forced, when, 863. 
 parol, by defendant, to show mistake by omission of terms, 865. 
 to prove promised alteration, 866. 
 when not admissible to add term, 866. 
 when terms are ambiguous, 869. 
 
 See Resulting Trusts. 
 EXCHANGE, 
 
 of lands by parol, 415. 
 
 EXECUTION, 
 
 promise to pay debt, if not levied, 274. 
 
 ■ creditor, promise by, to pay for services of attorney employed by 
 sheriff to test title of property, 230. 
 
 EXECUTORS, 
 
 one, may surrender lease, 88. 
 
 notice to quit given by one, not sufficient, 95. 
 
 acceptance of surrender by one, effect of, 100. 
 
 guaranty of testator's debt by, 137-148. 
 
 must be consideration for, 137. 
 
 assets, admission of, must be alleged and shown, 137. 
 
 what amounts to admission of assets by, 138. 
 
 when liable, though no assets admitted or shown, 142, 146. 
 
 requisites of promise by, 143. 
 
 forbearance to sue, consideration, when, 144. 
 
 time of, 146. 
 
 must be cause of action when promise is made, 145. 
 
 moral obligation, 146. 
 
 promise to pay at a future time, 146. 
 
 action against, for specific chattel, 148. 
 
 not bound to plead statute, 148. 
 
 EXECUTORY AGREEMENTS. See Executory Sales. 
 
 EXECUTORY CONTRACT, 
 
 for sale of land can only be transferred by writing, when, 418, 415. 
 
INDEX. 943 
 
 EXECUTORY SALES, ' 
 
 ■what contracts are within the statute, 527. 
 
 ■when for sale of goods, and when for work, etc. English rule, 529- 
 
 537. 
 American rule, as to purely, 537. 
 contracts of sale, or for work and labor. Rule in New Hampshire, 
 
 540. 
 rule in New York, 542. 
 rule in Maine, 545. 
 
 rule in Massachusetts, New Jersey, and Wisconsin, 546. 
 the essence rule, 549. 
 contracts to produce and deliver, 553. 
 "when the property vests in the vendee, 553. 
 
 EXCHANGE OF LANDS, 
 
 contracts relating to, -within statute, when, 415. 
 
 FACT, 
 
 commencement of new tenancy is question of, 128-131. 
 
 FAIR, 
 
 payment of fee for exhibiting goods at, effect of, 7 n. 2. 
 
 FALSE REPRESENTATIONS, 
 
 as to solvency of another, 306. 
 
 FAMILY ARRANGEMENTS, 
 
 as to lands, by parol, effect of, 850. 
 
 See Specific Performance. 
 FARM, 
 
 contract to work on shares, not within the statute, 359 n. 
 
 FIXTURES, 
 
 sale of, by tenant, not a sale of an interest in land, 351. 
 
 agreement of landlord to pay tenant for, not within the statute, 353. 
 
 parol sale of, not within statute, when, 402. 
 
 FORBEARANCE TO SUE, 
 on faith of guaranty, 266. 
 
 FORECLOSURE SALES, 
 
 at auction, judicial sales, 458 n. 3. 
 
 FOREIGN CONTRACTS, 
 effect of statute upon, 305. 
 
 FRAUD, 
 
 not allowed to be covered by statute, 851-854. 
 takes case out of statute, when, 851-854. 
 
 FRAUDS, STATUTE OF, 
 
 section 1, 29 Car. II., chap. 3. 
 
 provisions of, in .several States of this country, 2. 
 
 how it affects lessor's remedies, 5. 
 
 rule in Ege v. Stafford, 5. 
 
944 STATUTE OF FEAXJDS. 
 
 FRAUDS, STATUTE OF — Continued. 
 rule adopted in this country, 5. 
 effect of, upon assignment of leases, etc., 73. 
 executor not bound to plead, 148. 
 application of, to guaranties, 150-310. 
 
 See Guaranties. 
 does not apply to implied contracts, 436. 
 
 cannot be pleaded to bill for specific performance, after agreement is 
 admitted, 854. 
 
 FREEHOLD, 
 
 interest must be conferred by deed, 8. 
 license to enter and cut standing trees, 8. 
 revoked by conveyance of land, 8. 
 
 FRUCTUS INDUSTRIALES, 
 
 crops, sale of, not within the statute, 352 n. 5, 353-356. 
 whether goods, while growing, 353-356. 
 
 See Growing Crops. 
 
 FRUCTUS NATURALES, 
 
 crops, sale of, within the statute, 386. 
 See Growing Crops; Grass; Growing Timber; Fruit. 
 
 FRUIT, 
 
 sold by the bushel, 354 n. 
 
 FURNISHED HOUSE. See Houses. 
 
 FURNISHED LODGINGS. See Rooms. 
 
 FURNISHED ROOMS. See Rooms. 
 
 GENERAL HIRING, 
 
 statute does not apply to contracts for, 472. 
 
 GOODS SOLD AND DELIVERED, 
 
 action for, lies for growing crops after severance and delivery, 354 n. 
 
 GOODS, WARES, AND MERCHANDISE, 
 
 what are, 502-509. 
 
 material to be made up and annexed to land, not, 504. 
 
 sale of. 
 
 See Acceptance and Receipt; Auctions. 
 GRANTEE, 
 
 of land, not bound by parol license granted by his grantor, 9. 
 promise by, to pay mortgage debt, 240. 
 
 GRASS, 
 
 growing, sale of, within the statute, 353 n. 5. 
 
 growing, sale of, after severance and delivery, price may be recovered 
 
 as for goods sold and delivered, 354 n. 
 rule in Crosby v. Wadsworth, 355. 
 rule in Parker v. Staniland, 355. 
 rule in Washburn v. Barrows, 356. 
 
INDEX. 946 
 
 GRASS — Continued. 
 
 marldng off, and separating from other, effect of, 869. 
 
 distinction between ripe and unripe, 371, 372. 
 
 to derive support from tlie soil, rule as to, 300 u.,362n.,364n., 370, 372. 
 
 species of, sale of, which is not within the statute, 882, 383 n. 1, 389. 
 
 sale of, after severance, 355. 
 
 sale of, to be severed by vendor, 355. 
 
 growing grass, 353 n. 5, 355. 
 
 fructus naturales, 386. 
 
 whether yhichis industriales while growing, 891. 
 
 fiuctus industriales, 352, 386. 
 
 distinction between, 386. 
 
 rule in Jones v. Flint, 387. 
 
 rule in Waddington v. Bristow, 388. 
 
 rule in Purner v. Piercey, 388. 
 
 distinction between, and growing trees. 
 
 intermediate crops, 379. 
 
 intermediate madder, 379. 
 
 intermediate clover, 379. 
 
 intermediate teasles, 379. 
 
 when mere accessories to land, 382. 
 
 not yet sown, 385. 
 
 contracts to plant and sell, 385. 
 
 not returning profit within a year, 392. 
 
 sold with the lands, 391. 
 
 rights of outgoing tenant, to, 391. 
 GRAVEL, 
 
 contract for sale of, to be taken out by vendee, rule as to, 357. 
 
 GROWING CROPS, 
 
 sale of, fructus industriales, not within the statute, 352 n. 5, 353-356. 
 tendency of the courts as to sales of, 354 n. 
 
 GROWING TIMBER, 
 
 sale of, by the foot, not within the statute, 354 n. 
 
 GROWING TREES, 
 
 sale of, to be severed by vendee, rule as to, in England and the sev- 
 eral states of this country, 357, 371 notes, 
 may be sold apart from the land, 358 n. 1. 
 are part of freehold, 358 n. 1. 
 chattels, after severance, 361. 
 constructive severance of, what is, 367. 
 
 sale of, to be severed by vendor, not within statute, 356, 358 n. 
 rule in Smith v. Surman, 356. 
 rule in Marshall v. Green, 357, 363-367. 
 
 GUARANTIES, 
 
 promise by executors, etc., binding, when, 137-148. 
 
 See Executors. 
 offer to, does not bind until accepted, 190. 
 
946 STATUTE OP PEAUDS. 
 
 GUARANTIES — Continued. 
 
 debtor discharged, promise is original, 195 n. 1. 
 
 by one .partner binds firm, when, 195 n. 1. 
 
 person other than creditor, not within statute, 197 n. 2, 198 n. 1. 
 
 application of the statute to, 156. 
 
 how should be pleaded, 157. 
 
 rule in Harris v. Huntback, 158. 
 
 rule in Buckmyr v. Darnell, 160. 
 
 form of promise not decisive of its character, 164. 
 
 attendant circumstances to be regarded, 166. 
 
 rule in Anderson v. Hayman, 166. 
 
 rule in Keate v. Temple, 168. 
 
 statute does not apply to guaranty of, specialty debts, 171. 
 
 consideration, 171. 
 
 instances of, 171-182. 
 
 rule as to, when guaranty made at time of contract, 171. 
 
 consideration need not move directly between the parties, 175. 
 
 must be new, 175. 
 
 need not appear in guaranty, except, 176. 
 
 special, not necessary, 177. 
 
 rules as to, 177. 
 
 "statement of, 179. 
 
 amount of, 179. 
 
 parol evidence admissible to identify subject-matter 
 of, 178. 
 
 bad promise not helped by statute, 178. 
 
 construction of, 180. 
 
 rules for construing, 180. 
 
 meaning of words "debt, default, etc.," 182. 
 
 partly within and partly without statute, rule as to, 183. 
 
 rule in Couch v. Meeker, 187. 
 
 promise to give, 189. 
 
 promise to, not binding until, 190. 
 
 offer may be withdrawn, 191. 
 
 implied acceptance of, 191. 
 
 waiver of references, 191. 
 
 collateral or not, tests for determining, 193. 
 
 promise must be to person guarantied, 197. 
 
 if person promises for, liable at all, rule as to, 202. 
 
 guarantor nmst not be liable, 205. 
 
 when credit is given to guarantor, rule, 210. 
 
 original debtor discharged, rule, 214. 
 
 to whom credit was given, for jury, 216. 
 
 evidence as to whom credit was given, what is, 218. 
 
 must be principal debtor, 218. 
 
 .must be debt to guarantee, 220. 
 
 new and independent consideration, rule, 224. 
 promise to pay broker, 229. 
 
INDEX. 947 
 
 GUARANTIES— Con/inuerf. 
 
 promise to pay a debt to be transferred, 230. 
 
 by execution creditor, '2'.i0. 
 
 percentage, promise in consideration of, 230. 
 
 promise to pay out of funds of another, 230. 
 
 when promisor estopped from denying that he has fund, 240. 
 
 ■when property deposited with guarantor to pay debt, 232. 
 
 promise made to the debtor to pay his debt, 235. 
 
 promise of grantee to pay mortgage debt, 240. 
 
 when promisor estopped from denying that he has funds, 240. 
 
 when debt has become debt of promisor, 245. 
 
 when promise cannot be revoked, 248. 
 
 when payable if no time is agreed on, 251. 
 
 parting with security on faith of, effect of, 255. 
 
 lien, giving up, on faith of, eilect, 255. 
 
 rule in Maine, Campbell v. Stuart, 259. 
 
 general rule, 260. 
 
 promisor must derive benefit from, 261. 
 
 discharge of attachment on faith of, 266. 
 
 forbearance to sue on faith of, 266. 
 
 refraining from distress, 268. 
 
 purchase of debt, or, 258. 
 
 promise is original when, 270. 
 
 against tortious acts, 271. 
 
 bail in criminal proceedings, 274. 
 
 when liability guarantied is extinguished, 274. 
 
 novation, effect of, 275. 
 
 indemnities, 286. 
 
 parol, of note turned out to pay debt, 298. 
 
 del credere agency, contract for, 302. 
 
 for goods furnished to infant, 303. 
 
 rights under parol, 304. 
 
 married woman, goods furnished to, under, when original promise, 304. 
 
 dissolution or alteration of contract by parol, 305. 
 
 foreign contracts, 305. 
 
 false representations as to salary, 306. 
 
 corporations, statute applies to, guaranties for, 308. 
 
 may be good when in form of letter addressed to a person not 
 named, 670. 
 
 See Griffin v. Rembert, 670. 
 
 but not when addressed to persons by wrong name, 671. 
 See Grant v. Naylor, 671 n. 1. 
 
 when debt has become debt of guarantor, 245. 
 
 HIRING, 
 
 contracts of. 
 
 See Contracts. 
 HOUSES, 
 
 leasing with agreement to furnish, within the statute, 349. 
 
 when agreement to furnish is independent of letting of house, 349. 
 
STATUTE OF FRAUDS. 
 
 HUSBAND AND WIFE, 
 
 surrender should be made to wife, when, 76 n. 1. 
 
 tenants under lease to both, husband alone, or both together, may 
 
 surrender, 88. 
 when surrender made by husband alone, 88. 
 wife's interest revest on death of husband, when, 88. 
 
 IMPLIED CONTRACT, 
 
 statute does not apply to, 485. 
 
 IMPLIED PROMISE. See Promise. 
 
 IMPLIED TRUSTS. See Trusts. 
 
 IMPROVEMENTS, 
 
 on land, parol sale of, not within statute, when, 402. 
 
 made under a license, 402. 
 
 under parol, purchase of land, 402. 
 
 as ground for specific performance, 826-831. 
 
 INDEMNITY, 
 
 contract of, whether within statute or not, 286. 
 
 Thomas v. Cook and Green v. Creswell reviewed, 287-298 and notes. 
 
 distinction between contract of, and guaranty, 288. 
 
 See Anderson v. Spence, 288. 
 promise to indemnify against consequence of signing bail bond, 289, 
 
 290-293 and notes, 
 promise to, to person becoming surety for another, 290, 295. 
 promise to indemnify sheriff, etc., 290 n. 1, 293. 
 promise to indemnify against a trespass, 294. 
 
 See Morey v. Crawford, 294. 
 promise to indemnify co-surety, 294. 
 promise to indemnify against costs of suit, 296. 
 promise to indemnify creditor taking note of third person for debt, 
 298-302 and notes. 
 
 See Eagle &c. Co. v. Shattuck, 298 n. 2. 
 Milks V. Rich, 298 n. 2. 
 instances in which such contract is within the statute, 300. 
 
 See Dows v. Swett, 300 n. 1. 
 
 INDEPENDENT, 
 
 and new consideration, 224. 
 
 <See Guarantee ; Consideration. 
 INFANT, 
 
 surrender to, good, when, 76 n 1. 
 
 surrender by, by deed, void, 88. 
 
 promise to pay for goods furnished to, original, 303. 
 INJUNCTION, 
 
 to restrain interference with license, 42. 
 INSTALMENTS, 
 
 contract to pay money in, when within the statute, 465 n. 1. 
 
 when not, 470. 
 
INBEX. 949 
 
 INSURANCE POLICY, 
 
 equitable mortgage by deposit of, 445. 
 
 INTEREST, 
 
 license coupled with, irrevocable, 13-20. 
 
 species of, which makes license ii-revocable, 13-20. 
 
 INTEREST IN LAND,' 
 
 to what, the statute applies, 347. 
 
 instances of agreements relating to an, 348. 
 
 agreements for leases are an, 348. 
 
 letting and hiring of furnished rooms are, 348. 
 
 contracts for board and lodging are not, 348. 
 
 instances of agreements relating to, within the statute, 348, 349 n. 5. 
 
 See Landlord and Tenant ; Damages to Land. 
 contracts relating to lands which are not within the statute, 351. 
 
 for the manufactvu-e of bricks, 351. 
 
 for the sale of growing fruit, 351. 
 
 to permit trees to be set for a niu'seiy on shares, 351. 
 sale of growing crops, 352 n. 5, 353. 
 growing grass, 353 n. 5, 355. 
 crops fructus naturales, 386. 
 crops fructus industriales, 386. 
 distinction between, 371, 386. 
 growing trees, 356-379. 
 
 distinction between growing crops and growing trees, 371. 
 what agreements between landlord and tenant are for an, 349. 
 contracts relating to, which are not within the statute, 351. 
 contract to set nursery on shares, 351. 
 sale of mulberry trees, not an, 351. 
 sale of buildings, tenant's fixtures, not, when, 351. 
 test for determining what is an, 352 n. 3, 354. 
 intermediate crops, 379. 
 shares in companies, whether are or not, 392. 
 shares in mine, 396. 
 
 historical view of alienation of estates in lands, 340. 
 application of the statute, 347. 
 instances of agreements within the statute, 348. 
 agreements between landlord and tenant, 349. 
 contracts relating to land which are not within the statute, 351. 
 sale of growing crops, 353. 
 sale of crops after severance, 355. 
 growing trees, 356. 
 
 distinction between growing trees and crops, 371. 
 intermediate class of crops, 379. 
 crops when mere accessories to land, 382. 
 crops not yet sown, 385. 
 
 distinction between crops yrwc^us industriales a,nd fructus naturales, 386. 
 rule in Jones v. Flint, 387., 
 
950 STATUTE OF FEATJDS. 
 
 INTEREST IN LAND — Continued. 
 rule in Waddington v. Bristow, 388. 
 rule in Purner v. Piercy, 388. 
 crops sold with the land, 391. 
 rights of out-going tenant, 391. 
 
 whether /rucfus industriales are goods while growing, 391. 
 growing crops not returning profits within- the year, 392. 
 shares in companies, when an interest in lands, when goods, etc., 392. 
 shares in a mine, 396. 
 
 agreement for lease, or for sale of, within statute, 397. 
 mixed indivisible contract, 397. 
 
 agreements amounting to transfer of an interest in land, 397. 
 agreement to let furnished lodgings, 398. 
 
 furnish house, 398. 
 ' repair, 399. 
 
 build, 399. 
 instances of agreements not within the statute, 399. 
 parol sales of buildings, fixtures, etc., 402. 
 contracts for labor to be done upon or for land, 404. 
 contract to pay taxes, mortgages, etc., upon lands, 407. 
 agreements to pay additional price for land conveyed, etc., 408. 
 contracts to sell lands for another, 410. 
 land warrants, possessory rights, etc., 411. 
 instances of contracts within the statute, 414. 
 equitable interests, 414. 
 agreements to make mutual wills, 415. 
 agreements for exchange or partition of lands, 415. 
 disputed boundaries, 420. 
 sales of land by auction, 456. 
 at judicial sale, 456. 
 
 JOINT TENANTS, 
 
 parol partition of lands by, 417, 418 n. 
 
 JUDICIAL SALES, 
 what are, 457. 
 not within statute, 457. 
 
 JURY, 
 
 question to whom credit given, in case of guaranty for, 216. 
 
 question of acceptance for, when, 575, 584, 587. 
 
 finding acceptance from insuflicient evidence, verdict will be set 
 aside, 576. 
 KEY, 
 
 acceptance of, by landlord from tenant, operates as assent to sur- 
 render, when, 100. 
 LANDS, 
 
 what is uncertain interest in, 4. 
 
 license conferring interest in, must be by deed, 7, 8. 
 
 freehold interest in, 8. 
 
INDEX. 951 
 
 LANDS — Continued. 
 
 title to, not reconveyed by return or destruction of deed, except, 
 
 412 and notes, 
 license to flood, revocable, 14 n. 2. 
 historical view of, alienation of, 339. 
 interest in, 339-445. 
 
 See Interest in Lands. 
 sale of, to be taken out by vendee, rule as to, 357. 
 parol agreement to establish title to, within statute, 414. 
 parol agreement to release covenant running with, 414. 
 parol agreement for sale of, 414. 
 parol agreement to purchase, within the statute, 414. 
 partnership in, not within statute, 422. 
 
 collateral agreements relatidg to sale of, not within the statute, 423. 
 illustration, 422, 423. 
 
 LAND WAERANTS, 
 
 parol contract for sale of, not within statute, when, 411. 
 
 LANDLORD. See Leases. 
 
 agreement between, within the statute, when, 349. 
 
 when agreement to repair premises within the statute, 349. 
 
 agreement by tenant to pay additional rent on account of repairs, 
 
 not, 350. 
 agreement to do an act which the law makes it the duty of either to 
 
 do, not within statute, 350 n. 
 
 LEASES, 
 
 what, are embraced under Sec. 1, 4. 
 
 statutory provisions relating to, in different States, 4. 
 
 parol, 4-70. 
 
 distinction between, and license, 14-28. 
 
 parol, good as license, 42. 
 
 when term commences under, 45. 
 
 to commence in- future, void, 45. 
 
 of equitable estates, 46. 
 
 from year to year, 46 n. 1. 
 
 void, effect of, under statute, 46. 
 
 void, entry under, effect of, 47. 
 
 when, becomes from year to year, 55-62, 63. 
 by parol, when, will be specifically enforced, 63. 
 terms of occupancy regulated by parol agreement, 65-66. 
 rule in Tooker v. Smith, 66. 
 farming, covenants implied in, 66. 
 to paint, 67. 
 re-entry, 67. 
 
 rent in advance under, effect of, 67. 
 may be special in its terms, 68. 
 collateral agreement to, 68. 
 determination of term under, void, 69. 
 
952 STATUTE OF PEAITDS. 
 
 LEASES — Continued. 
 
 term under, detenniaes at end thereof without notice, 70. 
 cancelling, does not amount to surrender, 89-92. 
 destruction of, effect of, 89 n. 5, 90 n. 
 new, operates as surrender, when, 96, also n. 6. 
 
 See Nickells v. Atherstone, 96 n. 6, 107-136. 
 acceptance of new, effect of, 119. 
 need not be in writing, 120. 
 agreement for, effect of, 120. 
 to begin presently, 121. 
 what is a sufficient, 121-123. 
 term taken on execution, effect of, 123. 
 new, for part of premises, effect of, as a surrender, 118. 
 must be new interest conferred by new lease, 112-114. 
 grant of, custody of some premises, is surrender, 114. 
 new leased to take effect on expiration of old, or upon contingency, 
 
 is not surrender, 115. 
 voidable on condition, effect of, 123. 
 when operative as surrender, 124 n. 
 new, leased to third person, 125. 
 tenant, reletting to landlord, 124 n. 
 new tenancy, commencement of, question of fact, 128. 
 sale of, within the statute, 397. 
 writing relied on as memorandum for, must state the term, 718, 719. 
 
 LAW, 
 
 surrender by operation of, 81, 107-136. 
 illustrations, 92, 107-136. 
 
 LETTERS, 
 
 contract relating to marriage may be proved by, 317, also n. 4. 
 sufficient as memorandum, when, 648 n. 2, 652, 653 n. 2. 
 addressed to third party, good as memorandum, when, 669-675. 
 query, whether need have been seen by other party, 671-674. 
 not containing terms of contract, not good as memorandum, when, 
 699 n. 3, 703, 715-719. 
 
 See Smith v. Jones, 699 n. 3. 
 reference, in case of, need not be express, 713. 
 relied upon as memorandum for lease, must state the term, 718. 
 
 LICENSE, 
 
 amounts to easement, when, 5, 6. 
 
 parol, invalid, when amounts to easement, 6. 
 
 rule in Hewlins v. Shippam, 5. 
 
 Crocker v. Cowper, 6. 
 
 Wood V. Leadbitter, 6. 
 to erect buildings, etc;, on land, effect of, 6 n. 
 
 See Collins i'. Collins, 5 n. 7. 
 to go upon land, revocable at wUl, 6. 
 tickets admitting person upon land, mere revocable license, 6. 
 
INDEX. 953 
 
 LICENSE— Continued. 
 
 rule in Wood v. Leadbitter, 6. 
 
 Burton v. Scherff, 7. 
 payment of fee for, does not give absolute right to, 7. 
 to exhibit goods at fair, revocable, 7 n. 2. 
 rule in Smith v. American Institute, 7 n. 2. 
 sporting, must be by deed, 7 n. 3. 
 
 See Webber r. Lee, 7 n. 3. 
 to insert beams in wall of house, 8. 
 to float timber, etc., in a stream, 8. 
 executed, effect of, 8. 
 to cut standing trees, 8. 
 revoked by conveyance of land, 8. 
 revoked by death of person granting, 9. 
 parol, to lay aqueduct, 9. 
 dig channel, 9. 
 
 pass over land with teams, etc., 9. 
 lay drains, 10. 
 when revocable, 9. 
 prescriptive right cannot be acquired under, 10. 
 coupled with interest, not revocable, 10-14, 28-31. 
 illustrations, 10-14. 
 rule in Liggins v. Inge, 11. 
 what is, 14 n. 2. 
 
 operates as, full excuse for acts done under it, 14 n. 2, 20-28. 
 distinction between, and lease, 14. 
 parol lease may be good as, 42. 
 
 rules relating to revocation of, in the various States, 14-31. 
 what amounts to easement, 14 n. 2. 
 coupled with an interest, 13-20. 
 parol to connect with public drain, 14 n. 2. 
 
 dig ditches, 14 n. 2. 
 
 flood lands, 14 n. 2. 
 
 erect buildings, .14 n. 2. 
 
 lay water pipes, 14 n. 2. 
 
 is a personal privilege, 15 n. 1. 
 
 when binding as to third persons, 15 n. 1. 
 
 occupy buildings, effect of, 17, 18. 
 
 dig for ore, 13, 17. 
 
 take water from a stream, 18. 
 
 erections made by licensee after revoked, belong to land- 
 owner, 19 n. 8. 
 
 executed, cannot be revoked as to acts already done under 
 . it, 20. 
 
 what may be done under, 20. 
 
 how far protects, 20-28. 
 
 may be implied, when, 23 n. 2. 
 
 must be granted by person having authority to do so, 27. 
 
954 STATUTE OF FEATJDS. 
 
 LEASES — Continued. 
 
 instances, in which revocable, 28-31. 
 
 parol agreement for sale of land may operate as, 42. 
 
 parol, by landlord to tenant to quit, operates as surrender, when, 96, 
 
 102 n. 1. 
 to quit in middle of quarter, effect of, 102 n. 1. 
 revoked, action lies for damage, when, 354 n. 
 irrevocable, when, 401 n. 
 to enter and cut timber, irrevocable after trees are severed, 361, 363. 
 
 LIEN, 
 
 discharge of, in consequence of promise by third person to pay the 
 
 debt, within the statute, 255-265. 
 general rule relating to, 260. 
 purchaser has on land, under void contract, for purchase-money paid, 
 
 when, 435. 
 vendor's, for price of goods, remaining, can be no receipt of goods, 
 
 616-621. 
 special, effect of, 621. 
 conditional sale, 624. 
 
 LOAN OFFICERS, 
 
 sale of lands by, at auction, within statute, 457. 
 
 MARRIAGE, 
 
 agreements relating to promise to marry, not within the statute, 
 
 when, 311. 
 when promise is to be performed in year, 311 n. 4. 
 if to be performed on contingency which may happen in a year, not 
 
 within the statute, 312. 
 
 See Clark v. Pendleton, 313. 
 consideration need not be expressed in contracts relating to, 316. 
 what is a sufficient memorandum of, 316. 
 bond given by intended husband to intended wife, or vice versa, may 
 
 be specifically enforced, 317. 
 contract may be proved by letters, 317, also n. 4. 
 marriage not part performance, 322. 
 part performance independent of marriage, what is, 323. 
 representations of third party relating to marriage, 327. 
 by whom enforced, 328. 
 representations must be clear, 328. 
 parol evidence admissible to prove promise when writings are lost, 
 
 329. 
 parol promise prior to marriage cannot be enforced, when, 329. 
 party representing to either party, intention to do something for 
 
 them on account of the marriage, bound, when, 330. 
 expression of wish by intended husband that intended wife's estate 
 
 should be settled upon her, effect of, 331. 
 false representations by one party, effect of, 332. 
 
INDEX. 955 
 
 MARRIAGE — Continued. 
 
 fraud not covered by the statute, 332. 
 
 promise made in consideration of marriage, not revocable, 336. 
 
 time of performance, 336. 
 
 post-nuptual settlement, 337. 
 
 promise iiiust be absolute, 337. 
 
 MARRIAGE SETTLEMENTS. See Marriage. 
 
 MARRIED AYOMAN, 
 
 promise to pay for goods furnished to, original, when, 303. 
 
 MARRY, 
 
 promise to, not within the statute, when, 311, 
 contract to, within five years, 463 n. 
 
 MEMORANDUM, 
 
 of agi-eement for lease, what must contain, 58-61. 
 
 how may be made up, 60, 61. 
 
 rule in Lindley v. Tibbals (but quere), 58. 
 
 consideration, when must be stated in, 61 n. 2. 
 
 consideration, when need not be stated, 61 n. 2. 
 
 statement of -consideration in, instances of, sufficient, 182. 
 
 of contract relating to marriage, what is a sufficient, 316. 
 
 of contract relating to equitable mortgage, 451, 456. 
 
 parol evidence not admissible to contradict, 451. 
 
 distinction between 4th and 17th sections as to, 646. 
 
 form of, not essential, 647, 653 n. 2. 
 
 what should contain, 647-663, 714-719. 
 
 price should be stated, when, 647 n. 1, 655 n., 678-680, 715-719. 
 
 when price need not be stated, 647 n. 1, 679. 
 
 names of both parties must appear in, 648, 6.55 n., 688. 
 
 may be sufficient, if the parties can be identified by the terms used 
 in the memorandum, 691. 
 
 as, by referring to the other party as " proprietor," 692. 
 
 rule when the description is indefinite, 692. 
 
 by entry in order-book, 690 n. 1, 693. 
 
 upon the memorandum does not show who is buyer and who seller, 
 defect may be remedied, how, 694. 
 
 parties identified by reference to other documents, 694. 
 
 by showing kind of business each is engaged in, 690 n. 1. 
 See Newell v. Radford, 690 n. 1. 
 
 must contain all the essentials of the contract, 647 n. 2, 648, 708, 
 713-719 and notes. 
 
 of contract for services, should state the nature of the services con- 
 tracted for, 648. 
 
 should show who is buyer aiid who seller, 648 n. 1, 689, 693. 
 See Lee v. Hills, 648 n. 1. 
 
 Vandenburgh v. Spooner, 689. 
 
 need not contain all the particulars of the contract, 647 n. 2, 655 n. 
 
 letters may amount to, 648 n. 2, 653 n. 2, 669-675, 700, 713-719. 
 
956 STATUTE OF FEATIDS. 
 
 MEMORANDUM— Conhnuerf. 
 
 need not be contained in one paper, 648 n. 2, 651, 700, 703. 
 need not be cotemporaneous with contract, 649. 
 
 See Shippey v. Derrison, 650. 
 distinction between, and contract, 649, 657, 714 n, 
 need be signed only by party to be charged, 651. 
 admission of contract in writing signed by party to be charged is 
 
 sufficient, 651. 
 how, must be connected with other writings, 651, 700-714, 863 n. 3. 
 is evidence of the contract, 651-883, 714 n. 
 writing signed, admitting contract, is sufficient, although it in terms 
 
 repudiates it, when, 652, 695. 
 or not intended as, 652. 
 stated account as, when, 855. 
 bill of parcels, 655. 
 receipt for money, 655. 
 
 need only contain substance of the contract, 647 n. 2, 856. 
 what are essentials of, 856, 660 n., 662 n. 1. 
 making of, presupposes prior contract, 656, 657, 674. 
 once made, parol evidence not admissible to show what was intended 
 by parties, 857, 713, 714 n. 
 
 See Edan v. Blake, 657 n. 2. 
 Shelton v. Livins, 657 n. 2. 
 must embrace all essentials of the contract, 658, 659 n. 1, 662 n. 1. 
 writing referring to parol terms is not sufficient as, 659, also n. 1. 
 
 See Palmer v. Marquette &c. Rolling Mill Co., 659 n. 1. 
 when mutuality is not required, 663. 
 when it is, 667. 
 
 parol acceptance of written proposal sufficient as, 663. 
 both parties need not be bound by, 683-669. 
 
 acceptance of written proposal may be shown by parol evidence, 668. 
 letters suggesting abandonment of contract is, when, 696. 
 may be in form of letters addressed to third party, when, 689-875. 
 
 See Gibson v. Holland, 669. 
 when letter is addressed to person not named, 670. 
 query, whether letter need have been seen by the other party, 671-674. 
 when letter is addressed to persons by wrong name, 671, also n. 1, 
 
 890 n. 1. 
 records of corporation, good as, when, 675. 
 
 See Argus Co. v. Albany, .875. 
 
 District of Columbia v. Johnson, 677. 
 alteration of, effect of, 677. 
 filling blanks in, 678. 
 
 contemplating preparation of formal agreement, good, when, 880. 
 what is sufficient description of property in, 880-688, 860 n. 3. 
 instances of sufficient and insufficient, 880-888, 
 letter suggesting abandonment of contract, 696. 
 
 See Drury v. Young, 698. 
 
 Cave V. Hastings, 691 n. 1. 
 
INDEX. 957 
 
 MEMORANDUM— Continued. 
 
 letter disputing terms may be, 698. 
 
 letter not containing in itself or by reference to other writings, not 
 
 good as, 699 n., 703. 
 bond is, when, 698. 
 receipt for purchase-money, 699, 715. 
 
 contract may be gathered from several writings, when, 700, also 
 n. 2, 713. 
 
 See Western Union Tel. Co. v. Chicago &c. R. R. Co., 703. 
 writings referred to by signed instrument need not be signed by 
 
 either party, 704. 
 reference must be clear or unmistakable, 704-714. 
 
 See Boydell v. Drummond, 709. 
 rule if papers are attached to ea;ch other, 703, 705 n. 2. 
 parol evidence not admissible to connect, 704, 739. 
 rule when the reference is ambiguous, 704. 
 illustrations, 704. 
 
 See Baumann v. Jones, 705. 
 Long V. Millar, 705. 
 Ridgway v. Wharton, 705. 
 however, contra, Brown v. Whipple, 705 n. 2. 
 reference sufficient, instances of, 707, 716 n. 
 insufficient reference, instances of, 708. 
 recital of agreement sufficient, 708. 
 
 See Boydell v. Drummond, 710. 
 Cooper V. Smith, 710. 
 Jackson v. Lowe, 710. 
 Smith V. Surman, 710. 
 rule when a part only of the documents referred to are incorporated 
 
 in the contract, 712. 
 reference, in ease of letters, rule as to, 713, 716 n. 
 
 See Western v. Russell, 713. ' 
 
 must contain enough to enable court to give effect to it as contract, 
 
 713 n. 
 parol evidence not admissible to supply defect in, 711, 714 n. 
 real intent of parties cannot be shown, 714 n. 
 effect will be given to, according to the legal intent, 714 n. 
 
 See Williams v. Robinson, 714 n. 
 letters, what must contain to amount to, 715 n. 
 See Seagood v. Meale, 715 n. 
 Clerk V. Wright, 715 n. 
 Brodie v. St. Paul, 716 n. 
 of sale of land, must state price, or it will not be specifically enforced, 
 
 715-719. 
 of agreement for lease, to be specifically enforced, must state term, 
 
 etc., 718, 719. 
 letter written to a stranger to the contract, not, 715 n. 
 written on back of letter, stating terms, is good as a, 717 n. 2. 
 
958 STATUTE OP FRAUDS. 
 
 MEMORANDUM— Continued. 
 
 officer's return on execution, 717 n. 2. 
 of sales at auction, how may be made out, 719. 
 
 of sales at auction of lands, must describe with reasonable certainty, 
 720. 
 indorsement of, on mortgage, on sale by sheriff insufficient, 
 
 when, 720. 
 indorsement, when sufficient, 720. 
 must be made at time of sale, 720 n. 5, 721, 723. 
 made by auctioneer, when not good, 720 n. 2. 
 made by vendor who acts as auctioneer, not good, 720. 
 by trustee, 726. 
 
 by auctioneer, how may be made, 721. 
 by auctioneer, what must contain, 721-729. 
 illustrations, 721 n. 2, 722 n. 1. 
 must be made by auctioneer or his clerk, 723 n. 1. 
 terms cannot be added by parol after sale, 723 n. 1. 
 
 See Bamber v. Savage, 723 n. 1. 
 time when made may be shown by parol, 723 n. 1. 
 of sale by auctioneer, of real estate, made on chart or plan, good as, 
 723 n. 1. 
 
 See Baptist Church v. Bigelow, 723 n. 1. 
 letter with terms of sale pinned into auctioneer's book is a, 723 n. 1. 
 
 See TaUman v. Franklin, 724 n. 
 entry of sale in auctioneer's book, good as, when, 724 n. 1. 
 imperfect, of sales of land at auction cannot be connected by parol 
 with letter written by vendor, 724 n. 1. 
 See Adams v. McMillan, 724 n. 1. 
 posters and advertisements of auction sale form part of, when, 724, 
 726. 
 
 See Pierce v. Corf, 727. 
 
 Ogilvie V. Foljambe, 724, 725. 
 Long V. Millar, 725. 
 may be written with ink, pencil, etc., 725. 
 if land is sold at auction, auctioneer must be authorized by writing, 
 
 when, 725. 
 auctioneer is agent for both parties for the purpose of making, 726, 
 
 727 n. 
 becomes agent of buyer as soon as property is knocked off, 727 n. 
 
 See Simon v. Motivos, 727 n. 
 made by auctioneer must be produced, 728. 
 presumption that he performed his duty will not stand for proof 
 
 that there was one, 728. 
 return of sheriff, etc., on process, good as, 727. 
 rendered good by recognition, \yhen and how, 729. 
 See DobeU v. Hutchinson, 729. 
 ■ must be concluded agreement, 730. 
 illustrations, 730, 731. 
 
INDEX. 959 
 
 MEMORANDUM — Continued. 
 
 recognition of contract with additional terms, not good as, 731. 
 immaterial additions do not affect validity of, 732 
 conditional acceptance of tenns, effect of, 732. 
 See Crossby v. Maycock, 732. 
 Lucas V. .Tames, 733. 
 parol acceptance of written order, effect of, 733, 734 n. 2, also n. 4. 
 
 See AVarner v. Wellington, 734 
 affidavit, good as, when, 700. 
 special acceptance of, 735. 
 withdrawal offer, effect of, 735. 
 determination of offer, 735. 
 rejection of offer, 735. 
 
 acceptance of offer, when must be made, 735. 
 parol variation of, effect of, on remedies of the parties, 754. 
 lost, effect of, 762. 
 parol evidence, not admissible to add to or vary, 736. 
 
 when to prove stipulations of contract, 737. 
 when not, 738. 
 
 not, to connect separate documents, 739-743. 
 is, to explain imperfect reference, 743. 
 cases where not admissible, 743. 
 is, to show that no contract was intended, 745. 
 or to show that it does not state contract, 746. 
 to prove that price was agxeed on, 746. 
 query, whether to prove abandonment of contract, 746. 
 to explain omission in bought and sold note, 749. 
 show situation of parties, 749. 
 explain subject-matter, 750. 
 show a usage of trade, 751. 
 prove alterations in articles ordered, 752. 
 prove date of, 752. 
 prove assent to alteration, 753. 
 of contract sought to be specifically enforced, must be complete and 
 
 certain, 843 n. 3, 848. 
 ambiguous expressions, how construed, 846-848. 
 ambiguous expressions, rule as to when the meaning is left doubt- 
 ful, 846. 
 illustrations, 846-848. 
 as to parol evidence relative to. 
 
 See Evidence; Specific Peefokmance. 
 signature to, 763-778. 
 
 need be signed only by party to be charged, 764. 
 approval of draft of agreement, 766. 
 signature by agent, 767. 
 
 alteration of draft agreement by party to it, 767. 
 what is a sufficient signing, 768. 
 signing as witness, 768. 
 
960 STATUTE OP FRAUDS. 
 
 MEMORANDUM — Continued. 
 partner signing, 769. 
 may be by pencil, 769. 
 
 stamp, 769. 
 
 printed, 769. 
 
 by mark, 771. 
 
 by initials, 771. 
 instructions by telegraph, 771. 
 place of, not material, 772. 
 at beginning, 772. 
 upon goods, 773. 
 in catalogue, 773. 
 in order-book, 773. 
 signed by third person, 773. 
 
 MINE. 
 
 shares in, sale of, an interest in land, when, 396. 
 
 MINING CLAIM, 
 
 parol sale of, within statute, 411. 
 
 MISTAKE, 
 
 in memorandum cannot be shown by parol, 657. 
 
 MOEAL OBLIGATION, 
 
 not good consideration for promise to pay another's debt, 146. 
 
 MORTGAGE, 
 
 agreement by grantee to pay, not within the statute, 407. 
 
 within the statute, 437. 
 
 agreement to execute, 437. 
 
 defunct, cannot be reinstated by parol, 437. 
 
 agreement to convert into conditional sale, 487. 
 
 to convert defeasible, into an absolute state, 437. 
 
 not to foreclose, 437. 
 
 to extend time of payment of, 438. 
 parol release of, 438, 439, 440. 
 parol of growing crops, valid, when, 440. 
 parol gift of, 440. 
 
 equitable, by deposit of deed, 441-461. 
 sale of lands at auction, under power, 9. 
 sale in, not within statute, 458 n. 3. 
 
 MULBERRY TREES, 
 
 growing on land, sale of, not within statute, 351. 
 
 MUTUAL WILLS, 
 
 parol agreement to make, within statute, 415. 
 performance by one does not make contract valid, 415. 
 
 NEW LEASE, 
 
 operates as surrender, when, 81, 107-136. 
 acceptance of, 119. 
 
INDEX. 961 
 
 NEW LEAS^— Continued. 
 
 need not be in writing, 120. 
 
 agreement for, 120. 
 
 to begin presently, 121. 
 
 Trhat is a sufficient, 121. 
 
 voidable on condition, 123. 
 
 to third party, 125. 
 
 See Leases. 
 NOTE, 
 
 turned out to pay debt, parol promise to indemnify good, when, 
 
 298-302 and notes. 
 
 See Eagle Mowing &c. Co. v. Shattuck, 298 n. 2. 
 
 NOTICE, 
 
 reasonable, of revocation of license, must be given, 41. 
 
 to quit, 94, 95. 
 
 NOVATION, 
 
 effect of, 275. 
 
 NURSERY, 
 
 contract to let land be used for, not within the statute, 351. 
 
 OPERATION OF LAW, 
 
 surrender by, what is, 81, 107-136. 
 instances of, 81, 107-136 and notes, 
 acts which create surrender by, 107-136. 
 new lease, effect of, 108-136. 
 
 ORE, 
 
 license to dig for, irrevocable, when, 13, 367 n. 1. 
 license to dig for, effect of, 17. 
 
 sale of, to be taken out by vendee, rule as to, in Iowa, 357. 
 right to dig, parol sale of, within statute, 411. 
 
 ORIGINAL UNDERTAKING, 
 what is, 151 n. 1, 155. 
 
 PAINT, 
 
 ebvenant to, implied in void lease, when, 67. 
 
 PAROL ACCEPTANCE, 
 
 of written order, effect of, 733. 
 
 PAROL ASSIGNMENT. See Assignment. 
 
 PAROL CONTRACTS. See Contracts. 
 
 PAROL EVIDENCE. See Evidence. 
 
 PAROL LEASES, 
 
 when may be made, 4. 
 to have effect of lease at wiU, when, 4. 
 remedies of lessor under, 5. 
 ' to commence infuturo vests a present term, when, 5. 
 
 See Leases. 
 
962 STATUTE OP rKAUDS. 
 
 PAROL LICENSE. See Licenses. 
 
 PARTITION, 
 
 by parol, within statute, -when, 415. 
 
 PARTNERS, 
 
 guarantee by one binds firm, when, 195 n. 1. 
 
 PARTNERSHIP, 
 
 in lands, not within statute, 422. 
 
 PART PAYMENT, 
 
 on purchase of goods, what is, 520-526. 
 
 effect of, 520. 
 
 when, must be made, 520. 
 
 must be in money, or its equivalent, 520, 522. 
 
 check given in, 521. 
 
 other goods given in, 521. 
 
 note of third person given in, 522. 
 
 purchaser's note may be, when, 522. 
 
 by set-ofi of debt due to purchaser, 523. 
 
 See Walker v. Nussey, 523. 
 by agreement to pay debt of vendor to a third person, 525. 
 question whether there has been a, for jury, 526. 
 of purchase-money for land does not take contract out of statute, 
 823-825. 
 
 See Specific Pekformance. 
 
 PART PERFORMANCE, 
 
 by one party does not take case out of statute, 492. 
 
 right of recovery for, 492. 
 
 of contract for sale of land, what is, 820-843. 
 
 by one, and full performance by the other does not take contract out 
 
 of statute, 492, 494. 
 party who has performed cannot set up statute, 492. 
 See Specific Performance. 
 PAYMENT, 
 
 in full, of pm'chase, money for land, does not take contract out of 
 statute, 824 n. 1, 825. 
 
 See Specific Performance. 
 PERCENTAGE, 
 
 promise to pay debt of another in consideration of, 230. 
 
 PEWS, 
 
 in churches, an interest in land, 422. 
 
 FLEA, 
 
 of surrender, what should contain, 134. 
 
 of statute, executor not bound to set up, 148. 
 
 PLEADINGS, 
 
 in case of guaranties, 157. 
 rule in Masters v. Marriott, 157. 
 
INDEX. 963 
 
 PLEADINGS — Continued. 
 
 rule in Harris v. Huntback, 158. 
 efEect of, on right of recovery, 150-164. 
 statute must be plead, 875-878. 
 how must be plead, 875-878. 
 
 statute a personal privilege, and third person cannot avail himself of 
 it, 877, 878. 
 
 POSSESSION, 
 
 of land, parol agreement not to take for certain time, within statute, 
 
 411. 
 by mortgagee that mortgagor may retain, not within statute, 411. 
 admission into, part performance, when, 826. 
 
 See Specific Performance. 
 
 POSSESSORY RIGHTS, 
 
 in land, ^arol sale of, valid, when, 411. 
 
 PRESCRIPTION, 
 
 right by, cannot be acquired under license, 10. 
 of tenancy from year to year, how rebutted, 62. 
 of surrender will not arise because rent has been paid by third per- 
 son, 90 n. 
 nor because lease is in custody of lessor, etc., 90 n. 
 when lease has been in custody of lessor for many years, rule, 90 n. 
 of surrender, arises, when, 131. 
 as to when contract for service commences, 486-492. 
 
 PERSONAL, 
 
 privilege of statute is, 493, 877, 878. 
 third person cannot plead, 878. 
 
 PRICE, 
 
 purchase of several articles at distinct, 510. 
 
 See Baldey v. Parker, 510. 
 when is uncertain, 512. 
 
 at which goods are sold, should be stated in memorandum, when, 
 678-680. 
 
 PROMISE, 
 
 by executor to pay testator's debt, requisite of, 143. 
 to pay at future day, 146. 
 to see one paid, 155. 
 upon new consideration, 160 n. 1. 
 liability and, must grow out of some transaction, 160. 
 when person promised for, is not liable, 161 n. 1. 
 naked, to pay another's debt, 162 n. 1. 
 , entire credit must be given to person promising, 163 n. 1, 165 n. 1. 
 form of, not decisive, 164. 
 
 to be responsible to one if he will become responsible for another, 
 165 n. 
 
964 STATUTE OF PEAUDS. 
 
 PROMISE — Continued. 
 
 to pay debt of another, out of funds of debtor in hands of promisor, 
 
 151 n. 
 if collateral, time of making not material, 164 n. 1. 
 to pay debt under seal, etc., statute does not apply to, 171. 
 to give guaranty, 189. 
 
 to pay debt to person other than the creditor, 197. 
 special, what is, 183. 
 
 to pay debt of another, form of, not decisive of its character, 164. 
 collateral within statute, 150. 
 when collateral, 193. 
 tests for determining, 193. 
 to be responsible, 155 n. 3. 
 to pay, if another does not, 154. 
 to pay absolutely, 155 n. 3. 
 
 to pay debt in consideration of debtor's discharge, good, 214. 
 to pay debt iu consideration of percentage, 197. 
 collateral, instances of, 203-205. 
 
 PROMISE TO INDEMNIFY. See Indemnity. 
 
 PROMISE TO PAY DEBT OF ANOTHER. See Guarantee; 
 Promise. 
 
 PROMISSORY l^OTE. See Note. 
 
 PROMISE TO MARRY. See Marriage. 
 
 PROMISE RELATING TO MARRIAGE. See Marriage. 
 
 PROPRIETORS, 
 
 of townships, partition of lands of, by vote, 420. 
 
 PURCHASE, 
 
 agreement to, does not amount to surrender, 93. 
 
 RECEIPT, 
 
 of goods, what is, 558, 613-641. 
 
 See Acceptance and Receipt. 
 for purchase-money, good as memorandum, when, 699. 
 for deposit, given by auctioneer, is, when, 699. 
 
 RECORDS OF CORPORATION, 
 
 good as memorandum, when, 675. 
 
 RE-ENTRY, 
 
 proviso as to, in void lease, effect of, 67. 
 
 REFERENCE, 
 
 in signed writings to unsigned. 
 
 See Memorandum. 
 REMEDIES, 
 
 of lessor under parol lease, 5. 
 
INDEX. 965 
 
 RENT, 
 
 payment of, in advance under parol lease, effect of, 67. 
 
 agreement to pay additional, does not amount to surrender of old 
 
 term, 93. 
 parol agreement to abate, 414. 
 
 EEPAIR, 
 
 agreement to, within statute, when, 399. 
 
 RESERVATION, 
 
 in deed, of growing crops, etc., effect of, 43. 
 
 RESULTING TRUSTS. See Trusts. 
 
 REVOCABLE LICENSE. See Revocation. 
 
 REVOCATION, 
 
 of license, when may be made, 6 n., 7 n. 9. 
 
 to cut standing trees revoked by conveyance of land, 8. 
 
 by death, 9. 
 
 what licenses are subject to, 9. 
 
 payment of consideration for, effect of, 10. 
 
 owner of land may forcibly prevent use of, 10. 
 
 when license not revocable, 10-14. 
 
 rules as to, not uniform in all the States, 15 n. 3, 35 n. 2. 
 
 illustrations, 15 n. 3, 35 n. 2. 
 
 reasonable notice of, must be given, 41. 
 
 when promise to pay debt of another not subject to, 248. 
 
 RIGHT OF WAY, 
 
 given by parol, revocable at will, 9. 
 
 ROOMS, 
 
 furnished, letting of by day, week, etc., an interest in lands, 348. 
 
 SALE, ^ 
 
 parol agreement for, may operate as license, 42. 
 
 what is, 506. 
 
 defeasible contract of, effect of, 507. 
 
 See Williams v. Burgess, 507. 
 Wooster v. Sage, 508. 
 Dickinson v. Dickinson, 509. 
 of several articles at distinct prices, 510. 
 
 See Baldey v. Parker, 510. 
 of several articles at auction to same person at distinct prices, 512. 
 when price is uncertain, 512. 
 executory, rules as to, 527, 555. 
 
 See Executory Sales. 
 on credit by broker may be retracted by vendor, when, 795. 
 See Auctions; Interest in Land. 
 
 SHARES OF STOCK, 
 
 equitable mortgage by deposit of, 444. 
 
966 STATUTE OP rKATJDS. 
 
 SHERIFF, 
 
 parol promise to indemnify, when valid, 290 n. 1, 293. 
 
 sales of lands by, at auction under execution within statute, 457. 
 
 return of, on process good as memorandum, 726. 
 
 memorandum of sale by, may be made at any time after, 723 n. 1. 
 
 may be made by deputy who did not make the sale, when, 723 n. 1. 
 
 agent of both parties, 726. 
 
 SIGNATURE, 
 
 to deed not necessary, when, 43. 
 
 to memorandum, what must amount to, 61. 
 
 not enough that it is wholly in the handwriting of the person to be 
 
 charged, 61. 
 to memorandum need be only by party to be charged, 763. 
 approval of draft of agreement, 766. 
 by agent, 767. 
 
 alteration of draft of agreement, 767. 
 what is a sufficient signature, 768. 
 signature as witness, 768. 
 by partner, 769. 
 
 may be by pencil, stamp, or printed, 769. 
 mark or initials sufficient, 771. 
 instructions for telegram, 771. 
 place of signature not material, 772. 
 signature at beginning, 772. 
 
 signature upon goods in catalogue or order-book, 773. 
 signature in the third person, 773. 
 rule in Caton v. Caton, 774. 
 
 SIGNING,- 
 
 memorandum, who must sign, 61. 
 
 when authority of agent must be in writing, 61 n. 4. 
 
 SPECIALTIES, 
 
 not within statute. 
 
 SPECIAL PROMISE, 
 meaning of, in statute. 
 
 SPECIFIC PERFORMANCE, 
 
 of parol agreement for lease, when wUl be made, 68. 
 
 illustrations, 63-65. 
 
 writings relied on as memorandum must state price, 718. 
 
 of agreement for lease, memorandum must state the term, 718. 
 
 memorandum must be certain as to the essentials of the contract, 719. 
 
 part performance as ground of, 819. 
 
 principles on which court acts, 820. 
 
 position of parties must be altered, 822. 
 
 acquiescence, 822. 
 
 acts must be unequivocal, 823. 
 
 part payment of purchase-money, 823-826. 
 
INDEX. 967 
 
 ' SPECIFIC PERFORMANCE — Continued. 
 
 effect of part payment, 826. 
 
 admission to possession, 826-828. 
 
 express assent not necessary, 828. 
 
 either party may enforce agreement, 828. 
 
 expenditm-e of money, 829. 
 
 expenditure under terms of lease not part perf omance, 830. 
 
 acquiescence in expenditure, 830. 
 
 parol contract by tenant for life under a power, remainder man not 
 bound, 831. 
 
 ■whether change of residence sufficient part performance, 832. 
 
 acts of part performance must be referable to an agreement, 832. 
 
 trustee with power of leasing, 834. 
 
 wrongful possession, 834. 
 
 contract with wife adopted by husband, 835. 
 
 continuance in possession not in general part performance, 835. 
 
 payment of increased rent, 838. 
 
 laying out of money part of consideration, 839-843. , 
 
 agreement must be complete, 843. 
 
 terms of contract must be certain, 843-848. 
 
 contradictory evidence, when specific performance decreed, 848. 
 
 surrounding circumstances considered, 850. 
 
 immaterial terras need not be proved, 850. 
 
 family arrangement by parol, 850. 
 
 corporation will be compelled to perform, when, 851. 
 
 fraud takes case out of statute, 851-854. 
 
 partnership, 8.54. 
 
 statute cannot be pleaded after admission of agreement by defendant 
 when, 854. 
 
 demurrer to bill for, will be good, when, 855. 
 
 agreement admitted by defendant, 856. 
 
 executory contract, 856. 
 
 statute insisted upon, 857. 
 
 defendant denying agreement but not claiming benefit of statute, 
 857. 
 
 different agreement admitted, 858. 
 
 rule of law as to admissibility of parol evidence on behalf of a de- 
 fendant before statute, 858. 
 
 when parol evidence admissible on behalf of defendant resisting 
 specific performance, 858. 
 
 grounds upon which parol evidence admitted on behalf of defend- 
 ant, 859. 
 
 cases where parol evidence admitted, 859-862. 
 
 grounds upon which parol evidence not admitted on behalf of plain- 
 tiff, 862. 
 
 whether parol evidence admissible on behalf of plaintiff when objec- 
 tion taken before agreement signed, 863. 
 
 parol variation of written contract may be enforced where part 
 performance, 863. 
 
968 STATITTE OF FRAUDS. 
 
 SPECIFIC FEKFORMANC'E— Continued. 
 
 parol evidence not admissible on behalf of plaintiff unless part 
 
 performance, 864. 
 term omitted by mistake may be proved by parol by defendant, 865. 
 inadvertent omission, 865. 
 mistake must be clearly proved, 866. 
 
 parol evidence admissible to prove promised alterations, 866. 
 term omitted, plaintiff offering to perform, 866. 
 subsequent variation, plaintiff offering to perform, 867. 
 ■when parol evidence not admissible to add term, 868. 
 terms of agreement ambiguous, 869. 
 mistake in law, effect of, 871. 
 fact that vendor cannot make title, 872. 
 
 SQUATTER'S RIGHT, 
 
 in land, parol sale of, within statute, 411. 
 
 STATUTES, 
 
 29 Car. 2, c. 3, sec. 1, 2, 
 9 Geo. 4, c. 14, 
 19 and 20 Vict., c. 97, 
 38 and 39 Vict., c. 77, 
 Alabama, 882. 
 Arkansas, 883. 
 California, 885. 
 Colorado, 887. 
 Connecticut, 887. 
 Dakota, 888. 
 Delaware, 888. 
 Florida, 889. 
 Georgia, 890l 
 Illinois, 891. 
 Indiana, 892. 
 Iowa, 893. 
 Kansas, 894. 
 Kentucky, 895. 
 Maine, 896. 
 Massachusetts, 897. 
 Michigan, 898. 
 Minnesota, 900. 
 Mississippi, 902. 
 Missouri, 903. 
 Montana, 004. 
 Nebraska, 906. 
 Nevada, 907. 
 New Hampshire, 909. 
 New Jersey, 910. 
 New York, 912. 
 North Carolina, 914. 
 
INDEX. 969 
 
 STATUTES — Continued. 
 Ohio, 914. 
 Oregon, 915. 
 Pennsylvania, 916. 
 Rhode Island, 917. • 
 Tennessee, 918. 
 Texas, 918. 
 Utah, 920. 
 Vermont, 919. 
 Virginia, 921. 
 "West Virginia, 922. 
 Wisconsin, 922. 
 "Wyoming, 924. 
 
 STATUTE OF FRAUDS. See Frattds, Statute of. 
 
 STOCK, 
 
 in companies, sale of, not within statute, unless, 392. 
 goods, -wares, or merchandise, when, 502. 
 
 SUB-TENANT, 
 
 surrender by lessee does not affect estate of, 77-80. 
 
 See Millar v. Watkins, 78. 
 how term of, may be terminated, 79. 
 cannot sm-render to original lessor, 88. 
 
 SURETY, 
 
 parol promise to indemnify person for becoming, 290, 295. 
 
 SURRENDER, 
 
 what is, 76 n. 1, 77, 92. 
 
 essentials of, 76 n. 1. 
 
 who may make, 76 n. 1, 87-02. 
 
 to whom may be made, 76 n. 1, 87. 
 
 when, may be made, 76 n. 1. 
 
 no formal words required to make, 81, 82 n. 2. 
 
 acceptance of key by landlord, effect of, as, 94, 100. 
 
 demise by tenant from year to year, 77. 
 
 by lessee, does not affect sub-lessee, 77. 
 
 See Millar v. Watkins, 78. 
 lessee reserving interest, not good, 80. 
 kinds of, 80. 
 
 operative words in deed to create, 80. 
 by deed, 81-84. 
 by operation of law, 81-84. 
 
 may be by deed, or note in writing, excepting in Florida, 81. 
 instances of, sufficient, 81, 82. 
 estate created without deed, 83. 
 effect of, 84. 
 
 on condition, effect of, 84. 
 cannot be, to commence infuturo, 84. 
 
970 STATUTE OF FBATJDS. 
 
 SURRENDER— Continued. 
 
 but see, when carried into effect, 82 n. 4. 
 
 reletting of premises by landlord does not necessarily create a, 82 n. 4. 
 requisites to make a good, 87. 
 ■ when may be made, 89. 
 cancelling lease does not amount to, 89-92. 
 
 See Ward v. Lumley, 91. 
 disclaimer by tenant, 93. 
 rent, agreement to pay additional, 93. 
 purchase, agreement to, 98. 
 by consent of parties, and acceptance of possession by landlord, 
 
 95-107. 
 what amounts to, 95-107. 
 acceptance of lease by landlord, etc., 95 n 3. 
 
 See Amory v. KanofEsky, 95 n. 3. 
 executed agreement to, effect of, 96. 
 
 See Deane v. Caldwell, 96 n. 4. 
 new lease operates as, when, 96, also n. 6, 107-136. 
 parol license to quit, operates as, when, 96. 
 
 abandonment of possession by tenant operates as, when, 97-107. ' 
 reletting premises, abandoned by tenant, operates as, when, 100. 
 entry by landlord and putting up a " To let," effect of, 100. 
 presumption of, how rebutted, 107. 
 
 landlord taking tenant as servant operates as, when, 107. 
 change in lease, effect of, as, 108. 
 
 See Coe v. Hobby, 109 n. 2. 
 agreement for new lease does not operate as a, 116. 
 implied, grounds on which the doctrine rests, 116 n. 3. 
 new lease for part of premises, effect of, 118. 
 must confer new interest, 112-116. 
 to take effect on determination of old, is not, 115. 
 to take place on a contingency, 116. 
 for less term than old one, 116. 
 effect on rent due, 184. 
 will be presumed, when, 131. 
 how should be pleaded, 134. 
 contract to, house, etc., is interest in land, 353. 
 
 SYMBOLICAL DELIVERY, 
 what is, 571, 630-641. 
 
 See Calkins v. Lockwood, 571. 
 goods in possession of vendor as agent of vendee, 630-641. 
 See Webster v. Anderson, 631. 
 Green v. Meriam, 631. 
 Ex parte Safford, 631. 
 Vincent v. Germond, 631 n. 5. 
 Elmore v. Stone, 632. 
 Janvrin u. Maxwell, 631 n. 1. 
 
INDEX. 971 
 
 SYMBOLICAL B^llYERY — Continued. 
 
 however, as what is essential to give effect to Shindler 
 V. Houston, 632 n. 3. 
 
 Fallo V. Miller, 634 n. 
 
 Dale V. Stimpson, 634 n. 2. 
 
 Marvin v. Wallis, 634. 
 
 Tempest v. Fitzgerald, 634. 
 
 Carter v. Touissant, 635. 
 
 Carth V. Sworder, 635 n. 3. 
 rule as to, 637-641. 
 what essential to make complete, 640. 
 
 TAXES, 
 
 on land, parol agreement to pay, not within statute, 407. 
 
 TELEGRAM, 
 
 accepting offer^ is sufficient sultscription of memorandum, 648 n. 1. 
 not good as memorandum, unless, 703. 
 
 TELEGRAPH CLERK, 
 
 when signature of, is sufficient to bind person sending message, 788. 
 
 TENANCY, 
 
 from year to year, how created, 46 n. 1, 55-63. 
 
 at will, how created, 47-55. 
 
 determined at end of term without notice, 70. 
 
 TENANCY FROM YEAR TO YEAR. See Year to Year. 
 
 TENANT. See Leases. 
 
 TENANTS IN COMMON, 
 
 parol partitions of land by, 417. 
 
 TENANT AT WILL, 
 how created, 47-55. 
 illustrations, 47-55. 
 
 TENDER, 
 
 of earnest money, effect of, 515. 
 
 TERM, 
 
 under parol lease, when commences, 45. 
 determination of, under void lease, 69, 94. 
 what are implied in parol lease, 66, 67. 
 may be special in parol lease, 68. 
 
 TICKETS, 
 
 of admission to theatres, etc., amount to license only, 6, 7 n. 
 
 TITLE, 
 
 parol agreement to pay expenses of investigating, not within stat- 
 ute, 407. 
 
 TITLE-BOND, 
 
 parol sale of, within statute, 411. 
 
972 STATUTE O^ FRAUDS. 
 
 TITLE TO LAND, 
 
 parol agreement to establish, within statute, 414. 
 
 TO LET, 
 
 putting up a, by landlord, effect of, 100. 
 
 TORTS, 
 
 guaranty against, binding, when, 271.' 
 promise to indemnify against, binding, when, 286-295. 
 See Marcy v. Crawford, 294. 
 
 TORTIOUS ACTS. See Tobts ; Guaranties. 
 
 TOWNSHIPS, 
 
 proprietors of, partition of lands of, by vote, 420. 
 
 TREES. See Growing Trees; Interest in Land. 
 
 TRESPASSER, 
 
 person acting under license after it is revoked, is, when, 7. 
 
 See Burton v. Scherfi, 7. 
 owner of land not liable as, for forcibly preventing use of, under 
 
 license, after revoked, 19 n. 10. 
 licensee not liable as, unless, 20-31. 
 
 TRUSTS, 
 
 aU declarations or creations of, must be in writing, 798. 
 
 freeholds, and chattels real, within statute, charitable uses, 798. 
 
 chattels, personal, not, 799. 
 
 volunteer, declaration must be clear and irrevocable, 799. 
 
 of money, second on mortgage, 800. 
 
 parol charge of, 800. 
 
 what is sufficient declaration of, 800. 
 
 statute not allowed to cover fraud, 800. 
 
 lands in a colony, 802. 
 
 formalities required, 802. 
 
 evidence of, 802. 
 
 requisites to prove, 803. 
 
 signature, 803. 
 
 resulting, 804. 
 
 arising, etc., by act of law, not within statute, 804. 
 
 of part of estate, 805. 
 
 devise of residue, 805. 
 
 vague, lapsed, unlawful, 806. 
 
 purchase made in name of stranger, 806. 
 
 rule applies to first purchase, 807. 
 
 to personal as well as real estate, 807. 
 
 purchase in fictitious name, 807. 
 
 parol evidence, admissible on part of person paying purchase-money, 808. 
 
 on behalf of person to whom conveyance is made, 808. 
 
 to rebut presumption as to part of property, 808. 
 
 not admissible to prove agency, 809. 
 
INDEX. 973 
 
 TBJJ&TS— Continued. 
 
 conveyance without consideration, 809. 
 
 purchase in name of wife or child, 810. 
 
 reputed wife, 810. 
 
 person in loco parentis, 811. 
 
 purchase by mother,"811. 
 
 fiduciary relationship, 812. 
 
 when avoided as against creditors, 812. 
 
 rule applies to personal estate, 812. 
 
 surrounding circumstances to be considered, 812. 
 
 purchase-money unpaid, 814. 
 
 joint tenancy, when created, 814. 
 
 purchase in name of a child and a stranger, 814. 
 
 evidence to rebut presumption of advancement, 814. 
 
 possession by father, 815. 
 
 devise, bequest, or lease, 816. 
 
 child fully advanced, 816. 
 
 purchase in pursuance of covenant, 817. 
 
 transfer of, 817. 
 
 TRUSTEE, 
 
 surrender to, not good, 88. 
 
 UNDER-TENANT, 
 
 cannot surrender to original lessor, 76 n. 1, 
 
 USAGE, 
 
 of trade, part of memorandum, when, 751. 
 
 USE. See Trusts. 
 
 USE AND OCCUPATION, 
 actions for. 
 
 VENDITION, 
 of rights, 500. 
 
 VERBAL CONTRACTS. See Contracts. 
 
 VERBAL LEASES. See Leases. 
 
 VOIDABLE, 
 
 new lease, effect of, as a surrender, 123. 
 
 VOID CONTRACTS, 
 
 actions respecting, 424-435. 
 executed, when enforceable, 424^-435. 
 
 See Van Valkenbaugh v. Croffat, 425. 
 money, etc., spent under, when recoverable, 428. 
 money paid imder, recoverable, 424-435. 
 expenditures made under, when recoverable, 425-435. 
 improvement put upon land, 431. 
 
 purchaser has lien on land, for purchase-money, when, 435. 
 person taking property purchased under, liable imder implied con- 
 tract, 436. 
 
974 STATUTE OP FKAUDS. 
 
 VOID LEASE, 
 
 efiectof, 47, 63.' 
 
 may enure as tenancy from year to yeax, 63. 
 See Leases. 
 WAIVER, 
 
 of damages for mjury to land, not within the statute, 849 n. 5, 878. 
 
 illustrations, 349 n. 5. 
 
 WAREHOUSEMAN, 
 
 becomes agent of vendee, when, 627. 
 
 WARRANTY, 
 
 of equity of goods should appear in memorandum, 656 n. 5. 
 
 WATER, 
 
 license to take from stream, effect of, 18. 
 
 WAT. See Right of Wat. 
 
 WILL, 
 
 contract to compensate for labor by, within statute, when, 405. 
 
 WITNESS, 
 
 signature as, to memorandum, efiect of, 768. 
 
 WORDS AND PHRASES, 
 ambiguous in memorandum, evidence admissible to explain, when, 704, 
 848 n. 3, 848. 
 
 See Evidence. 
 WORK, 
 
 contracts for. 
 
 See CONTKACTS. 
 
 WORK AND LABOR, 
 
 contracts for. 
 
 See Contracts.