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Vol. XI. XVI. LAW AND EQUITY REPORTS. The Common Law, Equity, Criminal, Admiralty, and Ecclesiastical Reports combined. Edited by Chauncet Smith, Esq. Vol. XXXVIIL TREATISE ON THE CONSTEUCTION OF THE STATUTE OF FRAUDS, (29 CAR. n. CAP. 3.) AS IN FORCE m ENGLAND AND THE UNITED STATES, j^FPElSTDIX, CONTAINING THE EXISTING ENGLISH AND AMERICAN STATUTES. By CAUSTEN BROWNE, Esq. COtrarSELLOR AT LAW. BOSTON: LITTLE, BEOWN AND COMPANY. 1857. Entered according to Act of Congress, in the ye^r 1857, By Caustbn Browne, In the Clerk's Office of the District Court of the District of Massachusetts. BIVEKSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. TO THE HONOURABLE RUFUS CHOATE THIS BOOK IS, BY PERMISSION, DEDICATED BY HIS OBLIGED AND OBEDIENT SERVANT THE AUTHOR. PREFACE. It can scarcely be necessary to offer any apology for the appearance of what professes to be a practical treatise upon the Statute of Frauds. Perhaps it is not too much to say that there is no subject, apparently so simple in its nature as the requirement of certain kinds of evidence in certain cases, more confused and complicated by the number, variety, and apparent if not actual contradiction of the decisions. Nor has there been for many years any work to which the practitioner could resort as a safe and ready guide to the rules and modii&cations of rules which these decisions have established. There are, it is true, numerous text writers, of whose works we possess late editions,' upon topics involving a more or less extended notice of the statute ; but it is certainly no disparagement of their labours to say that they have been unable to give to it so full and thorough a treatment as its importance has come to demand ; to do so was quite incompatible with the proper plans of their respective treatises. The work of Mr. Roberts, the only one in which this subject has been exclusively considered, has always been held in high esteem for the breadth and judiciousness of its commen- tary, its critical analysis of cases, and its lucid and elegant a* VI PREFACE. style. Such has been the profusion of decisions since he wrote, however, that it cannot now supply the practical need of the profession. That the present work is altogether such as to supply this need, the author- is far from confident. The profes- sional reader will be well able to appreciate the difficul- ties which have opposed themselves to the execution of such a task, arising not only from the confused state of the law itself but from the divei^ity of the titles to be discussed. In regard to both these points, the method pur- sued in the examination of cases, and the selection and arrangement of the topics treated, a few words may be not inappropriately said in this place. The multifarious provisions of the Statute of Frauds appear to group themselves in these several classes; 1. the creation and transfer of estates in land, both legal and equitable, such as at common law could be effected without deed; 2. certain cases of contracts which at common law could be validly made by oral agreement; 3. additional sblemnities in cases of wills ; 4. new liabilities imposed in respect of real estate held in trust ; 5. the dis- position of estates pwr avier vie ; 6. the entry and effect of judgments and executions. Of these, the last three classes have clearly no such mutual relation as would have made it profitable or practicable to consider them together, even if there existed any need of a special treatise in regard to them. The other three classes have this common feature, that they all pertain, in one way or another, to the subject of written evidence, and thus are perhaps susceptible of being treated in succession without actual incongruity. But for two reason^ it was deemed best to omit from this work the consideration of the provisions in regard to wills; first, because it did not seem to be really needed by the profession, the admirable treatise of Mr. Jarman, as lately edited in this country, presenting in complete and acces- PREFACE. VU sible shape all that it would have been appropriate to present here, and the author being unwilling to increase the size of the book without increasing its practical value ; secondly, because those provisions stand entirely outside of what appears to be generally understood as the domain of the Statute of Frauds, whether in reference to the English law or that of the several States, namely, the requirement of writing in proof of transactions which were previously capable of valid proof by oral evidence, involving the recognition, so to speak, of writing as a tertiwm quid in law, the establishment of a distinction between the two kinds of transactions, those effected by writing and those effected verbally, both of which the common law compre- hended within the single term parol. The result has been, therefore, to confine the work to the first two of the gen- eral topics to which, as above analyzed, the statute relates; and of these, it has been found unavoidable to give decid- ed prominence to the topic of contracts, as in itself possess- ing superior practical importance, and as being most perplexed by contradictory decisions. As. to the method pursued in the consideration of ad- judged cases, it may be necessary to explain that while the text has been devoted, wherever the condition of the law allowed, to that concise and systematic statement of principles, with their modifications and exceptions, which is always most acceptable in a practical treatise, yet in many cases where, owing to the conflicting character of the decis- ions, this could not be done without leaving the topic confused, the author has thought best to avoid being super- ficial at the risk of being considered prolix, and has freely and closely examined the cases in detail. In so doing he has been occasionally obliged to state conclusions at vari- ance with some which have appeared to rest upon high judicial authority, but always in a spirit of sincere defer- ence, and solely with a view to afford some aid to the VIU PREFACE. researches of the more accomplished reader. His examin- ation of cases referred to has been personally and carefully made ; and while he cannot doubt that the superior ability and learning of those who may examine his work may dis- cover errors in his conclusions, he believes it will be found that the difficulties of the subject have been plainly stated and fairly met. With all its imperfections, and doubtless it has many, it is now submitted to the profession for which the author has testified his respect by endeavouring to render it this service. Boston, Jnne, 1857. INTRODUCTION. The title of the statute which forms the subject of this work states it to be "An Act for Prevention of Frauds and Perjuries." In the recital, however, its object is expressed somewhat differently, as the " prevention of many fraudu- lent practices which are commonly endeavoured to be up- held by perjury and subornation of perjury." The latter phraseology is clearly the more accurate ; for the statute does not aim directly to suppress fraud and perjury by imposing any new punishment in cases where they are proved to have been committed, but makes provision for excluding in certain cases such modes of proof as experi- ence had shown to be peculiarly liable to corruption. And again, it would be a narrow view of the statute, at least as interj)reted at the present day, to limit its application to cases where there is in fact more or less danger of perjury or subornation of perjury. The purest character and the highest degree of credibility on the part of the witnesses by whom a transaction, for the proof of which this statute requires written evidence, is sought to be made out, or the most overwhelming preponderance in their number, are en- tirely unavailing to withdraw a case from its reach. Indeed the real object and scope of the statute would seem to extend X INTRODUCTION. far beyond all questions of the integrity of witnesses, and to comprehend the exclusion of merely oral testimony in certain classes of transactions, as at best of an uncertain and deceptive character. In estimating the value of this enactment, therefore, the important question is not whether the statute has in its practical working let in as much per- jury as it has excluded, for no strictness of legislation can bar out from a court of justice the man who deliberately purposes to commit perjury ; but it is whether, in the aver- age of large experience since the statute was enacted, the requisition of written testimony in certain cases has not materially served to secure the property of men against illegal and groundless claims. That it has done so will scarcely be disputed, and to the profound practical wisdom with which it was conceived to this end the most enlight- ened Judges and Jurists have at all times borne emphatic testimony. Nevertheless it cannot be said to have been judicially administered with a firm hand and in a consistent spirit. Within a few years after its enactment, and before the gen- eration of its framers had passed away, we find the courts admitting exceptions and distinctions as to its application and forcing upon it constructions tending to restrict its beneficial operation. In later days there has been evinced, on the whole, a disposition to return to a closer interpreta- tion of its provisions ; but even now there are doctrines, too firmly settled by precedent to be overthrown, which, from their very inconsistency with the spirit of the statute, lead continually to great embarrassment in its administra- tion. It must, however, be admitted that much of the difficulty which has been found to attend the exposition of the stat> ute is due to the style in which it is framed. The profess- ional reader who carefully examines it from beginning to end win find such obscurity of arrangement and such in- INTRODUCTION. XI exact and inconsistent phraseolo^, as to conclude that safe and rational rules for its construction can hardly be rested upon its literal expressions, but that it must be read, as far as may be, by the light of that broad and wise policy in which it was manifestly conceived. And this suggests a few words upon the authorship of the statute, with which these introductory observations may fitly close. In a decision of the Court of Queen's Bench which has perhaps given rise to more discussion than any other which has ever passed upon the statute, that of Wain v. Warlters, where it was determined that the written memorandum required b^ the fourth section must show the consideration of the agreement. Lord BUenborough rested his judgment (in which his brother Judges concurred) in great part upon the etymological force of the word " agreement;" remarking, in vindication of that rule of construction, that the statute was said te have been drawn by Lord Hale, " one of the greatest Judges who ever sate in Westminster Hall, who was as competent to express as he was able to conceive the provisions best calculated for carrying into effect the pur- poses of that law." ^ Lord Chief Baron Gilbert says that the statute was prepared by Lord Hale and Sir Lionel Jen- kins.^ But Lord Mansfield considered it scarcely probable that it was drawn by Lord Hale, as " it was not passed till after his dea,th and was brought in in the common way and not upon any reference to the Judges." ^ This coincides with what is the most distinct evidence we seem to have upon the subject, the direct statement of Lord Nottingham, who says, "I have reason to know the meaning of this law, for it had its first rise from me, who brought in the bill into the Lord's House, though it afterwards received some addi- tions and improvements from the Judges and civilians." * It 1 5 East, 16. See this Treatise, § 392. 2 Gilb. Eq. R. 171. 3 1 Burr. 418. * 3 Swanst. 664. Xll INTRODUCTION. would seem, therefore, t^t after its original proposition in Parliament by Lord Norangham, Lord Hale and Sir Lionel Jenkins had it under jconsideration and revision, and that it was finally passed, as it was left by them, in an informal shape. Lord Hale was not then alive, and the statute itself affords strong internal evidence, as for instance in its want of compactness and in the use of different words in differ- ent places to express the same subject-matter, that it was never regularly engrossed with a. view to its enactment. CONTENTS. PART I. Page Or THE Creation and Transfer of Estates in Land. 1 CHAPTER I. Formalities for conveying Estates in Land .... 3 CHAPTEE n. Leases covered by the Statute . i 21 r CHAPTER in. Leases excepted from the Statute 34 CHAPTER IV. Surrenders 42 CHAPTER V. Conveyances by Operation of Law, etc ■ 59 b XlV CONTENTS. P A R T . I I . Page Of Declarations of Trusts. - 77 CHAPTEE VL Trusts implied by Law ... . . . 79 CHAPTER VII, Express Triists ........ 94 PART I I I - Of Contracts. 115 CHAPTER Vin Verbal Contracts, how far valid . . . . . . 117 CHAPTER IX. Contracts in part within the Statute . . . . . .142 CHAPTER X. Guaranties . . . . 151 CHAPTER XI. Agreements in Consideration of Marriage . . . . . 219 CHAPTER Xn. Contracts for Interests in Land - ■'. 229 CONTENTS. . XV CHAPTER Xin. Agreements not to be performed within a Tear . . . .276 CHAPTER XIV. Sales of Goods , . . . 293 CHAPTER XV. Acceptance and Receipt of Goods 316 CHAPTER XVI. Earnest and Part Payment . 349 CHAPTER XVn. The Form, etc. of the Memorandum 353 CHAPTER XVIII. The Contents of the Memorandum 386 CHAPTER XIX. Verbal Contracts enforced in Equity 432 CHAPTER XX. Pleading . . , .' 477 INDEX TO CASES CITED. A. Abbott ti. Draper Abeel v. Radclifife Abrahall (Baxter d.) v. Abrahams v. Bnnn Aeebal v. Levy Acker v. Campbell Adams v. Anderson V. Bean V. Damsey V. McMillan V. Rockwell V. Townsend, Adcock V. Fleming Addison v. Hack Adkinson v. Barfield Adlington v. Cann 83 Awraman b. Morrice Aiken v. Duren Aitkin v. Young Albea v. Griffin Albert v. Winn Aldenburgh v. Peaple Aldrich v. Jewell Alexander v. Comber V. Ghiselin V. Mury V. Tams Alger V. ScoviUe 155, Allaire v. Ouland Allan V. Bower Allen V. Addington V. Aguirre V. Bennet 294, V. Booker V. Chambers V. Jaquish Page 125, 126,443 369, 386, 396 Browne 9 488 334, 390 294, 301 181 415 159 359, 382, 383 465 443 162 32 205 , 100, 103, 104 317 161 461 440,467 228, 472, 486 49 190 294 147, 149 75 87 158, 186, 204, 207, 217 159 396, 448, 470 177 300 354, 359, 3«1, 377, 387, 388 121, 443 440, 483 10, 43, 49 b* Allen V. Jarvis V. Knight V. Pryor Vi- Thompson Allen's Estate Ailing V. Munson AUnut V. Ashenden Allshouse V. Kamsay AUsopp V. Patten Alna V. Plummer Ambrose v. Ambrose Pago 308 63 160 210 439, 453, 458, 460 .177 411 192 453 382, 383, 384 89, 95 Ameriseoggin Bridge v. Bragg 31, 32 Anders (Den d.) v. Anders 69 Anderson v. Chick 382, 383, 453 V. Davis 192 V. Harold 864 V. Hay man 196 V. Scott 318, 329 Andover (Trustees, etc. of) v. Flint 161 Andrews v. Jones 119, 221 V. Smith 185 Anstey v. Marden 136, 140, 177, 21 2 Anthony v. Leftwych 440, 467 Antonio v. Clissey 193 Arbuckle )'. Hawkes 193 Archer v. Baynes 354. Argenbright v. Campbell 227, 364, 471, 485,495,498 Armiger v. Clark 3 78 Arms V. Ashley 106, 114 Armstrong v. Flora 192 V. Kattenhorn 444, 446, 461 Artcher v. Zeh 278, 283, 349, 350 481 391 162,402 483 312, 333, 334 Ash V. Abdy Ashcroft V. Morrin Ashford «. Robinson Askew V. Poyas Astey V. Emery XVIU INDEX TO CASES CITED. Attaquin v. Fish 443 Att'y Gen'l v. Day 75, 270, 471, 473 V. Sitwell 471, 474 Atwood V. Cobb 391," 395, 396 Aylesford's (Earl of) case 438, 458 B. Babcock v. Bryant 477 Badlatn v. Tucker 320 Bailey v. Delaplaine 57 V. Freeman 415 V. Ogden 320, 323, 328, 364, 379, 388 Bainbridge v. Wade Baines v. Jevons Baker V. Baker V. Carson V. Cuyler V. Jameson V. Vining Baldey v. Parker Baldwin v. Williams Ball V. Dunstervill^ Balmain v. Shore Bampton v. Paulin Bank of Lansingburgh v. Crary 401,413 325 74 467 330 139,478 86, 88, 89, 90 315, 318 298 15 265 209 239, 260 Bank of Muskingum v. Carpenter - 64 Barber v. Bucklin 163, 186, 215 V. Fox 187, 196 Bariokman v. Kuykendall 121, 125, 355, 389 Barkhamstead v. Farmington 66 Barlow V. Wainwright 40 Barnes v. Perrine 238 V. Teague 486 V. Wise 128 Barney v. Brown 833 V. Patterson 74, 355 Barrel! v. Joy 94, 95, 96, 106 Barrett v. Thorndike 60 Barry v. Coombe 354, 355, 363, 369, 375,386,396,491 V. Law 177, 364, 375 Barstow V. Gray Bartlett v. Pickersgill Bash V. Bash Bassler v. Niesly Bateman v. Phillips Bates V. Moore V. Starr V. Terrell Battersbee v. Farrington Batturs V. Sellers Bawdes v. Amhurst Baxter d. Abrahall v. Browne 377 486 231 456 387, 396 291 197 125 226 355," 383 364, 437, 438 Pa«« Beale v. Saunders 40 Beaman v. Buck 440 V. Russell 158 Bean v. Valle 393, 403, 478, 489 Beard v. Linthicum 448, 469 Beaumont v. Brengeri 319, 325 Beck d. Fry v. Phillips 10 Bedinger v. Whittemore 125 Beers v. Crowell 300 V. Culver 477 Bees V. Williams 55 Belding v. Manly 66 230 Bell V. Andrews V. Howard 429 430 V. Morse 66 V. Phyn 265 Bellamy v. Burrow 96 Bellasis v. Compton 82 Benbow v. Townsend 85 Benedict v. Beebee 237 V. Benedict 31 V. Lynch 378 Bennett v. Hull 294 V. Pratt 414 V. Scutt 31 Benson v. Hippius 414 Bentall v. Burn 320 Benton v. Pratt 177 Biddell v. Leeder 144 Biggs i>. Whisking 342 Bi 1 V. Bament 318 329 357 Billington v. Welch Birch V. Earl of Liverpool 455 283 V. Wright 37 Bird V. Blosse 354 V. Boulter 380 ,383 V. Gammon 192 V. Higginson 28 V. Muhlinbrink 309 ,312 Bishop V. Bishop 260 V. Doty 23 V. Little 273 V. Talbot 100 Black u. Black 267 ,482 ,483 Blagden v. Bradbear 269, 270, 382, 389 ,485 Blair v. Bass 90 V. Smith 72 BMce V. Blake 107 V. Cole 278 V. Paulin -^ 197 Blakeney v. Ferguson 465 Blanton v. Knox 291 Blenkinsop v. Clayton 324 , 325 ,349 Bligh V. Brent 262 Bliss V. Thompson 273 Blood V. Hardy 885 INDEX TO CASES CITED. XIX Blood V. Goodrich Blore V. Sutton Blow V. May nard Bluck V. Gompertz Blunt V. Boyd Board man v. Mostyn Boehm V. Campbell Bohannon v. Pace Bolton V. Bishop of Carlisle (Lord) V. Tomlin Booker v. Tally Boring v. Lemmon Borrett v. Gomesserra Pago 420 883 227 370, 873 165 456,469,471 400,413 . 189 44, 59 85, 119 193 74 464 Boson V. Statham 103, 104 Bostwick V. Leach 238, 260, 274 Botsford V. Burr 85, 87, 89, 90 Botting V. Martin 22, 45 Boult, (Whiteacre d.) v. Symonds 23 Boulter v. Arnott 829 Bovey's case 226 Bowen v. Morris 378 Bower U.Bell 120 Bowers v. Cator 489 V. Oyster 64 Bowlby V. Bell 297 Bowles V. Woodson 363 Box V. Stanford 440 Boyce v. Owens 204 Boyd V. Graves 72 V. McLean 90 V. Stone 132, 268, 272, 435 Boydell v. Drummond 286, 287, 288, 860 Boykins v. Smith 270, 382 Boynton v. Veazie 319, 320 Bozon V. Williams 63 Bracegirdle v. Heald 140, 288, 288, 291 Brackett v. Evans 119, 274 Bradish v. Schenck 23 Bradley v. Blodgett 274 V. HoldswOrth 264, 297 V. Richardson 218 Brady v. Sackrider 196 Brawdy v. Brawdy 459 Bray v. Freeman 154 Breed v. Hillhouse 188 Brennan v. Bolton 446, 462 Brent v. Green 271, 381, 382, 383 Brettel v. Williams 354, 359 Brewer v. Brewer 455 Brewster w. Silence 415,"416 Bridges v. Purcell 31 Briles v. Pace 42, 74 Brinley v. Spring 320 Brizick v. Manners 62 Broad well v. Getman 291 Page Brook V. Cook 465 Brodie v. St. Paul 360, 444 Bromley (Davison d.) u. Stanley 50, 51 V. Jefferies 389 Bronson v. Wiman 303, 804, 307 Brooks V. Dent 403 V. Haigh 411 Brothers v. Porter 84, 85, 86 Brown v. Adams 158, 478 V. Barnes 215, 478 V. Bellows 391 V. Curtis 162, 193 V. Wood worth 31 Bryan v. Jamieson 273 V. Whistler 28 Buck V. Pickwell 250, 261, 364, 889, 394 V. Pike 86, 87 V. Swazey 85, 86, 87, 88 Buekhouse v. Crosby 430 Buckley v. Beardslee 403 Buckmaster v. Harrop 357, 879, 382, 444, 446, 449, 458, 454, 459 Buckmyr, or Birkmire or Bourquemire v. Dar- nall 152,195,196 BuUard v. Walker 379 Bunnell v. Taintor 268 Burdett v. Clay 66 Burgess (Doe d.) v. Bank of Cleve- land 64 Burke v. Haley 480 Burlingame V. Burlingame 121, 129, 131, 275 Burns v. Sutherland 469 Burrow v. Greenough 92, 95, 106 Bushell u, Beavan 176, 205, 384 V. Wheeler 316, 318, 324, 334, 340 Butcher v. Stapely 456 V. Steuart 192, 412 Butler (Jackson d.) v. Gardner 44 Buttemere v. Hayes 55, 128, 235, 483, 490 Butter U.Lee 120 V. Prentiss 169 Buxton V. Bedall 309 Byrd v. Odem 465 Byrne v. Romaine 466 C. Caballero v. Slater 408, 414 Cabot V. Haskins 290, 292, 368 Cahill V. Bigelow 139, 160, 196 Calhoun v. Hays 72 Calkins v. Lockwood 321 XX INDEX TO CASES CITED. Page Calvin v. Williama 298 Cameron v. Clark 185 Cgjnmack v. Masterson 139, 396 Campbell v. Findley 164 403 V. Taul 269 Oaperton v. Gray- 196 385 Carey V. Callan ' 89 Carman v. Susiok 294 Carpenter v. Wall 162 Carr, Ex parte 178 Carrington v. Anderson ^81 382 u. Roots 118, 138, 141, 257 Carroway v. Anderson 73, 478 Carter v. Palmer 93, 110 V. Toussaint 318, 326 Oafville V. Crane 157, 170 Case V. Barber 212, 479 Casler v. Thompson 465 Cason V. Cheely 309 Castling V. Aubert 153, 201, 203, 212 Caston V. Moss 215 Catlin V. Jackson 75 Chamberlain v. Agar 436 Chamberlaine v. Chamberlaine 91, 436 Chambers v. Massey 489 .Champion v. Plummer 375, 377, 387, 388 V. Short 342 Champlin v. Parish 377, 478, 489 Chandler v. Davidson ' 216 Chanter v. Dickinson 301 Chapiu V. Lapham 153, 155 V. Merrill 155, 157, 159 Chaplin v. Rogers 824 Chapman v. Bluck 359 V. Gray ^ 36 V. Partridge 356 V. Ross 159 Chappel V. Marvin 320 Charnley ». Hansbury 469 Chase «. Day 196,199 Chater v. Beckett 146, 190, 203, 212 Cheny v. Hemming 12, 366 Chesapeake & Ohio Canal Co. V. Young 448, 469 Chesley u. Frost 60 Chichester v. Vass 224 Child V. Comber 378, 485 V. Godolphin 471, 481, 485, 494, 495, 497 Chiles V. Woodson 80, 269 Chinney v. Blackbnrne 66 Christie v. Simpson 382, 383 Christy M. Barnhart 461,464 Church (Jackson d.) v. Brownaon 56 V. Sterling 84, 448 Page Church of the Advent v. Far- row 396, 440, 453, 469 Clabaugh v. Byerly 272 Claflin V. Carpenter 30, 249, 254, 258, ^ , 260 Clancy v. Crane 268 i;. Piggott 401, 413 Clapp V. Shephard 298 Clark V. Beach 66 V. Hrown ^'^^ V. Bumham 299 V. Graham ^^ K.Hall 207,209 V. Pendleton 219, 278, 281, 282 U.Tucker 333,364 Clary v. Marshall 135 Clason «. Bailey 357,377,379 Clay V. Yates 310 Clayton v. Andrews 294, 301 V. Blakey 38, 39 Cleaves w. Foss 382,478 Clement v. Durgin 31, 32, 274 Clerk V. Wright 389, 451 Click V. McAfee 192 Clinan v. Cooke 359, 384, 396, 416, 439, 453, 457, 470 Coates V. Chaplin 334 Cobbold V. Caston _ 312 Cocker v. Cowper 27 Cooking V. Ward 128 Cody V. Quarterman 36 Coe V. Duffield 414 V. Turner 60 Coffin V. Lunt 34, 35, 39 Colburn v- Dawson 414 Golden (Jackson d.) v. Brownell 23 Coldham v. Showier 415 Cole V. White 463 V. Dyer 401, 413 Coleman v. Bailey 385 V. Carrigues 384 V. Gibson 340 V. Upcot 378 Coles V. Bowne 377, 478 V. Trecothick 369, 371, 382, 383, 384, 453 Collier u. Coates 125 Colt V. Netterville 296 V. Root 186 Combs V. Bateman 350 Comes V. Lamson 126, 136 Coming, Ex parte 63 Commonwealth v. Dudley 61 Conant v. Little 74 Cone V. Tracy 120 Conkey v. Hopkins 158 INDEX TO CASES CITED. XXI Pago Paga Conner v. Lewis 87 Curtis V. Pufih 329 , 340 Connerat v. Goldsmith 153 Custance v. Bradshaw 264 ConoUy V. Kettlewell 196,197 Cutler V. Haven 66 Conway v. Sherron 465 V. Hinton 196 , 198 Cooch V. Groodman . 11, 12 V. Pope 260 Cook V. Stearns 29,32 Cooke V. Tombs 143, 363 D. Cookes V. Mascall 437 Cooper V. Chambers 192, 214 D'Aguilainj!. Drinkwater 222 V. Elston 294 Dale V. Hamilton 85, 88, 93, 264, 266, V. Smith 354 448 Cooth V. Jackson 391, 446,451,471, Dall V. Brown 71 483,485,489 Damon v. Osborne 344 Cope V. Williams 125 Davenport v. Gentry 121 Copeland v. Watts 57 V. Mason 466 Corbett V. Cochrane 192 Davis V. Moore 344 Corbin v. Jackson 68 V. Parish 272 Cork V. Baker 219 V. Robertson 355 Cottington v. Fletcher 471, 485, 495 Couch V. Meeker 139, 150 Coughlin V. Knowles 1 25 Coupland v. Maynard 49 Courtail (Doe d.) v. Thomas 10, 44 Couturier v. Hastie 318 Cox V. Bailey 313 V. Peele 272 Cozineu.Graham478, 482,483,489,499 Crabb (Jackson d.) v. Bull 134 Crafts V. Beale 188 Craig u. Van Pelt 119 Craje v. Bullock 190 V. Gough 119 Crawford v. Morrell 197 Crawshay v. Maule 265 Creel v. Bell '214 Creswell v. Wood 156 Cripps V. Jee 108 Crocker v. Higsins 434 Crobk V. Brooking 95 Crookshank v. Burrell 303, 312 Crop V. Norton 85, 87 CrosBy V. Bronson 66 V. Wadsworth 21, 248 Croswell V. Crane 26, 276, 291 Croyston v. Banes 471 Cufff. Penn 419 Gumming v. Roebuck 356 Cummings v. Arnold 420, 426, 431 V. Dennett 308 i>. Gill 465 Cummins v. Nutt 72, 465 Cunlyife v. Harrison 340 Curling v. Flight 264 Curnutt V. Roberts 125 Curtis u. Blair 17,385 i>. Brown 192,196,204 (Jackson d.) v. Bronson 66 V. Shields 356, 367,382, 394, 395 V. Thompson 39 V. Tingle 74 V. Townsend 30, 72, 73, 455 Davison d. Bromley ti. Stanley 50, 51 Dean v. Dean 92 Deane v. Izard 456, 466 Dearborn v. Parks 120, 164 De Biel v. Thompson 359, 434, 450 Deg V. Deg 89, 96 Delano v. Montague 38, 234, 276 De Medina v. Poison 40, 41 Den d. Anders v. Anders 69 Gwyn V. Wellborn ^^ May berry v. Johnson 9, l^Bs WoodhuU V. Longstreet 69, 70 Deniston v. Little 474 De Peyster ii. Gould 86 Devaux v, SteinkeUer 503 Devenish v. Baines 92 Dick V. Maury 66 Dickenson v. Adams 452 Dickerson v. Lilwal 355 Dilts V. Parke 186 Dixon V. Bromfield 384 V. Olmius 436 Dobell V. Hutchinson 354, 363 Dock V. Hart 144, 149 Dodd V. Acklom 52, 56 Dodge V. Van Lear 359 Dodsley v. Varley 319 Doe d. Burgess u. Bank of Cleve- land 64 Courtail v. Thomas 10, 44 Gray v. Stanion 52 Johnstone v. Huddlestone 55 Murray v. Bridges 51 Murrell v. Milward ■ 48 Rawlings v. Walker 53 xxn INDEX TO CASES CITED. Page Doe d. Richman v. Baldwin 69 Rigge V. Bell , 40 Smyth V. Smyth 273 Whitney u. Cochran 1 129 Doidge V. Bowers 39 Donaldson v. Smith 38 Donellan v. Read 23, 50, 52, 120, 289 Dorman v. Bigelow 403 415 Dorsey v. Clark « 89, 90 Doty V. Wilder 383 Douglas V. Howland 414, 415 V. Vincent 223 437 Douglass V. Spears 377 Dowdle V. Camp 125 Dowell V. Dew 462 Dowling (Morgan d.) v. Bissell 9 Downs V. Ross 303 Doyle vt White 193 Drace v. Wyat 478 Drakely v. Deforest 185 Draper v. Pattina 357 Draughan v. Bunting 158 192 Drayton v. Williams 478 Drummond v. Burrell 285 Drury v. Conner 455 Drybutter v. Bartholomew 262 Dubois V. Kelly 30 Dudley v. Caldwell 66 Dugan V. Sittings 220 455 Duke V. Harper Duncan v. Blair 144 38 147 273 ^^ V. Sylvester I^Beuft V. Albrecht 69, 71 264, 297 Dundas v. Dutens. 225 450 Dunlap V. Thorne 205 Dunn V. Moore 440 467 483 V. Thorpe 219 V. West 158 Dunne v. Ferguson 255 Durham v. Manrow 161 Duvall V. Peach 273 Dyer V. Martin 471 V. Saudford 28 Dwinel V. Veazie 86 D'Wolfi). Rabaud 173 , 190 E. Earl (Farmer d.) v. Rogers 10, 43 Eastwood V. Kenyon 186, 483, 490 " - - . . ^^g^ ^^^ 72,456 444, 446, 463, 466 323, 324, 328 403 127,491 38, 234 Eaton V. Whitaker Ebert v. Wood Eckert V. Eckert Edan V. Dudfield Edelen u. Gough Edelin v. Clarkson Edge V. Strafford 130, 129, 355, 363 Edwards v. Jevons V. Kelly Egerton v. Mathews 377, Eichelberger v. MoCauley Elder v. Warfield 161, 194, Elfe i>. Gadsden EUet V. Paxson Ellicott V. Turner Elliot V. Glese Elliott u. Armstrong V. Brown V. Thomas Ellis V. Ellis V. Deadman V. Paige V. Smith Ellison V. Daniels Elmore v. Kingscote V. Stone Elting V. Vanderlyn El wood V. Monk Ely V. Ormsby Embury v. Conner Emmerson v. Heelis Emmet v. Dewhirst Emmott V. Kearns Endicott v. Perry Eiinis V. Walker Enos V. Hunter Entz V. Mills Erskine u. Plummer Erwin (Jackson d.) v. Moore Evans v. Ashley I). Bicknell V. Duncan V. Harris V. Merriken V. Roberts 250, 251, 252, Ewing V. Osbaldestone V. Tees Ewings V. Arthur Ewins V. Calhoun Eyre v. Dunsford V. Ivison 233, 240, 408, 414 209, 211 393, 401 308 196,477 355, 394 230, 231 278, 290 190, 403 90 266 329, 342 440, 471 389, 394 35, 39 10 66 889 327 187, 478 167 328, 350 274 240 177, 425 413 882 75, 380 89, 91 388 80„250 87, 94 75, 370 178 141, 218 489, 490 66 243, 249, 253, 257 124 230 66 177 177 485 Falmouth (Earl of) v. Thomas 130, 237, 258 Farebrother v. Simmons 379, 380 Farina v. Home 320 Farringer «. Ramsay 89, 90 Parish u. Wilson 187 Farley ji. Cleveland 166 V. Stokes 40, 465, 466 Farmer d. Earl v. Rogers 10, 43 INDEX TO CASES CITED. XXUl Farrar v. Farrar 60, 61 Farris^. Martin 364 FaulksT;. Burns 60 Fenly v. Stewart 877 Fentiman v. Smith 28 Fenton v. Embler^ 277 Fenwick v. Floyd 75, 855 Fereday v. Wightwick 266 Fessenden v. Mussey 895 Field V. Hutchinson 482 (In re) 867 V. Runk 844 Files V. MoLeod 161 Finch V. Finch 89 Findley v. Wilson 121 Finney v. Finney 234 First Baptist Church of Ithaca V. Bigelow 353, 355, 883 Fischli V. Dumaresly 93 Fish V. Hutchinson ' 190, 196 Fisher v: Fields 107, 114 Fitch «. Seymour 274 Fleming v. Gilbert 431 Flight V. BoUand 378 Floyd V. Buckland 465 V. Harrison 215 Folmer v. Dale 455 Forbes v. Hamilton 238 Forquet v. Moore 49, 259 Forster v. Hale 82, 94, 95, 97, 103, 105, 265, 266,354,359,468 Forsyth v. Clark 87 Forth V. Stanton 187, 198, 245 Foster v. Charles 177 V. Trustees of the Athe- naeum 87, 89 Fowle V. Freeman 364, 377 Fowler v. Lewis 483 Foxcroft V. Lester 436 Frame v. Dawson 444, 445, 448, 453, 462 Franklin v. Long 320 Frear v. Hardenburgh 287, 238 Freeman v. Freeman 81 Freeport v. Bartol ■ 359, 443 French ». French 176 V. Thompson 201 Fricker v. Thomlinson 347, 357 Frieze v. Glenn 452 Frost V. Hill 383 Frostburg Mining Co. w. N. E. Glass Co. 887 Fry (Beck d.) w. Phillips 10 Frye v. Shepler 446, 459, 468 Fugate V. Hansford 363, 391 Fuller V. County Commission- ers of Plymouth 72, 274 Fulmerston v. Steward Fyson o. Kitton G. Page 51 354 Gadsden v. Lance 300 Galbreath i-. Galbreath 71, 72 Galew. Mixon 359,379 Gallagher v. Brunei 170, 181, 183 Gallop V. Newman 820 Gangwer v. Fry 453, 464 Garbutt w. Watson 305,307 Gardiner v, Hopkins 201 Gardner v. Gardner 11, 14, 20 V. Howland 320 V. Joy 307 V. Eowe 95 Gardner Bank v. Wheaton 90 Gardom, Ex parte 400 Gascoigne v. Thwing 89 Gates V. McKee 414 Gaunt V.Hill 354 Geary v. Physic 857 German v. Boddy 329 V. Gabbald 81 V. Machin 455 Getman v. Getman 88 Gibbons v. McCasland 141 Gibbs V. Nash 478 Gilbert v. Bulkley 60, 285 V. Sykes 278 Gilchrist v. McGee 73 Gilday v. Watson 4^5 Gill V. Bicknell 355, 382, 383 Gillespie v. Battle 125, 127 Gillettu. Campbell 66 Gillighan v. Boardman 190, 402 Gilman v. Ebler 403 Gilmore v. Wilbur 857 Giraud v. Bichmond 285 Givens v. Calder 451, 453, 463, 483 Gleason v. Drew 295 Glengall (Earl of) v. Barnard 363, 384, 450 Glenn v. Rogers 133 Goddard v. Mockbee 185 Gold u. Phillips 169 Goldshede i>. Swan 412 Goman v. Salisbury 429 Goodhue v. Barnwell 69, 72, 448 Goodman v. Chase 192 Goodrich v. Nichols 139, 150 Goodright d. Nichols v. Mark 60 Goodtitle d. Estwick v. Way 9 Goodwin v. Gilbert 128, 160 V. Lyon 467, 469 Goom V. Aflalo 355 XXIV INDEX TO CASES CITED. Pago Gordon v. Sims 382 Gore V. Wright 120 Goring v. Goring Gosbell V. Archer 187 370, 383, 385 Gosden v. Tucker 455 Goss V. Lord Nugent 419, 421,423, 431 Goucher v. Martin 463 Gough (Jackson d.) v. Wood 7 V. Gould 60 Grafton Bank v. Woodward 420 Graham v. Fretwell 375 V. Musson 375, 384 Grant v. Craigmiles 448 V. Fletcher 355, 356 V. Levan 363 V. Naylor 388 Gratz V. Gratz 20, 75, 451, 463 Graves v. Dugan 87 Gray v. Gray 121 i;. Hill 122, 128 V. Jenks 67 V. Payne 330 (Doe d.) V. Stanion 52 Grayson v. Atkinson 365 Green v. Armstrong 260, 482, 483 V. CresweU 156 V. Green 125 V. Hart 65,66 V. Vardiman 238, 274 Greene v. Cramer 220, 221, 384 Greenlee v. Greenlee 439 461,469 Greenswalt v. Homer 455 Greer v. Greer 120 Gregory v. Mighell 461, 463, 464 V. Logan 403 Gregson v. Ruck 356 Greider's Appeal 43,47 Griffin V. Coffey 234, 272 V. Derby 154 Griffith V. Frederic Co. Bank 158 V. Young 128 Grimman v. Legge 56 Groves V. Buck 302 Gryle v. Gryle • 365 Gull V. Lindsay 192, 203 Gully V. Grubs 120,192 Gunter v. Halsey 439 , 449, 471 H. Hackleman v. Miller 162 Haigh V. Brooks 411 Ha.les V. Van Berohem 452 Hall V. Chaffee 31,33 V. Farmer 415 V. Hall 234, 446 Hall V. Wood Hallen v. Runder Halsa V. Halsa Hamar v. Alexander Hambell v. Hamilton Hamerton v- Stead Page 196 ^ 238 • 403 182, 183 121, 128 52 Hamilton v. Jones 440, 446, 466 V. Terry 272 Hammersly v. De Biel 227, 450 Hampton v. Spencer 99 Hanson v. Armitage 334 V. Barnes 355 Harden v. Hays 123, 467 Harder v. Harder 87, 269, 465 Hardesty v. Jones 186, 290, 452 Hare v. Celey 23 Hargroves v. Cooke 190, 403 Harker v. Birkbeck 9 Harman v. Anderson 320 Harnett v. Yeilding 396, 468 Harrington v. Rich 161, 187, 192, 194, 215 Harris v. Crenshaw 456 V. Howell 91 V. Huntbach 153 V. Knickerbacker, 448, 458, 463, 464,471,474,478,489 V. Porter « 283 V. Wall 502 Harrison ». Cage 219 V. Harrison 465, 480, 491 V. Sawtel 155, 157, 159 Hart V. Mills 342 V. Sattiey 333, 337 V. Tallmadge 177 V. Woods 382, 383 Hartley v. Wharton 502 Harvey v. Grabham 421, 424 Haslet V. Haslet 459 Haslock V. Ferguson 180, 183, 503 Hatch V. Dwight 66 Hatcher v. Robinson 219 Hatton V. Gray 377, 378 Haughabaugh v. Honald 69, 71 Haughton k.- Morton 354 Hawes v. Armstrong 401, 409, 413 V. Forster 355, 356 Hawkins v. Chace 355, 368, 385 V. Holmes 364, 451 V. King 455 Hawley v. Moody 121, 125 Haycraft w. Creasy 177 Haydon v. Christopher 164 Hays V. Richardson 32 Hazleton v. Putnam 32 Head v. Baldrey 139, 150 Heft V. McGill 467 INDEX TO CASES CITED. XXV Pago Pago Helm V. Logan 275 Houshtaling v. Houghtal Houlditch V. Milne mg 32 Henderson «. Barnewall 387 206 V. Hays 443 Houston V. Matthews 72 V. Herrod 66 Howard v. Bergen 278 V. Hooke 90 V. Easton 235, 23V V. Hudson 147 V. Okeover 359, 481 V. Johnson 403 V. Sexton 140 Herrin v. Butters 286 Howe V. Palmer Howe's case 828, 333, 334 Hertle y. McDonald 88 64 Hess v'. Fox 149, 268- Howes V. Martin' 161 Hesseltine v. Seavey 53 Hoxie V. Carr 84 V. Siggers 297 Hubert v. Moreau 4 364 Heth V. Wooldredge 274 V. Trehorne (or Turner) 364, Hewlins v. Shippam 27 368, 369 384 Heyman tu Neale 356 Huddlestone v. Briscoe 369 377 Hicks V. HankiJ 355 Hughes V. Moore 234 Higdon V. Thomas 368 Hugus V. Walker ' ' 469 Higgins V. Chessman 320 Humble v. Mitchell ' 264 297 V. Senior 376 Hunt V. Hecht 324 336 Hight V. Ripley 310 V. Massey 502 Hill V. Hooper 128, 284 V. Maynard 66 273 V. Johnson 371 Hunter v. Seton 378 Hilliard v. Austin 478 Huntington v. Harvey 161 196 Hills V. Elliot 83 V. Smith 66 Hilton V. Dinsmore 185, 215 Huntress v. Patten 190 V. Giraud 264 Hutchins v. Lee 82 108 Hinde «; Whitphouse 293, 341, 356, Hutchinson v. Tindall 96, 97 100 382 Hyde v. Johnson 502 Hindman v. Langfort 201 Hinkley v. Southgate 281, 286 L Hitchcock V. tiukens 185 Hoadley v. McLaine 314, 390 Ide V. Stanton 294 , 304, 359 389 Hoby V. Roebuck 23, 237 Ingram v. Dowdle 270 Hockley' j>. Bantock 62 Inman v. Stamp ^ 463 Hodges V. Harris - 320 Ireland v. Rittle 68 Hodgkins v. !^ond 373 Irvin V. Thompson 16 Hodgson V. Le Bret 329, 342 Irvine V. Stone 144 148 Hoge V. Hoge 92 Ithel V. Potter ' 364 Holbrook v.' Armstrong 290 Ives w- Gilbert 128 V. TirreU , 60 Izard V. Izard 227 HoUida v. Shoop 87,89 V. Middleton 277 Holliday v. Marshall 10 . Hollingshead v.. McKenzie 471,486 J. Hollins V. Morris 128 HoUis V. fidWards 456, 466 Jack V. McKee 231 275 V. Pool -.40 Jackman v. Ringland- 84, 91 V. Whiteing 438,995 Jackson v. Bradt 68 HoUoway v. Hampton 284 , 287, 291 V. Bull 75 Holman v. Bank of Norfolk 391 V. Covert 303 Holmes v. Hoskins 318, 326 V. Cntright 453 ■ V. Knight 158 V. Harder 68 V. Trout 60 V. Jackson 266 Hooper, ex parte 62,63 V. Lowe 354 359 JHoover v. Morris 161 V. Pierce 443 HorsfaU J). Kay 238 V. Rayner 168 , 185 Home, ex parte 264 V. Stenbergh 93 V. Wingfield 428 V. Titus . , 373 XXVI INDEX TO CASES CITED. ' Page Jackson v. Van Dusen 367 V. Vosbrugh "68, 69 V. Watts 348 V. Willard 66 d. Butler w. Gardner 44 d. Church v. Brownson 66 d. Colder v. Brownell 23 d. Crabb v. Bull ISj d. Curtis V. Bronson d. Erwift V. Moore d. Gough V. Wood d. Gould V. Gould d. Livingston v. Bateman 88 d. Lloyd jj. Titus 17 d. Nellis V. Dysling 72 d. Seelye v. Morse 84 1 87, 94 7 60 Jacob V. Kirk 357, 359, 387 V. Smith 135 Jacobs V. Peterboro' & Shirley Railroad Co. 440 James v. Patten 368 V. Rice 473 V. Williams 401,413 Jaques V. Hall 95, 102 Jarmain v. Algar 174 Jarrett v. Johnson 133 Jeakes v. White . 273 Jeffreys v. Small 26^ Jenison v. Graves 90 Jenkins ». Eldredge 86, 87, 91, 92, 93, 102 ,109, 114, 434 V. Hogg 270, 382 V. Reynolds 401, 402, 406 Jervis v. Smith 464 Jewett V. Warren 321 Johnson v. Hodgson 362, 379, 483, 490 V. Gilbert 162 V. Hanson 125, 443 D.Hart 66 V. McGruder 385 V. Neil 74 V. Ronald 391 V. Smith 320, 328 V. Somers 18 V. Watson 290 V. Wilson 68 Johnston v. Glancy 45S ,459 461, 463 V. Johnston 456 Johnstone v. Huddlestone 48 (Doe. d.) V. Huddlestone 55 Jones V. Ballard 164 V. Brewer 74 V. Cooper 159 160, 197 V. Davis 490 V. Flint 24£ ), 260 , 251, 256 V. Palmer 162, 403 Jones V. Peterman V. Shorter V. Slubey Jordan v. Norton V. Sawkins Page 40, 448, 462, 456, 461 158 98, 100 334, 339 420 Kay V. Curd 389, Keate v. Temple Keeler v. Tatnell KeUey v. Stanbnry V. Webster Kennaway v. Treleavan Kennett v. Milbank Kensington, ex parte Kent V. Huskinson V. Kent Kenworthy v. Scofield Kerr v. Shaw Keyes v. Wood Keys V. Williams Kidder v. Hunt 120, Kimball v. Morton Kinard v. Hiers Kine v. Balfe King V. Brown V. Despard V. Hanna V. Wilson Kingsley v. Balcome Kinloch v. Brown V. Savage Kip V. Norton Kirk V. Webb Kirkham v. Marter Kisler V. Kisler Klinitz V. Surrey Knight V. Crockibrd Kyle V. Roberts 396, 469, 483 199 121, 234 234, 455 128, 443 410 362 63 329 283 382 236, 403 66 62 129, 132, 139, 443 82 433 461, 485 121, 129, 131 204, 214 127, 269, 277 215 157, 215, 21S 198 364, 389 72 89, 90, 96 152, 154 89,92 341 368, 369, 371 379 Lackington v. Atherton 320 La^u V. Mertins 445, 452, 456, 471, 473, 485 Laing v. Lee 185, 403 Lake v. Craddock 266 V. Dowd 64 V. Lake 89 Lamar v. McNamee 66 Lamb v. Grafts 306 Lammott v. Gist 56, 136 Lane v. Burghart 192 V. Dighton 88 INDEX TO CASES CITED. XXVll Page Lane, ex parte 192 V. Shackford 73, 125, 443, 453 Langfort v. Tyler 349 Langston, ex parte 63 Lansinburgh (Bank of) v. Crary 239, 260 Lapham v. Whipple 283, 284 Larkins v. Rhodes 85, 90 Larson v. Wyman 189, 196, 198 Lassence v. Tierney 450 Lathrop V. Hoyt ^ 88 Lavender v. Blackstone 226 Lawrence v. Blow 227 V. Taylor 384 Lawrenson v. Butler 378 Laythoarp v. Bryant 377, 388 Lea V. Barber 143 Leafu. Tuton 483,491 Leak v. Morrice 438, 453 . Leaper v. LattoU' 241 Lecat V. Tavel 403, 415, 416 Lechmere i;. Fletcher 362 Ledford v. Terrell 272 Lee V. Fontsune 185 V. Lee 464 V. Risdon 239 Lees V. Nuttall 93, 110 V. Whiteomb 410 Le Fevre v. Le Fevre 33 Legal V. Miller 474 Legg V. Strudwick 37 Legh V. Haverfield 474 Leinaa v. Smart 274 Leiand v. Creyon 196, 197 Leman v. Whitley 93, 109 Lemayne v. Stanley 10, 864, 368 Lench v. Lench " 89 Leonard v. Vredenburgh 188, 189, 215, 403, 416 140, 141 436 133, 453 Leroux v. Brown Lester v. Foxcroft Letcher v. Cosby Leven v. Smith 318 Levy u. Merrill ' 402 Lewis V. Payn 60 V. Starke 66 Lexington (Lord) v. Clark 146 Lilly V. Hewitt 478, 490 Lillywhite v. Devereux 323, 324 Lindsay v. Lynch V. Springer Lindsley v. Coatea Linscott V. Mclntire Lippincott V. Ashfield Little V. Martin 396, 446, 468, 474, 475 72 73 120, 268, 284, 286 185 129 Littlejohn, ex parte Littler v. Holland Livermore v. Aldrich Livingston (Jackson d.) v. Bate- man Lloyd V. Spillet (Jackson d.) v. Titua Lockey v. Lockey Lockwood «■ Barnes Pago 145 426 85, 90 Logan II. Anderson V. Barr V. Mesurier Long V. Lewis Loomis V. Newhall V. Smith Low V. Treadwell Lowe V. Eldred Lower v. Winters Lowry v. Mehaffy Lucas V. Dorrien V. Mitchell Lucy V. Bundy Luders v. Anstey Luqueer v. Prosser Lyde v. Barnard Lyon V. Lamb V. King V. Reed Lysaght v. Walker Lysle V. Williams 88 84 17 457 120, 124, 125, 281 56 47 344 478 147, 164, 185, 190 198 420 478 235, 237, 284 379 • 320 134 121 221 415 179, 180 401 279 44, 50, 52, 54 412, 490 38 .M. Maberley v. Sheppard Maclean v. Dunn Macorney v. Stanley Macrory v. Scott Magennis v. McCoUough Maggs V. Ames Mam V. Melbourn Malin v. Malin Malins v. Brown Mallet V. Halfpenny Mallory v. Stodder Manning u. Jones Manrow u. Durham Mapes V. Stanley Marble v. Marble Marcy v. Crawford V. Marcy Marion v. Faxon Marquand v. Hipper Marsh v. Hyde Marshall v. Fiske V, Lynn Martin v. Black 317,318, 326 385 188 161, 203 44 490 452 89 66, 273, 455 438 60, 61, 62 149 415 187 234 159 71 175 414 847 61 392, 421, 423 188 XXVlll INDEX TO CASES CITED. Page Martin v. England 174 V. Farris 364 V. Mo Cord 465 V. McFadin 478 V. Mitchell 377, 378 Massey v. Holland 120 Mather v. Perry- 176 Mathews V. Sawell 57 Matson V. Wharam 160, 195, 197 Matthews v. Wallwyn 65 Mattisonu. Westcott 308 Mavor v. Pyne 287 Mawbrey u. Cunningham 159 Maxwell v. Monlacute 433 Maxwell's case 434 May u. Baskin 73 May berry (Den d.) w. Johnson 9, 10, 43( Mayfield v. Wadsley 144, 258 McCampbellM. McCampbell 124 MoClure v. McClure 460 McComb V. Wright 382 McConnell v. Hodson 66 McCray v. Madden 210 McCrea v. Purmort 377 McCubbin v. Cromwell 94, 95, 98, 100 McCalloch B. Cowher 91, 92 McDermot v. Butler 66 McDowell u. Chambers 357 V. Delap 478 K. Oyer 129, 136, 230, 231 'v. Simpson 20, 38 McBlderry'w. Shipley 84 McFarland v. Hall . 456 McFarson's Appea;l 389, 394 McGowen v. West 127, 471 McKee v. Phillips 453, 456 McKeenan v. Thissel 185 McKenzie v. Jackson 185 McKellip.H. Mcllhenny 31, 33 MeKinuey v. Quilter 187 "v. Reader 47, 56, 58 McKnight v. Dunlop 344 MoLees v. Hale 278 MoMuUeu V. Riley 144 McNew V. Tobey 124 McVay v. Bloodgood 66 McWhorter v. McMahan 377, 384 Mead v. York 272 Meaoh v. Stone 440, 479, 480, 482, 489, 49'8 Meadows v. Meadows 383, 396 Mease v. Wagner 153 Mechelen v. Wallace 143, 149, 259 Meech U.Smith 214 Mellow V. May 52 Meroein v. Andrus 205 Meredith v. Meigh 336, 340, 341 Meredith v. Naish Mersereau v. Lewis Mestaer v. Gillespie Mialhi v. Lassabe Middleton v. Brewer Page 126, 443 186 436 453 478 Miller v. Baker 239, 240, 249, 259 . V. Costen 93 V. Cotten 489 V. Drake 478 V. Hower 456 V. Irvine 402, 406 V. Pelletler 378 V. The Auburn & Syra- cuse Railroad Co. 32 Mills V. Gore 298 V. Hunt 342 Minardi). Head 376 Minet, ex parte 188, 400 Mitchell V. Bush 237 Mixer v. Howarth . 303, 306, 308 Moale, V. Buchanan 359, 446, 455 Mollett V. Brayne 45, 55 Montacute v. Maxwell 91, 112, 227, 354, 359, 363, 433, 449, 451 Montacue v. Maxwell 433 Montgomery v. Reilly 224 Mooijcroft V. Dowding 107 Moore v. Beasely 120 V. Edwards 485, 489, 498 V. Fox 285 V. Hart 363 V. Small 231, 439, 446, 458, 459, 469 V. Tisdale 133 Morehead v. Watkyns 38, 40, 41 Moreland v. Le Masters 465 Morgan v. Bitzenberger 120 Morison v. Turnour 485 Morley v. Boothby ' 401, 406 Morphett v. Jones 438, 4,46, 448, 461 Morris v. Harris 456 V. Nixon 110 V. Stacy 411 Morrison v. Chadwick 56 V. Tournoiir 365, 368 Mortimer v. Orchard 475 Mortlo.ki). Buller 384 Morton v. Dean 359, 382, 394 V. Tewart 95 V. Tibbett 336, 337 Moses V. Norton 197 Mott V. Hurd 274 Movan v. Hays 95 Mowbray v. Cunningham 159 Muokleston v. Brown 83, 100 Mumford v. Whitney 31 Mundorff v. Kllbourne 269 INDEX TO CASES CITED. XXIX Page Mundy v. JolHffe 456, 469 Murphy v. Hubert 82, 84' Murray (Doe d.) v. Bridges 51 V. Jayne 456 Murrell (Doe d.) v. Milward 48 Mushat I'. Brevard 11.8 Musick V. Musick 215 Muskiagum (Bank of) v. Carpenter 64 Mussell V. Cooke 296, 489 Mussey v. Holt 60, 61 Myers t;. Morse 214 0. Perigal 264 N. Nab V. Nab 82, 98 Nason v. Grant 60 National Fire Ins. Co. v. Loomis 377 Neal t>. Cox 363 Neelson v. Sanborne 403, 413 Neil V. Cheves 426 Nellis (Jackson d.) v. Dysling 72 Nelson V. Boynton 189, 204, 216 128 249 395 410 377 196 73, 443 294 469 90 465, 473 355 834, 340 359, 387, 388, 396 73 134 50 49, 55 324, 334, 341 62 13^298, 446 804 443 235 74 147, 196, 198, 215 , Forgey Nettleton v. Sykes Neufville 0. Stuart Newberry v. Armstrong Newcomb v. Clark Newell p. Ingraham V. Newell Newman v. Morris Newnan v. Carroll Newton v. Preston V. Swazey . Nichol V. Ridley NichoUe v. Plume Nichols V. Johnson V. Lytle V. Nichols (Goodright d.) v. Mark Nickells v. Atherstone Norman v. Phillips Norris v. Wilkinson North V. Forest Northern v. State Norton v. Preston V. Webb Noyes v. Chapin V. Humphreys O. Ogilvje V. Foljambe O'Hara u. O'Neil O'Herlihy vl Hedges Oldham v. Litchford 368 95 443, 444, 453 92 Page Olmstead v. Greenly 201 V. Niles 250 Ontario Bank v. Root 483 O'Reilly V. Thompson 446, 451,468 Ormond (Lord) v. Anderson 378 Osborn v. Phelps 888, 446 Ott V. Garland 125 Cutwater v. Dodge 388, 834 Owen V. Davies 452 V. Thomas 859 Owings I). Baldwin P. Pace i>. Marsh 446, 456 411 Packard v. Richardson 872, 402 Packer v. Willson 414 Page V. Monks 149 V. Page 84,90 V. Pierce 66 Pain V. Smith 62 Palmer v. Scott 379 Parker v. Barker 66, 273 V. Bodley 80 389, 394 V. Mclver 355 V. Smith 369 446, 452 V. Staniland 245 V. Wells 453 Parkhurst v. Van Cortlandt 859, 378, 444, 448 465 467, 468 Parish v. Gilmanton 66 Parks D. Brinkerhoff 871 V. Hazlerigg 12 Parrish v. Koons 20, 379 Parsons v. Walter 160 V. Wells 66 Parteriohe d. Powlet 420 Pasley v. Freeman 177,178 Patchin v. Swift 402, 413 Patten v. Gurney 177 Paifterson v. Cunningham 150, 443 u. Ware 473 Patton V. McClure 440 Pawie V. Gunn 119, 297 Payne v. Baldwin 199 V. Johnson 141 Payson v. West 136, 443 Peabody v. Harvey 161, 196 Peacock v. Parvis 479 Pearce u. Blagrave 194 Peate v. Dickens 414 Peck V. Thompson 154 Peebles v. Reading 81 »Peifer v. Landis 456 Peltier v. Collins 356, 395 Pembroke v. Thorpe 73 , 444, 451 Pengall (Lord) v. Rosa 453 , 457, 467 XXX INDEX TO CASES CITED. Page Penniman v. Hartshorn 368, 369, 377 Pentou V. Robert 239 Pejitz V. Stanton 876, 377 People y. Beebee 300 V. Goodwin 30 V. Riekert 38, 40 Percival v. Blake 340 Perkins v. Pitts 71 Perley v. Spring ■ 157,' 160 Perrine u. Leachman 478 Perry v. McHenry 86, 93 Peter v. Gompton 277 Peters v. Ballistier , 320 V. Inhabitants of West- borough, 278, 283, 286 Philbrook v. Belknap 125, 126, 131 Phillimore v. Barry 375 Phillips V. BistoUi 31 7, 3 1 8 V. Crammond 88 V. Thompson 31, 448, 468 Philpot V. Briant 187 V. Walcot 219 Phipps V. Seulthorpe 63 Pickering v. Appleby 296 Pierce v. Woodward 145 Pierpont v. Barnard 136 Pike V. Brown 120, 160, 164, 169, 171, 186 Pillans V. Van Mierop 169, 172, 187 Pilling V. Armitage .468 Pinkham v. Gear 74 Pinney v. Fellows 91, 98 Pinnock v. Clough * 87 Pipkin u. Jamee 363,396 Pitkin V. Long Island R. R. Co. 279 Pitts V. Beckett 356, 357, 367 Plimpton V. Curtiss 283 Plummer v. Russell 18 Plymouth (Earl of) v. Hickman 1.07 Pomeroy v. Winship 119, 234 Poole V. Bentley # 9 Popham V. Eyre 451, 472 Porter v. Hill 69, 70 V. Perkins 69 Poulter V. Killingbeck 248 Poultney v. Holmes 234 Powell V. The Monson and Brim- field Mauu'f. Co. 85, 90 Powers V. Fowler . 406, 413 Prather v. Vineyard 185 Pratt V. Bant of Bennington 66 V. Humphrey 184, 186, 187 V. Parkman 320 Preble v. Baldwin 186, 274, Preece v. Corrie 46 Preston v. Meroeau 390 Price u. Combs 176 Price V. Lea '343 V. Leyburn 129, 237 V. Richardson _ 409 Pringle v. Sturgeon ' 71 Pritchard v. Brown ■ 90 Proctor V. Jones 317, 318, 320, 329 Propert v. Parker 368 Prop's of Upper Locks v. Abbott 194 Puckett V. Bates ,196 Pu. A question arose recently in New York, having a somewhat important relation to this subject. As the law mf that State originally stood, the term for verbal leases was, as in England, "three years from the making." But the Revised Statutes* shortened the term to one year and omitted the words "from the making thereof." This alteration was considered by the Supreme Court of that State in Croswell v. Crane, and it was held upon principle as well as upon reference to the report of the revisors of the statutes, that a verbal lease for one year, to commence in futuro, was still invalid, notwith- standing the alteration in the laws.^ But tjje same question, 1 Cody V. Quarterman, 12 Georgia R. 386. In Scotland leases of land exceeding the term of a year are not effectual unless in writing and followed by possession. 1 Bell's Com. 20. 2 Kawlins v. Turner, 1 Ld. Raym. 736. 3 Ryley v. Hicks, 1 Stra. 651. See also Chapman v. Gray, 15 Mass. R. 439. 4 N. Y. Rev. Stat. Part II.' Cap. vii. Tit. 1, §§ 6, 8. 5 Croswell v. Crane, 7 Barb. (N. Y.) 191. CH. in.] LEASES EXCEPTED FROM THE STATUTE. 87 coming before the Court of Appeals in the following year, was decided otherwise, and Croswell v. Crane overruled. The court said that the legislature clearly intended to omit the requirement which existed previously, namely, that the lease must terminate within the prescribed time, reckoning from the making ; and that their intention must be carried out, such omission not being contrary to the common law.-^ This decision and the legislation to which it refers seem to consider the policy of the statute as satisfied by prohibiting estates for a longer term than a fixed number of years from being created by word of mouth, thus regarding solely the important nature of land as requiring especial solemnities for its transfer; whereas the English statute and the decisions of the English courts clearly look also to the danger of admitting oral testi- mony of transactions long past, a principle which pervades the whole Statute of Frauds as it exists and is interpreted in that country. § 85. The operation of the statute as to the duration ^of verbal leases is prospective ; it regards only the time which the lease has yet to run. Thus where a lease is to run from year to year, so long as both parties please, although, when five or six or more years are past, it may be said, regarding it retrospectively, to be a verbal lease for that number of years, yet, as the statute only looks to verbal leases for a certain number of years to come, it is good.^ This rule of course does not apply to leases from year to year, for and during a fixed period of time which exceeds the limit allowed to verbal leases;^ though it should seem to hold good if it rests in covenant for the lessor to grant a fresh term at the end of the first, and so on.* " Young J). Dake, 1 Sold. (N. Y.) 463. 2 Legg ('. Strndwick, 2 Salk. 414 ; Birch v. Wright, 1 Term R. 378. See also Pugsley v. Aikin, 1 Kernan, (N. Y.) 494. 3 Plowden, 273. Bro. Tit. Leases, 49. * Roberts on Frauds, 242, note (d). A 38 STATUTE OF FRAUDS. [cH. III. § 86. In estimating the prescribed number of years, al; though there is no clear and settled doctrine, it seems now to be understood that the day of the date is to be included ; upon the principle that where an interest is to pass, that construc- tion is to be assumed which is most beneficial to him in whose favour the instrument is made, and by which an immediate interest passes.^ § 37. In a recent case in the Court of Exchequer, the second section was considered in relation to the fourth, and it was held that though a verbal lease which conformed to the requirements of the former was good and valid as a lease, yet while executory and until perfected by entry, the fourth section in regard to contracts applied to it, and prohibited any action by either. party for not giving or taking possession under it.^ But it seems that by the New York Revised Statutes actions will lie in that State upon contracts for leases for a term not exceeding one year.^ § 38. The English Statute of Frauds does not make verbal leases void, but allows them the effect of estates at will. After entry by the lessor, however, and payment of rent, such a tenancy is converted into a tenancy from year to year.* It was said in the Supreme Court of Massachusetts, in Ellis v. Paige, that the doctrine as to tenancy from year to year , seemed very clearly to depend upon the exception in the second section of the statute, and to be sustained only upon the 1 Lysle V. Williams, 15 Serg. & R. (Penn.) 135 ; Donaldson v. Smith, 1 Ashm. (Penn.) 197; Wilcox v. Wood, 9 Wend. (N. Y.) 346. See a very full note on this subject, 4 Kent, Com. p. 95. a Edge v. Strafford, 1 Cro. & Jer. 391 ; 1 Tyrw. 98. And see Delano v. Montague, 4 Cush. (Mass.) 42. 3 Young V. Dake, 1 Seld. (N. Y.) 463. 4 Clayton v. Blakey, 8 Term R. 3. (Even since the statute 8 & 9 Vict, c. 106, s. 3, requiring leases to be by deed, there seems no reason to doubt that this rule is the same. Chitty on Cont. 287) ; McDowell v. Simpson, 3 Watts, (Penn.) 129 ; The People v. Rickert, 8 Cowen, (N. Y.) 226 ; Schuyler v. Leggett, 2 Cowen, (N. Y.) 660. See also Duke v. Harper, 6 Yerg. (Tenn.) 280 ; Morehead v. Watkyns, 5 B. Mon. (Ky.) 228. CH. III.] LEASES EXCEPTED FROM THE STATUTE. 39 ground of that exception.^ This view receives some counte- nance from the language of Lord Kenyon in Clayton v. Blakey, where he says that what was considered at the time of the passage of the statute a tenancy at will -M has since been very properly construed to enure as a tenancy from year to year." ^ Nevertheless, it is quite clear that this doctrine is much older than the Statute of Frauds, which, in giving to verbal leases of certain kinds the force of estates at will, left it to the common law to apply all the incidents of that estate, including its con- vertibility by entry and payment of rent into a tenancy from year to year.* The Supreme Court of Massachusetts deter- mined, however, upon the strength of the absence from the law of that. State of any exception a% to short leases, that a verbal lease was to be treated strictly as a lease at will, and not as from year to year, and the same law prevails in Maine where the statute in regard to leases resembles that of Massa- chusetts.* A mere verbal * lease for a term exceeding that prescribed by the statute, without any thing done in pursuance of it, has no other effect than a strict estate at will, nor, it seems, will the entry of the lessee under it have the effect to convert it into a tenancy from year to year, unless there be also ia payment or acknowledgment of rent.^ 1 Ellis V. Paige, 1 Pick. (Mass.) 43. 2 Clayton w. Blakey, 8 Term K. 3.. 3 4 Kent, Com. 115. See the note of Mr. Smith, (Lead. Cas. 2cl vol.) to the case of Clayton v. Blakey, and the note to Coffin v. Lunt, 2 Pick. (Mass.) 70. An estate -at will, however, made so by the operation of the Statute of Frauds, is assignable ; not so of an estate at will by common law, created by act of the parties. 4 Kent, Com. 114 ; 2 Preston, Abs. Tit. p. 25. 4 Davis V. Thompson, 1 Shep. (13 Maine,) 209. 5 Doidge V. Bowers, 2 Mees. & Wels. 365. In Pennsylvania, where there is no statiite prohibiting actions upon executory contracts for land, and where there is an exception in the second section in favour of leases for not over three years, Chief Justice Tilghman expressed the opinion that, according to adjudged cases, a verbal lease for more than three years might be entirely taken out of the Statute by delivery of possession, and that it certainly would, if attended with improvements by the lessee ; no decision was required, however, or 4iO STATUTE OF FRAUDS, [cH. III. § 89. A long series of opinions has established, both in this country and in England, that where the statute simply declares a verbal lease to have the force of creating an estate at will, its policy is satisfied by preventing the creation by word only of estates in land above a certain quality, and so long as parties do in fact proceed as landlord and tenant under such restric- tions in point of time as the statute imposes, it allows full effect and obligation to the covenants and stipulations which they see fit to embrace in their agreement.^ For instance, the covenant to repair contained in such a lease will be binding,^ as also the stipulations as to the amount of rent and time of payment,^ and as to the time when the tenant shall quit, whether it be at a time fixed or upon a certain "contingency.* § 40. It is obvious that wherQ the statute in any particular State denies to the parol agreement of the parties even the efficacy of fixing the terms of, and time of determining, the tenancy which may arise by their subsequent acts, still, if the lessee has actually used and occupied the land, he will be liable on his implied promise to pay for such use and occupation. given, upon the point. Jones i'. Peterman, 3 Serg. & K. (Penn.) 543. Farley v. Stolces, 1 Sel. Eq. Cas. (Penn.) 422, is to the same effect. But the case of Soles V. Hickman, 20 Penn. State R. ^8 Ilarr.) 180, decided in 1852, and which has been referred to above, seems to be irreconcilable with these decisions ; for, there being no written evidence of the creation of the estate, the court would not decree a conveyance. The case does not show any part performance, and the opinion does not indicate what would be the effect if there were any shown. In Kentucky, (Morehead v. Watkyns, 5 B. Mon. 228,) where the statute simply provides that no estate for. a term of more than five years shall be conveyed without writing, etc., not specifying what effect parol leases for a less term shall have, it is held that a tenant under such a lease is bound to the duties of a tenant from year to year, i The People v. Rickert, 8 Cowen, (N. Y.) 226. 2 Beale y. Saunders, 5 Scott, 58. 3 Barlow v. Wainwright, 22 Verm. R. 88 ; De Medina v. Poison, Holt, 49 4' Doe d. Rigge v. Bell, 5 Term R. 471 ; Schuyler v. Leggett, 2 Cowen, (N. Y.) G60 ; Hollis u. Pool, 3 Met. (Mass.) 350. See also Richardson v. Gifford, 1 Adol. & Ell. 52. CH. III.] LEASES EXCEPTED FROM THE STATUTE. 41 And in such cases recourse may be had to the original agree- ment, to calculate the amount of rent.^ 1 De Medina v. Poison, Holt, 47. See Moretead v. Watkyns, 5 B. Mon. (Ky.) 228. , 4* 4i£ '• STATUTE OF FRAUDS. [cH. IV. CHAPTER IV. SURRENDERS. § 41. The third section of the English Statute of Frauds, pursuing the same policy with the first, provides that those leases which were thenceforth only to be created by writing, should not be surrendered or assigned without the same for- mality. It will be convenient to consider these two classes of transfers together. Indeed, as was observed in a late case in North Carolina, if the statute were entirely silent as to assignments, they could not, in reason, be made verbally of such terms as require a writing to create them ; for if, as is clear, the statute against creating parol leases applies to those which are carved out of a term, as well as out of the inheri- tance, it cannot be that a long termor can assign his whole interest verbally, when he could not underlet part of it without writing.^ 8 4>2. The same general remarks which have been made in regard to the eflfect o,f the statute upon leases apply here. Its intention was to require writing absolutely where, at common law, an estate could be transferred by writing simply or by word of mouth. In all cases of estates, therefore, which, pre- vious to the statute, could only be surrendered by deed, the statute has made no change in the law. In the first part of this book we saw that the statute did not require a sealan addition to the writing, and such is clearly the case whenever an estate is to be surrendered which might have been created 1 Briles V. Pace, 13 Ired. (N. C.) 279. CH. IV.] SURRENDERS. 48 without deed, though in point of fact it may have been created by deed.^ § 43. The statute has prescribed no form of words for the surrender of an estate, but it may still be accomplished by any language fairly importing an intention to yield up the estate, provided it be put in writing signed by the party or his agent.^ •Nor is it necessary that there should be any formal redelivery or cancelling of the deed or other instrument which created the estate to be surrendered.® It has been contended that a re- cital in a second lease that it was in consideration of the surrender of a prior one, was a sufficient note in writing of such surrender, to satisfy the requirements of the statute ; but the Judges of the Queen's Bench, when the question arose before them, were clearly of opinion that the fact of a previous surrender must be specifically found, which fact the recital by no means imported, for the recital would be suffi- ciently accurate if the surrender were merely by operation of law, arising from the reception of the second lease.* And in a recent decision of the Court of Exchequer to the same eflfect, Parke, B., remarked upon the custom, at the renewing of a lease, of reciting that it is in consideration of the surrender of 1 Roberts on Frauds, 248, 249 ; Farmer d. Earl v. Rogers, 2 Wils. 26 ; Den d. Gwynn v. Wellborn, 1 Dev. & Bat. (N. C.) 313 ; Allen v. Jaquisb, 21 Wend. (N. Y0 628. '^ Weddall v. Capes, 1 Mees. & Wels. 50 ; Greider's Appeal, 5 Barr, (Pa.) 422 ; Strong V. Crosby, 21 Conn. K. 398 ; Den d. Gwynn v. Wellborn, supra; Shep- ard u. Spaulding, 4 Met. (Mass.) 416 ; where the word " reconvey " was held a good word of surrender. After a written lease for ten years had been executed, it was verbally agreed between the parties, that if either became dissatisfied with the other before the ten years expired, the lease should be at an end. It was held that such an agreement, acted upon by one of the parties, though it might not technically amount to a surrender, was void, because the direct effect of it was to change a lease for years into a mere estate at will. Den d. Mayberry v. Johnson, 3 Green, (N. J.) 116. 3 Greider's Appeal, supra. See in regard to the cancellation of instruments of conveyance, post, §§ 59, 60. 4 Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 86. 44- STATUTE OF .FRAUDS, £cH. IV. the old one ; from which, he said, it was clear that such a recital could not import certainly that the interest of a lessee in a prior lease had been in fact surrendered.-' § 44. The cancellation or destruction of the indenture has no operation as a surrender of a lease of lands. Such was the opinion given extra-judicially by Lord Chief Baron Gil- bert, in the case of Magennis v. McCoUough ; " because," he ' says, " the intent of the Statute of Frauds was to take away the manner they formerly had of transferring interests in lan^s, by signs, symbols, and words only, and, therefore, as a livery and seisin of a parol feoffinent was a sign of passing the freehold j before the statute, so I take it that the cancellation of a lease was a sign of a surrender, before the statute, but is now taken away unless there be a writing under the hand of the party." ^ The same rule was afterwards affirmed by all the Judges of the Common Pleas, and is now, as a general principle, adopted in England and the United States.^ Where, however, a lessee voluntarily delivered up and destroyed his lease and afterwards claimed under it, it was held in New York that he ought not to be allowed to avail himself of any obscurity or uncertaiilty in respect to its contents, but that every difficulty and presumption ought to be turned against him.* We shall have occasion before passing from the subject of conveyances as affected by the statute, to consider rather more at large the eflFect of altering, destroying, or redelivering title deeds, and until then reserve the examination of certain far- ther modifications of the rule.^ 1 Lyon 17. Reed, 13 Mees. &'Wels. 285. 2 Magennis v. McCoUough, Gilb. Ch. R. 235. 3 Bolton V. Bishop of Carlisle, 2 H. Black. 259; Walker v. Richardson, 2 Mees. & Wels. 882 ; Koe d. Earl of Berkeley v. Archbishop of York, 6 East, 86 ; Doe d. Cpnrtail v. "Thomas, 9 Barn. & Cres. 288 ; Rowan v. Lytle, 11 Wend. (N. Y.) 616. 4 Jackson d. Butler v. Gardner, 8 Johns. (N..Y.) 394. 5 See posi, §§ 59, 60. CH. IV.] SURRENDERS. 45 § 45. It will be observed that the language of the third section of the statute, providing for the assignment and sur- render of estates in land, is general, and contains no express reservation in favour of short leases. It declares that " no leases" &c. "shall be assigned or surrendered unless it be by deed or note in writing." Proceeding upon the ground of this generality of language, the English courts have uniformly held that even such short terms as could, by the statute or other- wise, be created verbally, could not be assigned or surrendered without writing. This doctrine appears to have been first held at nisi prius less than fifty years ago, in the case of Sot- ting V. Martin. It was argued that as a lease from year to year could be originally made without writing, there was no reason why it could not be assigned without writing, and that upon a comprehensive view of the first three sections of the statute it must be held that the requirements of the third sec- tion applied only to those estates which were covered by the first and second taken together. The decision of d^ court to the contrary is very briefly given, the report mere^ stating, that "Sir A. McDonald, C. B., held that the assignment was void for not being by deed or note in writing, and, therefore, non- suited the plaintiflF."^ In the following year also, at nisiprius, in Mollett V. Brayne, Lord Ellenborough ruled that a tenancy from year to year created by parol was no% determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting accord- ingly ; thus affirming the rule laid down in Botting v. Martin, but without entering into the reasons to support it.^ In White- head V. Cliflford, a few years afterwards, in the Common Pleas, Gibbs, C. J., made the remark, that " the clause of the Statute of Frauds which restricted estates created by parol to three years had nothing to do with that which required surrenders 1 Botting « Martin, 1 Camp. 317. 2 Mollett «. Brayne, 2 lb. 103. 46 STATUTE OF FRAUDS. [cH. IV, to be in writing ; " but the case was determined upon another point than the efficacy of the verbal surrender.^ Thomson v. Wilson followed, where it was determined by Lord Ellen- borough, at ?^^s^ pms, that a verbal agreement to determine a tenancy (but whether.it was a parol lease or not the case does not show,) in the middle of a quarter was, as a parol surren- der, not binding.^ The Court of Common Pleas also, in Preece V. Corrie, in holding an assignment of a short lease to be valid without writing, gave as a reason for their decision tha;t it appeared to be an assignment by operation of law ; apparently assuming that a verbal assignment in fact of such a lease would not be valid.' From a view of the foregoing cases there seems no room for doubt as to the prevailing doctrine in England on this question. At the same time, we must remark that they appeared to have followed one another, upon mere authority, and that none of them as reported are put upon any other ground. § 46. In the American courts the point has several times arisen, and deferent conclusions arrived at in different States. In Pennsylvama, (where the first three sections of the statute are reenacted, with the exception of the clause in regard to rent reserved, in the second section,) Gibson, C. J., in deliver- ing the opinion of the Supreme Court, very ably argues against the English construction, as follows : " Why the legis- lature shouli^iave purposely contravened a common law maxim by requiring a matter to be dissolved by writing, which they allowed to be created by verbality, it is for them who insist upon the distinction to explain. An intent to establish it would have been a legislative absurdity which is not lightly to be imputed. What greater mischief there can be in a verbal surrender or transfer than there is in a verbal constitution of a lease has not been shown, and it is not to be supposed that the 1 Whitehead u. Clifford, 5 Taunt. 518. 2 Thomson it. Wlson, 2 Starla»R. 379. 3 Preece v. Corrie, 5 Bing. 24. CH. IV.] SURRENDERS. 47 legislature meant to establish a distinction without a reason for it. The apparent difference in the prescribed forms of consti- tuting and surrendering arises from the generality of the words predicated by the latter, and ostensibly with leases written or unwritten, without discrimination. But that they were in- tended for the surrender or transfer of a lease in which writing was made a necessary ingredient, is evident from the fact that there is no purpose which requires writing in a surrender or transfer which does not equally require it in the act of constitu- tion."^ In Greider's Appeal, the same court, upon the strength of this language, declared the law to be settled for Penn- sylvania, that an oral surrender of a term for less than three years was good ; ^ but in neither of these cases was the point necessary to the decision. In the first, it was held that the facts showed a surrender by operation of law, (which is ex- pressly excepted by the statute,) and in the second, the surren- der was actually, as the opinion states, made in writing. In Connecticut also, it seems to have been considered that a lease from year to year could be surrendered orally ; but the report of the case in which this appeats is somewhat obscure, and the decision is that there was no such surrender shown.^ The States of New York and Delaware have both followed, with- out discussion, the English construction ;* and, upon the whole, it must be adn^itted that the weight of authority is to the effect that the statute itself being unqualified in this respect, no qual- ification is to be engrafted upon it by construction or from the common law. The doctrine seems to stand upon the literal language of the third section, and to be, so far as reported cases show, without any distinct foundation in principle. 1 McKinney v. Reader, 7 Watts, (Penn.) 123. 2 Greider's Appeal, 5 Barr, (Penn.) 422 ; and see Tate v. Reynolds, 8 Walts & Serg. (Penn.) 91. 3 Strong V. Crosby, 21 Conn. R. 398. * Rowan v. Lytle, 11 Wend. (N. Y.) 616 ; Logan v. Barr, 4 Harr. (Del.) 546. 48 STATUTE OF FRAUDS. [CH. IV. In many of our States, where the law provides that leases must be surrendered by writing, the question has yet to be decided ; for it is conceived that it is not necessarily connected with any statutory reservation of short leases, and that the English cases are not to be so limited, but th^t it may arise in regard to any lease which may be verbally cueated, whether at will, or from year to year, or for a term of years allowed by statute. § 47. Upon the question whether a surrender must have an immediate operation or may take effect in futuro, there is an apparent conflict in the English cases. It is true that the Court of Exchequer has once directly decided ^ that a surren- der could not be to take effect in futuro, but the grounds of that conclusion are not stated, and the aiithoritles referred to scarcely sustain it. One of them, a case decided two years before, also in the Exchequer, was upon a written surrender to take effect on a future day, and on condition of a certain sum of money being paid. It did not appear that the condition had been performed, and it was held that the surrender had not operated ; but Baron Parke expressed his opinion, that it should appear to be the intention of the parties that the term should immediately cease, in order to make a valid surrender.^ Another case referred to in support of this doctrine is that of Johnstone v. Huddlestone, in the Queen's Beoch, where an insufficient notice to quit was verbally given by the tenant and accepted by the landlord ; and there, so far from decidnig that there could be no surrender to operate in futuro, one of the Judges declined to give an opinion upon the point, and the other expressed his opinion that, if the acceptance by the land- lord had been in writing, it would have been a good surren- der.^ On the other hand, it was stated by the court, at nisi 1 Doe d. Murrell v. Milward, 3 Mees. & Wels. 328. 2 Weddall v. Capes, 1 Mees. & Wels. 50. 3 Johnstone v. Huddlestone, 4 Barn. & Ores. 922. CH. IVr] SURRENDERS. 49 prius, in Aldenburgh v. Peaple, where a tenant from year to year gave an irregular notice to quit, that if the notice was in writing and signed by the tenant, the landlord might treat it as a surrender of the tenancy.^ In the more recent cases of Williams v. Sawyer, in the Common Pleas,^ Nickells v. Ather- stone, in the Queen's Bench,* and Forquet v. Moore, in the Court of Exchequer,* the question seems to have been treated as unsettled. In the Supreme Court of New York the con- trary doctrine to that of Doe d. Murrell v. Milward has been held, and supported by reasoning which appears satisfactory. An unsealed agreement was made by a lessee to relinquish, upon failure to perform certain stipulations, a lease previously executed under seal, and it was decided that the agreement, though inoperative as a defeasance for want of a seal, was valid as a contingent surrenier. Cowen, J., in delivering the judg^ ment of the court said : " A surrender, when complete, is as it were a demise. It may be made upon condition, that is, to become void upon condition ; and, though no case goes so far as to say that a surrender may be made to become good upon condition precedent, yet there seems to be no objection to that in principle, if the interest surrendered be not a freehold. That cannot in general be granted to take effect in fuiuro, but a term for years can. The surrender of a term, to operate in fuiuro, is equally free of the objection. Contracts of par- ties, whether by deed or otherwise, should always take effect according to their real intent, if that be possjjjle consistently with the rules of law." ® 8 48. It is necessary to a correct understanding of this branch of the statute, that we consider, as briefly as may be, what are 1 Aldenburgh v. Peaple, 6 Catr. & Payne, 212. 2 Williams v. Sawyer, 6 J. B. Moore, 226 ; S. C. 3 Brod. & Bing. 70. , 3 Nickells w. Atherstone, 10 Adol. & EU. N. S. 944. 4 Forquet u. Moore, 16 Eng. Law & Eq. 466. 5 Allfen u. Jaquish, 21 Wend. (N. Y.) 635. See Shep. Tou«h. 307 ; Wood- fall's Landlord and Tenant, 141 ; Coupland «. Maynard, 12 East, 184. 5 50 STATUTE OF FRAUDS. [cH. IV. those surrenders b^ act and operation of law, which are expressly excepted from it. In a "recent and important case in the Court of Exchequer, it was said that the term "surrender by act and operation of law," is properly applied to cases where the owner of a particular estate had been a party to some act, the validity of which he is by law afterwards estopped from disputing, arid which woiild not;be valid if his particular estate continued to exist.^ The-greq^t majority of cases, how- ever, appear to place such surrenders upon a broader and, on the whole, more satisfactory ground, namely, of acts done or participated in by the lessee from which a clear intention that his previous estate shall cease is to be presumed.^ The most obvious instance under the first definition given above of these surrenders, and what is- said by Mr. Roberts to be the proper example of a surrender by act and operation of law, is where a' lessee, for life Or years accepts from his landlord a new lease of the same premises, to take efiect during the time limited for the first tenancy. By accepting such a lease he admits the capacity of his landlord to make it, which capacity could not exist "if the old tendncy were not first determined.* § 49. If the second • lease is void, and the lessee takes nothing under it, a surrender of the first one will not result, whichever definition of surrenders by operation of law we adopt ; for the lessee cannot be said to be estopped to dispute the validity of an act equally vt)id whether his old term ceased or continued, rior could he be- presumed to intend to surrender his previous tenancy and get nothing in return.* And it is still fs,rther settled, that if the second lease be not good and suffi- cient to pass an interest according to the contract and intention 1 Lyoriw. Reed, 13 Mees. & Wels. 285. ■• , . 2 Pavison d. Bromley v. Stanley, 4' Burr. 2210 ; Wilson v. Sewell, 4 Burr. 1975; Goodright d. Nichols v. Mark, 4 Manle & S. 30; Donellan v. Head, 8 Barn. & Adol. 899 ; Roberts on Frauds, 259. 3 Lyon V. Reed, supra ; Van Rensselaer «. Penriiman,'6 Wend. (N. Y.) 567. * Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 86. CH. IV.] SURRENDERS. 51 of the parties, the acceptance of it is no implied surrender of the previous estate. Although it 'may be true that accepting a lease which is valid for some purposes and to some extent, (as, for instance, a verbal lease for a term exceeding three years,) admits the ability of the lessor to make it, yet the other, and, as has been suggested, safer theory of surrenders in law, will save the lessee from the loss of his old estate, when it is ob- vious upon the face of the transaction that the consideration and inducement for his. surrendering it cannot be realized by him.^ Whether a surrender by operation of law follows from accepting a lease which is only voidable and not void, seems uncertain. It has been stated in the Queen's Bench that it did, but more recently in the same court,, where a bishop made a second lease in consideration of |he actual surrender of a former one, and his successor avoided the second lease, the opinion appears to. admit that if the surrender had not been an actual surrender in fact, but by implication merely from the acceptance of the second lease, the avoiding the latter would have had the eflfect of reviving the former.^ Probably a due regard to the certainty of land titles would lead us to abide by the older doctrine. But when the second lease is taken with a condition that it shall be void upon a certain contingency, which occurring, the term is lost, the first estate is clearly not . revived, for the second lease when accepted was good and extinguished the former once for all.^ - § 50. It is not essential that the second lease should be for a term equal to the unexpired term of the first, or that it should be even of the same dignity with the first lease. An opinion has been expressed in England, that a tenancy at will 1 Wilson V. Sewell, 4 Burr. 1975; Davison d. Bromley w. Stanley, 4 Burr. 2210. 2 Roe d. Earl of Berkeley r. Archbishop of York, supra ; Doe d. Murray v. Bridges, 1 Barn. & Add. 847. 3 Fulmerston v. Steward, Plowd. 107, b. 52 STATUTE OF FRAUDS. [CH. IV. would not be allowed to operate as a surrender of a written lease for years, because no such intention could be presumed in the lessee ; ^ but it is inconsistent with several decisions in that country, and does not appear to have been adopted in this. Thus it is held that where a tenant has bargained for a new lease to himself and another jointly, and, pending the execution of the lease, they enter together and occupy the land, a tenancy either from year to year or at will, according to circumstances, is thereby created which works a surrender of the original term.^ If, indeed, the old tenant alone contract for a new lease, and, pending the execution of the lease, remain in pos- session, it may depend upon the intention of the parties, to be collected from the instrument, whether a mere tenancy at will is created and for whaf^, time ; but if it is created, the old tenancy is thereby determined.^ It is settled in New York, in harmony with this doctrine, that the acceptance of a verbal lease, if a valid one, is a surrender of a previous written lease, by act and operation of law.* § 51. The theory that such surrenders depend upon the presumed intention of the parties has been carried, perhaps, to an extreme in New York. It appeared that the lessee had a good title, by the first lease, to all that the second lease pur- ported to convey, besides the personal covenant of the lessor for the payment of improvements ; that the first lease was for 1 Donellan v. Read, 3 Barn. & Adol. 899. a riainertoii v. Stead, 5 Dow. & Ry. 206 ; Mellow v. May, Cro. Eliz. 873. See the remark of the court upon Donellan v. Reed in Lyon v. Reed, 13 Mees. & VVels. 285 ; JDoe d. Gray v. Stanion, 1 Mees. & Wels. 701. 3 Doe d. Gray v. Stanion, 1 Mees. & Wels. 695. * Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400; Smith v. Niver, 2 Barb. (N. Y.) 180. See also Dodd v. Acklom, 6 Mann. & Gr. 672. Of course the remarks in this section are confined to tenancies at will purposely created by the parties, and do not apply to such as may result, for instance, from an unsuc- cessful attempt to create a term by parol for more than the statutory period. Till.-, lease vvhiuh is to work the surrender must, as we have seen, be valid to pass the interest which it purports to convey. CH. IV.] SURRENDERS. 58 three lives, and the second only for one of them ; and that no surrender was in fad made of the first lease or of the bond accompanying it, but both were retained by the lessee ; and, on - these facts, the Supreme Court said that " every circumstance, except the fact of receiving the second lease, altogether rebutted the idea of an intention to surrender," and held.that none had taken place.^ § 52. Lastly, it is to be obse'rved that the estate, whatever it is, the acceptance of which is to work a surrender of a previous tenancy, must take effect before the previous tenancy expir^s.^ Where an agreement in writing was made between landlord and tenant, signed by the landlord, for, a new lease to be granted at any time after the completion of repairs to be made by the tenant with all convenient speed, but. hlanks were left for the day of the commencement, and, the repairs being completed, the landlord tendered a lease to commence from that time, but the tenant insisted that the' new lease was not to commence till the expiration of the old, the Master of the Rolls said he could not admit parol evidence to prove that the defendant was to surrender any part of his first lease, and ordered performance by accepting a lease to run from the expiration of the first one.^ §• 5S. A surrender , by act and .operation of law will also follow from an actual change of tenancy. When the old tenant quits and a new tenant enters upon the premises, and is accepted as such by the landlord, the interest of the old tenant is fairly surrendered by act &ad operation of law.* These are ' Van Kensselaer v. Penniman, 6 Wend. (N. T.) 567. ' 2 Roberts on Frauds, 260; Doe d. Rawjings v. Walker, 5 Barn. & Cres. 111. 3 Pym V. Blackburno, 3 Ves. Jr. 34, Sir Richard Pepper Arden, M. K. 4 Stone V. Whiting, 2 Stark. R. 235 ; Phipps v. Sculthorpe, 1 Barn. & Aid. 50; Thomas v. Cook, 2 lb. 1'19 ; Sparrow v. Hawkes, 2 Esp. R. 504; Randall v. Rich, 11 Mass. R. 494 ; Hesseltine v. Seavey, 16 Maine, (4 Shep.) 212 ; Smith v. Niver, 2 Barb. (N. Y.) 180. 5* 54i STATUTE OF FRAUDS. [CH. IV. acts so solemn that the parties are estopped to deny them, and are sufficiently notorious to leave but small room for fraud or perjury in the testimony of witnesses to prove them. This doc- trine, resting on a long series of decisions, was strongly con- demned, in the late case of Lyon v. Reed, in the Court of Ex- chequer ; but. it was not found necessary to pass directly upon it, and the court simply refused to extend it to reversions or incorporeal hereditaments, which pass only by deed;^ and whatever doubt their opinion may have cast upon its validity, was removed by the still later case of Nickells v. Atherstone, where the Court of Queen's Bench, while showing that Lyon V. Reed had not overruled . the previous cases, reasserted the doctrine which they had established. The facts were that the landlord, by express permission of the tenant, let to another tenant and gave him possession, and afterwards brought an action for rent against the first, tenant upon his original agree- ment. The court sustained the verdict below for defendant on the issue of surrender, and in delivering judgment Lord Den- man, C. J., said, taking the definition of a surrender in law which was laid down in Lyon v. Reed : " 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 disputing, and which would not be valid if his particular estate had continued,' it appears to us to be properly applied 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 disputing with him and which is inconsistent with the continuance of defendant's term. As far as the new tenant is concerned, the same is true. As far as the defendant is con- cerned, he has been an active party in this transaction, not merely by consenting to the creation of the new relation • Lyon V. Keed, 13 Mees. & Wels. 285. CH. IV,] SURRENDERS. 55 between the landlord and the new tenant, but by giving up possession and thereby enabling the new tenant to enter."' ' § 54. In like manner, a surrender by operation of law takes place where two tenants of different premises verbally agree to exchange, which is assented to by the steward of both landlords, and executed by taking possession.^ Where the new tenant was accepted for, and took possession of, only part of, the premises previously leased, but advertised the whole to be let or sold, and had taken rent from the old tenant up to the middle of the quarter, it was held to be a surrender in law of the whole premises.^ But where the lease under which the new tenant has entered and' occupied turns out to be invalid, the mere entry and occupation shall not have the effect to surrender the first tenancy, contrary to the intentions of all parties.* § 55. That there should be an actual change of possession is indispensable to such a surrender in law as we are now con- sidering.5 Thus, a verbal license to a tenant from year to year, for instance, to quit in the middle of a quarter, and the tenant quitting accordingly, was held to be insufficient in Mollett v. Brayne,® a case which has often been quoted against those which hold surrenders by operation of law to arise from a change of tenancy, but which is perfectly reconcilable with them dfe the . ground that in this case no possession was taken as in the other cases, and therefore the surrender did rest entirely in agreement, and was aga.inst the spirit of the statute.''' Where, however, , 1 NiekeJIs v. Atherstone, 10 Adol. & Ell. N. S. 944. ' 2 Bees V. Williams, Tyrw. & Gr. 23. 3 Reeve v. Bird, 1 Cro.Mees. & Ros. 31. * Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400. Where the assignee of a term, under a verbal agreement to take the term and pay for certain repairs, enters and occupies, it seems he may defend payment for the repairs, that remaining executory. Buttemere v. Hayes, 5 Mees, & Wels. 4.56. 5 Taylor v. Chapman, Peake, Add. Cas. 19 ; Thomson v. Wilson, 2 Stark. K. 379 ; Lammott v. Gist, 2 Harr. & Gill, (Md.) 433. 6 Mollett V. Brayne, 2 Camp. R. 103. 7 Stone V. Whiting, 2 Stark. R. 235 ; Doe d. Johnstone v. Huddlestone, 4 Barn. & Cres. 922. 56 STATUTE OF FRAUDS. [CH. IV. the tenant assigns his term by writing and the landlord assents, though verbally, no actual entry upon the land by the assignee appears to be necessary.^ It is not, it seems, necessary that the possession should be taken by a new tenant ; the resump- tion of it by the landlord himself is held to be sufficient.^ And the court of Common Pleas lately teld, that by the deliv- ery back of the key by the tenant ammo sursum reddendi and the acceptance of it by the landlord, there was a change of possession such as worked a surrender of the term.* Though in all such cases the previous tenant is a necessary party to the surrender, yet it has been held in Pennsylvania,- and as it seems, very reasonably, that when a tenant abandons the prem- ises and absconds, it amounts to a surrender as against him, though he in words deny that he has surrendered, and the landlord may enter.* § 56. It is not enough that there be an actual entry by the new tenant, but it, must be with the landlord's assent and acceptance of him as his tenant. Thus, where a tenant sold out the remainder of his term to one who had agreed to pur- chase the reversion from the landlord, apd -the purchaser, with- out the landlord's assent, put in a new tenant who occupied two years, and afterwards the agreement for the purchase of the reversion was rescinded, it was held that the original tenant, was liable' to the original landlord for the whole rent from the time he quitted the premises to the end of the term, the land- ,1 Walker D. Kiclyirdson, 2 Mees. & Wels. 882. So in Michigan; Logan v. Anderson, 2 Doug. 101. But if there be a covenant By the lessee not to assign, a parol waiver by the lessor and lessee's assigning his term does not discharge him from the other covenants in the lease, but he is still liable for breach of them committed by the assignee. Jackson d. Church v. Brownson, 7 Johns. (N. Y.) 227. 2 Grimman v. Legge, 8 Barn. & Cres. 324 ; Lamar v. McNamee, 10 Gill & Johns. (Md.) 116. But this is doubted in Morrison v. Chadwick, 7 Mann. Gr. & Sc. 266. 8 Dodd V. Acklom, 6 Mann. & Gr. 672. 4 McKinney v. Reader, 7 Watts, (Pa.) 123. CH. IV.] SURRENDERS. 3^ lord not having assented to the change of tenancy, and there having been no surrender in writing. The court said it did not appear that the second tenant was ever liable to the plain- tiff for rent, and Parke, B., distinguished the case from Phipps V. Sculthorpe.^ because there the landlord assented, though verbally, to hold the new comer as tenant.^ Of course the original tenant, as well as his landlord, must be a consenting party to the substitution of the new tenant, and whether in either case the necessary assent has been given is for the jury to determine upon all the circuiastances of the case. Where a lessor, pending the term, made another lease to a third party, and it becoming a question whether the original lessee had so assented to the transaction as to determine his interest by operation of law, his lease was produced from the lessor's cus- tody with the seals torn off, and it was proved to be the custom to send in old leases to the lessor's office before a renewal was made, it was held that there was evidence, particularly that of the custom, from which the jury might infer that the original lessee had assented to the making of the secoad lease, so that his tenancy had been regularly determined.* So, where the rent was regularly paid by a third person, who occupied for two years after the original tenant disappeared, the court refused to set aside a verdict finding that the landlord had accepted the former as his tenant.^ Perhaps, however, the mere fact of Aceiving a payment of rent from a new occupant should not be held to discharge the original tenant,^ but where rent is received from the new tenant as an original arid not a sub- tenant, the landlord, it is hejd, is estopped from denying a legal surrender of the first lease.® 1 1 Barn. & Aid. 60. 2 Matthews v. Sawell, 8 Taunt. 270. 3 Walker v. Richardson, 2 Mees. & Wels. 882. * Woodcock V. Nuth, 8 Bing. 170. s Copeland v. Watts, 1 Stark. R. 95. 6 Smith V. Nlver, 2 Barb. (N. Y.) 180 ; Bailey v. Delaplaine, 1 Sand. (N. Y.) 5. 58 STATUTE OF FRAUDS. [cH. IV. § 57. The acts of landlord or tenant, which will estop him to deny a surrender, heing as we have seen; such acts as are plainly irreconcilable with an intention to" continue the relation of landlord and tenant, it will be clear that a landlord may do such acts as are necessary and reasonable for the preservation of his property during the vacation of it by a tenant, without producing such a consequence. Thus advertising premises'to let or sell, the tenant having quitted, does not estop from hold- ing him for the rent until a new tenant be put in.^ But, on the other hand, a mere protestation against a surrender will not prevail against such acts as must be held to work one, or the party not in fault be left helpless indefinitely ; where a tenant quits the premises and absconds. with his family and effects, and upon the landlord resuming possession, the former tenant undertook to sustain an action against him from his retreat, it was held that he had surrendered his term by aban- donment.^ 1 Eedpath v. Rdlerts, 3 Esp. R. 226. It ■will be observed that in Keeve v. Bird, 1 Cro. Mees. & Ros. 31, there was an actual admission of a new tenant to part of the premises, besides the advertising to let or sell. a Ml Kinney v. Reader, 7 Watts, (Pa.) 123. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 59 CHAPTER V. CONVEYANCES BY OPERATION OF LAW, ETC. § 58. In the present chapter,. which closes our consideration of the first three sections of the statute, it is proposed to inquire how Tar, if at all, an estate in land may he still created or transferred by manual or symbolical acts of the parties, without writing, and what are conveyances by act- and opera- tion of law ; using the term conveyances in a somewhat restricted sense, not embracing the making, surrender, or assignment of leases, as that branch of conveyances has been already treated of under the sections and clauses of the statute having particular reference to them. §59. The general principle that cancelling, altering or redelivering the title deeds of corporeal interests in lands does not oper-ate to revest the land in the grantor, is too familiar to require the citation of authorities. ■ Lord Chief Justice Eyre declared in the case of Bolton v. The Bishop 'of Carlisle,^ that he would hold the law to be the same with respect to incorporeal hereditaments, which lie in grant and were conveyed without livery; but undoubtedly the weight of opinion is against this suggestion.^ For things which are said to lie in grant are conveyed by means of the grant ; the deed itself is the essential instrumentality of transfer ; but in regard to corporeal estates, livery of seisin is that instrumentality, and the deed is only the written evidence of it. The principle, as above expressed, may be illustrated by the cases in which a deed of land is altered in some material respect by the grantee. 1 Bolton 0. The Bistop of Carlisle, 2 H. Black. 259. 2 Gilbert, Evid'. 111-112 ; Buller, N. P. 267 ; Roberts on'Frauds, 251. 60 STATUTE OF FRAUDS. [cH. V. In these, it is held that, as to him or those taking from him, with notice of the alteration, the deed is avoided, and neither he nor they can avail themselves of it in evidence, nor supply the want of it by parol testimony.^ But, though such altera- tion be with a fraudulent intent, yet if there be a counterpart of the original deed in the hands of the grantor, the grantee may sustain himself upon it and use it to prove his title ; ^ the alteration having no effect to devest the title, but only to prevent the party making it, and those who claim under him with notice, from using it for the purposes of a deei| by proving property by it or obtaining redress upon its covenants. §60. There is, however, a class of cases in which, while the general principle, as above stated, is carefully recognized, the courts in some of the States have allowed a certain effect to the cancellation of title deeds or their redelivery to the grantor, which appears at first sight to be in contravention of the statute. Thus, whtjre a deed has been given and not yet recorded, and the grantee, wishing to sell the estate, delivers up and cancels his deed, and the grantor executes a new deed to the purchaser, the title of the latter is good. Such at least is the doctrine held in most of the New England States, and in New Jersey. and Alabama; though it seems not to be accepted in Connecticut, New York, or Kentucky.^ In the first-named States, the general principle is laid down, that the voluntary surrender or cancellation of an unrecorded deed, with intent to revest the estate in the grantor, operates as a 1 Chesley v. Frost, 1 N. H. Rep. 145; Barrett v. Thorndike, 1 Greenl. (Maine) 73 ; Jackson d. Gould ;;. Gould, 7 Wend. (N. Y.) 364. 2 Lewis V. Payn, 8 Cowen, (N. Y.) 71. 3 Holbrook v. Tirrell, 9 Pick. (Mass.) 105; Nason v. Grant, 21 Maine, (8 Shep.) 160; Mussey v. Holt, 4 Foster, (N. H.) 248; Farrar v. Farrar, 4 N. H. Rep. 191 ; Tomson v. Ward, 1 lb. 9 ; Faulks v. Burns, 1 Green, Ch. (N. Y.) 250 ; Mallory v. Stodder, 6 Ala. R. 801 ; Gilbert i-. Bulkley, 5 Conn. R. 262; Coeu. Turner, lb. 86; Holmes v. Trout, 7 Peters, (S. C.) 171 ; Ray- nor V. Wilson, 6 Hill, (N. Y.) 469. CH. v.] CONVEYANCES BY OPEHATION OF LAW, ETC. 61 reconveyance to hira;^ but such a transaction is good, only when fairly conducted and when the rights of third parties have not intervened.^ It has been held in Massachusetts t1h.t it was good under these conditions, though the first grantee had been in possession for thirteen years, but this was an early case and does not seem reconcilable with the great number of cases, some of which are Massachusetts cases, holding that when real estate has once vested by transmutation of posses- sion it cannot be devested by cancelling or surrendering the deed.^ § 61. The principle on which the doctrine of the cases referred to in the preceding section is supported, is explained and shown to be not irreconcilable with the statute, by Chief Justice Shaw, who says, in delivering the judgment of the Supreme Court of Massachusetts in a comparatively late case, " Such cancellation does not operate by way of transfer, nor strictly speaking by way of release working upon the estate, but rather as. aa estoppel, arising from the voluntary surrender of the legal evidence by which alone the claim [of the first grantee] could be supported.* The same ground is taken, and perhaps more precisely stated, by the Supreme Court of New Hampshire, who say, " The grantee having put it out of his power to produce the deed, the law will not allow him to introduce secondary evidence, in violation of his undertaking, and to defeat the fair intentions of the parties."^ Again the cancellation of a deed unrecorded and before possession taken. ' Farrar v. Farrar, Tomson v. Ward, and Mallory v. Stodder, just cited ; see also Trull v. Skinner, 17 Pick. (Mass.) 213; where cancelling a deed of defeasance by agreement was held to make the estate absolute in the mortgagee. Also Sherburne v. Fuller, 5 Mass. R. 133. 2 Trull V. Skinner, just cited, and Marshall v. Fisk, 6 Mass. R. 24. 3 Commonwealth v. Dudley, 10 Mass. E. 403. See a note to this case, in which the decision is strongly criticized and many authorities collected. 4 Trull V. Skinner, 17 Pick. (Mass.) 213. 5 Mussey v. Holt, 4 Foster, (N. H.) 248. Also Farrar v. Farrar, 4 IS. H.. 191. 6 62 STATUTE OF FRAUDS. [i CH. V. may be said to destroy the grantee's inchoate title, leaving the grantor in possession of his former title ; ^ or if it does not h^e that effect, it at least places it in the power of the grantor to sell or incumber the land, and a bond fide purchaser or incumbrancer without notice would have the paramount interest.^ In any view, however, we may safely conclude that to allow validity to such transactions, according to the fair intentions of the parties, is not necessarily an infraction of the Statute of Frauds. § 62. There is one mode of conveying an interest in lands without writing, which is firmly established in the English law by a series of "decisions commencing with Russell v. Russell,^ in 1788, and that is by equitable mortgage arising on the deposit of title deeds. The rule in such cases is stated to be, that when a debtor deposits his title deeds with a creditor, as security for an antecedent debt or upon a fresh loan of money, it is a valid agreement for a mortgage between the parties, and is not within the operation of the Statuta of Frauds.* The primary intention must be to execute an immediate pledge, and thereupon an engagement is implied to do whatever maybe necessary to render the pledge available. Accordingly, a deposit of the title deeds for the simple purpose of having a mortgage drawn, and in the absence of any indebtedness on the part of the depositor, would not raise an equitable mort- gage; but if there were a debt then or previously incurred, the deposit would create an equitable mortgage, though there should not be a word spoken between the parties at the time.^ The lien thus created will be extended to cover future advances. 1 Tomson v. Ward, 1 N. li. 9. - Mallory v. Stodder, 6 Ala. K. 801. 3 1 Bro. Ch. 269. See cases referred to in other notes to .this section. 1 2 Story, Eq. Jur. § 1020. 5 Norris v. Wilkinson, 12 Ves. Jr. 192; Keys v. Williams, 3 Yo. & Coll. (Ex.) 55 ; Hockley i:. Bantock, 1 Euss. 141 ; Brizick v. Manners, 9 Mod. 284 ; Hooper, ex parte, 1 Meriv. 7 ; Pain i'. Smith, 2 Myl. & Keen, 417. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 68 if an intention to do so is made out by evidence ; ^ and, though the deposit be made for a particular purpose, it seems that that purpose may be enlarged by subsequent agreement, with-, out involving the necessity of actual redelivery.^ When, however, the parties accompany the deposit by a written memo- randum to explain its purpose, parol evidence will not be admit- ted to show any other intention. Indeed in the absence of any written memorandum a mere deposit will never create an equi- table mortgage as against strangers, except when it can be accounted for in no other way, or the holder is a stranger to the title and the lands ; " and the delivery of such a memoran- dum to the creditors will not supply the place of the actual deposit of the title deeds with him.* The deposit may be with some person on behalf of the creditor, and over whom the depositor has no control, provided the purpose of the deposit be proved ; a deposit with the mortgager's own wife has been held insufficient.^ It is settled also, although at first subject to some doubt, that all the title deeds must be deposited, and not a part only for the whole.® § 63. A deposit made under these circumstances and conform- ing to these rules, creates an equitable lien which is preferred to a subsequent purchaser or mortgagee of the legal estate with notice. The whole doctrine has been strongly condemned by the most eminent English Judges, and the disposition of the courts is to restrict rather than enlarge its operation. It is not, there- fore, ordinarily applied to enforce parol agreements to make a mortgage or to make a deposit of title deeds for that purpose.^ 1 Whitworth v. Gaugain, 3 Hare, 416; Langston, ex parte, 17 Ves. Jr. 228. But see Hooper, ex parte, 19 Ves. Jr. 477. 2 Kensington, ex parte, 2 Ves. & Bea. 79. 3 Coote oil Mortgages, 217; Bozon v. Williams, 3 Yo. & Jerv. 150; Allen V. Knight, 11 Jur. 527 ; Hooper, ex parte, supra. * Coming, ex parte, 9 Ves. Jr. 115. 5 Ibid. 6 Coote on" Mortgages, p. 203. 7 2 Story, Eq. Jur. § 1020 ; 4 Kent, Com. 151. 64t STATUTE OF FRAUDS. [CH. V. § 64. The doctrine of equitable mortgages arising upon the 'deposit of title deeds does not prevail generally in this country. , It has, however, been adopted, and distinctly acted upon in the case of Rockwell v. Hobby, in New York. The assistant Vice-Chancellor there says : " In the absence of all other proof, the evidence of an advance of money, and the finding of title deeds of the borrower in the possession of the lender, is held to establish an equitable mortgage. In the case before me, the deed went into the possession of the testator for some purpose. None is specifically proved, but there is an advance of money proved, an advance which went to discharge a mortgage, given, in truth, for a part of the purchase-money of the land described in that deed. The only inference is that the deed was deposited as security for the advance." ^ In South Carolina and Mississippi, the doctrine also appears to be admitted as prevailing ; though apparently in Kentucky, and clearly in Pennsylvania, it is rejected.^ Some of the courts of this country have, however, held that an engagement in writing to give a mortgage, or a mortgage defectively executed, or any imperfect attempt to create a mortgage, or to appropriate specific property to the discharge of a particular debt, will create a mortgage in equity, or a specific lien, which will have precedence of subsequent judgment creditors.^ § &5, Upon the question whether a mortgage of land is a conveyance within the Statute of Frauds, so as to be not assignable without writing, very eminent authorities are di- vided. In the case of Martin d. Weston v. Mowlin, decided as early as 17^0, the question before the court seems to have 1 Rockwell I!. Hobby, 2 Sand. Ch. 9. 2 Welsh V. Usher, 2 Hill, Ch. (S. C.) IGG ; Williams u. Stratton, 10 Sm. & ^Marsh. (Miss) 418; Vanmetor v. McFaddin, 8 B. Mon. (Ky.) 433 ; Bowers v. •Oyster, 3 Pcnn. R. 230 ; Shitz o. Diffenbach, 3 Barr, (Pa.) 233. ^ Howe's case, 1 Paige, (N. Y.) 125; Bank of Muskingum v. Carpenter, 7 Ohio R. -21; Lake v. Doud, 10 lb. 415; Doe d. Burgess v. The Bank of 'Cleveland, 3 McLean, (C. C.) 140; Rojid v. Gaillard, 2 Desaus. (S. C.) 552. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC, 65 been, whether, under a general bequest of a testator's personal property, including his debts, his interest as mortgagee of land would pass. Lord Mansfield said, " A mortgage is a charge upon the land, and whatever would give the money will carry the estate in the land along with it to every purpose. The estate 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 a 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 after it as a consequence. Nay, it would do it though the debt were forgiven only by parol, for the right to the land would follow notwithstanding the Statute of Frauds." i The view here taken by Lord Mansfield is adopted by Powell in the Treatise on Mortgages, but vigour- ously opposed by Mr. Roberts in his work upon the construc- tion of the statute.^ Considering a mortgage according to its strict legal eflfect, we should say with the latter author that " it should seem extraordinary indeed that, with respect to that part of the complex transaction called a mortgage which con- sists in the conveyance of the land itself, the Statute of Frauds should be restrained from applying to it." The doctrine in Martin v. Mowlin, however, is that of Courts of Equity both in this country and in England,^ and the tendency of the courts of law has been constantly towards conformity with the equitable and, we may say, the reasonable and practical con- struction of a mortgage. In the different States of the Union, opposite views upon this question are strongly asserted, although upon the whole the preponderance of judicial opinion may be fairly said to be, that a mortgagee's interest will pass, at law 1 Martin d. "Weston v. Mowlin, Burr. 969. 2 Powell on Mortgages, 187 ; Roberts on Frauds, 272. 3 Thornborough v. Baker, Cas. in Ch. 1, 283 j Matthews v. Wallwyn, 4 Ves. Jr. 118; Richards v. Sym, Barnard. Ch. 90, per Lord Hardwicke; Green v. Hart, 1 Johns. (N. Y.) 580 ; Aymar v. Bill, 5 Johns. Ch. (N. Y.) 670 ; 2 Story, Eq. Jur. §§ 1013-1018 ; 4 Kent, Com. 160. 6* 66 STATUTE OF FRAUDS. [cH. V. as well as in equity, with the debt to which it is collateral, and consequently without the formalities imposed by the statute upon the alienation of lands.^ This doctrine is not opposed by the circumstance that, in many of the States, provision is made for the discharge of mortgages after payment, by the entry of satisfaction in the margin of the registry ; for this 1 1 Powell on Mortgages, 187 ; Rex v. St. Michael's, Doug. 630 ; Eaton v. ■Jaques, 1 H. Black. 117, note ; Chinney v. Blackburne, Doug. 114 ; Sylvester V. Jarraan, 10 Price, (Ex.) 78 ; 4 Kent, Com. 160. The doctrine in Martin B. Mowlin, has been affirmed in New York, both at law and in equity. Green V. Hart, 1 Johns. 580 ; Jackson v. Willard, 4 Johns. 41 ; Runyan v. Mersereau, 11 Johns. 534 ; Wilson v. Troup, 2 Cowen, 195 ; Johnson v. Hart, 3 Johns, Cas. 322 ; Ayraar v. Bill, 5 Johns. Cb. 570, 571, 572 ; Jackson d. Curtis r. Bronson, 19 Johns. 325; Gillelt v. Campbell, 1 Denio, 520. And in the New York Court of Appeals, Malins v. Brown, 4 Comst. 403, it was said that such beini" the law of that State, it was doubtful if a parol agreement to discharge the mortgage without payment of the debt would not be good. It is adopted also in Neiu Hampshire, Southerin v. Mendum, 5 N. H. 420, 432; Rigney i>. Love- joy, 13 N. H. 247 ; Bell v. Morse, 6 N. H. 205; Ellison v. Daniels, 11 N. H. 274 ; Parish v. Gilmanton, lb. 298 ; Page v. Pierce, 6 Poster, 317. In Connecti- cut, Crosby v. Bronson, 2 Day, 425 ; Dudley v. Caldwell, 19 Conn. 218; Clark V. Beach, 6 Conn. 142-159 ; Huntington v. Smith, 4 Conn. 235 ; Barkhamstead !). Farmington, 2 Conn. 600. In Vermont, Pratt v. Bank of Bennington, 10 Verm. 293 ; Keyes v. Wood, 21 "Verm. 331 ; Belding v. Manly, 21 Verm. 550. In Illinois, McConnell v. Hodson, 2 Gilm. 640. In Kentucky, Bur- dett V. Clay, 8 B. Mon. 287 ; Waller v. Tate, 4 B. Mon. 529. In Mississippi, Dick V. Maury, 9 Smedes & M. 448 ; Lewis v. Starke, 10 lb. 120 ; Henderson ■V. Herrod, lb. 631. In Tennessee, Ewing v. Arthur, 1 Humph. 537. In Alabama, McVay v. Bloodgood, 9 Port. 547. But it is rejected in Massachusetts, Warden V. Adams, 15 Mass. 236; Hatch ti. Dwight, 17 Mass. 289; and see Judge Trowbridge's tract upon mortgages contained in 8 Mass. 557, ei seq.; and Parsons v. Welles, 17 Mass. 419, in which places the doctrine in Martin v. Mow- lin is strictly examined. But mere delivery of a note and mortgage accom- panied with a power of attorney to authorize enforcing payment, confers an equitable interest which cannot be defeated by a previous fraudulent assignment. Cutler V. Haven, 8 Pick. (Mass.) 490. It is rejected also in Maine, see Vose v. Handy, 2 Greenl. 322, per Mellen, C. J.; Smith v. Kelly, 27 Maine, 237. And apparently in New Jersey, McDermot v. Butler, 5 Halst. 158 ; and in Maryland, Evans v. Merriken, 8 Gill & Johns. 39. In those States where paying the debt does not discharge the mortgage, of course a parol agreement to make no claim under a mortgage, though the debt remain, cannot be enforced. Parker v. Baker, 2 Met. (Mass.) 423 ; Hunt v. Maynard, 6 Pick. (Mass.) 489. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 67 may mean only to provide a remedy for damages sustained by the refusal .of the mortgagee to put an acknowledgment of such payment on record.' § 66. It has been suggested that the equitable doctrine we have been considering might be better reconciled with the stat- ute, by regarding the mortgagee's interest, as passing (upon the assignment of the debt) by way of a trust, which trust, as it arises by operation of law, would be saved from, the section of the statute which is directed against verbal evidence of trusts in land. But besides the difficulty of bringing such a case fairly within the terms of that section, it seems unne(5es- sary to go beyond the plain rule derived from the nature of the contract of mortgage as interpreted to be, on the one hand a conditional sale of the land, or on the other a mere security for the debt.^ It appears, however, that a mortgage could never pass by mere parol gift, for want of the possibility of actual delivery of either the debt or the security.^ § 67. The most common of those cases in which the verbal agreements of the parties, attended by certain acts in pais, are sometimes said to transfer the title to land, are verbal partitions and verbal exchanges, each followed by possession accordingly. Verbal licenses to be exercised upon land, which might, in one view, belong to this division of the subject, have already been discussed under the head of leases. § 68. At common law, partitions might be made between joint tenants by deed only, between tenants in common by livery only without dped, and between coparceners verbally without deed or livery. Since the Statute of Frauds, it is settled in England that tenants in common and coparceners can only make partition by writing, as provided in the statute ; while the necessity for a deed between joint tenants remains as 1 Gray v. Jenks, 3 Mas. (C. C.) 520 ; 4 Kent, Com. p. 193-196, 4th ed. 2 2 Greenl. Cruise, 91. 3 Koberts on Frauds, 277. 68 STATUTE OF FRAUDS. [cH. V. at common law.^ In several of the United States, however, partitions between tenants in common, followed by occupation in severalty, have been held valid without writing, even at law. Such is the settled doctrine in New York, as shown in a long series of cases commencing with Jackson v. Bradt, in 1804. In this case, tenants in common had made partition and had occupied in severalty for fifty years ; but there was never any writing between them, except a covenant, (though in the report it is designated as a deed of partition,) made after the division, by which they agreed with each other, for themselves, their heirs and assigns, that the division so made and done should thenceforth and forever stand and remain. On the trial it was objected that .this deed was a mere covenant, and did not con* tain the necessary granting words to sever the estate. Kent, J., said upon this part of the case : " The division and_ the deed between the proprietors, by which they consented to abide by it, and the separate possessions taken in pursuance of that division, were sufficient to sever the tenancy in common, which consisted in nothing but a unity of possession." The deed being inoperative as such, it would seem to be the eflfect of this decision, that the division and the separate possession were sufficient to eflfect a valid partition. Such at any rate is the construction put upon the case of Jackson v. Bradt, in the subsequent New York cases upon this subject.^ S 69- A similar doctrine has been held in the Carolinas. In an early case in North Carolina the Court said : " The only privity by which tenants in common are united is that of 1 Koberts on Frauds, 285; 2 Black. Com. 823; AUnatt on Partitions, 130; Johnson v. Wilson, Willis, 248 ; Ireland v. Kittle, 1 Atk. 541 ; Whaley v. Dawson, 2 Sch. & Lef. 367. 2 Jackson v. Bradt, 2 Caines, (N. Y.) 169. See also Jackson v. Harder, 4 Johns. (N. Y.) 212; Jackson v. Vosbrugh, 9 lb. 270; Corbin v. Jackson, 14 Wend. (N. Y.) 619 ; Eyerrs v. Wheeler, 25 lb. 434. 3 See preceding note. It is to be observed, however, that the eminent Judge who decided Jackson v. Bradt does not appear to have asserted the doctrine anywhere in the Commentaries on American Law. CH. v.] CONVEYANCES BY OPERATION OP LAW, ETC. 69 possession ; and this proceeds from the impossibility of each tenant ascertaining which is his own part ; when the respective severalties can be ascertained, the tenancy is dissolved. A deed is not necessary to make a partition between them, for it may be done by parol if done upon the land ; this amounts to a livery in law, and is, in its nature, as well calculated to give notoriety to the transaction as if the parties had entered into a deed."^ More recently, however, it has been questioned in that State whether a parol partition with livery was efi'ectual ; so the point cannot be considered as being settled.^ § 70- In no case, however, has a verbal partition been held sufficient for any other purpose than to ascertain the limj|s of the respective possessions ; and, in a case in New York, where the plaintiff in ejectment undertook to base his title upon a verbal partition, though there had been a separate holding for twenty-five years under it, the court held that a verbal partition could in no case operate to pass a title.^ § 71- The decided weight of authority in the United States seems to favour the English view of this question, and to be opposed to allowing a verbal partition to be effectual even to sever the possessions of tenants in common.* In New Jersey particularly, the subject has received a very full and able exam- ination, and the reasoning of the court is in the highest degree satisfactory. Hornblower, C. J., in delivering the 'judgment of the Supreme Court of that State against the validity of such a partition, said : " If the partition was valid in law, when did it become so ? As soon as it was verbally agreed 1 Walker v. Bernard, 1 Cam. & Norw. (N. C.) 82 ; Haughabaugh v. Honald, 1 Const, R, (S. C.) 90. 2 Den d. Anders v. Anders, 2 Dev. (N. C.) 529. 3 Jackson v. Vosbrugh, 9 Johns. (N. Y.) 270. * Porter u. Perkins, 5 Mass. R. 233 ; Porter v. Hill, 9 lb. 34; Den d. Wood- hull V. Longstreet, 3 Harr. (N. J.) 405 ; Doe d. Richman v. Baldwin, 1 N. J. 395; Goodhue v. Barnwell, Rice, Eq. (S. C.) 198; Duncan v. Sylvester, 16 Maine, (4 Shep.) 388, in which last case each tenant had conveyed the property assigned to him. 70 STATUTE OF FRAUDS. [cH. V. to, or not until they severally took possession? What then shall amount to such a possession as to hind the parties'? How long must it continued If for any period less than twenty years, why not ten or five years, or a month, or a day 1 Again, suppose two out of three or nine out of ten, cotenants enter upon their respective shares, take possession and make improvements in pursuance of a parol partition; or suppose the- lands are not of such a character as to he susceptible of actual occupation or enclosure ; what is to be done in such cases 1 " " It is a mistake in my opinion to suppose that ten- ants in common have not such a community of estate as requires under the statute a deed or writing to put an end to. It is true, they have only a privity of possession, but that privity gives each tenant in common a freehold in every part of the undivided tract, a right of possession in every square foot of it. Such a right is an interest in land that cannot be transferred, by the very terms of the statute, but by writing," ^ § 7^- It is worthy of remark, that in all the EngUsh cases which have been referred to, the separate possession had existed for more than twenty years after the verbal partition had been made ; nor does the question of the eflfect at law of such possession, continued for a less time, appear to have arisen. In the case of Den d. WoodhuU v. Longstreet, just quoted, where it had been continued five or six years only, and it was decided that it had no effect to sever the possession, G. J. Hornblower, speaking of. the leading New York case, Jackson V. Bradt, says : " If the court intended to say that a parol partition followed by twenty years possession in conformity with it will be sufficient, I shall not differ with them." And there seems to be no reason why the presumption of a valid grant after the lapse of twenty years should not prevail in such cases as in others of adverse possession for that length 1 Den d. WoodhuU v. Longstreet, 3 Harr. (N. J.) 405. CH. v.] CONVEYANCKS BY OPERATION OF LAW, ETC. 71 of time.^ But it is held that where a parol partition has been made between tenants in common, and possession held in severalty according- to it for a considerable period, though for less than twenty years, upon a suit in equity afterwards brought to compel a partition, the division thus made and acted on by the parties will be considered fair and equal.^ § 73- It may be remarked that, in regard to partitions between joint tenants, as the reasoning adopted in cases of tenants in common, namely, that the only privity by which they are united is privity of possession, and that their several possessions may be well ascertained without writing, is inappli- cable, the law remains the same as before the statute, and such a partition, to be valid, must be by deed.^ § 74. In courts of equity verbal partitions are often treated as contracts, which, when followed by possession, will be specifically enforced in like manner as other contracts for land, upon the equitable ground of part-performance. Such cases seem to belong entirely, therefore, to a subsequent part of this treatise where the" principles upon which courts of equity proceed in cases of part-performance of contracts afiected by the Statute of Frauds, are to be considered. It may be mentioned that this appears to be the proper view in which to regard the numerous Pennsylvania decisions on this subject ; 1 Marcy v. Marcy, 6 Met. (Mass.) 360 ; Dall v. Brown, 5 Cush. (Mass.) 291; Duncan v. Sylvester, 16 Maine, (4 Shep.) 388. 2 Pringle V. Sturgeon, Litt. (Ky.) 112. Whatever latitude may be allowed in effecting a partition between tenants in common, a mere sale or contract of sale by one of tbem to the other of part or the whole of his property, must be in writing ; for the Statute of Frauds applies to any contract for a transfer of an interest in land, between whatsoever descriptions of parties it is made. Galbreath v. Galbreath, 5 Watts, (Pa.) 146. 3 4 Greenl. Cr. 77 ; Roberts on Frauds, 283-285 ; Porter v. Hill, 9 Mass. R. 35. And see as to partition by tenants in mortgage, Perkins v. Pitts, 11 Mass. R. 125. In Haughabaugh v. Honald, 1 Const. R. (S. C.) 90, it was said that a joint tenancy might be severed like a tenancy in common, but the case was decided upon other points. 72 STATUTE OF FRAUDS. [< CH. V. the custom of the law courts of that State being to administer equity through the forms of law.^ § 7^' Where the proprietors of adjoining lands agree upon a line for the settlement of a disputed boundary between them, and take possession accordingly, such agreement, though verbal only, is binding on the parties and those claiming under them.^ It does not have the operation of a conveyance to pass the title to land from one party to the other, but, recognizing and confirming the title of both parties to the lands of which they are respectively the owners, it merely ascertains and fixes the true line of demarcation between them, and has no more bearing upon the abstract question of title than the testimony of a witness showing the practical location of a deed, accord- ing to its courses and distances.^ When the parties tiave thus fixed upon a line, and have adopted and completed it by taking possession, they are not permitted afterwards to call its accu- racy in question ; their solemn act in pais, upon principles of public policy and for the repose and security of others, concluding them.* Where, however, the line is already well known and established, where it has been recognized and acquiesced in by the adjoining owners, and more especially where it is indicated and marked out by fences or other per- manent monuments, to which they have claimed and occupied for a sufficient length of time to bar an entry, in such case the 1 Ebert v. Wood, 1 Binii. (Pa.) 216; Galbreath i-. Galbreath, 5 Watts, (Pa.) 146 ; Calhoun v. Hays, 8 Watts & Serg. (Pa.) 127 ; Rhodes v. Prick, 6 Watts, (Pa.) 315. See also Weed v. Terry, 2 Doug. (Mich.) 344 ; Cummings v. Nutt, Wright, (Ohio,) 713; Goodhue v. Barnwell, Kice, Eq. (S. C.) 198; Young ». Frost, 1 Maryland R. 377. 2 Jackson d. Nellis v. Dyeling, 2 Caines, (N. Y.) 198 ; Houston v. Matthews, 1 Yerg. (Tenn.) 116; Davis v. Townsend, 10 Barb. (N. Y.) 333; Boyd u. Graves, 4 Wheat. (S. C.) 613 ; Lindsay v. Springer, 4 Harr. (Del.) 647 ; Blair V. Smith, 1 Benn. (Mo.) 273; Fuller v. County Commissioners of Plymouth, 15 Pick. (Mass.) 81. 3 Davis f. Townsend, supra. * Boyd V. Graves, supra; Kip v. Norton, 12 Wend. (N. Y.) 127; Yar- borough V. Abernathy, Meigs, (Tenn.) 413. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 73 verbal agreement is invalid ; for, if it operate at all, it mani- festly must operate to grant, assign, or surrender to one or each of the contracting parties an interest or estate in land, to which, at the time of making the agreement, he had no title or claim whatever J And it seems to have been held in Ten- nessee, that if money be paid by either party upon the parol settlement of the boundary line, even where it had previously been in dispute, the settlement will be invalid.® § 76. -By the common law a parol exchange of lands situate in the same county was good, provided each party went into possession of the lands acquired by such exchange. This was one of the ancient common-law methods of transferring real estate, adopted at a time when writing was practised or under- stood but by few individuals, and is embraced in the general reform effected by the Statute of Frauds. It is undoubtedly the settled law of this country, as of England, that a convey- ance of lands by verbal exchange or barter, merely, is invalid by reason of that statute.^ But in regard to this method of transfer, as in regard to verbal partitions, it must be remem- bered that after the agreement of the parties is executed by possession and occupation accordingly, courts of equity will generally hold it binding upoi^ conscientious grounds, and to prevent fraud. § 77- The force of the exception in the third section of the statute in favour of assignments, and surrenders which result by operation of law, has been considered heretofore. A few matters belonging to the general head of transfers by operation of law remain to be examined, before we conclude this chap- ' Davig v. Townsend, supra ; Nichols v. Lytle, 4 Yerg. (Tenn.) 456 ; May V. Baskin, 12 Smedes & M. (Miss.) 428 ; Gilchrist v. MeGee, 9 Yerg. (Tenn.)' 455. ^ 2 Carroway v. Anderson, 1 Humph. (Tenn.) 61. 3 Roherts on Frauds, 285; Pembroke v. Thorpe, cited in 3 Swanst. 437; Lindsley v. Coates, 1 Hamnr. (Ohio,) 243 ; Newell ». Newell, 13 Verm. E. 24 ; Clark V. Graham, 6 Wheat. (S. C.) 6 7 7- ; Lane v. Shackford, 5 N. H. Rep. 130; Maydwell v. Carroll, 3 Harr. & Johns. (Md.) 361. 7. 74i STATUTE OF FRAUDS. [cH. V. ter. In Simonds v. Catlin, Kent, J., said that the words "act and operation of law," were strictly technical and referred to certain definite estates such ap those by the curtesy and dower, or those created by remitter ; and to these may be added, by way of illustration, transfers by bankruptcy or succession.^ Where a statute provided that the public might acquire an easement in land by the consent of the owner without writing, it was said by the Supreme Court of New York that this was a case of a transfer by act and operation of law.^ But it would seem that it is more properly a dispensation by the legislature with the formalities by which the grantor's consent should be made evident. His consent, his individual act, still remains necessary and is the operative means of making, the transfer. The transfers which are excepted are those which take place by act and operation of law merely. Thus an assignment of a widow's dower is good without deed or writing, for it is not a conveyance to the widow. She holds her estate by appointment of law, and only wants to have that part which she is to enjoy set out and distinguished from the rest, and this may be done by setting it out by metes and bounds, as well as by deed. ^ 8 78. In the case of Boring's Lessee v. Lemmon, the Maryland Court of Appeals decided that a deed from a sheriff to a vendee at a sale under a fi. fa. was not necessary to pass the legal estate, but that the land became vested in the vendee by operation of law.* This doctrine is opposed by the great 1 Simonds u. Catlin, 2 Caines, (N.. Y.) 61; Briles v. Pace, 13 Ired. (N. C.) 279. See also Davis v. Tingle, 8 B. Men. (Ky.) 539. 2 Noyes ». Chapin, 6 Wend. (N. Y.).461. 3 Conant v. Little, 1 Pick. (Mass.) 189 ; Jones w. Brewer, lb. 314; Baker v. Baker, 4 Greenl. (Me.) 67; Pinkham v. Gear, 8 N. H. 163; Shattuck v. Gragg, 23 Pick. (Mass.) -68 ; Johnson u. Neil, 4 Ala. R. 166 ; Shotwell v. Sedam, 3 Hamm. (Ohio,) 5. • * Boring v. Lemmon, 6 Harr. & Johns. (Md.) 223. See in further explana- tion of the law of Maryland on this point, Barney u. Patterson, 6 lb. 182; CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 7^ weightof opinion in this country.. Mr. J. Kent, after refer- ring to and criticizing a remark of Lord Hardwicke, that a judicial sale of an estate took it entirely out of the statute, says, in the case of Simonds v. Catlin, " we cannot consider that observation in chancery as a sufficient authority to set aside the plain letter of the statute. We apprehend the general practice has been different, and that upon sales under the direction of a master in chancery as well as sales by sheriffs at law, the sale has uniformly been consummated by a convey- ance."^ But it is not clear that the Maryland doctpne has any countenance even in Lord Hardwicke 's remark. That was made in a suit for* specific execution of a contract for sale, between the master in chancery and the defendants, and seems to have no bearing on the point that the final transfer of the estate may be without a regular conveyance. This distinction is recognized in North Carolina, where the opinion of Lord Hardwicke is followed as far as regards executory contracts to sell land.^ Upon what principles that opinion is to be sus- tained, as confined to the executory contract, will be seen here- after ; but beyond doubt, the prevailing, if not universal doc- trine in this country is, that sales of land by sherds or other public officers are not to be considered as convepmces by act and operation of law, but require to be consummated regularly by deed.^ It need hardly be said that the act of arbitrators in disposing of land under a submission by the parties, is not the act of the law, and that such act is void if the submission be not in writing.* Remington v. Linthicum, 14 Pet. (U. S.) 84 ; Fenwick v. Floyd, 1 Harr. & Gill. (Md.) 172. . I Simonds v. Catlin, 2 Caines, (N. Y.) 61 ; Attorney-General v. Day, 1 Ves. Sen. 218. a Tate v. Greenlee, 4 Dev. (N. C.) 149. 3 Simonds v. Catlin, and Tate ,«. Greenlee, suprq,; Catlin v. Jackson, 8 Johns. (N. Y.) 520; Jackson v. Bull, 2 Caines, (N. Y.) 301; Robinson f. Garth, 6 Ala. R. 204 ; Ennis v. Waller, 3 Black. (Ind.) 4?2 ; Evans v. Ashley, 8 Missouri R. 177 ; Alexander v. Miiry, 9 lb. 510. i Gratz V. Gratz, 4 Rawle, (Pa.) 411. PART IL DECLAEATIONS OF TRUSTS. DECLARATIONS OP TRUSTS, AS AFFECTED BY THE 7TH, 8TH, AND 9tH 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. Section 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 transferred or extin- guished 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. Section 9. All grants or assignments of any trust or confidence, shall like- wise 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. CH. VI.] TRUSTS IMPLIED BY LAW. 79 CHAPTER VI. TRUSTS IMPLIED BY LAW. § 79. It seems to be essential to our obtaining a clear understanding of the policy and spirit of this part of the Statute of Frauds, which concerns the proof of trusts in real estate, that we first of all compare it with other sections in which the subject of title in real estate is treated, namely, the fourth, which forbids an action upon any verbal contract for the sale of lands, and the first and third, which generally forbid the creation or transfer in preBsenti of aft estate in lands. § 80. The States of Kentucky and Virginia, while sub- stantially reenacting the fourth section, have altogether omitted the seventh from their legislation. In the first of these States, where an agreement was made between two parties that one of them should make a purchase of land for the joint benefit of both, and one made the purchase, and it was then agreed that the other should advance half the money, and be equally interested in the purchase, it was urged that, in order to carry the transaction into effect, it should be considered as a trust, and not as a contract for a sale of half the land, because in the latter view the fourth section would prevent any remedy upon it. The court said : " If the trust is considered as created by the agreement of the parties, if it does not come within the letter, the liberality of construction which is alone calculated to prevent the mischief to be prevented by the statute emphatically requires that it should be brought within the influence of the statute." Then, after remarking that a trust arising by impli- cation of law from existing facts and circumstances is always excepted from the operation of the statute, the court add: 80 STATUTE OF FRAUDS. . [cH. VI. " It is evident that the trust in the present case, «/ it can be so denominated, is one created by contract and consequently within the statute." ^ The same court, upon another occasion, where land had been conveyed by one party to anotheir in trust for the grantor, and upon an agreement that the grantee should recon- vey to any one to whom the grantor might afterwards sell, treated the transaction as a contract for land, and, there being no written evidence of the arrangement, denied relief in equity on the ground of the statute.^ Here was apparently a clear , case of trust, to which the court applied the section which in terms extends to mere contracts for the purchase or sale of land. In Virginia, on the other hand, where the statute stands in the same way, the seventh section being omitted and the fourth retained, it has been said, (in a case, however, where the point was not directly presented,) that the latter would not apply to a trust created verbally, which would accordingly be good in that State ; and the court based its opinion on the simple fact of the legislature's omission of the trust section and retention of the other, as conclusive of their design to allow a trust to be proved without writing ; adverting also to the circumstance that in England it was thought necessary to eiiact the* seventh section expressly providing for trusts, although the fourth sec- tion of the statute of Charles contained larger language than the corresponding section of the Virginia statute, namely, that the former included contracts for " any interest in or concern- ing land," words which were wanting in the latter.^ § 81. In Pennsylvania, no part of the English statute is re- enacted, except the first three sections, which relate to the actual conveyance of lands ; and the courts of that State have made a distinction between cases where the grantor at the time of the conveyance verbally declares the trust, and cases where 1 Parker v. Bodley, 4 Bibb, 102. 2 Chiles V. Woodson, 2 Bibb, 72. 3 Bank of the U. S. v. Carrington, 7 Leigh, 266. CH. VI.] TRUSTS IMPLIED BY LAW. 81 the grantee declares it, himself paying the money which is the price of the Mnd. In the former, it is held that a confidence arises which it wo||ld be unconscientious for the grantee to violate, and which would constitute that species of express parol trust which it was the object of the Pennsylvania statute to sustain. In the latter, it is held that the transaction amounts to a mere contract to make a conveyance hereafter, upon which contract, on account of the omission of the fourth section, they will allow a remedy in damages ; while, on ac- count of the retention of the first three sections, they will not generally decree a specific execution of it, as that would work indirectly a conveyance of land without writing. Or, briefly, it would seem the rule in that State is, that if the purchaser of an estate verbally declare that he holds it in trust, the statute as to conveyances applies, but if the granfor declares that he conveys it in trust the statute does not apply.'' With this rese^ffetion as to what is to be considered a declaration of trust, the courts of Pennsylvania have uniformly held, in con- formity with those of Virginia, and in opposition to those of ((Kentucky, that, in the absence of any reenactment of the seventh section of the statute of Charles, a verbal declaration of trust was valid and would be enforced.^ And, notwith- standing the first section in their statute provides that no estate &c. made or created without writing shall have any greater force either at law or in equity than an estate at will, it is held that " its obvious design is to prevent an equitable estate from being transferred, while the design of the seventh section was to prevent a trust estate from being created, by I A very full and clear discussion^f the FennBylTania cases on tliis subject will be found in Freeman v. Freeman, 2 Parsons, Eq. K. 81. 3 German v. Ga,bbald, 3 Binn. 302; Wallace v. Duffield, 2 Serg. & R. 521 ; Peebles v. Reading, 8 Serg. & K. 484 ; Slaymaker v. St. Johns, 5 Watts, 27 ; Randall v. Silverthorne, 4 Barr, 1 73 ; and other cases referred to in the fore- going. 82 STATUTE OF FRAUDS. [cH. VI. parol. "^ Without assuming to harmonize these apparently dis- cordant views of the mutual relation of the several portions of the statute in question, it may be remarked that it is difficult to understand the differeiiice between creating an equitable estate by parol, and reserving by parol an equitable estate in land which is granted absolutely by deed; and that, conse- quently, the reservation of. a trust for himself or for a third party by a grantor of land, at the time of the convevance, should seem to be properly covered by any statute which contains (as does that of Pennsylvania,) sections equivalent to the first of the statute of Charles ; while, on the other hand, any trust declared by the grantee of land in favour of a third person for value received or to be received from him, is hardly distin- guishable from an agreeiaient that the latter shall hold the equitable title in tljp land, and, as such, would naturally be embraced by the fourth section of the statute of Charles, without regard to any provision expressly covering 4iiilsts. We pass, however, to the examination of the seventh section as it stands. § 82. In regard to what kinds of trusts are embraced byi the statute there seoms to feJave been little question made, the language of the sections relating to that subject being simple and comprehensive, and the word " trusts" having been long since determined to comprehend uses.^ In terms it is confined to trusts of real estate, and it has been repeatedly, held that trusts of personalty are not to be held aflfected by its opera- tion.^ On the other hand it is equally clear that they embrace and apply to chattels real.* In New York an exception seems 1 Murphy V. Hubert, 7 Barr, 420 ; per Gibson, C. J. 2 Holt, 733 ; Roberts on Frauds, 94. « 3 Nab V. Nab, 10 Mod. 404; Kimball v. Morton, 1 Halsted, Ch. (N. J.) 26 ; 2 Story, Eq, Jur. § 972 ; Roberts on Frauds, 94. * Skett K. Whitmore, Freem. Ch. 280 ; Forster w. Hale, 5 Ves. Jr. 308 ; Rid- dle V. Emerson, J Vern. 108. And see Hutchins v. Lee, 1 Atk. 447 ; Bellasis V. Compton, 2 Vern. 294. CH. VI.] TRUSTS IMPLIED BY LAW. 83 to be admitted of uses or trusts in favour of religious societies, but this is in consequence of, and by inference from, the pecu- liar condition in which the statutory law of that State concern- ing, the incorporation of religious societies has been left.^ It has been decided in Massachusetts that the statute does not apply to secret trusts and confidences for the purpose of delay- ing or defrauding creditors, but that they may always be proved by parol, and, when so proved, render wholly inoper- ative the formal transactions which may have been adopted for such purposes by the parties.^ It could hardly be doubted that such cases must be excepted from the statute, even if it were required to treat them as exceptions ; but though its lan- guage is general, applying to all cases where creations of trust estates are lb be manifested or proved, it seems clearly the meaning of the statute that no such trust shall be set up by means of verbal proof, an object just the reverse of the verbal proof held to be admissible in the case referred to. § 8S. The eighth section of the English Statute of Frauds, however, axpressly enacts that the statute shall not apply to any cases of trusts arising by act or operation of law, upon any conveyance of any lands or tenements, and it may be con- venient to examine what are the trusts here referred to, so as to arrive at a clear understanding of the subject matter to which the statute applies before proceeding to inquire what are the formalities which it requires to be observed. § 84. In Lloyd v. Spillet, Lord Hardwicke took occasion to classify these trusts by act or operation of law, or as they are commonly called resulting trusts, and he divided them into three classes ; first, where an estate is purchased in the name of one person, but the money or consideration is given by 1 Voorhees w. Presbyterian Church of Amsterdam, 8 Barb. (N. Y.) 185. See Adlington v. Cann, 3 Atk. 141 ; Muckleston v. Brown, 6 Ves. Jr. 52 ; Strick- land V. Aldridge, 9 Ves. Jr. 516. 2 Hills V. Elliott, 12 Mass. R. 26. 84 STATUTE OF FRAUDS. [cH. VI. another, and a trust in the estate results to him who gave the money or consideration ; second, where a trust is declared only as to part and nothing said as to the rest, and what remains undisposed of results to the heir at law ; and third, where transactions have heen carried on maid fide. In the report of the same case in Barnardiston the third class is stated to have heen explained more clearly by his lordship, as embracing cases " where there has been a plain and express fraud. Where there has been a fraud in gaining a conveyance from another, that may be a reason for making the grantee in that convey- ance to be considered merely as a trustee."^ These resulting trusts are not the creations of the statute, and in declaring them to be provable by parol it has only affirmed the common law. Thus in -several of our own States who# statutes of Frauds are silent upon the subject, resulting trusts have been sustained on common-law principles.^ They do not depend upon any agreement between the parties, but are mere im- plications of law from the fact of the purchase with another's money, or the fact of the declaration of trust as to part of the estate only and silence as to the remainder, or the fact of fraud in procuring the legal title.^ They arise upon actual convey- ance of land and not upon an executory contract to hold land in trust'.* Even where the contract to hold it in trust is the 1 Lloyd w. Spillet, 2Atk. 148; Barnairdiston, 384. Mr. Eoberts, in quoting this case, objects to the classification of Lord Hardwicke, which he says is con- fined to two kinds of resulting trusts. He appears to have overlooked the third class which is mentioned in the succeeding paragraph of his lordship's opinion, and which seems to embrace in substance those cases which he enumerated as omitted in the classification. Eoberts on Frauds, p. 97. a Church V. Sterling, 16 Conn. R. 388 ; Brothers v. Porter, 6 B. Mon. (Ky.) 106 ; Murphy v. Hubert, 7 Barr, (Penn.) 420; Hoxie v. Carr, 1 Sumn. (C. C.) 173. Smith V. Burnham, 3 Sumn. (C. C.) 435; "Williams v. Brown, 14 Illinois R. 200 ; McElderry v. Shipley, 2 Maryland R. 25 ; Ja-ckman v. Ringland, 4 Watts & S. (Penn.) 149 ; and cases there cited. 4 Rogers v. Murray, 3 Paige, Ch. (N. Y.) 390 ; Page v. Page, 8 N. H. 187 ; Jackson d. Seelye v. Morse, 16 Johns. (N. Y.) 199. . CH. VI.] TRUSTS IMPLIED BY LAW. 85 means of obtaining the legal title, a case which falls under the third class mentioned by Lord Hardwicke, the trust is not created by the contract, but results or is implied from the fraud; as will be made clear when we come, to that class in its order. § 85. Resulting trusts of the first class, in which the pur- chase money is paid by one and the deed taken in the name of another, may be pro tanto, or for a part of the estate propor- tionate to such part of the purchase-money as the cestui que trust may have advanced. The case of Crop v. Norton, in which Lord Hardwicke appears to have expressed the opinion that there could be no resulting trust unless the entire consid- eration proceeded from the cestui que trust, was afterwards disregarded by Sir Thomas Plumer, Vice-Chancellor, in Wray V. Steele, where it was held that a joint advance by sev- eral Jipon a purchase in the name of one gave a resulting trust ; and it seems to be not law in England, as it certainly is not in this country, if such was really the point decided byit.i § 86. But there is a farther rule upon this subject, to which it seems that Crop v. Norton may be referred ; and that is, that though there may be a trust of a part only of the estate by implication of law, it must be of an aliquot part of the whole interest in the property. The whole consideration for the whole estate, or for the moiety or third or some other definite part of the whole, must be paid ; the contribution or payment of a sum of money generally for the estate, when such pay- ment does not constitute the whole consideration, does not raise 1 Crop V. Norton, 9 Mod. 233 ; 2 Atk. 74 ; Wray v. Steele, 2 Ves. & Bea. 388 ; Benbow v. Townsend, 1 Mylne & Keen, 506 ; Dale v. Hamilton, 5 Hare, Ch. 369 ; Kyall v. Ryall, 1 Atk. 58 ; Buck v. Swazey, 35 Maine, (5^ed.) 41 ; Livermore v. Aldrich, 5 Cusl). (Mass.) 435 ; Powell v. The Monson and Brimfield Manuf. Co. 3 Mas. (C. C.) 362-364 ; Botsford v. Burr, 2 Johns. Ch. (N. Y.) 405; Stark v. Cannady,' 3 Litt. (Ky.) 399 ; Brothers v. Porter, 6 B. Men. (Ky.) 106 ; Koss v. Hegeman, 2 Edwards, Ch. (N. Y.) 373; Larkins v. Rhodes, 5 Port. (Ala.) 195. 8 86 STATUTE OF FRAUDS. [cH. VI. a trust by operation of law for him who pays it ; and the reason of the distinction obviously is, that neither the entire interest in the whole estate nor in any given part of it could result from suet a payment to the party who makes it, without injustice to the grantee by whom the residue of the consider- ation is contributed.^ Upon the same view it is held that if the proportion paid towards the consideration by the party claiming the benefit of the trust cannot be ascertained, whether " because its valuation is from the nature of the payment uncertain, or because the sum paid is left uncertain" upon the evidence, no trust results by operation of law.^ § 87. It is not necessary that the person claiming the benefit of the purchase should make actual payment of the price in money. If it be upon his credit, as by his giving his note for the price,^ or by his being credited for the price by the vendor,^ it is sufficient. So also if the compromise of a claim of his against the ^ndor be the consideration,^ or the allowance to the vendor of an old debt.^ Where it is his credit that is used in the transaction originally, it makes no difierertce that the money to meet the obhgation is subsequently furnished him by another,'' unless there was a previous agreement to that effect, in which latter 'White V. Carpenter, 2 Paige, Ch. (N. Y.) 217; Sayre v. Towrisends, 15 Wend. (N. Y.) 647 ; Perry v. McHenry, 13 Illinois K. 227. 2 Sayre v. Townsends, 15 Wend. (N. Y.) 647 ; Baker v. Vining, 30 Maine, (17 Shep.) 121. See, however, Jenkins v. Eldridge, pos^, § 111, note\ 3 Buck V. Pike, 11 Maine, (2 Fairf.) 9 ; Brothers v. Porter, 6 B. Mon. (Ky.) 106. 4 Buck V. Swazey, S5 Maine, (5 Red.) 41. 5 Sweet V. Jacocks, 6 Paige, Ch. (N. Y.) 355. 6 Dwinel v. Veazie, 36 Maine, (1 Heath,) 609 ; De Peysteru. Gould, 2 Green, Ch. (N. J.) 474 ; Taliaferro v. Taliaferro, 6 Ala. R. 404. In this and the next preceding class of cases, the fact of the appropriation of the debt or claim to the purchase is always provable by parol, and it would seem that as.it must rest in the mere agreement of the parties to that effect, there is ample opportunity afforded for a fraudulent pretence by the cestui que trust. But the rule admit- ting such proof is clearly settled. * 1 Buck V. Swazey, supra. CH. VI.] . TRUSTS IMPLIED BY J-AW. 87 case it is clear that the credit at risk was really that of the party who had engaged to furnish the money .^ And if the money be paid by the party who takes the deed, and merely charged by him to the party who sets up a resulting trust in the pur- chase, his claim cannot be sustained, for the purchase was entirely completed without the use of his credit in any way.^ § 88. It is clear from several cases, that if part of the con- sideration of the purchase be the' waiver by a third person of a claim or right of indefinite value, that circumstance pre- vents the party who pays all the money part of the considera- tion fi-om claiming a resulting trust in the whole purchase ; ^ hence, it would seem reasonable that such a waiver, being in dp nature of a contribution towards the purchase, should entitle the party making it to a resulting trust pro tanto, if its value can be ascertained, as well as an actual money contribu- tion to the same amount ; and such an opinion was expressed by Mr. Justice Story in the case of Jenkins v. Eldredge.* § 89. A resulting trust attaches only when the payment is made at the time of the purchase, and a subsequent advance will not have that effect,^ even though it be made by one who was surety for the original purchaser, and is finally compelled to pay.^ 8 90. It is obvious that the purchase-money must at the 1 Forsyth V. Clark, 3 Wend. (N. Y.) 637. a Steere v. Steerq, 5 Johns. Ch. (N. Y.) 1. 3 Crop V. Norton, 9 Mod. 233 ; Sayre v. Townsends, 15 Wend. (N. Y.) 647. 4 Jenkins v. Eldredge, 3 Story, (C. C.) 181, 284. See this case abstracted, post, § Ml, note. 5 Buck V. Swazey, 35 Maine, (5 Red.) 41 ; Hollida v. Shoop, 4 Maryland R. 465 ; Alexander v. Tams, 13 Illinois R. 221 ; Conner w. Lewis, 16 Maine, (4 Shep.) 268 ; Foster v. Trustees of the AthenaBum, 3 Ala. R. 302 ; Jackson d. Erwin v. Moore, 6 Cowen, (N. Y.) 706 ; Graves v. Dugan, 6 Dana, (Ky.) 331 ; Botsford V. Burr, 2 Johns. Ch, (N. Y.) 405 ; Rogers v. Murray, 3. Paige, Ch. (N. Y.)390. But see Harden). Harder, 2 Sandf. Ch.(N.Y.) 17. 6 Buck u. Pike, 11 Maine, (2 Fairf.) '9 ; Pinnock v. Clough, 16 Verm. R. 500. 88 STATUTE OF FRAUDS. [CH. VI. time of payment be the property of the party paying it and setting up the trust.^ The ownership of that which was con- verted into land is the thing to be ascertained. If, however, the party who takes the deed loan or advance the price to the party who claims the benefit of it, before or at the time of the purchase, so that the money or property paid actually belongs to the latter, a trust results.^ But it is otherwise where the party taking the deed pays his own money for it, with an understanding that it may be afterwards repaid and the land redeemed by him who sets up the trust.^ If a trustee or exec- utor purchase estates with the trust money, and take a convey- ance to himself without the trust appearing on the deed, the estate will be liable to the trusts, if the application of the tr«t money to the purchase be cleariy proved.* And so if one partner make a purchase of land to himself, paying for it with the partnership funds, a trust results to his copartners ; ^ though it is otherwise if the copartnership be not at the time actually existing, but only resting in executory agreement.^ § 91- The fact of payment or of the ownership of the money may always be shown by parol evidence,^ but such evidence must be clear and strong^^ particularly after a considerable 1 Jackson d. Livingston w. Bateman, 2 Wend. (N. Y.) 570 ; Getman v. Get- man, 1 Barb. Ch. (N. Y.) 499; Smith v. Burnham, 3 Sumn. (C. C.) 435 ; Her- tle V. McDonald, 2 Maryland Ch. Dec. 128. 2 Reeve v. Strawn, 14 Illinois R. 94 ; Bantlett v. Pickersgill, 1 Eden, 515 ; 1 Cox, 15 ; 4 East, 577, a; Lathrop v. Hoyt, 7 Barb. (N. Y.) 59. 3 Getman v. Getman, supra. * Lane v. Dighton, Ambler, 409 ; Ryall v. Ryall, 1 Atk. 59 ; Wilson r. Fore- man, 2 Dickens, Ch. 593 ; Kisler v. Kisler, 2 Watts, (Pa.) 323 ; Sugden on Vendors and Purchasers, 919 ; and cases cited. 5 Philips V. Crammond, 2 Wash. (C. C.) 441 ; Bnck v. Swazey, 35 Maine, (5 Red.) 41. 6 Dale V. Hamilton, 5 Hare, Ch .369; Smith v. Burnham, 3 Sumn. (C. C.) 435. 7 It is needless to cite the numerous cases to this effect. They are referred to in other parts of this section and are collected at length in the American editor's note to Sugden on Vendors and Purchasers, 909. 8 Sewall D. Baxter, 2 Md. Ch. Dec. 447; Baker v. Vining, 30 Maine, (17 CH. VI.] TRUSTS IMPLIED BY LAW. 89 lapse of time,^ or when the trust is not claimed untilafter the death of the alleged trustee.^ The testimony of the trustee is competent for this purpose ; ^ but mere evidence given during his lifetime of his declarations to that effect seems to be inadmissible as not being the best existing evidence.* So if it appears upon the face of the conveyance, by recital or other- wise, that the purchase was made with the money of a third person, that is clearly sufficient to create a trust in his favour.^ Evidence is also admissible of the mean circumstances of the pretended owner of the estate, tending to show it impossible that he should have been the purchaser,® though that fact alone would probably not be sufficient to establish the trust.' § 92. As parol evidence is admissible to show facts raising a presumption of a resulting trust, so it is also admissible to rebut that presumption ; * and for that purpose, where the plaintiff set up a resulting trust, verbal evidence of his admis- sions that the whole land was the defendant's and that he had nothing to do with it has been held competent.® And so proof of an express trust, though by parol only, will cut off a re- sylting trust ; the latter being left by the statute as at common Shep.) 121 ; Hollida v. Shoop, 4 Maryland R. 465 ; Malin v. Malin, 1 Wend. (N. T.) 625 ; Gascoigne v. Thwing, 1 Vera. 366 ; Finch v. Knch, 15 Ves. Jr. 43. Entries in books adduced to prove payment by a third person must be unequivocal to that effect. Dorsey v. Clarke, 4 Harr. & Johns. (Md.) 551. 1 Carey v. Callan, 6 B. Mon. (Ky.) 44. 2 Enos V. Hunter, 4 Gilman, (111.) 211-218. 3 Ambrose v. Ambrose, 1 P. Wms. 321 ; Ryall v. Kyall, 1 Atk. 59 ; Malin v. Malin, 1 Wend. (N. Y.) 625. See Lord Gray's case, Freem. Ch. 6. 4 Roberts on Frauds, 100. 5 Kirk V. Webb, Free. Ch. 84; Deg v. Deg, 2 P. Wms. 412; Young v. Peachy, 2 Atk. 254. 6 Willis V. Willis, 2 Atk. 71 ; RyaU v. Ryall, 1 Atk. 59 ; Lench v. Lench, 10 Ves. Jr. 511 ; Strimpfler v. Roberts, 18 Penn. (6 Harr.) 283. 7 Faringer v. Ramsay, 2 Maryland R. 365. 8 Lake v. Lake, Ambler, 126 ; Baker v. Vining, 30 Maine, (17 Shep.) 121 ; Foster v. Trustees of the Athenaeum, 3 Ala. R. 302. 9 Botsford u. Burr, 2 Johns. Ch. (¥. Y.) 405. 8* 90 STATUTE OF FRAUDS. [cH. VI. law} In like manner, a previous agreement that the nominal purchaser should also have the whole legal and equitable estate will, when proved, be an answer to the presumption of a re- sulting trust.^ § 93. It was formerly doubted whether parol evidence was admissible to show payment by a third person, in contradic- tion to the face of the deed expressing payment to have been by the nominal grantee,^ but it is now clearly settled in the affirmative.* Indeed, as has been said by the Supreme Court of New Hampshire, such evidence does not go to contradict the statement in the deed that the grantee paid the money, but to show the farther fact that the money did not belong to him but to the person claiming the trust.^ Whether parol evidence to show the ownership of the purchase-money is admissible in opposition to the answer of the trustee denying the trust, is doubted by Sir Edward Sugden upon the authority of certain early English cases ; ® but it is now settled, at least in this country, that it is admissible.' It has been maintained by eminent English writers that parol evidence, even of the con- fessions of the nominal purchaser, cannot be received to set iijp 1 Sugden on Vendors and Purchasers, 911. a St. John V. Benedict, 6 Johns., Ch. (N. Y.) Ill; Elliott v. Armstrong, 2 Blackf. (Ind.) 198 ; Henderson v. Hooke, 1 Dev. & Bat. Eq. (N. C.) 119. 3 Kirk V. Webb, Free. Ch. 84; Newton v. Preston, lb. 103 ; Skett v. Whit- more, Freem. Ch. Cas. 280. * Livermore v. Aldrich, 5 Cush. (Mass.) 435 ; Page v. Page, 8 N. H. 187 ; Scoby V. Blanchard, 3 N. H. 1 70 ; Powell v. The Monson and Brimfield Manuf. Co. 3 Mas. (C. C.) 347 ; Gardner Bank v. Wheaton, 8 Greenl. (Me.) 373 ; Pritchar3 v. Brown, 4 N. H. 897 ; Botsford v. Burr, 2 Johns. Ch. (N. Y.) 405 ; Boyd V. McLean, 1 lb. 582. 5 Pritchard v. Brown, and Scoby v. Blanchard, supra. 6 Sugden on Vendors and Purchasers, 909 ; and cases there cited. 7 Boyd V. McLean, 1 Johns. Ch. (N. Y.) 582 ; Dorsey v. Clarke, 4 Harr. & Johns. (Md.) 551 ; Faringer v. Ramsay, 2 Maryland R. 365 ; Baker v. Vining, 30 Maine, (17 Shep.) 121 ; Elliott v. Armstrong, 2 Blackf. (Ind.) 198 ; Jenison ■V. Graves, lb. 440; Blair v. Bass, 4 lb. 539; Page v. Page, 8 N. H. 187- Larkins v. Rhodes, 5 Port. (Ala.) 195. CH. VI.] TRUSTS IMPLIED" BY LAW. 91 a resulting trust after his death ; ^ but this position seems to be not now admitted in England, and in our courts may be fairly said not to prevail.'"* § 94". A few general observations should be made upon those implied trusts, which arise in cases of fraud, before pro- ceeding to the subject of the manifestation or proof of express trusts required by the statute. The fraud which suffices to lay a foundation for such a trust, is not simply that fraud which is involved in every deliberate breach of contract.^ The true rule seems to be that there must hav« been an original misrepresentation, by means of which the legal title was ob- tained ; an original intention to circumvent and get a better bal"gain by the confidence reposed.* Thus, as has been held in many cases, if a man procure a certain devise to be made to himself, by representing to the testator that he will see it applied to the trust purposes contemplated by the latter, he will be held a trustee for those purposes.^ In such cases, it : J 1 1 Sanders on Uses, 123 ; Itoberts on Frauds, 99. 2 Sugden«on Vendors and Purchasers, 910 ; and cases there cited. Williams v. HoUingsworth, 1 Strobh. Eq. (S. C.) 103 ; Pinney v. Fellows, 15 Verm. 525 ; Bank of the United States v. Carrington, 7 Leigh, (Va.) 566 ; Enos v. Hunter, 4 Gilman, (HI.) 211. 3 Robertson v. Robertson, 9 Watts, (Pa.) 32 ; Jackman v. Kingland, 4 Watts & Serg. 149. In Montacute v. Maxwell, (1 P. Wms. 618,) Lord Chancellor Parker says : " In cases of fraud, equity would relieve even against the words of the statute ; but where there is no fraud, only relying upon the honour, word or promise of the defendant, the statute making these promises void, equity will not interfere." In Jenkins v. Eldridge, 3 Story, 181, post, § 111, note, Mr. Justice Story dissents from the doctrine, even as applied to contracts in considewttion of marriage, and says : " I doubt the whole foundation of the doctrine, as not dis- tinguishable from other cases which courts of equity are accustomed to extract from the grasp of the Statute of Frauds." But certainly it would seem that if there be not some distinction such as was suggested in Montacute v. Maxwell, there ' is an end of the Statute of Frauds so far as courts of equity are con- cerned. * McCulloch V. Cowher, 5 Watts & Serg. (Pa.) 427. But see Jenkins v. Eldridge, 3 Story, R. 181 ; post, § 111, note. s Harris v. Howell, Gilb. Eq. R. 11 ; Chamberlaine v. Chamberlaine, 2 Freem. 92 STATUTE OF FRAUDS. [cH. VI. seems to be requisite that there should appear to have been an agency, active or passive, on the part of the devisee in pro- curing the devise ; it must appear that the testator was drawn in to make the devise by the fraudulent representation or en- gagement of the devisee.^ A mere refusal to perform the trust is undoubtedly not enough. So also if there be any fraud used to prevent the execution of a proposed trust agree- ment, a trust will be decreed ; though not where it has only been deferred from negligence, accident, or some unaccountable cause.2 And whene it appeared by parol proof that the defend- ant agreed at the time, and as part of the original bargain, that he would execute a declaration of trust in favour of the grantor and keep it among his papers, and failed to do so, it was held to be a fact of great weight in making out a case of fraud which a court of equity would relieve against by decree- ing a trust upon parol evidence.^ In all such cases of resulting trusts arising ex maleficio, equity, to use the forcible expres- sion of Chief Justice Gibson, turns *he fraudulent procurer of the legal title into a trustee, to get at him.* § 95. Upon sinfilar principles, if one falsely represent him- self to be purchasing for another, and by that means prevent competition in bidding, or otherwise get the land at a cheaper rate, he shall be held a trustee for him in whose behalf he pretended to act, or, at least, the purchase be set aside on ac- count of the fraud.^ But in no case will the grantee be deemed 34 ; Devenisli v. Baines, Free. Ch. 3 ; Oldham v. Litchford, 2 Vern. 506 ; Thynn v. Thynn, 1 Vern. 296 ; Hoge v. Hoge, 1 Watts, (Pa.) 163. But see Burrow v. Grenough, 3 Ves. Jr. 151. > Whiton V. Russell, 1 Atk. 448; Miller v. Pearce, 6 Watts & S. (Pa.) 97. 2 Bartlett v. Pickersgill, 1 Eden, 11. 515 ; 1 Cox, 15 ; 4 East, 577, n ; Dean v. Dean, 6 Conn. 285. 3 Jenl«ns v. Eldridge, 3 Story, E. 181 ; post, § 111, note. •» Hoge V. Hoge, 1 Watts, (Pa.) 214. 5 McCuUooh V. Cowher, 5 Watts & S. (Pa.) 430 ; Kislei; v. Kisler, 2 Watts, (Pa.) 427 ; Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 162. CH. VI.] TRUSTS IMPLIED BY LAW. 93 a trustee if he used no fraud or deceit in getting his title, although he verbally promised to hold the land for the grantor.-" Finally, the principles above laid down apply in general to all conveyances to persons standing in fiduciary relations to others, and who avail themselves of their position to get the legal title to themselves. In all such cases, embracing those of agents, guardians, or others who are bound to act for the use of their principals or wards or other beneficiaries, the parties pur- chasing for their own use are made trustees for those in whose name they should have purchased.^ § 96. Where a trust is sought to be enforced on the ground of fraud, the fraud should be distinctly alleged and clearly proved. It cannot be considered as inferentially stated by alleging the parol trust agreement and the failure to execute it.^ It seems to have been held that where, in a case of trust arising upon an agency, the defendant's answer denied the fact of agency, parol evidence was inadmissible to prove it; but the later English cases favour a contrary doctrine. As the object of the parol testimony is to show, not an agreement to purchase for another, but a relation out of which grows a duty to do so, perhaps the more modern view of the point should be deemed the more consistent with the principles of equity in such cases.^ 1 Leman v. Whitley, 4 Rass. Ch. 423. -2 Lees V. Nuttall, 1 Russ. & Mylne, 53; Carter v. Palmer, 11 Bligh, N. R. 397 ; Dale v. Hamilton, 5 Hare, Ch. 369 ; Sweet v. Jacocks, 6 Paige, Ch. (N. Y.) 355; Jenkins v. Eldridge, 3 Story, R. 181; Jackson v. Sternbergh, 1 Johns. Cas. (N. Y.) 153; Perry v. McHenry, 13 Illinois R. 227. See Fischli ». Du- maresly, 3 A. K. Marsh. (Ky.) 23. 3 Miller v. Cotten, 5 Georgia R. 341 ; Robson v. Harwell, 6 lb. 589. * Bartlett u. Pickersgill, 1 Eden, R. 515; 1 Cox, 15; 4 East, 577, n; Taylor!;. Salmon; 4 Mylne & Cr. 134 ; Dale v. Hamilton, 5 Hare, Ch. 369. 94 STATUTE OF FRAUDS. [cH. VII. CHAPTER VII. EXPRESS TRUSTS. § 97' We come now to consider the formalities which are required by the Statute of Frauds in cases of express trusts of lands, tenements, or hereditaments. These are, that the declaration or creation of such trusts " shall be manifested or proved by some writing signed by the party who is bylaw entitled to declare such trusts, or by his last will in writing." It has been suggested that, by a comparison of the ninth section of the English statute with the seventh, just referred to, it appears to have been the intention of the legislature to require by the latter that the trust should actually be created by writing ; but it is admitted that, whatever the intention may have been, it is clear, upon the language employed, that a trust in lands is only required to be manifested or proved by written evidence.^ From this it results that the instrument in writing required by the statute may be in terms less formal than would be required for the creation of a trust, and t]?at it is to be regarded as an entirely independent transaction. It has been uniformly held, though perhaps not necessarily on the ground of this peculiarity of phraseology,^ that it may be executed subsequently to the creation of the trust,^ of even, it is said, in anticipation of it ; * or it may be executed subse- ' Lewin on Trusts, p. 30. 2 See;)o«<, § 104. 3 Forster v. Hale, 5 Ves. Jr. 308 ; Barrell «. Joy, 16 Mass. R. 221 ; Wright v. Douglass, 3 Selden-, (N. Y.) 564 ; Rutledge v. Smith, 1 McCord, Ch. (S. C.) 119 ; McCubbin v. Cromwell, 7 Gill. & Johns. (Md.) 157. < Jackson d. Erwin v. Moore, 6 Cowen, (N. Y.) 706. CH. VII.] EXPllESS TRUSTS. 95 quently to the death of the grantor; ^ or the bankruptcy of the grantee.^ The consequences are .important; for if the trust had no eflFect previously to or independently of the written declaration, the trust property could not be disposed of by the cestui que trust in the meanwhile, and would be subject to the acts and incumbrances of the ostensible owner. § 98. It has been uniformly held that letters under the hand of the trustee, distinctly referring to the trust, are suf- ficient as written manifestations or proofs to satisfy the statute; ^ and in Massachusetts a printed pamphlet, published and circu- lated by the trustee, has also been considered sufficient.* So with entries made by the trustee in his books or any memoran- dum, however informal, under his hand, from which the fact of the trust and the nature of it can be ascertained.^ § 99- In the case of Steere v. Steere,® Chancellor Kent had occasion to decide upon the eflFect of a series of letters from the alleged trustee, and among other grounds for his opinion that they did not furnish such proof of the trust as the law required, he remarks that some of them were not addressed to the cestui que trust, and were not intended for the purpose of manifesting or giving evidence of the trust; and in these respects, he says, they diflfered from letters which had been admitted in English cases.'' The opinion of the learned Chancellor shows, however, abundant grounds upon which • 1 Ambrose v. Ambrose, 1 P. Wms. 321 ; Wilson v. Dent, 3 Sim. 385. 2 Gardner v. Kowe, 2 Sim. & Stu. 346. 3 Forster v. Hale, supra ; O'Hara v. O'Neil, 7 Bro. P. C. 22 7 ; Crook v. Brook- ing, 2 Vern. 50; Morton v. Tewart, 2 Yo. & Coll. 67; Steere v. Steere, 5 Johns. Ch. (N. Y.) 1 ; Movan v. Hays, 1 Johns. Ch. (N. Y.) 33« ; McCubbin V. Cromwell, 7 Gill. & Johns. (Md.) 157 ; Wright v. Douglass, 3 Selden, (N. Y.) 564. ■* Barrel! v. Joy, 16 Mass. R. 221. 5 Jaques v. Hall, an unreported case, recently decided in Massachusetts, and a note of which has been kindly furnished to me by the counsel. Barrow V. Grcenough, 3 Ves. Jr. 151 ; Lewin on Trusts, p. 30 ; Robert on Frauds, p. 95. 6 Steere v. Steere, 5 Johns. Ch. (N. Y.) 1. 7 O'Hara v. O'Niel, 7 Bro. P. C. 227 ; Forster v. Hale, 3 Ves. Jr. 696. 96 STATUTE OF FRAUDS. [cH. VII. the letters before him should be held insufficient ; for instance, as not containing the substance of the trust and as varying from the allegations in the bill. He does not therefore ex- pressly decide upon the point suggested, and we may suppose that he would not have decided according to the intimation given in his opinion, if the case had depended upon it, and his attention had been particularly drawn in that direction. It may well be doubted whether in principle and reason it is necessary that the writing upon which a trustee is to be held to his con- scientious duty should have been formally promulgated by him, and addressed to those interested, as evidence of his obligation ; and the general spirit of the decisions upon this class of cases seems to be averse to such a doctrine. Thus a trust is often proved by the recital in a deed,^ which, however solemn a mode of statement, is not addressed to the cestui que trust, though it may be made wi%h the intention of manifesting the trust. In Barrell v. Joy,^ in the Supreme Court of Massachu- setts, the defendant had received from the plaintiff's father sundry conveyances of land, and, upon a suit brought aftei" the father's death, the plaintiff alleged that the conveyances, though in terms absolute, were for the purpose of enabling the defendant to satisfy certain demands he had against the father, and that the remainder was t» be held in trust for him, of which trust they claimed the benefit. There was a pam- phlet in evidence published by the defendant, in which, in the opinion of the court, he admitted that he held the land in trust, as alleged by the complainants ; but what they considered as even more satisfactory and convincing evidence, was that the defendant *n an indenture between himself and certain third parties, covenanted with them to sell a portion of the lands he 1 Degv. Deg, 2 P. Wms. 412; Bellamy v. Burrow, Caa. Temp. Talb. 97; Kirk V. Webb, Free. Ch. 84 ; Hutchinson v. Tindall, 2 Green, Ch. (N. J.) 357 ; •Wright V. Douglass, 3 Seidell, (N. Y.) 564. 2 Barrell v. Joy, 16 Mass. R. 221. CH. VII.] EXPRESS TRUSTS. 97 had received, and apply the proceeds to the payment of de- mands which they held against the plaintiff's father ; from which it was evident that he considered himself as holding the land upon trust and not for his own use. Parker, C. J., de- livering the opinion of the court, said : " This is a sufficient •declaration in writing, for although not made to Barrell, (the cestui que trust,) it is available to him or his representatives." It can hardly be said that this indenture was intended by the defendant as a manifestation of the trust on his part; and if his engagement to make that disposition of the land had been contained in a letter to, instead of an indenture executed with, third parties, the question would be quite identical with that before the Chancellor in Steere v. Steere ; but it does not seem that the mere form of the manifestation should make any difference in principle. In a more recent case than either. Chancellor Vroom of New Jersey used the following language: " A declaration of trust requires no formality, so that it be in writing and have sufficient certainty to be ascertained and exe- cuted. It may be in a letter, or upon a memorandum, and it is not material whether the writing be made as evidence of the trust or not."^ In Forster v. Hale, although the parol declara- tions of the party were adverse to the inference of a trust, and it was in evidence that he had refused to execute a declaration, yet as the trust was clearly made out upon the face of a series of letters under his hand, he was charged accordingly.^ In such a case, it is clear that the trustee must have been held upon his letters in spite of his intentions. On this point, therefore, it seems to be much the better opinion that it is no objection to letters and other informal writings or memoranda of the trustee, introduced for the purpose of proving the trust, 1 Hutchinson v. Tindal, 2 Green, Ch. (N. J.) 357. 2 Forster v. Hale, 5 Ves. Jr. 308. 9 98 STATUTE OF FRAUDS, [gH. VII. that they were drawn up for another purpose and not addressed to, nor intended for the use of, the cestui que trust} § 100. With ntiore formal instruments of manifestation, there will generally be little difficulty. It has before been observed incidentally, that a recital in a deed was a good mani- festation of a trust, and the same is true of a deposition of the trustee, signed and sworn to by him, and fully and clearly set- ting out the terms of the trust.^ So also the answer of the defendant in a suit to enforce the trust, admitting it as charged, is clearly a good manifestation within the statute.^ § 101, In Hampton v. Spencer, decided a few years after the Statute of Frauds was passed, the plaintiff, in consideration of £80 paid by the defendant, conveyed a house and surren- dered a copyhold estate to the defendant and his heirs ; the bill was for a reconveyance on payment of the remainder due of the £80 and interest. The defendant by answer insisted that the conveyance was absolute to him and his heirs, without any promise, clause, or agreement that the plaintiflf mfght redeem ; but he confessed it was in trust that after the £80 with interest was paid, the defendant should stajid seised for the benefit of the plaintiff's wife and children, although no such trust was declared by writing. The trust was not charged in the bill. For the plaintiff it was insisted that he having replied to the defendant's answer, who had not made any proof of such pre- tended trust, the defendant was bound by his confession that he 1 Roberts on Frauds, p. 102. This view is confirmed by a comparison with those cases in which it has been held that a signature (under the fourth section) by a subscribing witness, who knew the contents of the paper, was a signature within the statute. See in particular Welford v. Beazely, (3 Atk. 503,) where Lord Hardwicke said, that " the word 'party ' in the statute was not to be con- strued parly as to the deed, but person in general ; else what would become of those decrees, where signing of letters by which the party never intended to bind hiniself, had been held to be a signing within the statute." a 4nie, § 99 ; Pinney u. Fellows, 15 Verm. K. 525. 3 Nab V. Nab, 10 Mod. 404 ; Ryal v. Ryal, 1 Atk. 59 ; McCubbin v. Crom- well, 7 Gill & J. (Md.) 167 ; Jones v. Slubey, 5 Har. k J. (Md.) 372. CH. VII.] EXPRESS TRUSTS. 99 was not to have the estate absolutely to himself, and no re- gard ought to be had to the matter set forth in avoidance of the plaintiff's demands, because the defendant had not proved it ; yet the court decreed the trust for the benefit of the wife and children.^ § 102. This case decides, it seems, that the answer of a defendant, setting up a trust in favour of third parties, will be sufficient evidence of it to defeat a complainant's equity, in a suit brought to recover or charge the land, and not alleging the trust. In this view it certainly conflicts with the principle that a defendant cannot by his answer discharge himself, but must establish his matter in avoidance by proof. It does not appear ever to have been followed iu England nor in this country. In a case in Chancery in New Jersey, where a deed was made, absolute on its face and without any actual consid- eration paid, and on a bill to set it aside as obtained by fraud, the answer admitted that no part of the consideration was paid, but averred that the defendant held it in trust for the wife and children of the grantor, (the plaintiff,) and proffered willingness to execute a declaration of trust or secure the interest of the wife and children in any way the court should direct ; it was held that such an answer, not being responsive to the bill, was not evidence of the trust. Chancellor Vroom said : " I am inclined to believe that, if the present complain- ant had filed a bill claiming this deed to be a deed of trust, and praying that it might be so decreed according to the origi- nal intention of the parties, the answer of the defendant admit- ting the trust would have been good evidence of it. It would have amounted to a sufficient declaration of the trust. But it would seem to be different where a complainant seeks on the ground of fraud to set aside a deed, absolute on the face of it, and confessedly without any actual consideration paid ; for to 1 HamptoD V. Spencer, 2 Vern. 288. 100 STATUTE OF FRAUDS. [cH. VII. suflFer a defendant in siich a case to come in and avoid 'the claim hy setting up a trust, would be to permit him to create a trust according to his own views and thereby prevent the con- sequences of a fraud." ^ The position here taken seems to have been adopted also in the courts of Maryland.^ § 103. Another class of cases in which the answer of a defendant in chancery is made to prove a trust, may, for the sake of completing our examination of this topic, be mentioned here. Where a bill is filed against an absolute devisee of an estate, alleging that it is held by him upon a trust not suffi- ciently declared under the statute, or illegal or fraudulent, there the defendant will be compelled in equity to disclose whether any such trust exists, although he plead the Statute of Frauds ; and on his answering in the affirmative, his answer is evidence, not to set up the trust, but to defeat his apparent title and to found a decree for a resulting trust to the heir.^ § 104i. Upon examination of the decisions which have been quoted to the admissibility of letters, recitals, answers, and memoranda in general made by the trustee, as manifestations of the trust, it will be seen that they have been commonly sus- tained upon the ground that the Statute of Fr^ds does not in its terms require that the trust shall be created or declared in writing, but only that such declaration or creation shall be manifested or proved by writing. The question how far such writings would be admissible (in view of their informality and in view of their not being contemporaneous with, at forming any part of, the original transaction by which the trust was created,) under a different phraseology of the law may be very impor- tant. In Massachusetts and in New York, the statute has 1 Hutchinson v. Tindal, 2 Green, Ch. (N. J.) 357. 2 Jones V. Slubey, 5 Harr. & Johns. (Md.) 372 ; McCubbin t;. Cromwell, ■7 Gill & Johns. (Md.) 157. 3 Adlington v. Cann, 3''Atk. 141; Stickland v. Aldridge, 9 Ves. Jr. 516; Muokleston v. Brown, 6 lb. 52 ; Bishop v. Talbot, cited in Muckleston u. Brown. See Kutledge v. Smith, 1 McCord, Ch. (S.C.) 119. CH . VII.] EXPRESS TRUSTS. 101 been altered ; the former now requiring that the trust shall be created or declared by writing, and the latter that it shall be created or declared by deed or conveyance in writing.^ The subject was presented in the New York Court of Appeals very lately, in the case of Wright v. Douglas, where the question was upon the sufficiency of a recital in a deed as a manifestation of the trust. Ruggles, J., dehvering the opinion of a majority of the court, said : " Under our former statute in relation to this subject, it was only necessary that the trust should be manifested in writing, and therefore letters from the trustee disclosing the trust were sufficient. Our present statute requires that the trust should be created or declared by deed or conveyance in writing subscribed by the party creating or declaring the trust. But it need not be done in the form of a grant. A declaration of trust is not a grant. It may be contained in the reciting part of the conveyance. Such a recital in an indenture is a solemn "declaration of the existence of the facts recited, and if the trustee and cesiui que trust are parties to the conveyance, the trust is as well and efiectually declared in that form as in any other." ^ It would seem from this that if the New York statute as altered had not required that the trust should be declared or created by deed or convey- ance in writing, any recital in a deed, whether the trustees and cestui que trust were parties or not, or any " solemn declaration of the existence of the facts " upon wTiich a trust arises, would be sufficient. Striding out the words- " deed or conveyance," the statute is left substantially the same as the English. We may conclude, therefore, that the phraseology of the English statute has not so extensive an eJBFect as has been supposed. A recital of a trust is, by the very etjmiology of the word, suhse- quent to the creation of the trust ; and a formal declaration of 1 2 New York Kev. Stat. 134, § 6 ; Mass. Kev. Stat. 1836, cap. 59, § 30. 2 Wright V. Douglass, 3 Selden, 564. 9* 103 STATUTE OF FRAUDS, [cH. VII. the facts upon which the trust arises also seems to presuppose an already existing trust obligation. In a case in South Caro- lina, the Court of Appeals take that view. The defendant" there was a widow and executrix under a will by which her husband had devised the whole of his property to her, but upon an understanding that it should be disposed of according to a prior will in which certain provision had been made for his grandchildren. The defendant afterwards signed a writing by which she declared that there was due to her grandson, (the plaintiff's intestate,) a certain sum of money on account of the legacies left him by his grandfather, and promised that the same with interest should be paid out of her estate. The court said that all declarations of trust must be in writing, though it was not necessary they should be constituted in writing ; and that the instrument in question, though not in terms a declaration of trust, was a declaration of such facts as raised a trust, and was consequently sufficient.-^ A very simi- lar declaration has been admitted in Massachusetts, since the revised statutes which altered the law so as to require the trust to be created or declared by writing. It was an entry made in a private memorandum book of the trustee, setting forth clearly a previous transaction by which he had become trustee, and although there were other circumstances, in the case sufficient to hold the defendant as trustee, still this declaration was held, as such, satisfactory.^ With such light upon this question as is afforded by these decisions, it seems we must doubt whether, in those States where the law requires a trust to be created or 1 Kutledge v. Smith, 1 McCord, Ch. 119. 2 Jaques v. Hall, see ante, § 98. In the case of Jenkins v. Eldredge, 3 Story, E. 181, decided after the revision of the statutes of Massachusetts, Mr. Justice Story said: "My opinion has proceeded upon the ground that there is no substantial difference between the Statute of Frauds of Massachu- setts either under the Act of 1783, ch. 37, § 3, or the Revised Statutes of 1835, ch. 59, § 30, and the statute of 29 Car. 11. ch. 3, on the subject of trusts ; and such is the conclusion to which I have arrived, upon the examination of these statutes." (See Jenkins v. Eldredge, abstracted in the note to § 111, post^ CH. VII.] EXPRESS TRUSTS. lOS declared by writing, it is not sufficient, as it is in England under the old statute, that that declaration be a clear statement of the facts upon which the trust arises, and whether it is material in what form or at what time it be made. § 105. The language of the statute in the seventh section is, " Some \vriting signed," etc., and it is decided that the writing is not required to be sealed.^ In regard to the memo- randum in these cases of trusts, like that required by the fourth section in cases of certain contracts, it is sufficient if, of several papers which together go to make up the required manifestation of the trust, one of them be signed, provided the others be so connected with it, in sense and meaning, as to render unnecessary a resort to parol evidence to show their relation to each other.^ § 106. The requisition in the statute, that the writing shall be " signed by the party who is by law enabled to declare such trusts or by his last will in writing," will be met by the signa- ture by the grantor himself, if the declaration be previous to, or contemporaneous with, the act of disposition. If subsequent to it, the person legally entitled to declare the trust will be the trustee himself; for where a person has once devested himself of all interest in property, by an absolute conveyance, it is no longer competent for him, either by parol or written declaration, to convert a party taking under such a conveyance, into a trustee, except of course where the circumstances of the trans- action were such as to raise a resulting or implied trust upon the conveyance, in which case the person entitled to such an interest would clearly have a right at any time to declare the trust.^ § 107. It is to be observed that the language used in the 1 Adlington v. Cann, 3 Atk. 141 ; Boson v. Statham, 1 Ed. 508. 2 Forster v. Hale, 3 Ves. Jr. 696. See this point examined under the head of the written memorandum required by the fourth section. 3 Hill on Trustees, p. 62, and cases there cited. 104 STATUTE OF FRAUDS. [cH. VII. seventh section is alternative ; the manifestation may be either by " some writing signed by the party," etc., or " by his last will in writing." The mode of execution prescribed, there- fore, is expressly confined to cases of manifestation other than by a last will in writing; and it follows that where the manifestation is by will, it must be made and attested in the manner prescribed in another part of the statute for the execu- tion of wills.^ Nor is this rule to be confined to cases where the trust is designated in the will itself. If a testator by will duly signed and attested give lands to A and his heirs upon trust, but do not specify the particular trust intended, and then by a paper informally executed declare a trust in favour of B, the interest which resulted under the first will and would have descended to the heir, is still a part of the original ownership and therefore cannot be passed without the forms prescribed by the statute.^ So if a legacy be bequeathed to A upon trust and the testator by parol give the equitable interest to B, such a direction is in fact a testamentary disposition of an interest in the chattel, and therefore void by the statute which imposes the necessity of a written will.^ Lord Northington, in the case of Boson v. Statham, declared his opinion to the contrary in the following strong terms : " I will speak openly and declare my opinion generally that a writing signed by the party who has power to make the trust, declaring a trust upon the will, is good, although such writing be not attested by three witnesses according to the solemnities of the Statute of Frauds. The Statute of Frauds was not meant to prevent persons from taking trust estates, but only to regulate the proof of them."* Notwithstanding this opinion, it is considered to be settled that a trust cannot be engrafted upon a will, but by a testament- ary paper executed with • the requisite formalities ; a doctrine 1 Stat. 29 Car. II. c. 3, § 5. 2 Adlington v. Cann, 3 Atk. 141. 3 Lewin on Trusts, 32. * Boson V. Statham, 1 Ed. 508. CH. VII.] EXPRESS TRUSTS. 105 in which both Lord Hardwicke and Lord Eldon have con- curred.^ § 108. All that remains before concluding this chapter is to see what form of language will be sufficient to manifest a trust as required by the statute. It has been before remarked that the words used, though no formulary of expression be pre- scribed, must distinctly relate to the subject-matter, and must serve to show the court that there is a trust and what that trust is. An illustration of this principle is presented in the case of Forster v. Hale, where it was attempted to establish a trust upon the expressions " our " and " your," contained in letters of the defendant to the alleged cestui que trust, referring to the property in dispute. It was held that such terms did not necessarily imply that the parties to the correspondence were jointly interested in the estate alluded to, and the Master of the Rolls, Sir Richard Pepper Arden, said there was great danger in executing trusts proved only by letters loosely speaking of trusts which might or might not be actually and definitively se^ tied between the parties, with such expressions as those above quoted, intimating only some intention of a trust, and that it should be clear from the declaration what the trust was.^ So in the case of Steere v. Steere, before Chancellor Kent, two of the defendants, sons of Stephen Steere, under whose will the plaintiffs claimed, had purchased at judgment sale certain land belonging to their father, and it was alleged that they held it under a trust to reconvey to the testator on repayment of the pur- chase money and expenses. The evidence relied upon consisted of a number of letters written by one or more of the defend- ants, in which frequent allusion was made to the estate, and to a promise by the defendants that the family should have a part of it, that it should be held for the family, with similar general expressions. The Chancellor was clear that such language did not tend to show the trust alleged, which was a trust in favour I Adlington «. Cann, stipra; Stickland w. Aldridge, 9 Ves. Jr. 516; Lewin on Trusts, 36. ^ Forster v. Hale, 3 Ves. Jr. 696. 106 STATUTE OF FRAUDS. [cH. VII. of the testator; but that even if a trust in favour of the family had been alleged, the suggestions and intimations were too" loose to found a decree for specific execution.^ §109. Any instrument, however, which distinctly shows the trust relation existing between the parties will be sufficient to satisfy the statute, in whatever form it may be. Thus an acknowledgment in writing that he is indebted to another for a legacy under a will, shows the defendant to be a trustee for the purpose of caruying out the will to that extent.^ So where the defendant, the owner of the legal title to an estate, had covenanted with third parties to sell part of it and apply the proceeds to the payment of certain demands which they held against the plaintiff's father, from whom the estate had been purchased, it was held to be a sufficient declaration of trust, as furnishing conclusive evidence that, notwithstanding the de- fendant held the legal title, there was a beneficial interest remaining in the plaintiff's father.^ So where the holder of a gote indorsed to him as security for a debt, having recovered judgment against the promisor and levied on the rents and profits of his land for a term of years, signed a writing not under seal, promising to pay to the plaintiff all the rents which he should receive after his debt should be paid, or to allow the plaintiff the use and improvement of the land after such pay- ment, it was held that this was a sufficient declaration of trust.* And a mere private memorandum made by the defendant in his own handwriting, though not signed, setting forth that in a previous conversation with the plaintiffs' testator, he had told him that certain persons (the plaintiffs,) were to have certain legacies and annuities, has been held to be a sufficient declara- tion of the trust for those purposes.^ 1 Steere v. Steere, 5 Johns. Ch. (N. Y.) 1. 2 Rutledge v. Smith, 1 MeCord, Ch. (S. C.) 119. 3 Barrel! v. Joy, 16 Mass. R.221. ■i Arms V. Ashley, 4 Pick. (Mass.) 71. 5 Barrow v. Greenough, 3 Ves. Jr. 152. CH. VII.] EXPRESS TRUSTS. 107 § 1 10. A covenant to convey or hold lands, purchased or to be purchased, to certain uses, or a bond to convey lands as the cestui que trust shall direct, are obviously equivalent to declara- tion of trust.^ So also, where a revolutionary soldier entitled to bounty-land delivered to one Birch (from^hom by mesne assignments it came to the appellants) his discharge from the army, indorsing upon it the following : " This is to certify that the bearer, John Birch, Is entitled to all the lands that I, Ben- jamin Griffin, am entitled to, either from the State or Conti- nent, for my services as a soldier, certified in my discharge," Kent, C. J., held that this certificate was an assignment of Griffin's equitable claim to the land, was sufficient for that purpose without any words of inheritance, and amounted to a declaration of trust.^ § 111. Where there is any written evidence showing that the person apparently entitled is not really So, parol evidence may be admitted to show the trust under which he actually holds the estate. In the comparatively recent case of Cripps V. Jee, an estate being subject to certain incumbrances, the grantor mortgaged the equity of redemption, by deeds of lease and release, to two persons of the name of Rogers, as pur- chasers for a consideration stated in the deed, the real intention of the parties being that the Rogerses should be mere trustees for the grantor, and should proceed to sell the estate, and after paying the incumbrances should pay the surplus money to the grantor. In the books of account of one of the Rogerses, there appeared an entry in his handwriting of a year's interest paid to an incumbrancer on the estate, on account of the grantor, and other entries of the repayment of that interest to Rogers by the grantor, and there was also evidence of a note and bond given by the Rogerses to a creditor of the grantor, 1 Earl of Plymouth v. Hickman, 2 Vern. 167 ; Blake v. Blake, 2 Bro. P. C. 250 ; Moorcroft v. Dowding, 2 P. Wms. 314. 2 Fisher v. Fields, 10 Johns. (N. Y.) 495. 108 STATUTE OF FRAUDS. [cH. VII. in which they stated 'themselves to be trustees of the estate of the grantor. Lord Kenyon held that this written evidence being inconsistent with the fact that the Rogerses were the actual purchasers of the equity of redemption, further evi- dence by parol ^(vas admissible to prove the truth of the trans- action.^ Parol evidence has also been admitted by Chancellor Kent to repel the inferences of a trust from certain letters and accounts, in a case where the writings were of a loose and ambiguous character, the principle being however carefully reserved, that if the written proof had been clear and positive. I Cripps V. Jee, 4 Bro. Ch. 472 ; Lewin on Trusts, 62. The principle is somewhat illustrated in the following case, which however was decided long anterior to Cripps u. Jee, and apparently upon another ground. Bill filed to set aside an assignment of a leasehold estate, and all other the estate and effects of the plaintiff, upon a suggestion that the same was never intended as an absolute assignment for the benefit of the defendant, but made only to ease the plaintiff of the trouble and care of managing his own concerns at that time, (being then under great infirmities of body and mind,) and subject to a trust for the benefit of the plaintiff, if he should afterwards be in a capacity of taking care of his own affairs. No trust of any kind appeared on the face of the assignment, but upon the whole circumstances of the case, (viz.) the annuity reserved to the plaintiff being by no means an equivalent to the estate so disposed of, the recital in the deed of assignment that the plaintiff was under a disability at that time, of taking care of his own affairs, all the effects in general being assigned, as well as the leasehold estate, and after a general covenant in the deed from the defendant to indemnify the plaintiff against any breach of covenant in the original lease, and a special reservation to the plaintiff of all the timber, &c , and he set out and allow timber for the repair of the estate, (a circumstance principally relied on by the Lord Chancellor, as not at all reconcilable with an ab- solute disposition of the whole interest to the defendant,) and other circumstances raising a strong presumption of a trust intended. Loi-d Chancellor (Hardwicke) admitted parol evidence to explain this transaction, viz., declarations by the defendant, at the time the deed of assignment was executed, and afterwards amounting to an acknowledgment of such a trust as the plaintiff now insisted upon ; and his Lordship said such evidence was consistent with the deed, as there was all the appearance of an intended trust upon the falc6 of it : but however though there can be no parol declaration of a trust, since the Stat, of 29 Car. IL, yet this evidence is proper in avoidance of fraud, which was here intended to be put on the plaintiff, for the defendant's design was absolutely to deprive the plaintirf of all the benefit of his estate. Hutchins v. Lee, 1 Atk. 447. CH. VII.] EXPRESS TRUSTS. 109 it could not have been rebutted by parol.^ But in Leman v. Whitley, while the exception in favour of trusts partly proved in writing was recognized, the binding application of the Statute of Frauds to cases of mere parol trusts was firmly sustained. A son had conveyed an estate to his father, nomi- nally as purchaser for the consideration, expressed in the deed, of ,£400, but really as a trustee, 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. The father died shortly afterwards, before any money was raised, having by his will made a general devise of all his real estate. Sir John Leach, in holding the case to be within the Statute of Frauds, and that parol evidence was inadmissible to prove the trust, said : " There is here no pretence of fraud, nor is there any misapprehension of the parties with respect to the effect of the instruments. It was intended that the father should by legal instruments appear to be the legal owner of the estate. There is here no trust arising or resulting by the implication or construction of law." He then adverts to Cripps v. Jee and to the written evidence in that case, upon the strength of which Lord Kenyon had admitted the auxiliary parol proof, and adds : " There is here no evidence in writing which is inconsistent with the fact that the father was the actual pur- chaser of this estate ; and it does appear to me that to give effect to the trust here would be in truth to repeal the Statute of Frauds." ^ It would seem that the exception established in Cripps V. Jee, in favour of trusts partly manifested by writing, is difficult to reconcile with the plain language and policy of the statute requiring the trust (that is, the whole trust,) to appear by written evidence ; and that the determination in Leman v. Whitley, not to admit it unless 'clearly applicable, was wise, and consistent.^ 1 Steere v. Steere, 5 Johns. Ch. (N. Y.) 1. 2 Leman v. Whitley, 4 Russ. Ch. 423. 3 In the ease of Jenkins v. Eldredge, (3 Story E. 181,) Leman v. Whitley 10 110 STATUTE OF FRAUDS. [CH. VII. § 1152. When we come to that part of our subject which relates to contracts, it will be seen that one of the most im- was referred to and disapproved, as improperly excluding parol evidence in cases of trusts, and Mr. Justice Story says " he should have, had great difficulty in following it, even if there were no authorities which seemed fairly to pre- sent ground for doubt," which authorities are Lees v. Nuttall, 1 Russ. & Mylne, 53 ; Carter v. Palmer, 11 Bligli, N. R. 397 ; and Morris v. Nixon, 1 How. (S. C.) 118. With the greatest submission, it must be said to be doubtful whether the principle laid down in Leman v. Whitley has been denied or - questioned in either of the decisions quoted. And it is remarkable that any qualification of that principle should have been intended, no reference be- ing made to Leman v. Whitley in either of them. We should naturally desire to see those decisions placed upon some other ground, rather than conclude (as it seems we must,) that they establish the absolute admissibility of parol evidence in cases of trusts. The two first-mentioned cases were mere cases of an agent abusing his agency to acquire the legal title contrary to the intention of his principal, such as have been referred to on page 93 and are always excepted from the operation of the statute upon the ground of a resulting trust, ex maleficio, in favour of the principal. The last is the com- mon case of an absolute deed of land, proved by parol to have been actually made as security for a loan of money ; such proof in that particular class of cases being allowed in the great majority of equity and even law courts of our country, (though not in Massachusetts,) and upon grounds quite unconnected with any construction of the Statute of Frauds. Mr. Justice Story in his Equity Jurisprudence (§ 1199, note 2,) refers to Leman v. Whitley as a case which stands upon the extreme boundary of the law as to the inadmissibility of parol evidence in cases of resulting trusts, a.nA his condemnation of the case in his decision in Jenkins v. Eldredge is apparently pronounced under the same impression that it was a case of a resulting trust. But Sir John Leach expressly says in his opinion that it is not a case of a resulting trust, but of parol evidence offered to prove an express trust against the written docu- ments in the case. From this and other remarks of Mr. Justice Story, it must be inferred that the intent of the decision in Leman v. Whitley was in some measure misapprehended by him. Jenkins v. Eldredge itself is a case which in all its bearings is highly interesting in relation to the whole subject of trusts as affected by the statute, and as it has been several times referred to in preced- ing pages, an abstract of its facts and the points decided is here presented. Jenkins purchased a piece of land of De Blois for $20,000, with a view to build on it for speculation. Being unable to comply with the conditions of sale, he agreed with De Blois that her warranty deed conveying the premises to him, should, on the execution of the agreement and the payment of $1,000 to De Blois by Jenkins, be deposited with one Philips in escrow to be delivered to Jenkins if he should, before a certain day, pay De Blois $5,042.50 and execute a note to her for $15,127 payable in five years and a mortgage of the premises CH. VII.] EXPRESS TRUSTS. Ill portant questions to be settled is, Whether, in the memorandum of the contract, the consideration is required to be expressed. to secure the payment of the note and taxes ; otherwise the contract of sale to be null and void and the $1,000 forfeited to De Blois. Jenkins paid the $1,000 and took possession of the land and made excavations and commenced building upon it, expending, as his bill alleged, about $15,000. His means being exhausted, he was unable to pay the $5,000 on the day stipulated, and De Blpis, pressing payment, threatened to sell the premises at auction. Jenkins applied for and obtained an injunction, and a decree giving him about one year more in •which to perform the contract, but he failed finally to do it, and his bill was dismissed. In the intervening year, Jenkins applied to Eldredge for assistance in raising money to complete his enterprise ; and it was agreed between them that Eldredge should take a conveyance of the premises from De Blois, which was accordingly done after the dismissal of the bill, and Jenkins executed a release to Eldredge by which he admitted in terms that he had " no legal or equitable right in or to the same." From that time forward Eldredge continued to be ostensibly and, so far as the second title was concerned, the sole and exclusive owner of the legal and equitable estate in the premises. Jenkins was subsequently employed superintending the erection of the building. The necessary moneys were advanced chiefly by Eldredge, but in part, as it appeared, by Jenkins himself. The original intention of the parties was shown by parol evidence to be, that the whole legal and equitable estate should be in Eldredge, to enable him to raise money on it to complete the building and discharge the incumbrances. Eldredge admitted that he had promised to make a deed of trust and place it among his papers, to provide for the contingency of his death, but denied that he ever rnade such a deed, or that he ever intended to fetter his legal and equitable estate in the premises. There was parol evidence that it was part of the original bargain that this declaration of trust should be made and preserved by Eldredge. It was contended on the part of the plaintiff that the case was taken out of the statute ; 1. Because it was a resulting trust. 2. Be- cause it was a case of agency. 3. Because Eldredge had been guilty of fraud in his conduct and operations. 4. Because tke plaintiflT had done acts of part performance, and could not now be reinstated in his former position without a decree for the specific execution of the trust. Judge Story's opinion was that the case was not to be considered as one standing purely or singly upon either of these grounds, but as embracing ingredients of all of them, and he examines the case in each view. Upon the first ground, namely, that Jenkins had a resulting trust in the estate, he says, " that the plaintiff had expended a large sum of money on the premises ; that De Blois never could have con- veyed the same to Eldredge without the plaintiff's express solicitation and consent, and that Eldredge was in no just sense a purchaser for his own sole account, giving a full value for the premises, but bought with a full knowledge of the enhanced value by the expenditures of the plaintiff and for the purpose of giving the benefit of such expenditures as a resulting trust between the 112 STATUTE OF FRAUDS. [CH, VII. It may be sufficient to remark, in reference to the writing required by the seventh section in cases of trusts, that all the plaintiff and himself in the premises. In this respect it approaches very nearly to the case of a joint purchase where each purchaser is to hare an interest in the purchase, in proportion to his advances. Now in such cases parol evidence is clearly admissible to establish the trust, as well as to rebut, control, or vary it. It appears to me that it may well be treated as a mixed case ; quoad the plaintiff, as a resulting trust pro tanto, and quoad Eldredge , as a trust pro ianto for his liabilities, expenditures and compensation." He proceeds, " In the next place as to the agency. It appears to me, that here a confidential relation of principal and agent di d exist ; and, that being once shown, it disables the party from insisting upon the objection that the trust is void as being by parol. The very confidential relation of principal and agent has been treated as, for this purpose, a case sui generis. It is deemed a fraud for an agent to avail himself of his confidential relation to drive a bargain, or create an interest adverse to that of his principal in the transaction ; and that fraud creates a trust, even when the agency itself may be, nay must be proved only by parol. In the next place, as to the asserted fraud. If, as the argument of the plaintiff supposes, Eldredge originally engaged in the undertaking with a meditated design to mislead the confidence of the plaintiff, and, by practising upon his credulity and want of caution, to get the title to the property in his own hands, and then to convert it into the means of oppressively using it for his own advantage and interest, I should have no doubt that the case would be out of the reach of the Statute of Frauds ; for the rule in equity has always been, that the statute is not to be allowed as a protection of fraud, or as the means of seducing the unwary into false confidence, whereby their intentions are thwarted or their interests are betrayed." The learned Judge here refers to Montacute v. Max- well, (1 P. Wms. 618-620,) and to the opinion of Lord Chancellor Parker there ■expressed, that " in cases of fraud, equity would relieve even against the words of the statute ; but where there is no fraud, only relying upon the honour, word, or promise of the defendant, the statute making those promises void, equity will not interfere." He dissents from that proposition, even as applied to cases of contracts in consideration of marriage, and then proceeds as follows : " I doubt the whole foundation of the doctrine, as not distinguishable from other cases, which Courts of Equity are accustomed to extract from the grasp of the Statute of Frauds. It is not, however, necessary to consider what should be the true rule in such a case ; the present is not one of that nature, but stands upon very different grounds. I think, moreover, that there is one ingredient in the present case, which gives it a marked character, which is often relied on in cases of agreements on marriage ; that Eldredge did agreie to reduce the trust to writing, and to keep a private memorandum thereof in his own possession, as evidence, in case of his death or other accident. I do not accede to the state- ment, that this was a mere subsequent promise, long after the execution of the conveyances, as his answer imports ; but it was a part of his original agreement, CH. VII .] EXPRESS TRUSTS, IIS reasons in favour of requiring the express statement of the consideration under the fourth section seem to hold good in relation to the other. There are two cases found in which and upon the faith of which the arrangement was completed. He never did comply with that part of the agreement. He admits .that he never made any such memorandum. If he had made one, it might have swept away the whole of his present defence. I should not incline, however, to impute to Eldredge any such original premeditated intention of fraud as the agreement of the plaintiff supposes, unless driven to it by the most cogent circumstances of neces- sity. And it does not seem to me necessary, in this case, to go to such a length. In -my judgment, the result is the same, although the original design of Eldre,dge was perfectly fair and honourable, if he has since deviated from his duty, and attempted to absolve himself from the obligations of the trust, such as he knew the plaintiff believed it to be, and constantly acted upon ; because, in point of law, it would be a breach of trust, involving a constructive fraud, such as a Court of Equity ought to relieve. In the next place, as to the ground of a part-performance on the part of the plaintiff. From what has been already suggested, there seems to me strong ground to support this suggestion. The plaintiff did, at the time of the conveyance to Eldredge, surrender up his present rights or just expectations under the contract with De Blois; he suf- fered his equity to expire, and he agreed to give up to Eldredge all claims which he might have to the premises; and consented to a direct conveyance thereof to Eldredge. He did more : he surrendered up all remuneration for his past advances and services ; and also all remuneration for his future services, except so far as ultimately, after satisfying all other claims, there might remain a surplus of value of the property to indemnify him. It has been suggested that he had, at the time, no claim upon De Blois for those advances, or services, or improvement of the property. I doubt if, in equity, that doctrine is maintain- able, if the value in the hands of De Blois had been greatly enhanced thereby. But upon this, to which allusion has been before made, I do not dwell. But I do put it, that none of these acts would have been done, and above all, the release to Eldredge by the plaintiff would never have been executed, but upon the faith that the truSt was to exist for the plaintiff's benefit, and the release was a part execution of the agreement between him ancf Eldredge. And here I cannot but remark, that the very exception in the deed of De Blois to Eldredge, (a most fit and proper exception, under the circumstances, and upon which the release was designed to operate,) ' excepting any claim or demand made by, through, or on account of Joseph Jenkins, and also excepting any claim or demand, arising out of any contract made by or with said Jenkins,' shows clearly that all the parties understood that Jenkins then had or claimed some right or title in the premises, and that the extinguishment of it was essential to the security of purchasers. So that, upon the ground of part-performance, there is much in the ease to take the case out of the statute." 10* ll* STATUTE OF FRAUDS. ' [cH. VII. this question has been passed upon, and in each it was de- cided that the consideration need not be expressed. One of them, however, was in Massachusetts, where it had been settled, for their own courts, that even the fourth section does not require the consideration to appear in the memorandum, and the other was upon an instrument under seal, a case excepted, even in England, from the application of the general rule.^ § 1 IS. It should also be observed before passing from this branch of lOur subject, that the (equitable principle upon which certain acts done in part-performance of a contract affected by the Statute of Frauds, are held to justify a decree for the specific execution of a contract, prevails in cases of trusts resting in parol .^ It is not, however, deemed worth while to anticipate here the discussion of any part of the important subject of part-performance, that being reserved for especial examination hereafter.^ 1 Arms V. Ashley, 4 Pick. (Mass.) 71 ; Fisher v. Fields, 10 Johns. (N. Y.) 495. 2 Jenkins v. Eldredge, ante, § 111, n. ; Robson v. Harwell, 6 Georgia R. 589. 3 Post, Chapter XIX. PART III. OF CONTRACTS. OF CONTRACTS. AS AFFECTED BY THE FOURTH AND SEVENTEENTH SECTIONS OF THE STATUTE OF FRAUDS. Section 4. 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 any special promise to answer for the debt, default, or miscarriages of another person ; 3, or to charge any person upon any agreement made upon consideration of marriage ; 4, or upon any contract or sale of lands, tenements, or hereditaments, or any inter- est in or concerning them ; 5, or upon any agreement that is not to be per- formed within the space of one year from the making thereof; 6, unless the agreemenifcpon which such action shall b*e brought, or some memorandum or note thereof shall be in writiiig, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. Section 17. No contract for the sale of any goods, wares, and merchandises for the price of £10 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 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. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 117 CHAPTER VIII. VERBAL CONTRACTS, HOW FAR VALID. § 114. We come now to consider the Statute of Frauds in its application to contracts ; a branch of the subject of superior importance, and upon which the decisions of the courts of both countries have been very numerous, presenting a great variety of questions of acknowledged intricacy and difficulty. The method proposed for the discussion of it is that suggested by the very arrangement of the sections above quoted from the English statute, and it is to examine. First, How far the statute affects verbal contracts ; Secondly, What are the con- tracts embraced by it ; and Thirdly, What are the formalities which it requires in the making of such contracts ; or more briefly, its operation, its subject-matter, and its requirements. The first of these divisions will form the subject of the present and the succeeding chapter. § 115. The Statute of Frauds does not declare that the contracts embraced by it shall be illegal or void, unless put in writing. It does not in any way affect their substance or ingredients, but simply prescribes as a rule of evidence that, in all cases where they are sought to be enforced, oral proof of them shall not be received. An agreement, therefore, which was legal and actionable previous to the statute, is legal since and notwithstanding the statute, and is also actionable or enforceable if the proof of it be such a writing as the statute requires.^ In many cases the legal effect will indeed be the 1 Although the phraseology of the 1 7th section of the English statute is differ- ent from that of the 4th, namely, that no contract, &c., for goods, &o., shall be 118 STATUTE OF FRAUDS. [cH. VIII. same as if the statute had declared the promise or contract void. This will be the case in all instances where the promise or contract remains executory on both sides, and an action is brought to enforce it. Here, although it is not strictly correct to say that the contract is void, yet as the same legal conse- quences would result from it as if it were void, it would not be erroneous for a court to decide it to be so. But on the other hand there are many cases in which the legal conse- quences of considering it void, and of considering it simply not actionable, would be widely different, as will be presently seen. § 116. Where the contract has been in fact completely executed on both sides, the rights, duties, and obligations of the parties resulting from such performance stand unaffected by the statute.^ An apt illustration of this familiar doctrine is afforded .by the case of a verbal agreement for a lease not exceeding three years, followed by an actual verbal demise accordingly ; here no action would lie upon the agreement while executory, but after it is executed by the creation of a tenancy, such as the statute allows to be created without writing, both parties are bound by the terms of the tenancy, and neither party can allowed to be good, &c., yet there seems to be no reason to attribute to the former any force, or to draw from it any inferences, different from those which attend the construction of the latter. " Allowed to be good " appears t<^ mean, con- sidered good for the purposes of recovery upon it ; and, the remaining portions of the two sections in question being very similar, and the policy of the two being very clearly the same, we should not be justified in laying much stress upon the change of phrase. The whole statute is undeniably put together mdst .irregularly and loosely. Many of our States in adopting the substance of it, have disregarded the difference alluded to and put the sales of goods into the same section with other contracts, extending to them the common provision that no action shall be brought upon them unless they are put in writing. (See Ap- pendix.) A distinction on this point appears to have been in the mind of Lord Abinger, in a case in the Court of Exchequer, but it was passed very cursorily, and the decision proceeded on the construction of the fourth section. Carring- ton V. Roots, 2 Mees. & Wels. 248. 1 Stone V. Dennison, 13 Pick. (Mass.) 1 ; Mushat v. Brevard, 4 Dev. N. C. 73. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 119 avail himself of the fact that the agreement could not, in the first instance, have been enforced against him.-' The same rule applies when goods are delivered and paid for, or a guarantor has paid, as he agreed to do, upon the default of the principal debtor ; neither party can retract and recover back what money he has paid or what property he has delivered, though it may be that he could not have been compelled at law to pay or deliver; still less could the principal debtor for whom the guarantor had paid, or any third jierson for whom another had purchased goods, defend their just claim for reimbursement, on the ground that they could not have been compelled at law to make the payments which they now sought to have made up to them. So with all cases of contracts embraced by the statute.^ When fully executed on both sides, the positions of the parties are fixed, subject of course to the power of a Qourt of equity to afford relief in cases of fraud and mistake, and subject to such subsequent conditions or qualifications as may be contained in any written memorandum still binding upon them. § 1 17. Where a verbal contract is completely executed by one party, the consideration can be recovered from the other, notwithstanding the Statute of Frauds. As, for instance, when a deed of land is given or goods delivered and accepted in pursuance of the contract, an action lies to recover the value of the land or goods ; ^ and the same where a contract is 1 Lord Bolton i>. Tomlin, 5 Adol. & Ell. 856. 2 Crane v. Gough, 4 Maryland K. 316 ; Andrews v. Jones, 10 Ala. R. 400 ; Craig V. Van Pelt, 3 J. J« Marsh. (Ky.) 489 ; Watrous v. Chalker, 7 Conn. R. 224 ; Pawle V. Gunn, 4 Bing. N. C. 445. A person who takes a conveyance of land with notice of the legal or equitable title of another to the same land will l)fi held a trustee for the benefit of the other, and will not be permitted to avail himself of the Statute of Frauds on the ground that the agreement under which he took the conveyance was not in writing. Truesdell v. Callaway, 6 Missouri R. 605. 3 Pomeroy v. Winship, 12Mass. R. 514 ; Wilkinson v. Scott, 17 Mass. R. 249 ; Townsend- w. Townsend, 6 Met. (Mass.) 319 j Brackett v. Evans, 1 Cush. 120 STATUTE OF FRAUDS. [cH. VIII. within the statute, as being- not to be performed within a year from, the making, but has been fully performed on one side, whether within the year or not ; the consideration of that per- formance, though by the contract not payable until after the expiration of the year, may be recovered by action when the stipulated time arrives.-' But when the consideration is itself a promise such as the statute requires to be in writing, as if the consideration of a conveyance of land be the parol promise of the grantee to let it back- to the grantor for Hfe, then of course the rule does not apply, as the eflFect would be a plain violation of the statute, namely, to enforce indirectly that parol promise.^ § 118. The general rule is, as we shall see in another place, that execution by one party, in whole or in part, does not entitle him to an action at law for. damages for the non-per- formance by the other party, although in certain cases a court of equity will decree a specific execution of the contract on such grounds.^ A party, however, who has paid money in fulfilment of a verbal contract which the other refuses or becomes unable to carry out, may recover it back, in an action for money had and received ; * he may also recover back prop- (Mass.) 79 ; Pike v. Brown, 7 Cush. (Mass.) 133 ; Dearborn v. Parks, 5 Greenl. (Me.) 81 ; Linscott v. Mclntire, 3 Shep. (15 Maine,) 201 ; Thayer v. Niles, 23 Verm. K. AH ; Voluntine v. Godfrey, 9 Verm. R. 186 ; Cone v. Tracy, I Root, (Conn.) 479 ; Bower v. Bell, 20 Johns. (N. T.) 338 ; Massey v. Hol- land, 3 Ired. (N. C.) 197 ; Wood v. Gee, 3 McCord, (S. C.) 421 ; Butter v. Lee, II Ala. R. ?85; Morgan v. Bitzenberger, 3 Gill, (Md.) 350. A parol lease is for this purpose executed when the lessee is put in possession. Moore v. Bease- ley, 3 Hamm. (O.) 294. So in case of an agreement to excuse from rent if the lessee will surrender the term, the surrender accordingly is an execution by the lessee and a defence against an action for the rent. Gore v. Wright, 8 Adol. & Ell. 118. • 1 Donellan v. Read, 3 Barn. & Adol. 899. 2 Townsend v. Townsend, 6 Met. (Mass.) 319. 3 Post, Chapter XIX. 4 Kidder v. Hunt, 1 Pick. (Mass.) 328 ; Seymour v. Bennett, 14 Mass. R. 266; Greer u. Greer, 18 Maine, (6 Shep.) 16; Lockwood 1). Barnes, 3 Hill, CH, VIII.] VERBAL CONTRACTS, HOW FAR VALID. 121 erty, or its value, delivered in the same way, in any suitable form of action;^ and where a piece of property is delivered in payment, as being worth a certain sum, it is not in the power of the defendant, without the plaintiff's consent, to revest the title in the specific things received, but he must refund in the usual mode for money had and goods sold.^ In like manner, one who has rendered services in execution of a verbal contract which, on account of the statute, cannot be enforced against the other party, can recover the value of the services upon a quantum meruit? § 119- Where one party has entered upon land under a verbal contract for the purchase of it, and has made improve- ments on the land, a court of equity will compel the other party, who has repudiated the contract or become unable to perform it, to remunerate the former for those improvements.* But whether an action at law will lie in such a case upon the implied assumpsit is more doubtful. It(|Jias been decided in England at nisi prius that it would ; that, the plaintiflf having expended his money for the benefit and at the instance of the defendant, the law implied a promise, not touched by the statute nor within the danger of perjury guarded against by it ; that the agreement was executed on the part of the plaintiff, and (N. T.) 128 ; Keeler v. Tatnell, 4 Zabriskie, (N. J.) 62 ; Gray v. Gray, 2 J. J. Marsh. (Ky.) 21 ; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ; Allen v. Booker, 2 Stew. (Ala.) 21. 1 Lney v. Bundy, 9 N. H. 298; Keath v. Patton, 2 Stew. (Ala.) 38. 2 Hawley v. Moody, 24 Verm. R. 603. 3 Souch V. Strawbridge, 2 Man. Gr. & Sc. 808 ; King v. Brown, 2 Hill,, (N. Y.) 485 ; Burlingame v. Burlingame, 7 Cowen, (N. Y.) 92, 94 ; Shute v. Dorr, 5 W^end. (N. Y.) 204; Hambell v. Hamilton, 3 Dana, (Ky.) 501; Davenport v. Gentry, 9 B. Mon. (Ky.) 427. 4 Findley v. Wilson, 3 Litt. (Ky.) 391 ; Thompson v. Mason, 4 Bibb. (Ky.) 195. See also on this subject. Chap. "SI'S.., post. But if a bill be filed for the specific execution of an agreement for the purchase of land, alleged to be evi- denced by a written memorandum, and the allegation be not sustained by the proof, the j)laintifF cannot under the prayer for general relief obtain compen- sation for improvements on the land. Smith v. Smith, 1 Ired. Eq. (N. C.) 83. 11 122 STATUTE OF FRAUDS. [cH. VIII. that the defendant was legally liable to remunerate him for what he had done.^ The Supreme Court of Kentucky have held otherwise, and their opinion is full and instructive upon the subject we are now considering. After recognizing the rule that, for money paid or property delivered or services ren- dered under such circumstances, a recovery may be had in an action for money had and received, or detinue, or trovfir, or upon a quantum meruit, they say that " whether the am^iorations of the soil made in the mean time can be so recovered is a diflfer- ent question. No doubt the party, in some such cases, is entitled to some remedy for improvements, and the opposite side for rents and profits, and this court has, in suits in chancery, directed one to be discounted against the other." " But we must not be understood as saying that such recovery can be had in every case ; for if the purchaser should choose to live upon the land at such an uncertainty, and should make such amelioration, and ^ould himself disaffirm the contract and never offer to fulfil it, and cast the improvements made upon the hands of his adversary, and thus attempt to make him a debtor to that amount, against his consent and without his default, the right to recover the value of the improvements in such a case would be very problematical. At all events, if in such a case they could be recovered, it could not be in an implied assumpsit, for there would be no ground to presume a promise or undertaking. If we take this case on a still broader ground, we should be at loss to perceive the principle on which an action of assumpsit could be maintained. In the case of money or property paid to the vendee for the land itself, where he had only given his promise to convey, and should refuse to fulfil it, as such promise is of no avail in law, the price may be recovered back, on the principle that the consideration upon which it was paid happens to fail. But with regard to 1 Gray v. Hill, Ry. & Mood. 420. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 123 ameliorations made under such circumstances, they are not designed for the use of the seller. He is not instrumental in causing them to be made, as he is in the case of payment of the price. They may or may not be made at the election of the purchaser, and in searching the principles over, for which an implied assumpsit will lie, we discern not one which will support this action. If the seller can be at all made liable for them, it must be on the principle of equity, that he ought not, when the improvements are delivered over to him, to be enriched by another's loss. It is true an implied assumpsit will lie for work and labour done for the defendant, upon his request and assent, without any fixed price or any express promise to pay ; but the labour must be Ms and the work be done for him, and not for another and the work afterwards happen to become his, before the action can be sustained. We therefore conceive that whatever remedy the appellee may have, it is not by an imphed assumpsit for work and labour." ^ Although this opinion is based upon a state of facts in which the plaintiflp had himself been the party to repudiate the contract, yet, as applied to cases where the defendant repudiates, the reasoning seems to be satisfactory to show that the action would not lie to recover for the improvements. Still more clearly, as has been held in Pennsylvania, the fact that such improvements have been made, and that the defendant may be entitled to remuneration for them, would be no impediment to an action of ejectment brought by the vendor, where the contract was not binding upon him by reason of the statute.^ In all cases where the plaintiff has been put in possession, whether of land or of any other property, the profits he has derived from the use and enjoyment of it in the mean time should be, as is intimated in the opinion above quoted, deducted from the sum 1 Shreve v. Grimes, 4 Litt. (Ky.J 220. 2 Harden v. Hays, 9 Barr. (Pa.) 161. 124l STATUTE OF FRAUDS. [cH. VIII. he is to recover for his expenditures made on the faith of the contract.^ § ISO. It has been determined in Tennessee, that the ad- vance of money upon a verbal contract for land creates no lien upon the land itself for the repayment of the sum advanced, and that a court of chancery is not authorized to decree a sale of the land for that purpose.^ But the general rule of law appears to be, that if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, he has a lien for it on the estate, although he may have taken a distinct security for the money advanced ; ^ and it should seem that the rule should equally apply where the vendor, though able to make a title, refuses to do so. It has been, it is true, decided that, where a purchase cannot be enforced on account of its illegality by statute, there is no lien, for such a lien would, to that extent, be giving to the purchaser the benefit of the illegal contract.* But it may be replied that the contracts we are now considering are not made illegal by the Statute of Frauds, and it will be seen hereafter that the benefit of them is in a variety of ways given to the parties notwithstanding the statute. The decision in Tennessee is opposed by the opinion of the courts in Kentucky, where in one case it is declared to be well settled that the purchaser has a lien for his money advanced in payment for an estate which he cannot keep, as well as for his ameliorations made thereon when he supposed it to be his own.* § 121. Where the purchaser under a verbal contract for land has been put in possession and has made payments on account of the price, it is plain that he cannot recover back the money 1 Richards v. Allen, 17 Maine, (5 Shep.) 296 ; Lockwood v. Barnes, S Hill, '(R. Y.) 128 ; Bucket v. Abell, 8 B. Mon. (Kjr.) 566. 2 MoNew V. Tobey, 6 Humph. (Tenn.) 27. 3 Sugden on Vend, and Purch. 857. * Ewing V. Osbaldestone, 2 Myl. & Cr. 53. 5 McCampbell v. MoCampbell, 5 Litt. 92 ; Rucker v. Abell, 8 B. Mon. 566. CH. Vlir.] •VERBAL CONTRACTS, HOW FAR A'^ALID. 125 without surrendering or oflFering to surrender the -possession ; ^ nor can he resist a suit upon his promissory note for the price, upon the ground of a failure of consideration, since he has derived and continues to enjoy an essential benefit conferred by* the contract, and since the plaintiff has placed hin\^elf in a con- dition which enables the defendant, upon payment of the pur- chase money, to enforce a specific execution of the agreement in a court of equity.^ But where the vendee has repudiated the contract, and holds possession of the land, not by force of the contract, but by permission of the vendor, there the latter cannot recover for any unpaid part of the purchase-money.' § 122. The right in the vendee of land by verbal contract, to recover what money or other consideration he has paid, is clearly confined to those cases where the vendor has refused or become unable to carry out the contract, the plaintiff himself ha,ving faithfully performed or offered to perform on his part.* This rule is sometimes said to rest upon the ground that the vendor, when sued in such an action, merely defends upon the verbal contract, and that this is not prohibited by the statute.* As a general proposition, however, we shall hereafter see that a verbal contract within the statute cannot be enforced in any 1 Abbott V. Draper, 4 Denio, (N. T.) 51 ; Cope v. Williams, 4 Ala. R. 362. 2 Gillespie v. Battle, 15 Ala. R. 276 ; Curnutt v. Roberts, 11 B. Mon. (Ky.) 42 ; Ott V. Garland, 7 Missouri R. 28. But see Bates v. Terrell, 7 Ala. R. 129. 3 Johnson v. Hanson, 6 Ala. R. 351. ■» Hawley v. Moody, 24 Verm. R. 603 ; Shaw v. Shaw, 6 Verm. R. 69 ; Lock- wood V. Barnes, 3 Hill, (N. Y.) 128 ; Abbott v. Draper, 4 Denio, (N. Y.) 51 ; Green v. Green, 9 Cowen, (N. Y.) 46 ; Coughlin v. Knowles, 7 Met. (Mass.) 57; Dowdle u. Camp, 12 Johns. (N. Y.) 541; Lane v. Shackford, 5 N. H. 130; Richards v. Allen, 17 Maine, (5 Shep.) 296 ; Collier v. Coates, 17 Barb. (N. Y.) 471 ; Bedinger v. Whittemore, 2 J. J. Marsh. (Ky.) 652 ; Barickman v. Kuy- kendall, 6 Black. (Ind.) 21. If the vendor meanwhile decease, and adminis- tration is taken and the estate represented insolvent, so that the whole estate has to be reduced to cash, as of the day of the decease, then the vendee may come in under the commission for his compensation. Sutton v. Sutton, 13 Verm. R. 71. 5 Shaw V. Shaw, 6 Verm. R. 69 ; Philbrook v. Belknap, lb.. 383. 11* 126 STATUTE OF FRAUDS. • [cH. VIII. way, directly or indirectly, whether by action or in defence.^ And it does not seem necessary to impeach that proposition, in order to sustain the rule in question. For in such cases of ^ suit by the vendee to recover back the consideration paid, it may be said, that the contract is substantially executed on the part of the vendor, he being able and willing to perform every thing which in conscience he was bound to perform, and the vendee never having put him in default by a demand for title.* Or, in another view, which was taken in a well considered decision of the Supreme Court of New York, it may be said that the right of the vendee in any case to recover back what he has paid, stands upon the ground that the vendor has received and holds it without consideration, so that a promise to repay it will be implied ; but that if the vendor is able and willing to perform on his part, no such want or failure of consideration can be shown, and such promise is not implied.^ § 122 a. Whether this rule is equally appUcable to every case of a verbal contract within the Statute of Frauds, where the party who has refused to carry out the contract, brings his action to recover for what he has done under it, is a question not free from difficulty. The Supreme Court of Connecticut, in a case where the plaintiff by oral agreement bound himself to serve the defendant for a term longer than one year, for a consideration to be paid at the end of that time, and having repudiated the contract and quit his employer at the end of six months, brought his action to recover the value of the ser- vices so rendered, held that he could recover, and that the defendant could not set up the existing verbal agreement to •defeat his claim.* The court do not notice the established rule 1 See post, ^^ 131-136. 2 Rhodes v. Storr, 7 Ala. R. 346 ; Meredith v. Nash, 8 Stew. (Ala.) 207. 3 Abbott V. Draper, 4 Denio, (N. Y.) 51. See ante, p. 122. 4 Comes V. Lamson, 16 Conn. R. 246. See also Philbrook v. Belknap, 6 Verm. K. 383. CH. Vm.] VERBAL CONTRACTS, HOW FAR VALID. 1^7 prohibiting a recovery of money paid for land where the vendor is willing to convey ; and perhaps the cases may be thus distinguished. In the case of the suit to recover the purchase-money of the land, all that remains to be performed is required of the defendant, and he may waive the privilege, afforded by the statute, of refusing to convey. In the case of the suit to recover for partial services rendered, the defence is that the plaintiff is bound to perform additional services ; but these services the plaintiff may refuse to perform, as his con- tract to that effect is within the statute and not binding without writing. In the former case, that which is within the statute is to be done by the defendant, and, if he is willing to do it the plaintiff cannot force him to stand upon the statute. In the latter case, that which is within the statute is to be done in part by the plaintiff, and to force him to do it, by setting up the verbal contract as a bar to his recovery for the value of services rendered, would be to enforce the verbal contract by way of defence. § 122 b. Upon the same principle that the vendee cannot recover back the purchase-money while the vendor is will- ing to convey, it is also held that the vendor of land can only enforce the vendee's note for the purchase-money against him, when he shows his own ability and willingness to perform.^ Indeed, in such an action the defence must be, not upon the Statute of Frauds, but the want or failure of consideration ; and this defence cannot be made out if the plaintiff shows his abihty and willingness to convey according to the bargain.^ But the admission of a vendor that he has no title may fur- nish a good ground for abandoning the possession and rescind- ing the contract, and, it should seem, a good ground for 1 Rhodes v. Storr, 7 Ala. K. 346 ; McGowen v. West, 7 Missouri E. 567. 2 Edelin w. Clarkson, 3 B. Mon. (Ky.) 31, approved in Gillespie u. Battle, 15 Ala. K. 282. See also Rhodes v. Storr, 7 Ala. K. 346 ; and King v. Hanna, 9 B. Mon. (Ky.) 369. • 1£8 STATUTE OF FRAUDS. [cH. VIII. defending an action for the unpaid purchase-money, or for an action to recover that which has been paid.^ § 123. Courts of equity, also, refuse to extend their aid to rescind a contract, merely because it is verbal, at the suit of one party, where the other party is not in default.^ And a mere violation of the contract, in part, by a vendee who has taken possession of the land and made improvements thereon and paid part of the purchase-money, thus entitling himself to a decree in equity for a specific execution of the contract, will not justify the vendor, even at law, in treating the contract as void so as to recover for the use and occupation of the land ; in such a case his remedy sounds entirely in damages for the violation.^ § 1 £4. Where a verbal contract has been executed on one side by the conveyance of property or the performance of ser- vices, the proper form of action to recover the value of the property or services is upon the implied promise arising from the plaintiff's performance ; * implied promises being not em- braced by the statute.® A recovery may also be had upon a count on an account stated, where the defendant, after obtain- ing the possession of the property or having enjoyed the benefit of the services, acknowledges his liability and promises to pay the sum stipulated.® The general rule of law appears clearly to be, that the action in such cases should not be brought upon the special contract itself.' Nevertheless, for some purposes 1 Gillespie v. Battle, supra; Barnes v. Wise, 3 T. B. Mon. (Ky.) 167. 2 Barnes «. Wise, supra; Rowland v. Garman, 1 J. J. Marsh. (Ky.) 76; Nelson v. Forgey, 4 lb. 569. 3 Smith V. Smith, 14 Verm. R. 440. i Gray v. Hill, Ky. & Mood. 420 ; Thoma? v. Dickinson, 14 Barb. (ISf. Y.) 90 ; HoUins v. Morris, 2 Harr. (Del.) 3 ; Hill v. Hooper, 1 Gray, (Mass.) 131 ; lyes V. Gilbert, 1 Root, (Conn.) 89 ; Shute v. Dorr, 5 Wend. (N. Y.) 204 ; Hambell v. Hamilton, 3 Dana, (Ky.) 501. 5 Goodwin v. Gilbert, 9 Mass. R. 510 ; Smith v. Bradley, 1 Root, (Conn.) 148. 6 Cocking V. Ward, 1 Mann. Gr. & Sc. 858 ; Kelly v. Webster, 12 lb. 283. 7 Cocking V. WarAjiBupra ; Buttemere v. Hayes, 5 Mees. & Wels. 456 ; Grif- CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 129 the special verbal contract is admitted in evidence in actions brought upon the implied promise. Thus, where there was a parol agreement to demise a house for five years and leases to be executed, under which the party entered and subsequently refused to accept a lease, and the owner brought assumpsit for the use and occupation, and it was objected that the parol agree- ment was void by the Statute of Frauds, the Supreme Court of New York held that evidence of the agreement was admis- sible to show that the defendant went into the occupation of the premises by the permission of the plaintiff, thus establish- ing the relation of landlord and tenant.^ Again, where land has been conveyed in pursuance of a parol agreement, part of which provides for three years credit for the payment, the action for the money will, it is said, not lie until the stipulated time arrives; and evidence of the verbal agreement will be admitted to show, in such a case, that the suit has been prematurely commenced.^ So if money be loaned, to be repaid with interest after an interval of more than a year, the verbal contract here limits both the time of bringing the action and the amount of interest to be recovered.^ § 125. How far the stipulation as to compensation, in the verbal contract, may be resorted to as a measure of damages in an action on the implied promise, is a question of some nicety. In the case of the Earl of Falmouth v. Thomas, the declaration charged that,' in consideration of the plaintiff's let- fith V. Young, 12 East, 513. (Cocking v. Ward apparently overrules Price v. Leyburn, Gow, 109.) Walker v. Constable, 2 Esp. R. 660 ; Kidder v. Hunt, 1 Pick. (Mass.) 328 ; King v. Brown, 2 Hill, (N. Y.) 485 ; (which over- rules, on this point, Burlingame v. Burlingame, 7 Cowen, (N. Y.) 92) ; Mc- Dowell V. Oyer, 21 Penn. State R. 417; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247. • Little V. Martin, 3 Wend. (N. Yi) 219 ; Doe d. Whitney v. Cochran, 1 Scam. (111.) 209. 2 Gully t'. Grubs, 1 J. J. Marsh. (Ky.) 387. 3 Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247. See on this subject EUicott v. Turner, 4 Maryland R. 476. 130 STATUTE OF FRAUDS, [CH. VIII, ting a farm to the defendant, the latter agreed to take at a valuation certain growing crops thereon ; that the lease was givfen, hut the defendant refused to pay the valuation price. The defendant having in his plea admitted that he had these crops, it was insisted that he was liable to pay for them, and that the Statute of Frauds in regard to contracts for interests in land, (with which the sale of the crops was classed,) was no bar. But Lord Lyndhurst, delivering the opinion of the Court of Exchequer, said that, admitting the defendant was bound to pay for the crops, he ought to pay for them, not on the footing of that bargain and sale but on a quantum meruit ; that the crops at the time of the bargain and sale were an interest in lands, and that to allow the plaintiff to recover upon the bargain and sale, and to have the price regulated hy it, would be in direct opposition to the statute, because it would be giving effect to an action upon a verbal contract for an interest in lands,^ A similar view appears to have been taken by the Supreme Court of Pennsylvania. In that State, no provision has been enacted corresponding with the fourth section of the English statute^ which relates to contracts, so that an action at law will still lie for damages for the breach of a verbal contract for an interest in land. But it is there held that, in an action by the vendor upon such a contract, tendering a deed and claiming damages against the purchaser, the plaintiff could not recover the whole amount of the purchase-money, as that would be to enforce specific performance of the contract ; the courts of that State holding that such a contract cannot be specifically enforced, except on equitable grounds of partial execution by the party complaining, without violating their statute against creating estates in land by parol.^ In New York, on the other hand, 1 Earl of Falmouth v. Thomas, 1 Cro. & Mees. 89. 2 EUet ti. Paxson, 2 Watts & S. (Penn.) 418 ; McDowell «. Oyer, 21 Penn. State K. 41 7. But in the latter case it was held that, in an action of assumpsit to recover damages for a neglect or refusal to convey a piece of land in consider- CH. VIII.J VERBAL CONTRACTS, HOW FAR VALID. 181 it has been decided that where, upon a verbal contract to pay for certain services, on their being performed, by con- veying a certain piece of land, the plaintiff, having performed the services pursuant to the contract, brought his action to recover for them, the value of the land could be resorted to as a measure of damages.^ If this is the true 'doctrine, it seems that the statute is entjrely evaded whenever one party has performed the contract on his side, by bringing his action on the quantum meruit. Indeed the very meaning of that form of count must naturally be taken to exclude a merely conventional, and require an equitable, estimate of the damages, such as would be adopted if the parties had never specifically contracted in that respect at all. But the Supreme Court of New York have also held that, in a case of verbal contract to convey land in consideration of a specified sum payable in work, though the party who had performed the labour might treat the agreement to convey as a nullity, and recover the value of the services under the common counts, he could not resort to evidence of the value of the land as a measure of damages.^ § 126. The defendant, however, in an action for the price of property sold or services rendered, may, it seems clear, stand upon the valuation originally agreed in the verbal contract, and the plaintiff can recover nothing beyond that amount.' It ation of the plaintiff's services rendered in pursuance of a verbal contract, the plaintiff might recover the value of the land which the other contracting party- had promised to convey ; and the court said : " The plaintiff does not propose to create the title to the land. He is not claiming a conveyance, nor seeking to get possession of it. He is simply demsfiiding his wages." 1 Burlingame v. Burlingame, 7 Cowen, (N. Y.) 92, 94. Such is the decision as reported; but in a later case, (2 Hill, 487,) Chief Justice Nelson alludes to it, and says that having tried the cause he well remembered that proof was admitted of the value of the land agreed to be conveyed for the services ; " not however as an independent measure of recovery, but as an item of evi- dence pertinent to the question as to the value of the services rendered, and for which the land was agreed to be given in compensation." 2 King V. Brown, 2 Hill, (N. Y.) 485. 3 Philbrook v. Belknap, 6 Verm. K. 383 ; King v. Brown, supra. In Scotten 182 STATUTE OF FRAUDS. [cH. VIII. is proper to remark that this is notj as it might be considered, an instance of allowing a verbal contract to be set up in defence, whereas an action upon it could not be supported. In point of fact, the contract is in no proper sense enforced by either party, and it is that alone which the statute means to prohibit. The statute does not make the contract illegal, and, therefore, so long as no action is brought upon it, its terms may properly limit and restrain whatever rights the parties may have in other forms of proceeding. Besides, the plaintiff having once fixed the valuation of his property or labour may reasonably be forbidden to prove a different valuation in con- tradiction of himself. § 127. In the case of Kidder v. Hunt, in Massachusetts, a dictum in an earlier case in the same State ^ having been relied upon, to the effect that where an English court of equity would decree specific performance, the common law courts which had no equity jurisdiction (as was then the case in Massachusetts) would give damages, it was overruled, and the court said: " There are no doubt cases proper for a court of chancery, such as those which relate to the execution of trusts, where the common law will give a remedy by an action for damages ; and perhaps in the case of a parol contract respecting land, where the party has been put to expense as to his part of the contract, under circumstances which would amount to fraud by the other party, case might lie for damages for the fraud ; " but the present action being brought upon the contract itself, it was considered that it would not lie.^ V. Brown, 4 Harr. (Del.) 324, wHch was an action of assumpsit for work and labour in clearing a piece of ground, the defence was tLat Scotten had verbally- agreed to let Brown have the use of the land for three years as pay for cleaning it, and it was ruled out ; such an agreement not being provable by parol. Here, it will be observed, no attempt was made to regulate the damages by the esti- mated value of the stipulated use of the land, but the contract was set up in bar of any recovery. 1 Boyd V. Stone, 11 Mass. R. 342. s Kidder v. Hunt, 1 Pick. (Mass.) 328. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 133 § 128. Before passing from the consideration of the rights and liabilities of parties after execution in whole or in part, to which the previous sections of this chapter have been chiefly devoted, it should be observed that to plead or set up such execution is generally the privilege of the party from whom it has proceeded, and that it cannot in any way avail his adver- sary or any third party .^ § 129. The extent to which courts of equity recognize ver- bal contracts upon which actions at law are prohibited by the Statute of Frauds^ is necessary to be here remarked. It is true that the statute is correctly held to be as binding in equity as at law, and suoh a contract cannot, under ordinary circumstances, be specifically enforced, any more than the damages for a vio- lation of it can be recovered by action. But, at the same time, equity pays great regard to the moral obhgation growing out of it. We have already seen that a court of equity will not interfere to rescind such an agreement at the suit of one party, when the other is not in default. And while it is not accurate to say that the verbal agreement will be always admitted as a defence in those courts, since that would be to relieve them en- tirely from the binding power of the statute, it seems to be clear that they will not lend their aid to enforce and perfect a legal right which the plaintiff sets up, against his conscientious duty under a verbal contract interposed on the part of the defence.^ Thus, where an execution creditor verbally agrees with his debtor that he will purchase in the premises at the sheriff's sale, and, on being repaid the amount of the execution, or on any other specified ■ terms, will reconvey to the debtor, and after- wards, by representing those facts at the sal^ is enabled to buy at a great sacrifice, a court of equity will refuse to ratify the sale at his instance.^ And, again, where two men agreed to. 1 Glenn «. Kogers, 3 Maryland K. 312. And see post, Chapter XX. 2 Jarrett v. Johnson, 11 Grat. (Va.) 327 ; Story Eq. Jur. § 1522. . 3 Kose u. Bates, 12 Missouri K. 30. And see Moore v. Tisdale, 5 B. MoRi (Ky.) 352, and Letcher v. Cosby, 2 A. K. Marsh. (Ky.) 106. 12 . 184) STATUTE OF FRAUDS, [CH. VIII. purchase certain land jointly, and one of therh took the deed in his own name, and the heirs of the other applied for an order for the conveyance of a moiety, and the defendant set up a verbal agreement between himself and the other party to pay a certain sum of money and convey to him a certain tract of land in satisfaction of his claim in the joint purchase, which agreement the defendant had in part performed, it was admitr ted that the latter agreement, though it could not be sued upon at law, might be a legitimate defence to the claim which the plaintiff would otherwise have had to the relief of a court of equity ; but in the present case, the terms of the agreement not being clearly shown, the defence was not allo#ed.^ § 130. Upon similar grounds, and, it seems, at law as well as in equity, if a conveyance be made in pursuance of a verbal contract for the sale of land, it will be good against a party who claims under an intermediate written contract ; in such a case, a court of equity will of course refuse the latter party a conveyance.^ Some of the cases appear to say that the rule prevails only where the complainant took his written engage- ment with notice of the defendant's prior rights, but this can ' Nichols V. Nichols, 1 A. K. Marsh. (Ky.) 166. Probably, in this case, the purchase-money for the land in question was all - paid by the defendant himself, as otherwise the heirs could have obtained a conveyance to the extent of the share paid by their ancestor, on the ground of a resulting trust. The statute will not protect one who is equitably bound to convey land, although by a con- tract on which no action could be maintained against him by his vendee, in representing the title of the vendor to be good, and thereby inducing others to purchase from him. In such case, he will be compelled to convey to the second vendee, not by obligation of his contract with the first, but on account •of the fraud practised on th^ second. Springle ». Morrison, 8 Litt. (Ky.) 52. See upon this subject, Thompson v. Mason, 4 Bibb, (Ky.) 195, where it is intimated, that it would make no difference as to the availability of a verbal contract to rebut a complainant's equity, though it might have been previously in suit in a court of equity, and refused to be enforced on the ground of the Statute of Frauds. ^2 Dawson v. Ellis, 1 Jac. & Walk. 524 ; Jackson d. Crabb v. Bull, 2 Caines' Cas. in Err. (N. T.) 301, per Kent, J. ; Lucas v. Mitchell, 3 A. K. Marsh. (Ky.) 244. CH. Vni.] VERBAL CONTRACTS, HOW FAR VALID. 185 hardly be so, on principle. The true ground of the rule is well stated by the Supreme Court of Kentucky : " The vendor may avoid it, (the verbal contract,) by pleading or relying on the statute, yet he is at liberty to waive his right to the defence and consummate the contract, and cannot be deprived of his election to do so, by a stranger. Though a vendor is not legally boun^ to fulfil his contract by a conveyance, yet ^ moral duty rests upon him to convey, and a moral right in the vendee to ask for a conveyance, and if the former choose to waive his legal right, in obedience to the dictates of his moral duty, by conveying, or furnishing written evidence of his obli- gation to convej"^, a stranger to the contract has no right to complain, nor to preclude him from this discharge of his moral duty, in whole or in part, upon the terms of the original parol contract, or upon terms which he may choose to exact, and which the vendee or sub-purchaser may be willing to con- cede." ^ § 131. Although as has now been shown, a verbal contract which is within the Statute of Frauds may for some purposes avail a defendant in equity, or in an action to recover a qiumtum meruit for property or labour received from the plaintiff in pur- suance of it, still the clear rule of law is that such a contract cannot be made the ground of a defence, any more than of a demand; the obligation of the plaintiff to perform it is no more available to the defendant in the former case, than the obligation of the defendant to perform it would be to the plaintiff- in the latter case. Thus if the plaintiff had a verbal contract with the defendant to serve him fora|hree years, and should bring an action in the mean time for the value of the services he had actually rendered, the defendant could not pro- 1 Clary v. Marshall, 5 B. Mon. (Ky.) 266. So, if a principal proposes to sell land to a person, " provided hia agent has not already disposed of it," if it turns out that the agent had previously disposed of the land by verbal contract, the principal is not bound to plead the statute and thereby to vacate the contract made by his agent. Jacob v. Smith, 5 J. J, Marsh. (Ky.) 380. 136 STATUTE OF FRAUDS. [cH. VIII. tect himself by setting up the verbal contract as binding upon the plaintiff, though its terms and stipulations might be admis- sible to regulate the damages.^ On the same principle, where the debt of a man has been verbally guarantied to his creditor, it seems to have been considered that, in an action by the cred- itor to recover the whole amount due, the defendant can not ^et up the guaranty^ it being not available to the creditor if he should sue upon it; and this, although it appeared that the guarantor was ready to pay, according to his engagement, not- withstanding the defence which he had upon the statute.^ Nor can a sum of money agreed to be paid in a contract affected by the statute, be set off in an action against the party entitled to it, on some independent cause.^ Nor can title to land or to a chattel be proved, in an action of trespass or detinue, for instance, on behalf of the defendant, when it is derived from, and depends upon, a verbal contract of any of the kinds covered by the statute.* § 182. How far a subsequent verbal variation of a contract once put in writing agreeable to the statute, will be admissible, so that a party performing according to the terms of the contract as varied can defend upon the verbal variation, will be consid- ered in another part of this work. Such a case, manifestly, •cannot be treated purely as a defence upon a verbal contract.^ § 133. It is well established that if an action, as for instance 1 Comes v. Lamson, 16 Conn. K. 246 ; Scotten v. Brown, 4 Harr. (Del.) 824. Parol agreement between a landlord and his tenant that the latter should surrender the resid^ of his term in the premises leased to a purchaser, in con- sideration of which the landlord agreed to give up the rent in arrear, cannot be set up in an action against the tenant for such arrears. Lammott v. Gist, :2 Harr. & Gill, (Md.) 483. 3 Anstey v. Marden, 1 Bos. & Pull. N. K. 124. But see post, § 135. 3 Payson v. West, Walker, (Miss.) 515; Sennett v. Johnson, 9 Barr, (Pa.) ■335. * Pierpont v. Barnard, 5 Barb. (N. Y.) 364 ; Summerall v. Thorns, 3 Florida !R. 298 ; Scorell v. Boxall, 1 Yo. & Jery. 396. 5 See post, § 409 et seq. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 137 trespass, be brought against a defendant far certain acts which were done by him in pursuance of a verbal contract between himself and the plaintiff, the contract will in such a case be a perfect defence; or, more correctly speaking, the defendant may set up%ie license of the plaintiff to do those acts, being the substance of the right which the defendant has, and such a license, though revocable at any time, being a justification for any act done under it of a temporary nature.^ But it seems the application of this rule must be carefully limited to cases where the contract is set up nierely as a justification, and that it does not hold where the result will be to establish the contract as binding, ybr the purposes of a contract, upon the parties. In the case of Carrington v. Roots, in the Court of Exchequer, a party had purchased, by a verbal contract, a growing crop of grass, with liberty to go on the close wherein it grew, for the purpose of cutting it and carrying it away ; the seller seized and impounded the horse and cart which the purchaser had brought there for the purpose of carrying away the grass. In an action of trespass by the purchaser, the seller pleaded that he owned the close, and that the horse and cart were wrongfully encum- bering it and doing damage, wherefore he took and distrained the same, &c. ; the plaintiff replied, setting forth the contract, and that he was there with his horse and cart for the purpose of carrying away the grass, according to the contract. It was admitted that, the contract being within the Statute of Frauds as for an interest in lands, an action to charge the defendant upon it could not be sustained, without showing it in writing ; but it was argued that he had a right to avail himself of it for any collateral purpose, as in this case to repel a trespass com- mitted by the defendant. It was held that the action would not lie. Lord Abinger, C. B., states the distinction with great clearness ; he says : " I think the contract cannot be available as a contract at all, unless an action can be brought upon it. 1 See ante, § 22 et seq. 12* 138 . STATUTE OF FRAUDS, [cH. VIII. What is done under the contract may admit of apology or excuse, diverso intuitu, if I may so speak ; as where, under a contract by parol, the party is put in possession, that possession may be set up as an excuse for a trespass alleged to have been committed by him. But whenever an action is biliught on the assumption that the contract is good in law, that seems to me to be in eflfect an action on the contract. If the whole trans- action between the parties were set forth in the declaration, the contract would form part of it ■ and, in eflFect, the plaintiflF now says that the defendant ought not to take his cart, because it was lawfully there under that contract. This is a collateral and incidental mode of enforcing the contract, though it is not directly sued upon." " It would be a diflferent case if the plaintiff had been sued by the defendant in trespass; he might haVe pleaded a, license ; but though a license may be part of a contract, a contract is more than a license. The agreement might have been available in answer to a trespass, by setting up a license ; not setting up the contract itself as a contract, but only showing matter of excuse for the trespass. That appears to me the whole extent to which the plaintiff could avail himself of the contract. I am therefore of opinion that the replication is not sustained, and that there ought to be a nonsuit." The other barons concurred.^ § lS4i. This case affords a very clear exemplification of, the general rule, which may be here reasserted, that no action can be brought to charge the defendant in any way upon a verbal agreement not put in writing according to the statute. And it may be briefly illustrated farther. If land be sold at auction or otherwise, and no memorandum made, and the purchaser refuses to take it, no action will lie against him to recover the 1 Carrington v. Roots, 2 Meea. & Wels. 248. In this case, as remarked by Baron Parke, the plaintiff might have pleaded a license, but- the defendant would have replied that it was countermanded, and the plaintiff could not have :£ucceeded on that issue. CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 189 loss sustained upon a second sale to another party ; this could be done, manifestly, only upon the ground that he was' origi- nally legally liable to take and pay for the land himself.^ Nor will a discharge from performing a verbal contract within the statute, be a sufficient consideration to support another engage- ment. No action whatever could have been maintained against the defendant for any breach of that contract. A discharge from it, therefore, is of no use to him.^, And upon exactly the same principle, an engagement to forfeit a certain sum of money, in case of failing to perform another engagement which, within the Statute of Frauds, could not itself be en- forced, is not enforceable by the party to whom it is made.^ § 185. As the Statute of Frauds, however, only aflfects the proof of the contract, the defendant in an action upon it may waive the protection of the statute and admit verbal evidence of it without objection.* From this it follows that, as against a third party, such a contract not yet presented in court for trial, is perfectly good and valid. Thus, where, in an action by the plaintiflfs for the non-fulfilment of a contract by the defendants to finish certain machinery within a reeisonable time, it was averred, as special damage, that the plaintiffs had thereby been prevented from fulfilling a contract with third parties and lost the profits thereon, it was held by the Court of Exchequer that such damages were equally recoverable, although the con- tract which would have produced the profits could not have been enforced by law,' because not in compliance with the Statute of 1 Baker v. Jameson, 2 J. J. Marsh. (Ky.) 547 ; Cammack v. Masterson— 3 Stew. & Port. (Ala.) 411. But, perhaps, if there were circumstances oi deceit in the case the plaintiff might recover in an action on the case for the deceit. See Kidder v. Hunt, 1 Pick. (Mass.) 328. 2 North V. Forest, 15 Conn. K. 400 ; Head v. Baldrey, 6 Adol. &; Ell. 459. 3 Goodrich u. Nickols, 2 Root, (Conn.) 498; Kice u. Peet, 15 Johns. (N. Y.) 503. But see Couch v. Meeker, 2 Conn. R. 308. 4 See Cahill v. Bigelow, 18 Pick. (Mass.) 369 ; and Bohannon «. Pace, 6 Dana, (Ky.) 194. 140 STATUTE OF FRAUDS. [CH. VIII. Frauds.^ And a witness may be convicted of perjury in falsely swearing to a contract within the statute. It was so held in a late case in New York, where the defence to an action of slan- der for imputing perjury was, that the false swearing alleged was not perjury, the evidence being to set up a contract affected by the statute, and therefore immaterial. But the court said it was not immaterial, for it proved the promise ; though it was perhaps incompetent, if the objection had been in season.^ So also a verbal contract for hiring for a year, to commence at a future day, will be quite sufficient for the purpose of acquiring a settlement.^ ^ 1S6. Upon the same^ principle, namely, that the Statute of Frauds affects the proof of, or the proceedings upon, the contracts embraced by it, it has been lately decided by the Court of Common Pleas, that where a contract within the statute, is, by the laws of the country where it is made and to be executed, valid and enforceable, still no action can be main- tained upon it in the courts of the country where the statute pre- vails, unless it is put in writing as required.* Mr. Justice Story on two occasions expressed doubt as to this point, but in neither case was the question actually presented for decision ; and it may be said that the opinion of the Court of Exchequer seems to be consistent with the general and acknowledged construc- tion of the statute, as to the extent of its .operation upon the contracts which it embraces.® 1 Waters v. Towers, 20 Eng. Law & Eq. 410. It seems, however, that such an outstanding verbal obligation m favour of a plaintiff in an independent suit ^cannot be urged against him by the defende^nt. See Anstey v. Harden, 1 Bos. &PuU.N. R. 124. 2 Howard v. Sexton, 4 Comst. (N. Y.) 157. 3 Bracegirdle v. Heald, 1 Barn. Se Aid. 722. * Leroux v. Brown, 14 Eng. Law & Eq. 247. 5 Van Reimsdyk v. Kane, 1 Gallis. (C. C.) 630 ; Smith «. Burnham, 3 Sumn. (C. C.) 435. The learned judge may have had in his imnd the opinion of Bonllenois: "Ainsi deux particuliers contraotent ensemble en presence de t^moins, et sans €crit, dans un endroit oCi pareilles conventions forment de CH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 141 § 137' Where a contract has been once made and properly executed in writing, though more than six years before the commencement of an action upon it, a verbal acknowledgment of it within six years will be sufficient to warrant the action, notwithstanding the "Statute of Limitations. To satisfy the Statute of Frauds there must be a promise in writing, and to take the case out of the Statute of Limitations there must be a promise within six years. The defendant's liability is fixed by the original promise in writing, and the acknowledgment within six years is only to show that that liability has not been discharged.^ ■ § 138. The summary jurisdiction of courts over their own officers may sometimes afford a remedy upon a verbal contract, where the Statute of Frauds would prohibit an action upon it. Thus an attorney's undertaking to pay his client's debt and costs in an action, has been enforced on motion in the court of which he is an attorney.^ vdritables engagemens, et k raison de quoi la preuve par t^moins est admise dans cet endroit pour quelque somme que ce soit mgme au dessus de 100 livres ; ils plaident ensuite dans un lieu oil cette preuve par temoins n'est pas admise ; dans cette espece, je ne trouve pas de difficult^ h dire qu'il faudra admettre la preuve par temoins, parceque cette preuve appartient ad vinculum obligalionis et solemniiatem." Perhaps it may be said that in this passage the distinction is not entirely apprehended between the making of a valid contract, and the mode of proving it. The vinculum et solemnitas are certainly, properly speaking, elements of the validity of the contract. It appears to have been considered by the Chief Justice in Leroux v. Brown, that the conclusion would not be the same in a case under the 17th section relating to the sales of goods. But this ■was quite unnecessary to the question before the court, and the weight of their suggestion is counterbalanced by contrary suggestions in previous cases. (See Carrington v. Boots, 2 Mees. & Wels. 248 ; Eeade v. Lamb, 6 Wels. Hurl. & Gord. 130.) The distinction does not appear to have ever been judicially t(upheld, and is certainly not supported by any considerations of difference in policy between the two sections. See ante, § 115 and note. 1 Gibbons V. MoCasland, 1 Barn.& Aid. 690. Moreover, it would be suffi- cient in any case to declare upon the original promise. Leaper v. Latton, 16 East, 420; Upton u. Else, 12 Moo. 303. 2 Evans v. Duncan, 1 Tyrw. 283 ; Senior v. Butt, and Payne v. Jonnson, there cited. 14>2 STATUTE OF FRAUDS. [cH. IX. CHAPTER IX. CONTRACTS IN PART WITHIN THE STATUTE. § 139. In the present chapter will be briefly considered, how far a promise embracing several stipulations is affected by the circumstance that one or more of those stipulations are not available to the promisee by reason of the Statute of Frauds ; the remainder being, if they stood alone, good. § 140. It is clear that if the several parts or items of an engagement are so interdependent that the parties cannot rea- sonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one part or item cannot be fairly and reasonably extracted from the transaction, no recovery can be had upon such part or item, however clear of the Statute of Frauds it niay be, or whatever be the form of action employed. The engagement in such case is said to be entire. A reference to some of the decisions on this point will illustrate the principle. § 141. In Cooke v. Tombs, the defendant, a ship-builder, verbally contracted to sell certain freehold premises and stock in trade, principally consisting of docks and timber for ship- building, and some houses. Upon a suit in equity for a decree of specific execution of the whole agreement, it was held that the agreement, being void as to the land, must be void also as to the personal property which was to be sold with it ; McDon-'^ aid, C. B., remarking that it never could be the intention of the parties that the stock should be sold apart from the prem- ises, as most of it was of little comparative value separately, and, besides, that the agreement being for an entire sum the CH. IX.] CONTRACTS IN PART*W1THIN THE STATUTE. 143 court could not sever it.^ Similar to this was the case of Lea V. Barber, where the defendant made an oral agreement to take an assignment of leasehold premises, to wit, a brick-ground, at one hundred pounds, and to buy the stock, consisting chiefly of half-made bricks, at a valuation to be made by arbitrators. The arbitrators settled the pricte, but the defendant refused to complete the purchase. An action was brought upon the entire agreement, and the plaintiflF, admitting that the contract as to the assignment was void by the Statute of Frauds, claimed that he could recover the valuation of the stock. But it was held by McDonald, C. B., on the authority of Cooke v. Tombs, that the agreement, being in its nature entire, could not be severed, and that, being void as to the land, it was void in toto? So in Mecheleu v. Wallace, where the declaration stated that the defendant wished the plaintiflF to hire of her a house, and furniture for the same, at the rent, &c., and there- upon, in consideration that' the ^intij9F would take possession of the house partly furnished, and would, if the defendant sent into it complete furniture by a reasonable time, become tenant to the defendant of the house with all the furniture, at the aforesaid rent, and pay the same quarterly from a certain day, to wit, &c., the defendant promised the plaintiflf to send into the said house, within a reasonable time after the plaintiflF's taking possession, all the furniture necessary, &c. ; it was held that the defendant's agreement to send in furniture was an inseparable part of the contract of leasing, and that the action could not be sustained.^ § 1-42. In Irvine v. Stone, the Supreme Court of Massa- chusetts held a contract for the purchase of coals at Philadel- • Cooke V. Tombs, 2 Anst. 420. 2 Lea w. Barber, 2 Anst. 425, note. See also Thayer v. Rock, 18 Wend. (N. Y.) 53, in which the contract was for the sale of one sixth of a mill site, with all the timber and irons belonging to the mill, and it was held to be entire. 3 Mechelen v. Wallace, 7 Adol. & Ell. 49. And see the similar case of Vaughan v. Hancock, 3 Mann. Gr. & Sc. 766. 144 STATUTE O^ FRAUDS, [cH. IX. phia and to pay for the freight of the same to Boston, to be inseparaible, so that no recovery for the freight could be had ;^ and this case is not, unlike that of Biddell «>. Leeder, where the Court of Queen's Bench held, upon a contract for the pur- chase of the plaintiff's share in a ship and to indemnify him for all liabilities on account of his share, that the latter engagement was inseparably connected with the former.^ A contract to hire a shop at a certain rent and to pay the land- lord the amount expended in fitting it up, has also been recently decided, by the Supreme Court of Massachusetts, to be indivisible. * § 143. On the other hand, the cases where the different en- gagements of the party have been held such as to admit of being reasonably considered separately, or as contracts, so to speak, joro tanto, are equally clear in their general spirit and principle. In Mayfield v. Wadsley, which was upon a contract for the sale of a growing crop of whea^and also of certain dead stock upon a farm, it was remarked by Abbott, C, J., that the bar- gain in regard to the latter was made after an interval of time, (though at the same interview and almost simultaneously with the former,) and he seems to consider that if that interval had not occurred it would be necessary to hold the contract indivisible.* But the subsequent decision of the Court of Exchequer in Wood v. Benson clearly establishes a rule inde- pendent of any such distinction. There was a written guaranty, by which the defendant engaged to pay for all the gas which might be consumed at a certain theatre during the time it was occupied by a third party, and also to pay for all arrears which might be then due. It was held that the plaintiff could 1 Irvine v. Stone, 6 Cush. (Mass.) 508. So with a contract to, convey land and pay off the incumbrances upon it. Duncan v. Blair, 5 Denio, (N. Y.) 196 ; Dock V. Hart, 7 Watts & Serg. (Pa.) 172. 2 Bidden v. Leeder, 1 Bam. & Ores. 327. 3 McMuUen i;. Riley, 19 Law Reporter, 439. 4 Mayfield v. Wadsley, 3 Barn. & Crea. 857. CH. IX.] CONTRACTS IN PART WITHIN THE STATUTE. 145 recover upon the former branch of the contract, on a count properly framed for the purpose.^ § 14)4). Where an agreement is originally, and remains until the time of bringing suit, thus connected and entire in its various stipulations, the disability of a plaintiff to recover upon any one of those stipulations manifestly results, not from the fact that the statute happens to apply to the remainder, but from the tenour of the agreement, by which it has been shown to be the intention of the parties that, if performed at all, it is to be performed as a whole. § 145. Where, on the other hand, the stipulations of the defendant are not so connected together that they cannot rea- sonably be performed separately and independently, the ques- tion arises whether the plaintiff cap recover upon one or more to which the statute does not apply, notwithstanding there are others to which it does apply. And, in the first place, it is clear upon all the authorities that he cannot, if his action be brought upon the entire contract. On this point it is necessary that the principal cases be examined a little in detail, in order to show clearly the reason of the rule. § 146. In the case of Lord Lexington v. Clarke, the decla- ration set forth that the plaintiff had demised premises at will to the first husband of the defendant's wife, and that there was due from him £160 rent, and that the defendant's wife, in consideration of being allowed to hold possession till a certain time and to remove certain fixtures, promised to pay the £160 and ^£260 more ; that she did hold possession and took the fixtures, but had not paid the money. A special verdict found that she had paid the former sum but not the latter. By the opinion of all the court, judgment was given for the defendant on the claim for the unpaid £260, for, they said, " the promise as to one part being void, it cannot stand 1 Wood V. Benson, 2 Tyrw. 93 ; Littlejohn, ex parte, 3 Mont. Dea. & De Gex,. 182 ; Pierce «. Woodward, 6 Pick. (Mass.) 206. ' 13 146 STATUTE OF FRAUDS. [CH. IX. good foe the other, for it is an entire agreement, and the aeiion is hr ought for both the sums, and indeed could not be otherwise without a variance from the promise." ^ In Thomas v. Wil- liams, the defendant verbally promised the plaintiff, who was about to distrain upon his tenant for rent, that if he would not distrain, he would pay him the rent which would be due at Michaelmas ensuing, including of course the arrears as well as what should accrue in the mean time. The plaintiff sued upon this promise, and his verdict was for a sum made up partly of rent due at the time of the promise and partly of what accrued afterwards. On argument upon a rule to set aside the verdict, it was held by the Court of Queen's Bench that the contract, being in part within the Statute of Frauds, was wholly void.^ In both cases, it will be observed, the declara- tion was upon the entire special promise and contained no general counts. Consequently the entire contract was to be proved as laid, and after the plaintiff had, by oral evidence, shown that part of it which was not within th^ Statute of Frauds and upon which he wished to recover, there was a fatal variance between the contract he had counted upon and that which he had proved. In Chater v. Beckett, where the the defendant engaged to pay the plaintiff the debt a third person owed him, and all the expenses he had incurred for the purpose of putting his debtor into bankruptcy, there was a special count setting forth the entire contract, and also general counts for money paid to defendant's use and money had and received. Neither of the latter counts were supported, how- ever, for in paying his own expenses, the plaintiff had only paid his own debt ; and so the case was correctly decided for the defendant, the authorities last quoted being precisely in point.* 1 Lord Lexington v. Clarke, 2 Vent. 223. 8 Thomas v. WUliams, 10 Barn. & Cres. 664. * a Chater v. Beckett, 7 Term K. 197. CH. IX.] CONTRACTS IN PART WITHIN THE STATUTE. 14i7 § 147- It is quite obvious that the cases which have just been quoted proceeded, in fact, upon the ground that, by the form of the plaintiff's action, he had precluded himself from proving even so much of the contract as was not affected by the Statute of Frauds, because to do so would have involved a variance from the declaration, which alleged the entire and therefore a different contract.^ But they have been conceived to establish a principle that, if one stipulation in the engage- ment of a defendant was void by the statute, no recovery could be had upon the remainder. This opinion, which doubtless grew out of the generality of the language employed by Judges in earlier cases, does not seem to have been distinctly affirmed and decided as law in any case but that df Loomis v. Newhall in Massachusetts. There the plaintiff had furnished supplies to the defendant's son, for which the son was liable, and the defendant at the request of the plaintiff continued to furnish supplies, the plaintiff saying, " for what you have done and for what you shall do for my son, I will see you paid." Besides the count on an account annexed, the declaration con- tained the common money counts. It was held upon the supposed authority of Chater v. Beckett and Lord Lexington V. Clarke, that the plaintiff could not recover for that part of the claim which arose after the promise, inasmuch as his recovery on that part which arose previously was barred by the statute as a promise to pay the debt of his son.^ § 148. But the true import of those and the other earlj English cases was defined in the case of Wood v. Benson, de- 1 The following American eases all stand upon the same ground. Noyes v. Humphreys, 11 Grat. (Va.) 636 ; Crawford i'. Morrell, 8 Johns. (N. Y.) 253 ; Henderson v. Hudson, 1 Munf. '(Va.) 510. And see Alexander v. Ghiselin, 5 Gill, (Md.) 138 ; Duncan v. Blair, 5 Denio, (N. Y.) 196. 2 Loomis V. Newhall, 15 Pick. (Mass.) 159 ; overruled in Rand v. Mather, 11 Gush. 1. The case of Eobson v. Harwell, 6 Georgia R. 589, while admit- • ting Loomis v. Newhall as authority, decides that the principle there held does not extend to declarations of trusts. 148 STATUTE OF FRAUDS. [cH. IX. cided in the Court of Exchequer in 18S1. That was assump- sit on the following guaranty signed hy the defendant : " I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may he consumed 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." There was a count for gas sold and delivered. The general issue was pleaded, and it was objected that there was no consideration, apparent on the face of the instrument, for the promise to pay the arrears ; and that the agreement, therefore,^ being void as to part under the Statute of Frauds, was void as to the whole ; and to this the cases of Lea v. Barber, Lexington v. Clarke, Chater v. Beckett, and Thomas v. Williams were cited. The court ad- mitted their authority, but explained that, as the actions were brought in each case upon the entire contract, the plaintiffs therein could not recover ; and they decided that, in the case before them, the plaintiff could recover on the separafe count for gas sold and delivered, which was applicable to the binding part of the contract.^ § 149. The decision in Loomis v. Newhall is no longer law "in Massachusetts. In the case of Irvine v. Stone, the Supreme Court of that State had occasion to examine into the earlier English decisions upon the subject, and, while they did not find it necessary to overrule it, stated conclusions irreconcilable with it.^ And within a few years past it has been deliberately overruled by them, and the doctrine established in Wood v. Benson adopted. In the opinion of the court, delivered by Metcalf, J., the authorities are very carefully reviewed, and it is particularly noticed that in Loomis v. Newhall there were 1 See post, § 386 et seq. 2 Wood V. Benson, 2 Cro. & Jerv. 94. 3 Irvine V. Stone, 6 Cush. (Mass.) 508. CH. IX.] CONTRACTS IN PART WITHIN THE STATUTE. Ii9 common counts upon which the plaintiff was entitled to re- cover ; otherwise it could have been supported upon the same ground as the early English cases.^ § 150, We have thus seen that, on a count properly framed for the purpose, a plaintiff may recover upon so much of the defendant's promise as is not liable to any objectiwi under the Statute of Frauds, provided that part is, from the nature of the contract, capable of being considered separately from tha remainder. But even where the various stipulations are so connected together that, so long as they all remained executory, no action could be maintained upon any one of them separately, yet if that part to which the statute would have applied has been executed, and thus in fact severed from the remainder, an action may be sustained upon the remaining executory part, and it is no objection to such action that the plaintiff may be obliged incidentally to prove the making and execution of the other part, inasmuch as he founds no claim upon it.^ § 151. Where the plaintiff, from the nature of his case or of the relief which he requires, is obliged to set up the entire contract, he will of course be debarred from recovering, if any part of the contract be within the statute and he has no written evidence of it. Thus if a bill in equity is brought to enforce so much of the contract as is not affected by the statute, it would seem that the complainant must fail of his decree, the proceeding being founded wholly on the engagements specially made between the parties.^ In Head v. Baldrey, decided some years after Wood v. Benson had defined the rule in such cases, the defendant had been owing the plaintiff a sum of money for 1 Band v. Mather, 11 Cash. 1. 2 Dock V. Hart, 7 Watts & S. (Pa.) 172 ; Hess v. Fox, 10 Wend. (N. Y.) 436, (distinguishing Van AUstine ». Wimple, 5 Cow. (N. T.) 162) ; Page v. Monks, 5 Gray, (Mass.) And see Twidy v. Sanderson, 9 Ired. (N. C.) 5 ; Manning?;. Jones, Busb. (N. C.) 368. 3 Alexander v. Ghiselin, 5 Gill, (Md.) 138 ; Henderson v. Hudson, 1 Munf. (Va.) 510, per Tucker J. ; Robson v. Harwell, 6 Georgia E. 589, per Lump- kin, J. 13* 150 STATUTE OF FRAUDS. [cH. IX. goods previously sold, alid he agreed, if the plaintiff would give him time upon that debt and would sell him certain other goods, he would pay for the whole by accepting a bill of a certain description. On his refusing to accept the bill, an action was brought in which, besides the special count upon the contract, there was a count for goods sold and delivered. The defendant pleaded the" Statute of Frauds, because part of the consideration of his promise was the price of the wool, the sale of which was not binding under the statute. On demurrer to the plea, because the declaration showed a good consideration, (namely, the debt for goods pre- viously sold,) it was held in the Queen's Bench that, part of the consideration failing by reason of the statute, the plea was good, and the defendant had judgment. Lord Denman, C. J., delivering the opinion of the court, said : " We apprehend the defendant can only be made chargeable for a breach of the promise laid, and that promise is, not to pay for these or any other goods sold, but to fulfil a specific arrangement between the parties, that is, to pay by accepting a bill in respect of this liability and a new one then in contemplation."^ § 152. A class of contracts to which allusion has been here- tofore made, namely, those in which a party promises to do one of two or more things, the statute applying to one of the alternative engagements but not to the others, is sometimes referred to the head of contracts in part affected by the statute. It is needless to dwell upon the question whether they are properly so referred. It is manifest that of such alternative engagements, no action will lie upon that one which, if it stood alone, could be enforced as being clear of the Statute of Frauds, because the effect would be to enforce the other, namely, by making the violation of it the ground of an action.^ 1 Head v. Baldrey, 6 Adol. & Ell. 459. 8 Van Allstine v. Wimple, 5 Cowen, (N. Y.) 162 ; Patterson v. Cunningham,' ■3 Tairf. (Me.) 506 ; Goodrich v. Nickols, 2 Root, (Conn.) 498 ; Rice v. Peet, 15 Johns. (N. Y.) 503. But see Couch v. Meeker, 2 Conn. R 308. CH. X.J GUARANTIES. 151 CHAPTER X. GUARANTIES. § 153. In the fourth section of the Statute of Frauds, special promises by executors or administrators to answer damages out of their own estates appear to be spoken of as one class of that large body of contracts known as guaranties. And there would be no distinction between them, but for the circumstance that the executor or administrator, being the legal representative of the party originally liable, is already, in that capacity, under a liability to pay to the extent of the property which comes to his hands. The statute, therefore, is confined to his special promise to pay out of his own estate. But as such special promise may be treated as collateral to the indebt- edness of the estate which he represents, the distinction after all seems to be more technical than substantial. It will, ac- cordingly, be proper to consider such promises in connection with guaranties, strictly so called, remarking, as we go on, those points in which the application of the statute t6 the former admits of separate notice. One observation in regard to them, however, it is important to make. As an administra- tor derives his office and interest from the appointment of the court, the statute affords him no protection against the enforce- ment of his verbal promise to answer damages out of his own estate, made after the death of the testator but before his own appointment. On the other hand, the office and interest of an executor being completely vested in him at the instant of the testator's death, the statute applies to any such promise made by him after that time.^ 1 Tomlinson v. Gill, Ambl. 330 ; Roberts on Frauds, 201. 152 ■ STATUTE OF FRAUDS. [cH. X. § 154>. In considering the general subject of guaranties as affected by the Statute of Frauds, it is proposed to inquire, first, What are debts, defaults, or miscarriages within the mean- ing of the statute ; secondly. What is the nature of that special promise of the guarantor which is required to be in writing ; and, thirdly. When these liabilities so coexist or concur as to bring a ease within the statute. § 155. The terms "debt, default, or miscarriage," seem to include every case in which one party can become liable to another in a civil action ; although, in an early decision, it may be inferred to have been doubted whether they covered cases of tort.^ That doubt, however, if it ever existed, has been since removed by the judgment of the Court of Queen's Bench, in the case of Kirkham v. Marter. The defendant had there engaged to pay the plaintiff the damage sustained by him from a third person's having, wrongfully and without his license, ridden his horse, and thereby caused its tieath. All the Judges concurred that the liability was such as the statute would cover by force of' the word " miscarria^," Abbott, C. J., remarking that it had not the same meaning as "default or debt," and seemed to him " to comprehend that species of wrongful act, for the consequences of which the law would make the party civilly responsible." Holroyd, J., went some- what farther, and considered that both " miscarriage " and " default " applied to a promise to answer for another with respect to the non-performance of a duty, though not founded upon a contract."^ Perhaps the strictest etymological rule would be that which was suggested by Lord Ellenborough in a previous case, namely, that " debt " and " default " both refer to a liability accruing upon a contract, but the former to such 1 Buckmyr o. Damall, 2 Ld. Eaym. 1085. 2 Kirkham u. Marter, 2 Barn. & Aid. 613. It is stated, however, in a note by the reporters, that this case was furnished to them by a gentleman of the bar. The same point has been decided in Connecticut and the statute held to be applicable to cases of tort, in Turner v. Hubbell, 2 Day, 457. CH. X.] GUARANTIES. 158 as is already incurred, the latter to such as may be incurred at a future time.^ § 156. Under whatever class it may fall, however, the liability of the party for whom a guarantor within the statute makes himself answerable, must be a clear and ascertained legal liability, capable of being enforced against the party himself. Thus, if the party be a minor or a married woman, or under any other legal disability as to forming binding con- tracts, it is manifest that a promise by a third person to answer for him or her, in a matter within the range of that disability, cannot be affected by the Statute of Frauds.^ . § 157. So where it does not appear in point of fact that any debt or liability has been incurred, as in the early case of Read v. Nash. In that case, one Tuack had brought an action of assault and battery against one Johnson. The cause being at issue, and the record entered and just coming on to be tried, the defendant Nash, who was then present in court, in consideration that Tuack would not proceed to trial but would withdraw his record, undertook and promised to pay him fifty pounds and costs. Tuack, relying upon this promise, did withdraw his record, and no farther proceeding was had in the cause. Tuack being dead, Read, his executor, brought the present action, and the question was whether Nash's promise was a promise to answer for the debt, default, or miscarriage of Johnson. It was unanimously held by the Judges of the Queen's Bench that it was not, and Lee, C. J., delivering the opinion of the court, said : " Johnson was not a debtor; the cause was not tried; he did not appear to be guilty of any debt, default, or miscarriage ; there might have been a verdict for him if the cause had been tried, for any thing 1 Castling V. Aubert, 2 East, 325. 2 Harris v. Huntbach, Burr. 373 ; Chapin v. Lapham, 20 Pick. (Mass.) 467 ; Eocbe V. Chaplin, 1 Bailey, (S. C.) 419 ; Connerat v. Goldsmith, 6 Georgia E. 14 ; Mease v. Wagner, 1 McCord, (S. C.) 395. 154 STATUTE OF FRAUDS. [cH, X. we can tell ; he never was liable to the particular debt, dam- ages, or costs." ^ But where, in a comparatively recent case, the defendant had verbally promised the plaintiflf to pay the damages sustained by reason of a third person's having wrong- fully and without the license of the plaintiff ridden his horse and thereby caused its death, in consideration that he would not bring an action against the third person, it was held by the Court of Queen's Bench, that the defendant's promise was within the statute and that an action upon it could not be sus- tained. The court distinguished the case from Read v. Nash, because here it did appear as matter of fact that the third person had rendered himself liable.^ If goods are furnished to a third person gratuitously, a verbal promise by the defend- ant is of course binding, upon the foregoing principles.^ § 158. It is not necessary, however, that the obligation, for the performance of which the guaranty is given, should be express ; it is sufficient if it be implied by law. Such was the decision of Lord Ellenborough, in a case where the mis- carriage provided against was the violation of the navigation laws ; * and, indeed, it would seem to be impossible by any other rule ever to bring a case of tort within the statute, the obligation resting on the third person in such a case being, of course, rather implied than express. It has been said in the Supreme Court of Massachusetts that there might be instances in which a plaintiff who, for the benefit of a tjiird person, had undertaken an onerous obligation at the defendant's verbal request, would have a remedy against him, notwithstanding such third person were also liable incidentally, and upon a 1 Read v. Nash, 1 WUs. 305. See Bray v. Freeman, 2 Moore, 114, where, however, the court seem to have applied Read v. Nash somewhat freely. See also Griffin v. Derby, 5 Greenl. (Me.) 476 ; Sampson v. Swift, 11 Verm. R. 315 ; Peck V. Thompson, 15 Verm. R. 637. 2 Kirkham v. Marter, 2 Barn. & Aid. 613. 3 Loomis V. Newhall, 15 Pick. (Mass.) 159. * Redhead v. Cator, 1 Stark. R. 14. CH. X.] GUARANTIES. 155 promise implied by law.^ The remark was admitted to be not necessary to the decision, which went upon an entirely distinct ground, namely, that the third person in question was an in- fant son of the defendant, and so not legally liable in any way to pay the debt there owing to the plaintiff; moreover, of the two cases referred to in support of it, one does not seem to justify it, and the other has been substantially overruled.^ They belong, however, to a class of decisions important to be examined at this point of our discussion, as having been as- sumed to make the foundation for a doctrine that a promise to indemnify is not within the statute. Such a doctrine, thus nakedly stated, cannot easily be maintained ; and an examina- tion of the cases, though there is much conflict between them, will, we think, show it to be the better opinion that such a promise is, as much as if called by any other name, within the statute, where it is collateral to any" implied liability on the part of any third person. § 159. The earliest case in which this question occurs, seems to be Winckworth v. Mills, decided at nisi prius, in 1796. One Taylor made a promisory note to the defendant, who indorsed it to another, who indorsed it to the plaintiff, and he, having lost the original note, applied to the makers, who made a difficulty about paying it, whereupon the defendant verbally promised to indemnify the plaintiff if he would en- deavour to enforce payment from the maker. The action was in part to recover expenses incurred in such endeavour, and Lord Kenyon ruled that, as to that part which was based on the promise to indemnify, the plaintiff could not recover, be- cause it was a promise to answer for the debt and default of another. The report states that the plaintiff's counsel seeming 1 Chapin v. Lapham, 20 Pick. (Mass.) 467, per Shaw, C. J. But see the remarks of the same Judge in Alger v. Scoville, 1 Grray, (Mass.) 391. 2 Harrison v. Sawtel, 10 Johns. (N. Y.) 242 ; Chapin v. Merrill, 4 Wend. (N. Y.) 657. See post, §§ 160-161. 156 STATUTE OF FRAUDS. [cH. X. to be dissatisfied with the ruling, his lordship offered to save the point, but they declined.^ Now, the only default which could have been referred to seems to be that of the maker of the note, in not fulfilling his implied obligation to reimburse the plaintiff. In Thomas v. Cook, in 1828, where the plaintiff, at the request of the defendant, executed a bond with him and another, to save harmless a third person from the claims upon an old firm in which he had been a partner, and the defendant verbally promised the plaintiff to save him harmless for exe- cuting the bond, the Court of Queen's Bench decided that the defendant's promise, being merely to indemnify, was not within the Statute of Frauds.^ But this case has been distinctly overruled by the same court in Green v. Creswell, where it was held that the defendant's promise to indemnify the plaintiff against the consequences of becoming, at his request, bail for one Hadley who was arrested for debt, was not binding with- out writing. Lord Denman, in delivering the opinion, says that the promise was, in effect, " If Hadley fails to do what is right towards you, I will do it instead of him." And of Thomas V. Cook he says : " The reasoning in this case does not appear to us satisfactory in support of the doctrine there laid down, which, 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." ' § 160. The English law appears, therefore, to be settled, that if there is an implied liability on the part of a third person to reimburse the plaintiff what damage he suffers on his ac- 1 Wlnckworth v. Mills, 2 Esp. K. 483. 2 Thomas v. Cook, 8 Barn. & Cres. 728. 3 Green v. Creswell, 10 Adol. & Ell. 453. See also Creswell v. Wood, lb. , 460. CH. X.] GUARANTIES. 157 count, the promise of the defendant to indemnify the plaintiff for incurring the risk of such damage is collateral to that im- . plied liability, and must be in writing. In Neiv York the law must now be considered the same. In Chapin v. Merrill, where the defendant promised to save the plaintiff harmless against the consequences of signing, at his request, a guaranty to a commercial firm for the value of all goods they should furnish to a third person, the Supreme Court of that State held that it was an original undertaking and not within the statute, thus entirely overlooking the implied liability of the third person to reimburse his guarantor, to which liability the defendant's promise was clearly collateral.^ And upon precisely that ground, the same court has subsequently overruled Chapin V. Merrill ; and Sill, J., speaking for the court, says of it : " This case, so far as I can discover, stands unsupported by any decision in our courts. It has not been relied on or cited as authority for any subsequent adjudication, nor received the ex- press sanction of any of our courts or judges." ^ In Maine, the old doctrine, that a promise to indemnify was not within the statute, has been followed, but the decision was rested on two cases, one of which is clearly distinguishable from it, and the other is not relied upon as law, even in the State Khere it occurred.^ In Connecticut, an early case adopts the same theory, but it does not appear to have been ever approved in the courts of that State.^ In Vermont, the Supreme Court 1 Chapin v. Merrill, 4 Wend. 657. a Kingsley v. Balcombe, 4 Barb. 131 ; also Carville v. Crane, 5 Hill, (N. Y.) 483, per Cowen, J. 3 Smith V. Sayward, 5 Green!. 504 ; decided upon Harrison v. Sawtel, 10 Johns. 242. (Seeposi, § 161,) and Perley «. Spring, 12 Mass. R. 297. (See^os?, § 162, n.) * Stocking V. Sage, 1 Conn. R. 519. As it was the defendant's own agent whom he promised to indemnify for injuries sustained, while engaged in his service, from the wrongful acts of a third person, this case is, it would seem, not irreconcilable with what is advanced in the text as the better rule, for he may have been already bound to indemnify him, without any special promise to that effect. _ 14 158 STATUTE OF FRAUDS. [CH. X. have lately examined the question, in a case where the defend- ant promised that, in consideration the plaintiff would sign with others certain notes to the Bank of Rutland, he would indemnify him for so doing ; and they held the promise not to be within the statute, upon the ground that, as it did not appear that the plaintiff signed at the request and as the surety of the other signers, there was no implied obligation on them to reimburse him, to which the defendant's special promise could be collat- eral ; though they expressed, it is true, an indisposition to hold otherwise, even if the case had shown such an obligation,^ In Georgia and Kentucky promises to indemnify have been held not within the statute, upon the authority of Thomas v. Cook, and Chapin v. Merrill, both of which have been shown to be overruled.^ On the other hand, the courts of both the Caro- linas and of Alabama repudiate any such distinction, and hold these verbal promises to be clearly not binding, if collateral to any implied liability on the part of the third person.^ § 161. In several of the States above referred to, decisions have been made which are often quoted in defence of the old doctrine, but seem to be entirely independent of it, and serve only to illustrate the correct rule by defining strictly the limits of its ^plication. Where there is really no obligation upon the party for whose benefit the plaintiff does the act for which the promise to indemnify is made, manifestly the promise is original, and is binding though not reduced to writing.* Thus a promise to indemnify the plaintiff against a suit to be brought 1 Beaman v. Knssell, 20 Verm. E. 205. And so in the case of Holmes v. Knights/ION. H. 175. 2 Jones V. Shorter, 1 Kelly, (Geo.) 294 ; Dunn v. West, 3 B. Men. (Ky.) 382. 3 Draughan u. Bunting, 9 Ired. (N. C.) 10; Simpson v. Nance, 1 Speers, (S. C.) 4 ; Brown v. Adams, 1 Stew. (Ala.) 51. So also apparently in Mary- land. Griffith V. Frederick Co. Bank, 6 Gill & J. 424. And see Alger v. Scoville, 1 Gray, (Mass.) 894, 395. 4 Conkey v. Hopkins, 17 Johns. (N. Y.) 113. It has sometimes been said that a promise to indemnify was a mere contract of insurance. But in the latter case, there is never any one bound collaterally with the underwriters. CH. X.] GUARANTIES. 159 for a trespass committed by hjm at the promisor's instance, for the purpose of raising a question of title,^ or against a suit of the same nature for resisting payment of tithes,^ is not collat- eral to any other liability to the plaintiflF, and not within the statute. As has been well observed, the indemnity in such cases is against the lawful acts of a third person, out of which no debt can arise against him.^ The promise is, in point of fact, made to the«plaintiff to pay a debt which he may himself be found to owe to a third party, and so, by another rule of con- struction to be hereafter examined, is not at all aflFected by the statute.^ Again, as was the fact in Harrison v. Sawtel, (a New York case, much relied on to support the position that a parol promise to indemnify is good,) if the defendant is himself liable to save harmless the party for whose benefit he requests the plaintiflF to do the act against which he agrees to indemnify hir^ clearly the defendant's promise is in eflFect for his own ' benefit, and consequently not affected by the statute.^ § 163. It was once held that if a verbal guaranty was prospective, that is, to answer for a debt, default or miscar- riage not yet incurred or suffered, the statute did not apply, because, at the time the defendant's promise was made, there was no existing liability on the part of another person, to which it could be collateral. Such was the decision of Lord Mansfield in Mowbray v. Cunningham, where the promise was to be responsible for goods to be thereafter supplied to a third person.® But in the following year he appears to have dis- • Marcy v. Crawford, 16 Conn. R. 549 ; Allaire v. Ouland, 2 Johns. Cas. (N. Y.) 52. And see Weld v. Nichols, 17 Pick. (Mass.) 538. 2 Adams v. Damsey, 6 Bing. 506. See the remarks upon this case by Lord Denman in Green v. Qreswell, 10 Adol. & Ell. 453. 3 Chapman v. Eoss, 12 Leigh, (Va.) 565. 4 See^ost, § 188. 5 Harrison v. Sawtel, 10 Johns. (N. Y.) 242. 6 Mowbray (or Mawbrey) v. Cunningham, Hilary Term, 1773. ^ted in Jones V. Cooper, infra. 160 STATUTE OF FRAUDS. £cH. X. tinctly abandoned that doctrine,^ and it has certainly never prevailed since. Buller, J., in a subsequent case, said that the authorities against it vi^ere not to-be shaken ; at the same time stating that, if it were a new question, the bearing of his mind would be the other way, for that liord Mansfield's rear soning in Mowbray y. Cunningham • had struck him very forcibly.^ There seems, however, to be but little difficulty in considering the guaranty, in such an instaflce, as suspended until the debt to which it is to apply shall be actually incurred ; a view in which these cases may be entirely reconciled with Read v. Nash, for there, not only was there no debt or liability incurred by any third party at the time of the defendant's en- gagement, but none was ever to be incurred after that time, to which the defendant's engagement could attach, 8 163. Passing now, from the liability of the third party, to the defendant's promise to answer for him, we observe, in the first place, that the statute applies to his sjoecza? promise. This term seems to have 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.^ 8 164). It is obvious that, if the guarantor was already personally liable to pay the debt, his engagement to pay it, if a third person does not, can not afford him any protection on the ground of the Statute of Frauds. Although in form a guaranty, it is virtually an engagement to pay his own debt, and is binding without writing. In a Jate Exchequer case, this rule seems to have been applied to an engagement by the de- 1 Jones V. Cooper, 1 Cowp. 227. See Parsons v. Walter, 3 Dougl. 14, n. * Matson v. Wharam, 2 Term R. 80. The later doctrine prevails in the United States. Cahill v. Bigelow, 18 Pick. (Mass.) 369 ; (which in this respect overrules Perley v. Spring, 12 Mass. R. 297); WilYi&ms, Ex parte, i. Yfirg. (Tenn.) 579. 3 Per Hosmer, C. J., in Sage v. Wilcox, 6 Conn. R. 81 ; Allen v. Pryor, S A. K. Mar*. (Ky.) 305; Pike v. Brown, 7 Cush. (Mass.) 133, per C. J. Shaw ; Goodwin v. Gilbert, 9 Mass. R. 510. CH. X.] GUARANTIES. 161 pendant, that a judgment previously recovered against him as surety for certain third parties' repaying advances made by the plaintifif to them, should stand as security for farther ad- vances between them.^ It is also applicable where the promise of the defendant is to pay what he was previously liable, only jointly with others, to pay ; as in the case of a verbal engage- ment by one partner to pay a debt owing by his firm ; here the statute does not require the promise to be in writing.^ But in the converse case of an individual debt owing by one part- ner, the verbal engagement of the firm to pay it is, of course, not binding ; ^ and the same rule applies where a member of a corporate body assumes to pay its debts,* or where an indorser, who has been discharged, for instance, by the laches of the holder, renews his engagement ; ^ there being in neither case any preexisting liability, resting upon the defendant, to make such payment. If such preexisting liability be merely contin- gent at the time of making the new promise, it will not be sufficient to withdraw the latter from the operation of the statute ; nor, it seems, would that effect follow if the contingency should happen, and a personal obligation arise against the " guarantor, after he had given his guaranty. His promise, being in the first instance within the statute, would not thereby be taken out of it.^ It is said to have been decided that a 1 Macrory v. Scott, 5 Wels. Hurl. & Gord. 907. See Hoover v. Morris, 3 Hamm. (Ohio,) 56. 2 Stephens v. Squire, 5 Mod. Kep. 205 ; Howes v. Martin, 1 Esp. K. 162 ; Files V. McLeod, 14 Ala. R. 611 ; Aikin v. Duren, 2 Nott & McC. (S. C.) 370 ; Durham v. Manrow, 2 Corns. {N. Y.) 641 ; Kice v. Barry, 2 Cranch, (C. C.) 447. 3 Taylor v. Hillyer, 3 Blackf. (Ind.) 433 ; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257. * Trustees of Free Schools in Andover v. Flint, 13 Met. (Mass.) 539 ; Bogers V. Waters, 2 Gill & J. (Md.) 64 ; Wyman v. Gray, 7 Harr. & J. (Md.) 409. 5 U. S. Bank v. Southard, 2 Harr. (N. J.) 473 ; Peabody v. Harvey, 4 Conn. R. 119 ; Huntington v. Harvey, lb. 124. 6 Harrington v. Rich, 6 Verm. R. 666 ; Elder v. Warfield, 7 Harr. & J. (Md.) * 391, per Buchanan, C. J. ; Suydam v. Westfall, 4 HiE, (N. Y.) 211. 14* 162 STATUTE OF FRAUDS. [cH. X. mere moral or conscientious obligation, already resting on the guarantor, to pay certain money, will prevent the statute from afifecting his fresh promise to pay that money on a valid con- sideration ; but that doctrine, however tenable it might have been formerly, can hardly be maintained, now that it is settled that such an obligation is not even a valid consideration of itself to support an express promise to the sanie effect.^ 8 165. And here we remark a general principle which prevails in all cases under this branch of the Statute of Frauds, that wherever the defendant's promise is in effect to pay his own debt, though that of a third person be incidentally guaran- tied, it is not necessary that it should be in writing. The statute contemplates the mere promise of one man to be re- sponsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant himself. The common case of the holder of a third person's note as- signing it for value with a guaranty, seems to be clearly refer- able to this principle. The assignor owes the assignee, and that particular mode of paying him is adopted ; he guaranties in substance his own debt.^ 8 166. Under the same head may be treated those arrange- ments, frequently made between parties, by which one man who owes another a debt, agrees with him to discharge the obligation by assuming and paying a debt which he (the credi- tor) owes to a third person. Upon such an agreement, if so communicated to him and accepted by him as to make him 1 The decision in question is Williams v. Dyde, as stated in Buller's Nisi Prius, 281. The report in Peake, (p. 68,) does not show any such point. A case in Cranch asserts a similar doctrine, but the defendant there was partner in the firm whose obligation he guarantied, and therefore legally liable already. 2 Per Bronson, J., in Brown v. Curtis, 2 Comst. (N. Y.) 229, 234 ; and in Johnson v. Gilbert, 4 Hill, (Ni Y.) 178. And see Adcock o. Fleming, 2 Dev. & Bat. (N. C.) 225 ; Ashford v. Robinson, 8 Ired. (N. C.) 114 ; Carpenter v. Wall, 4 Dev. & Bat. (N. C.) 144 ; Smith v. Finch, 2 Scam. (HI.) 321 ; Allen v. Pryor, 3 A. K. Marsh. (Ky.) 305 ; Hackleman v. MiUer, 4 Blackf. (Ind.) 322 ;, Jones V. Palmer, 1 Doug. (Mich.) 379. CH. X.] GUARANTIES. 163 privy to it, such third person may of course resort to the party making the promise, and recover the amount of his immediate debtor's obligation. Nor is the promise of the defendant in such a case within the Statute of Frauds, as to pay the debt of another. In Barber v. Bucklin, a recent case in New York, the facts were that the defendant's brother owed the plaintiff a sum of money, and, being pressed for payment, de- livered to the defendant a pair of horses valued at a price somewhat less than the amount of the debt, and the defendant agreed to pay the amount of the price to the plaintiff on ac- count of his demand against his brother. The defendant's promise was made directly to his brother, and it did not appear that any acceptance of the proposition had been made by the plaintiff and communicated to the defendant, so as to establish an understanding between them; and accordingly, as the dec- laration stated the promise to have been made to the plaintiff, he was nonsuited on account of variance between the count and the evidence. The remarks of the court, however, by Jewett, J., who delivered the opinion, are very satisfactory to show that, in any event, the promise would not have been within the stat- ute. They say, " it was not a promise to answer for the debt of another person, but merely to pay the debt of the party making the promise, to a particular 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. Such promise was no more within the Statute of Frauds, than it would have been if the defendant had promised to pay the price of the horses directly to his brother from whom he purchased them." ^ In a very similar case, where the purchaser of real estate agreed, as part of the price, to assume and pay certain notes of the vendor then outstanding on account of the land, the Supreme Court of Maine directly decided the same point, and held the 1 Barber v. Bucklin, 2 Denio, (N. Y.) 45. 164) STATUTE OF FRAUDS. [CH. X. agreement to be good without writing; Weston, J., who delivered the opinion, remarking that, although the eflFect of the promise was to pay another's debt, yet the defendant thereby paid his own debt, and that constituted " the operative motive and inducement by which he was actuated."^ It might be going too far to say that the mere existence of a debt owing by the guarantor to the party for whom he becomes responsible, would have any effect to take out of the statute his promise to pay his creditor's debt, of the same or a less amount, to a third person.^ But if there is an understanding between the three parties that the defendant, in consideration of his own indebtedness, shall pay the plaintiff what is owing to him by another, it seems reasonable to regard the transaction as a mere payment by the defendant of his own debt, though the language of the parties should not be formal and precise to that effect. § I67. The Supreme Court' of New York, within a few years past, appear, it is true, to have departed from this rule, or at any rate, unsettled the reasoning on which it rests. One Rowley owed the plaintiff $87, and the defendant owed Rowley fl50. On a settlement between Rowley and the defendant, the latter gave the former his note for all he owed him, except $87 which he promised him verbally to pay to the plaintiff. He afterwards refused to do so, and the plaintiff 1 Dearborn v. Parks, 5 Greenl. 81. And see, upon the same point, Whitbeck V. Whitbeck, 9 Cow. (N. Y.) 266 ; Rice u.. Carter, 11 Ired. (N. C.) 298; Rowe V. Whittier, 21 Maine R. 545 ; Haydon v. Christopher, 1 J. J. Marsh. (Ky.) 382 ; Robbins v. Ayres, 10 Missouri R. 538. Also Pike v. Brown, 7 Cush. (Ma?s.) 133, in which the same principle is stated, though unnecessarily as the plaintiff and promisee was the debtor and not the creditor. The cases of Campbell v. Findley, 3 Humph. (Tenn.) 330; Waggoner w. Gray, 2 Hen. & Munf. (Va.) 603 ; and Jones v. Ballard, 2 Mill, (S. C.) 114, so far as they assert a contrary doctrine, do not profess to rest upon authority. 2 As seems to have been the case in Stanley v. Hendricks, 13 Ired. (N. C.) 86. The facts however are obscurely reported, and there is no allusion made in the arguments or opinion to the point we are considering, the case being held, upon an entirely different ground, to be not within the statute. CH. X.] GUARANTIES, 165 brought assumpsit upon the promise, as for his benefit. At the trial, a motion for a nonsuit was denied and the plaintiff had a verdict. On error, the court drew a distinction between the present case and Barber v. Bucklin, to whichthey were refer- red. In the latter, it was said, the defendant had in effect received money for the plaintiff's use, the debtor having sold property to the defendant on his agreeing to pay the price of it to the plaintiff. But here, it was added, " the defendant received nothing for the plaintiff's use. He had previously had the benefit of the labour of Rowley, for which he still owed him. Rowley gave the defendant no receipt and no dis- charge from his indebtedness. He placed nothing in the hands of the defendant for the plaintiff. If he had received from the defendant all the money due to him, arid then had paid back to the defendant ^87 for the plaintiff, the defendant agreeing to pay it to the plaintiff, this action could have been maintained. And such payment would not have been a mere form. It would have changed the substantial rights of the parties. It would have discharged Rowley's claim against the defendant for the previous labour, which, as the business was in fact transacted, was left unpaid." ' It is difficult to see the sound- ness of any such distinction. If the defendant had paid Rowley's debt to the plaintiff according to his agreement, it would have been a full defence to any subsequent action by Rowley for that amount, as due to him upon the old account. The sole difference between this case and Barber v. Bucklin seems to be, that there the debt was incurred contemporaneously with, while here it was incurred some time previously to, the making of the defendant's promise to pay the amount of it to the plaintiff instead of to his own immediate creditor. In both cases, it was understood between the defendant and the third person that the former's debt was to be discharged by paying 1 Blunt V. Boyd, 3 Barb. (N. Y.) 209. 166 STATUTE OF FRAUDS. [cH. X. the amount to the latter 's creditor. But in the present case it does not appear, any more than in Barber v. Bucklin, that the plaintiff was so far privy to the agreement as to be able to avail himself of it by action ; and upon that ground the decis- ion may satisfactorily rest. § 168. The views expressed in Barber v. Bucklin are especially worthy of approbation, as they afford an explanation of a series of decisions in New York, in which Judges have very broadly applied the rule, repeatedly above referred to, that any new and distinct consideration passing between the creditor and the guarantor took the latter 's promise out of the statute, though the original debtor continued liable ; a doctrine which, by its too free and unqualified assertion, has done much to darken and complicate the law upon this branch of the statute.^ A brief review of those decisions, therefore, seems to be advisable. § 169. One of the most conspicuous among them is Farley V. Cleveland, decided in the Supreme Court in 1825. There the defendant verbally promised to pay the plaintiff the debt which a third person owed him, in consideration of that person's delivering to the defendant a quantity of hay to the value of the debt. The court in Barber v. Bucklin, refer to this case, and show clearly that the Statute of Frauds had no application to it, because, in point of fact, the . defendant's engagement was only to pay to the plaintiff the money which he would have otherwise been obliged to pay to his own immediate creditor for the hay he received from him, and the only ques- tion was, whether the plaintiff, being a stranger to the consid- eration, could maintain a suit upon that engagement.^ Very 1 Thisi doctrine will be found separately discussed in a subsequent place. ^ 207, etseq. 2 Farley v. Cleveland, 4 Cowen, 432, afterwards affirmed by the Court for the Correction of Errors, but the report does not state the grounds of the affirmance. See 9 Cowen, 639. CH. X.] GUARANTIES. 167 similar is the case of Ellwood v. Monk, in the same court in 1830, where the defendant, in consideration that Johannes Monk delivered to him certain valuable property, verbally promised to pay three notes of Johannes held by the plaintiff. The decision to the effect that the statute did not apply, was put upon the ground of a new and distinct consideration pass- ing between the parties to the guaranty, and Farley v. Cleve- land was cited as authority to that point. But very obviously it may be supported upon the ground that the defendant had purchased the property of Johannes in consideration of the amount of the latter's debt, and that he was only discharging his own obligation in paying the plaintiff.^ The earlier case of Skelton v. Brewster, in which, in consideration of a third party's delivering to the defendant all his household goods, the latter promised to pay a debt for which the third party had been arrested in execution, is referable to the same principle ; although as the original debtor was by the agreement dis- charged, there would seem to be no reason for applying the statute at all.^ In a very recent case, where a first and second indorsee of a promissory note were informed by the maker, before it came due, that he would not be able to pay it at maturity, and all three agreed that the maker should assion • his property to the indorsers, and that they should pay the note, and look to the assignment for remuneration, which was ac- cordingly doncj it was decided that, on account of the new con- sideration thus moving to the indorsers, their engagement to pay the holder of the note was original and not collateral, and that consequently the statute did not apply. But there appears to be no difficulty in considering the transaction as a purchase of the property, with an engagement to pay the price to the plaintiff, the creditor of the vendor, the purchasers taking the 1 Elwood V. Monk, 5 Wend. 235. a Skelton v. Brewster, 8 Johns. 376. 168 STATUTE OF FRAUDS. [CH.. X. risk of realizing from the property a less amount than its esti- mated value.^ § 170. Other decisions in New York, which at first sight appear to conflict with these views, are entirely reconcilable with them, when carefully applied. Thus in Jackson v. Ray- ner, the defendant told the plaintiff that he had taken an assignment of a third party's property, and meant to pay his debts, and would pay the debt owing by him to the plaintiff. This appears to have been nothing more than the common case of an assignment in trust for the beinefit of creditors. The defendant had not contracted a debt by becoming such as- signee ; he had taken upon himself the discharge of a trust only ; his promise, whatever it was, was purely to pay the debt of a third person, and the court held it to be within the statute, the obligation of the third person not appearing to have been extinguished thereby.^ • Again, where the defendant verbally promised to pay a debt of a third person when he should sell a piece of land, as he had received from the latter authority to do, the promise was held to be affected by the statute ; and very properly so, for at the time of making it, the defendant not having sold the land had received no consideration from the third person and owed him no debt.* 8 171. The doctrine stated in Barber v. Bucklin is directly sustained, and the proper application of the rule saving from the statute those promises which are fojinded upon an in- dependent consideration may perhaps be also discovered, in the earlier case of Gold v. Phillips, in the same State. There the defendants, in part consideration of the sale of a farm to them by one Wood, gave their bond binding them- selves to pay certain debts and judgments against Wood, and also a debt due from Wood to the plaintiffs, and wrote to the ' Westfall V. Parsons, 16 Barb. 645. 2 Jackson v. Rayner, 12 Johns. 291. 3 Simpson v. Fatten, 4 Johns. 422. CH. X.] GUARANTIES. 169 plaintiflfs that, by arrangement with Wood, they were to be accountable for the debt due to them. The court said, " The promise of the defendant was not within the Statute of Frauds. It had no immediate connection with the original contract, but was founded on a new and distinct consicleration. The distinction noticed in Leonard v. Vredenburgh,^ apphes to this case and takes it out of the statute. The defendants made the promise in consideration of a sale of lands made to them by "Wood, and they assumed to pay the debt of the plaintiffs, as being, by arrangement with Wood, part payment of the purchase-money. Here was a valid assumption of the debt of Wood."^ The decision was undoubtedly correct, upon the view above explained ; not simply because the defendants' promise was founded upon a new and distinct consideration. When the reception of the, consideration from the third person is in such manner as to create an absolute debt to him from the defendant, the promise of the latter to pay the original debt to the plaintiff is very clearly only a change in the form of his own liability, and not a new liability entered into in the way of a mere guaranty. § 17^. Under this same general head it would seem proper^ to place the numerous cases which hold that a verbal accep- tance of, or a verbal promise to accept, a bill of exchange, is not within the statute, where the promisor holds funds of the drawer to meet it. Here no new obligation is imposed upon the promisor. He owes the drawer the amount of the funds in his hands, and by agreement with him, recognized by the payee, he pays the drawer by paying his creditor.^ - . . 1 Which appears to have been the first American case in which the doctrine ■was announced, that a new consideration moving between the parties to the guaranty takes it out of the statute. 2 Gold V. Phillips, 10 Johns. 412. 3 Pillans V. Van Mierop, Burr. 1663 ; Van Reimsdyck v. Kane, 1 Gall. (C. C). 633 ; Shields v. Middleton, 2 Cranch, (C. C.) 205 ; Pike v. Irwin, 1 Sand. (N. Y.) 14 ; Strohecker v. Cohen, 1 Speers, (S. C.) 349. In Butler v. Prentiss, 6 Mass. 15 170 STATUTE OF FRAUDS. [cH. X. § 173. Having now seen that the promise of a guarantor, within the Statute of Frauds, must be a special or express promise, raising a hability which did not exist before, and intended primarily to discharge that liability, our next inquiry is, What engagements, if not in form promises to pay another's obligation, are substantially so; for the statute, being designed to repress fraud, cannot be evaded in its spirit by mere changes in the language of parties, or by the form under which they disguise their transactions. ' I 174'. In the case of Garville v. Crane, in New York, the defendant prbmised, in consideration that the plaintiff at his request would sell and deliver a bill of goods to third parties, to indorse their note at six months, for the price. The case- was in assumpsit upon this promise, and came before the Su- preme Court on demurrer; and it was decided to be manifestly, in substance, an engagement to answer for the debt, and that not being in writing the action could not be sustained. Cowen, J., delivering the opinion of the court, said : " The promise of the defendant is in other words to become the third parties' surety for their debt." "To say that this is not in effect a promise to answer their debt would be a sacrifice of sense to sound. It would be devising a formulary, by which, through the aid of a perjured witness, a creditor might get round and defraud the statute. He may say. You did not promise to answer the debt due to me from A, but only to put yourself in such a position that I could compel you to pay it. Pray where is the differ- ence except in words ■? " ^ A verbal acceptance of, or a verbal promise to accept, a bill of exchange, where the acceptor has funds of the drawer in his hands, is, as we have seen, enljrely R. 430, Parsons, C. J., makes the remark (but -without explanation) that " neither a bill of exchange on its face nor the indorsements are within the Statute of Frauds." 1 Carville v. Crane, 5 Hill, (N. Y.) 483. And see Gallagher v. Brunei, 6 Cowen, (N. Y.) 346. In Taylor v. Drake, 4 Strobh. (S. C.) 431, it was held as in Carville v. Crane, that a verbal promise to indorse was vfithin the statute. CH. X.] GUARANTIES. I7I without the operation of the statute, from the consideration thaj the drawee's engagement is in fact to pay his own debt to the drawer, the owner of the funds, and perhaps by virtue of another rule to be hereafter considered, namely, that the promise to pay another's debt contemplated by the statute is, to pay it out of the promisor's own estate. But there seems to be no sound reason why a verbal acceptance or promise to accept for the mere accommodation of the drawer, and without value received, should not, upon the same grounds so ably stated in Carville v. Crane, be treated as within the statute. The acceptor or promisor certainly puts himself in such a position that the payee can compel him to pay the debt. Such is the opinion expressed in the same case, and it seems to be followed in a subsequent decision in the Superior Court in the same State, where, upon the defendant's offering to prove that he h»d no funds of the drawer in his hands at the time of making the promise to pay an order to be drawn upon him, and the rejection of such evidence at the trial, the judgment was reversed ; the remarks of the court indicate, it is true, that if the promise had been held good, it would have been upon the ground that the possession of funds of the drawer by the de- fendant was in the nature of a new consideration moving to him ; but the result of the case certainly is that a verbal ac- commodation acceptance is not, as such, saved from the opera- tion of the statute.^ In Pillans v. Van Mierop decided in the Queen's Bench a century ago, the same view is expressed by Lord Mansfield. The defendants, in the expectation of having funds of the payee in their hands, agreed with the plaintiffs to honour their dr-aft, to be thereafter drawn, to reimburse them for money lent him ; after the loan and before the draft was made, the proposed payee failed and the defendants notified the plaintiffs that their draft would not be accepted, but the latter 1 Pike ». Irwin, 1 Sandf. (N. Y.) 14. To the same effect Is Quin «. Hanford, 1 mil, (N. Y.) 82, 17^ STATUTE OF FRAUDS. [CH. Xi nevertheless drew, and their draft was dishonoured. The agreement heing by written correspondence, no question ^J^a3 made upon the Statute of Frauds, but the decision was simply that an acceptance of a draft to be drawn was good. Lord Mansfield, however, said he had no idea that " promises for the debt of another " were applicable to the present case ; that this was a mercantile transaction ; that the credit was given upon a supposition " that the person who was to draw upon the imdertakers within a certain time, had goods in his hands or would have them. Here the plaintiff's trusted to this under- taking. Therefore it is quite upon another foundation than that of a naked promise from one to pay the debt of another." ^ § 175. The case of D'Wolf v. Rabaud, decided by the United States Supreme Court, presents a somewhat nice instance upon the question, what kind of a contract amounts to a guaranty within the statute. The defendant, James D'Wolf, 1 Pillans V. Van Mierop, Burrows, 1663. Upon a rehearing of the case at the next term, Lord Mansfield held the following language : " The true reason why the acceptance of a bill of exchange shall bind is not on account of the acceptor's having or being supposed to have effects in hand, but for the conve- nience of trade and commerce. Fides est servanda. An acceptance for the honour of the drawee shall bind the acceptor ; so shall a verbal acceptance." In the absence of all explanation of, or even allusion to, his language at the first hearing, it is not to be supposed that his Lordship considered himself as being really inconsistent. The remarks just quoted seem to be justly applicable only to ordinary business securities, and not to engagements for the mere accommodation of others, on consideration of personal kindness. The decision of the Supreme Court of the United States in Townsley v. Sumrall, 2 Peters, 170, proceeds upon the assumption that a verbal accommodation acceptance is within the statute, but holds that it is taken out of the statute by the circumstance that the party to whom the promise was made paid money upon the strength of it, (though not to the promisor.) This is an extreme application of the modern • doctrine that a new and original consideration moving betiyeen the parties to a guaranty (or as in this case moving only from one of them though not to the other) takes it outof the statute, and as in all cases of the making of a guaranty, the party to whom it is given of course parts with some value thereupon, it must be said with the utmo'st deference that it is difficult to see what is left of the Statute of Frauds as applied to this class of contracts, if the rule is to be so applied. CH. X.] GUARANTIES. 173 (plaintiflf in error,) in consideration that Rabaud & Go., the plaintiffs, would authorize George D'Wolf to draw upon them for 100,000 francs, undertook and promised that he would ship, for the account of George D'Wolf, on board such vessel as he (George D'Wolf) should direct, 500 boxes of sugar consigned to the plaintiffs at Marseilles. The draft was made and hon- oured, but the defendant failed to ship the sugar, and this action was brought to recover damages therefor. It was insisted, for the defendant, that the memorandum in writing signed by him did not show any consideration, but the court decided that it did ; so, it will be perceived that the determina- tion whether the promise was within the statute as to answer for George D'Wolf 's debt, was not indispensable to the case. The court, however, in their opinion delivered by Mr. Justice Story, entertain that question, and conclude that the promise would have been binding without any written memorandum, putting the case thus : " If A agree to advance B a sum of money for which B is to be answerable, but at the same time it is expressed upon the undertaking that C will do some act for the security of A, and enter into an agreement with A for that purpose, it would scarcely seem a case of mere collateral undertaking, but rather, if one might use the phrase, a trilat- eral contract. The contract of B to repay the money is not coincident with, nor the same contract with, C's to do the act. Each is an original promise, though the one may be deemed subsidiary or secondary to the other."-' It appears a httle doubtful from this language whether the promise of James D'Wolf to ship the sugars to Rabaud & Co., was or was not • D'Wolf V. Kabaud, 1 Peters, 476. The suggestion that such a concurrent liability as is referred to in this c£ise under the name of a trilateral liability, is not within the statute, appears to have originated with the learned Judge who delivered the opinion. He admitted that the current of authority was against it, and it is only to be regretted that other Judges have felt called upon to accept it upon the authority of his great name, and without the assurance of his deliberate judgment. 15* 17* STATUTE OF FRA,UDS, [cH. X. regarded by the court as, in its effect and substance, a promise to be answerable for their being reimbursed the money ad- vanced to George D'Wolf ; although, from the admission in the opinion that it was concurrent with George's liability it is to be inferred that it was so regarded. And it would seem that such was clearly its character. It was a promise by the defendant to put into the hands of the plaintiffs a fund out of which the debt of George D'Wolf to them should be satisfied. If performed by him, and George had afterwards failed to repay the money advanced, it would have been repaid out of that fund as, so to speak, the representative of James' engage- ment. § 176. Upon the same principle, it would seem that a prom- ise to execute a bail bond for the appearance of a debtor should be held to amount to a promise to pay the debt, inasmuch as it binds the party making it to put himself in a position where he would be answerable, not immediately for the debt, it is true, but for the default of the debtor in not appearing, which would be practically the same thing. It would seem to differ in no essential respect from a verbal promise to indorse for a third person, which, as we have seen, the Supreme Court of New York held to be within the statute. In the case of Jar- main V. Algar, at nisi prius, Abbott, C. J., held otherwise ; but the report is very brief, furnishing no reasons for the ruling, and moreover, as he said himself, it was not necessary to decide it, the plaintiff being nonsuit on another ground.' It has also been questioned whether this case has not been since overruled by Green v. Creswell,^ where it was decided that a promise to indemnify the plaintiff for becoming surety on a bail bond for a third person, was within the statute and required a memorandum in writing.* And in an early case in 1 Jarmain v. Algar, Ry. & Mood. 348. 2 10 Add. & Ell. 453. 3 Chitty on Contracts, 450, note. See also the case of Martin v. England, in CH. X.] GUARANTIES. 175 Connecticut, where the defendant, in consideration that an officer would release one whom he had arrested for debt on final process, promised to see the prisoner forthcoming in the morning or to pay the debt, it was decided on error to be clearly within the statute as a promise for the debt or duty of another.^ Between this and a promise to execute a bail bond there can, it would seem, be no essential diflference so far as the application of the statute is concerned. § 177- But it is not correct to say that every promise, by the fulfilment of which a creditor is placed in a position to secure his debt, is within the statute. When the promise is to indorse the note of the debtbr, or accept his draft for his ac- commodation, the promisor engages to place himself in a posi- tion where he may be compelled to pay the debt ; and where the promise is to furnish to the creditor a fund out of which the debt is to be secured, the fund is, according to the expres- sion we have ventured to use, the representative of his own engagement to pay if the principal debtor does not. But the result of the decisions appears clearly to be, that, unless the promisor himself or his property is ultimately to be made liable in default of the principal debtor, the statute does not apply. For instance, an engagement by one who owes a party about to be sued by another, that he will not pay over without giving notice to the plaintiff, in order that the latter may attach the debt by the trustee process, is not within the statute,^ nor a promise, by one who has receipted for attached property, that it shall be returned on demand,^ for the whole effect of the Tennessee, Trhere it was held that a verbal promise to be the security of another for the delivery of property levied upon is not binding. 6 Yerg. 313. 1 Thomas v. Welles, 1 Root, 57. 2 Towne v. Grover, 9 Pick. (Mass.) 306. And see Scott v. Thomas, | Scam. (111.) 68. 3 Marion v. Faxon, 20 Conn. 486. A distinction has been intimated between promising that property levied upon and released to the debtor should be re- turned, and promising that the debtor should return it, but this seems to be a mere criticism upon words. Tindal v. Touchberry, 3 Strobh. (S. C.) 177. 176 STATUTE OF FRAUDS. [cH. X. promise in either case is to place at the -plaintiff's disposal the debtor's own property and not that of the promisor. Again, where the defendant promised to procure some one else to sign a guaranty of the debt, the Court of Common Pleas held it not to be within the statute ; ^ and although the decision was put upon another ground, the case appears to illustrate the principle under consideration ; for the whole effect of the promise was that the creditor should have, not the promisor's, but a third party's obligation to rely upon as collateral to that of the original debtor. True, where in these several cases the promisor failed to keep his engagement he was held to pay the damages sustained thereby, but not necessarily to the amount of the original debt ; and if he had fulfilled his promise, he would not then have paid, or made himself liable to pay, the debt ; which latter appears to be a conclusive test as to whether his promise was within the statute. § 178. A mere engagement to let a party have goods by way of purchase, which goods are to be applied in payment of a debt of the purchaser, it can scarcely be necessary to say, is not affected by the Statute of Frauds.^ But where, upon an account stated between two parties, it appeared that a large part of an amount which one acknowledged by letter to have received from the other was a sum due to the latter from a third party, which the former allowed to be transferred to the debit side of his account, it was held that he was not liable for that sum, the arrangement amounting to a promise without consideration to pay such third party's debt.^ A conditional ' Bushell V. Beavan, 1 Bing. N. R. 103. The ground taken by the court was that no one was bound collaterally with the defendant to procure the signature to the guaranty. This seems to be but a narrow view of the case, for if the effect of the defendant's promise was to engage that the original debt should be paid, (which was the farther and essential question) then it was collateral to the debtor's own liability. 2 Price V. Combs, 7 Halst. (N. J.) 188 ; Mather v. Perry, 2 Denio, (N. Y.) 162. 3 French v. French, 2 Mann. & Gr. 644. CH. X.] GUARANTIES. 177 promise also, as to pay a certain sum for a third person, if so much should be found to be owing by him, is held to be within the statute.-' § 179. It has been said^ that a promise to pay only a portion of the debt, in satisfaction of the whole, if the debtor failed to meet his obligation, was not within the statute, be- cause it was not a promise to answer for the debt due. The case in which the remark was made, however, was decided on wholly independent grounds, and this distinction (which would be, if for no other reason, to be deprecated as founded merely upon the letter of the statute,) appears to have been entirely disregarded in a late decision of the Lord Chancellor.^ § 180. It hardly needs to be said that an administrator's verbal submission to arbitration of a claim^ against his intes- tate's estate, will be binding upon him, notwithstanding the Statute of Frauds, such a submission having no effect to hold him liable to pay the award out of his own estate.* § 181,. Since the case of Pasley v. Freeman, decided in the Queen's Bench in 1789, it has been considered, both in Eng- land and in this country, that the provisions of the statute in regard to verbal promises to answer for the debts, defaults, or miscarriages of others, do not apply to false and deceitful representations as to the credit or solvency of third persons.^ 1 Barry v. Law, 1 Cranch, (C. C.) 77. 2 By Mansfield, C. J., in Anstey v. Harden, 1 Bos. & Pull. N. R 124. See post, § 210, where that case is fully examined. 3 Emmett v. Dewhirst, 8 Eng. Law & Eq. 83. * Ailing V. Mnnson, 2 Conn. R. 691. See the whole subject of submissions by executors and administrators well discussed in Williams on Executors, 1519-1522. 5 Pasley u. Freeman, 3 Term K. 51, followed in England in Eyre v. Dunsford, 1 East, 318; Haycraft «. Creasy, 2 lb. 92; Tapp w.Lee, 3 Bos. & Pull. 367; Foster v. Charles, 6 Bing.'396, and in this Country in Wise v. Wilcox, 1 Day, (Conn.) 22; Hart v. Tallmadge, 2 lb. 381 ; Kussell v. Clark, 7 Cranch, 69; Patten v. Gurney, 17 Mass. K. 182 ; Benton v. iPratt, 2 Wend. (N. Y.) 385; Allen V. Addington, 7 lb. 1 ; Upton v. Vail, 6 Johns. (N. Y.) 181 ; Ewins v. Calhoun, 7 Verm. K. 79 ; Weeks d. Burton, Ibid. 67. 178 STATUTE OF FRAUDS. [cH. X. The doctrine commends itself to us as a firm stand taken by the courts against actual frauds and cheats, but at the same time comes dangerously near to an invasion of the statute which was wisely designed to prevent them, and accordingly it has been strongly condemned by Lord Eldon.^ Impelled by that consideration, Parliament lately enacted what may be called a supplement to the Statute of Frauds, to the effect that "no action should be brought to charge any person upon or by 1, In, Evans v. Bicknell, 6 Ves. Jun. 174. The remarks of the learned Judge are so judicious that it may be well to insert them. He says of Pasley v. Freeman, " The doctrine laid down in that case is in practice and experience most dangerous. I state that upon my own experience ; and if the action is to be maintained in opposition to the positive denial of the defendant against the stout assertion of a singfe witness, where the least deviation in the account of the conversation varies the whole, it will become necessary, in order to protect men from the consequences, that the Statute of Frauds should be applied to that case. Suppose a man, asked whether a third person may be trusted, answers, ' You may trust him, and if he does not pay you, I will ; ' ijpon that the plain- tiff cannot recover, because it is a verbal undertaking for the debt of another. But if he does not undertake, but simply answers, ' you may trust him, he is a very honest man and worthy of trust,' &c., then an action will lie. Whether it is fit that the law should remain with such, distinctions, it is not for me to determine. Upon the case of Pasley v. Freeman, I have always said, when I was Chief Justice, that I so far doubted the principles of it, as to make it not unfit to offer, as I always did, to the counsel, that a special verdict should be tEiken ; but that offer was so uniformly rejected that I suppose I was in some error on this subject. I could therefore only point out to the jury the danger of finding verdicts upon such principles ; and I succeeded in impressing them with a sense of that danger so far, that the plaintiffs in such actions very seldom obtained verdicts. It appe?irs to mc a very extraordinary state of the law, that if the plaintiffs in the case of Pasley v. Freeman had come into equity, insisting that the defendant should make good the consequences of his representation, and the defendant positively denied he had made that representation, and only one witness was produced to prove it, the court of equity would give the defend- ant so much protection that they would refuse the relief, and yet upon the very same circumstances, the law would enable the plaintiff to recover. Whether that is following equity, or not quite outstripping equity, is not a question for discussion now ; but it leads to the absolute necessity of affording protection by a statute requiring that these undertakings shall be in writing." Which was done twenty-eight years after by Lord Teuterden's Act referred to in the text. See also Carr ex parte, 3 Ves. & Bea. 108. CH. X.] GUARANTIES. 179 reason of any representation or assurance made or given con- cerning or relating to the character, conduct, credit, ability, trade or dealings, of any other person, to the intent that such other person might obtain credit, money, or goods upon, [mean- ing ' money or goods upon credit,' ^] unless such representa- tion or assurance were made in writing signed by the party to he charged therewitli."^ It is much to be hoped that this example will be followed in our American States ; the action of the British legislature being plain testimony that in the opinion of the jurists of that country, such deceits are as proper cases for the requisition of written evidence to found actions upon them, as those which attend the mere deliberate violation of any contract. § 182. This supplemental statute was the subject of an elaborate discussion, a few years after its passage, in the case of Lyde v. Barnard, in the Court of Exchequer. The plain- tiff' was about to lend money to T. on the purchase of an an- nuity, proposed to be secured by an assignment of his life interest in a particular trust fund. The trustee of the fund being applied to, to inform the plaintiff" as to the existing state of T.'s life interest in it, and what incumbrances then affected it, replied verbally that of six annuities which had been secured by T. on this fund, three had been paid off" and discharged in the enrolment office, and that the other three still existed, but that, subject to the above, he, the trustee, had no notice of any other charge on it. At the time this representation was made, T.'s interest in the trust funds had been transferred to ' the party who had discharged three of the six annuities, sub- 1 Per Gurnej-, B., in Lyde v. Barnard, Tyrw. & Gr. 250. 2 9 Geo. IV. cap. 14, § 6, commonly called Lord Tenterden's Act. In the following American States similar statutes have been enacted, (which will be found in the Appendix) : Maine, Vermont, Virginia, Alabama, Kentucky, Indiana, Missouri, and Michigan. It will be observed that by Lord Tenterden's Act, the writing is not made binding when signed by an agent only. The same is the case with the Alabama statute. 180 STATUTE OF FRAUDS. [cH. X. ject to the payment of the other three. The plaintiff advanced the money to T., who did not repay it. An action having- been brought against the trustee for false representation, the plain- tiff was nonsuited, and the present question was upon setting aside the nonsuit. It was conceded that if the defendant's rfepresentation was within the statute at all, it was as concerning the ability of the third person, and upon the meaning of that expression as there used, the case is most elaborate and instruc- tive. The court were, however, divided, Chief Baron Lord Abinger and Baron Gurney being of opinion that the repre- sentation, as one affecting the third person's ability to give the desired security, was covered by the statute, but Barons Alder- son and Parke considering that the statute intended only a man's general pecuniary ability or standing or condition, and not, as they regarded this case, merely the state of a certain portion of his property. It was concluded that although, on account of the equal division, the defendant was entitled to retain his nonsuit, yet the court would permit the rule to be made absolute, on payment of costs to the defendant, in order that the point might be raised upon the record, and carried to a court of error.-' § 183. Where no such amendatory statute exists, actions for damages for the false representation in regard to the third party will lie ; but the rule is strictly applied to them, that the ground of the action must be the false affirmation of an exist- ing fact, namely, th© credit, solvency, or responsibility of the third party. In Gallagher v. Brunei, in the Supreme Court of New York, the declaration stated, after setting forth a proposition for the sale of a quantity of cotton by the plaintiffs to certain third parties, and their inability to pay for it, and the plaintiffs' unwillingness to sell upon their sole credit, that " yet contriving and intending to injure and defraud the plaintiffs, 1 Lyde v. Barnard, Tyrw. & Gr. (Esch.) 250, See farther in regard to Lord Tenterden's Act, Haslock v. Ferguson, 7 Adol. & Ell. 86. CH. X.] GUARANTIES. 181 and to induce them to sell and deliver, &c., and thereby subject the plaintiflFs to the loss, &c., the defendant falsely and deceit- fully represented and heM out to the plaintiffs that he, the de- fendant, was willing to indorse the proposed note, &c. That they did sell and deliver it in confidence, &c., when in truth the defendant was then not willing, and did not mean or intend, to indorse the note, or make himself responsible ; nor did he then nor had he at any time since indorsed, &c. ; alleging loss of the cotton and the price in consequence. The court held that the Statute of Frauds was a bar to the action, for that, if stripped of the general allegations of fraud and deceit, the case was nothing more than that the defendant encouraged the plaintiffs to sell to the third parties, awas surety promised to indorse their notes.^ § 18^ In a case in Maryland, the defendant carried a third person to the plaintiff, and passed him off as a particular friend of his, living near, whereby the plaintiff was induced to sell him slaves, which the third party, turning out to be a slave- dealer from South Carolina, afterwards carried off to that State. It was objected that the representation or stipulation of the defendant was within the statute, but held to be clearly not. so, but a palpable fraud and cheat, for which the plaintiff was entitled to damages.^ Whether fraudulent verbal misrep- resentations as to a third person's residence, or family connec- tion, or other circumstance not embraced in the enumeration in the recent statutes, which are the inducements to giving credit to such third person, should* give a cause of action in view of those statutes, the courts may hereafter have difficulty in determining. I 185. A question of much importance and nicety arises^ when a false and fraudulent representati368. 3 Hilton V. Dinsmore,'21 Maine, (8 Shep.) 410 ; Cameron v. Clark, 11 Ala. R. 259 ; Laing^. Lee, Spencer, (N. J.) 337 ; Goddard v. Mockbee, 5 Cranch, (C. C.) 666 ; Stanley v. Hendricks, 13 Ired. (N. C.) 86 ; Lee v. Fontaine, 10 Ala. R. 755; McKenzie v. Jackson, 4 Ala. R. 230. But see Jackson v. Rayner, 12 Johns. (N. Y.) 291. i Quin V. Hanford, 1 Hill, (N. Y.) 82. 5 Prather v. Vineyard, 4 Gilm. (111.) 40 ; Drakelyu. Deforest, 3 Conn. R. 272. « Lippincott v. Ashfield, 4 Sandf. (N. Y.) 611. 16* 186 _ STATUTE OF FRAUDS. [CH. X. will not, however, withdraw his verbal promise to pay it from the operation of the Statute of Frauds.' § 188. The statute applies to promises to pay the debt of another ; and this is construed by the courts of both countries to mean the debt of some person other than the immediate parties to the contract of guaranty.^ A verbal promise, there- fore, to the debtor himself, to pay, or to furnish him the means of paying, his own debt, is binding notwithstanding the statute. It is substantially the same thing as promising to pay him a sum of money to the same amount.^ The rule, however, is to be understood with reference only to cases where the debtor is plaintiflf. A promise to him that the debt of his creditor shall be paid, may, upon a familiar principle of law, be sued upon by the latter where proper privity on his part is shown, and in such case it must be proved by written evidence. § 189. The next and last remark to be made as to the character of the promise which the statute contemplates, is that it must, like any other promise which is to be binding in law, be founded upon a sufficient consideration moving between the parties. The words of the statute are negative, that the defendant shall not be liable unless his promise is in writing ; and the converse is not true, that when in writing he shall be liable. It is still to be tried and judged of as all other agree- 1 Dilts V. Parke, 1 South. (N. J.) 219 ; Simpson v. Nance, 1 Speers, (S. C.) 4. 2 Eastwood w. Kenyon, 11 Adol. & Ell. 438. Mr. Smith, in his excellent Lectures on the Law of Coritracts, remarks that it is a singular thing that this ques- tion never should have received a judicial decision until so recent a case, (1840.) In point of fact, it was determined by the Supreme Court of Massachusetts twenty years before. Colt u. Root, 17 Mass. K. 229. It is nSw firmly settled by numerous cases. Mers^reau v. Lewis, 25 Wend. (N. Y.) 243 ; Weld v. Nichols, 17 Pick. (Mass.) 538 ; Barker v. Bucklin, 2 Denio, (N. Y.) 45 ; Har- desty V. Jones, 10 Gill & J. (Md.) 404 ; Pratt v. Humphrey, 22 Conn.'R. 317 ; Preble V. Baldwin, 6 Cush. (Mass.) 549 ; Pike v. Brown, 7 lb. 133 ; Alger v. Scoville, 1 Gray, (Mass.) 391. 3 Hardesty v. Jones, supra ; Alger ti. Scoville, supra. CH. X.] GUARANTIES. 187 ments, merely in writing, are by the common law.^ There is, of course, no necessity for discussing the sufficiency of diflFer- ent kinds of considerations to support such a promise, the rule of law, that any benefit to the one party or any injury to the other will suffice, being in general terms entirely applicable. One species of consideration, however, occurs so frequently in such cases as to be worthy of particular notice,, namely, the engagement of the creditor to forbear enforcing his preexisting demand, whereupon the defendant promises to pay it or see it paid. § 190. The general rule that forbearance by the creditor is a sufficient consideration for a guaranty of the debt is abun- dantly settled,^ .and it clearly includes any kind of indulgence by which his remedy is postponed, as for instance the adjourn- ment of the trial to a later day.^ It appears also to be the better opinion that such postponement need not be for a specific length of time, but that an agreement to postpone indefinitely, with proof of actual forbearance for a reasonable term, will be «ufficient.* A mere agreement not to push an execution, how- ever, has been held to be no consideration in the nature of for- bearance ; the court apparently regarding the expression as too vague to impose any duty whatever on the creditor.^ And, of ' Lord Chief Baron Skynner in Eann v. Hughes, 7 Term R. 350, (n), where the suggestions of Mr. J. Wilmot in Pillans v. Van Mierop, Burr. 1663, are noticed and rejected. It is not necessary to cite from the multitude of subse- quent cases to the same effect. They are alluded to in this and the following sections on the same topic. 2 See the cases cited below. And that it applies equally in cases of promises by executors and administrators. See Rann v. Hughes, 7 Term R. 350, (n) ; Farish v. Wilson, Peake, 73 ; Forth v. Stanton, 1 Saund. 210 ; Barber v. Fox, 2 Saund. 136 ; Philpot w. Briant, 4 Bing. 717; Goring r. Goring, Yelv. 11, n. 2, Am. ed. ; Pratt v. Humphrey, 22 Conn. R. 317 ; Harrington v. Rich, 6 Verm. E. 666. 3 Stawart V. McGnin, 1 Cowen, (N. T.) 99. * The rule is so laid down by Lord Hobart in Mapes v. Stanley, Cro. Jac. 183. See also Elting v. Vanderlyn, 4 Johns. (N. Y.) 237 ; Thomas v. Croft, 2 Rich. (S. C.) 113. But see Sage v. Wilcox, 6 Conn. R. 81. 5 McKinney v. QuUter, 4 McCord, (S. C.) 409. 188 ' STATUTE OF FRAUDS. [CH. X. course, where the creditor has not the legal right to sue at any- time during which he promises to forbear suit, his promise, is no consideration,^ though it might be otherwise, and a written guaranty enforced, if the right of action should enuYe in the interim and the debtor should continue to avail himself of the original promise. In all cases there must be an agreement by the creditor to forbear ; proof of his having done so in point of fact will not suffice.^ § 191. But although a written guaranty, hke every other legal contract, requires a consideration for its support, it does not necessarily require a separate and special one, passing directly between the plaintiff and the defendant. Chancellor Kent (then Chief Justice) took occasion, in the case of Leopard v. Vreden- burgh,^ to divide considerations of guaranties into three classes ; the first of which is where the defendant's promise, though collat- eral to the principal contract, is made at the same time with it, and becomes an essential ground of the credit given to the principal or direct debtor, and here, he says, the same consider- ation which supports the principal debtor's obligation, supports also that of his guarantor. And to this extent, he adds, he can understand the observation of Lord Eldon, that "the un- dertaking of one man for the debt of another does not require a consideration moving between them," * meaning, no separate consideration. His second class is, where " the collateral un- dertaking is subsequent to the creation of the debt and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. . Here must be some farther consideration shown, having an immediate respect to such liability, for the consider- 1 Martin v. Black, 20 Ala. K. 309. 2 Macorney v. Stanley, 8 Cush. (Mass.) 85 ; Walker v. Sherman, 11 Met. (Mass.) 170; Breed w. Hillhouse, 7 Conn. 523; Sage u. Wilcox, 6 Conn. 81; Crafts «. Beale, 11 C. B. 172. 3 8 Johns. (N. Y.) 29. * Minet ex parte, 14 Ves. Jr. 190. CH. X.] GUARANTIES. 189 atlon for the original debt will not attach to this subsequent promise." As to the first class, the rule, as stated, i§ undoubt- edly correct.^ As to the second, to apprehend its full purport, we must notice also the third class mentioned by the Chancellor, namely, where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties ; in which case, he says, the promise is not within the statute at all. This last doctrine will he the subject of particular examination hereafter. j^ut we remark here that considering both together, the prin- ciple intended to be laid down clearly is, that the only considera- tion which will support a written guaranty of a preexisting debt, without taking the guaranty out of the statute altogether, (a case with which we have at present nothing to do) is such an one as has an immediate respect to that debt. This rule, thus narrowly stated, is certainly open to much doubt. If admitted, it would seem that forbearance on the part of the creditor to enforce his demand against the original debtor, which we have just seen is a sufficient consideration to support a written guar- anty of it, must be the only such consideration. To have immediate respect to the original debt, the consideration passing from the creditor must apparently be, either that the debt is forborne for a time, or that it is entirely released, in which latter case it is clear that the defendant's promise is not collat- eral to, but a substitute for, the original debtor's liability, and not within the statute at all. It is not, however, necessary in this place to say more than that some consideration beyond 1 Rabaud v. D'Wolf, Paine, (C. C.) 580 ; Larson v. Wyman, 14 Wend. (N. Y.) 246; Townsleyr. Sumrall, 2 Pet. (S. C.) 170; Nelson v. Boynton, 3 Met. (Mass.) 396. And Leonard v. Vredenburgh itself presented the same point, to -which it is therefote an authority, and a most respectable One. The writer, however, cannot but remark that if the Chief Justice had, on that occa- sion, refrained from any passing expression of opinion upon the other questions alluded to in the text, much of the existing perplexity on questions of guaran- ties within the statute might havebeen avoided. 190 STATUTE OF FRAUDS. [CH. X. that upon which the original credit was granted, must cer- tainly appear in order to support the guaranty, though put in writing, if made subsequently to the creation of the original debt. To this extent there is entire uniformity in the decis- ions.^ Of course any consideration which would suiBce to take a guaranty of a preexisting debt out of the statute would suffice to support it if put in writing. And it is also held that where there is already a past debt, the giving of a new credit to the same party will be a good consideration to support a guaranty of both the new and the old debt.^ § 192. Having now considered what is meant by the debt, defaiJt, or miscarriage of another, and what is meant by the special promise of the defendant, it remains to be ascertained when the two are so connected as to make a case within the statute, or, in other words, when the defendant's special promise is to answer for the third party's debt, default, or miscarriage. It has come to be custothary to speak of such special promise as collateral to the obligation of the original debtor, and though the use of that term as defining the nature of the promise which the statute means to embrace has been sometimes criti- cized, it is believed to be not only in the main but in strictness correct. As will be explained hereafter, there are many cases where the obligation of the defendant is concurrent with that of the third party, and is discharged when that is discharged, and yet is not held to be aflfected by the statute ; and for the ' sole reason, as our subsequent inspection of those cases will show, that it is not essentially an obligation of guaranty of, or 1 Fish V. Hutcliinson, 2 Wils. 94 ; Chater v. Beckett, 7 Term K. 201 ; "Wain V. Warlters, 5 East, 10 ; D'Wolf v. Eabaud, 1 Pet. (S. C.) 476 ; Sears v. Brink, 3 Johns. (N. Y.) 210; Gillighan v. Boardman, 29 Maine E. (16 Shep.) 79 ; Huntress v. Patten, 20 Maine R. 28 ; Ware v. Adams, 24 Maine R, 1 77 ; Elliot V. Giese, 7 Harr. & J. (Md.) 457; Crane v. Bullock, R. M. Charl. (Geo.) 318. 2 Loomis V. NewhaU, 15 Pick. (Mass.) 159 ; Hargroves w.'Cooke, 15 Georgia R.321. CH. X.] GUARANTIKS. 191 iu Other words not essentially collateral to, that of the third party. Understanding by a collateral obligation one which is made for the purpose of securing the performance of another, and which exists only so long as that other exists, it may fairly be said that collateral promises are just what the statute intends shall be proved by writing. The question of phraseology is however, of little consequence, except so far as it may be neces- sary to justify the occasional use of that term hereafter. § 19s. In the first place, the two obligations must concur or run together. Take the cases of special promises to answer for the payment of preexisting debts of third persons. Here the statute does not apply if the liability of the original debtor is extinguished by the making and acceptance of the special promise. It ^as been argued that, as to such preexisting lia- bilities, the language of the statute did not necessarily require that they should continue to exist concurrently with the defend- ant's promise, but that if one undertakes " to satisfy the debt of a person already indebted, in consideration of his instantaneous release there seems to be no good reason for saying that this is not a promise to answer for the debt of another within the reason and contemplation of the act of Parliament." ^ On the other hand, it may be said that if such had been the intention of Par- liament, the more apt language would have been that no action should be brought to charge a person upon any special promise to pay another's debt, or to answer for his default or miscar- riage, and that by the exclusive use of the latter expression, which, as applied to executory liabilities of another, undoubtedly means a collateral or contingent engagement merely, it was intended to put all special promises upon that same footing. And such would appear to have been the general policy of the statute; for the- danger of perjury was in the temptation to try and hold a third party, where the claim against him who had Koberts on Frauds, p. 224, 225. 192 STATUTE OF FRAUDS. [CH. X. been originally liable had proved worthless. But, however all this may be, it is now clearly settled by authority in both coun- tries that ifj by the arrangement between the parties, the orig- inal debtor is discharged, the defendant's promise is good with- out writing ; it clearly raises in such case 'an original and absolute and not a collateral and contingent liability.-' Upon this principle it has been held in England that an agreement to convert a separate into a joint debt is not within the statute ; the effect being to create a new debt, in consideration of the former being extinguished.^ And so a promise to pay the debt of another, in consideration that the plaintiff', who has taken him on a ca sa., will discharge him out of custody, is original and not within the statute ; such discharge working an extinguishment of the debt.^ Of course it njust be a ques- tion to be determined upon all the circumstances of each case, whether the original debtor has been in fact discharged.* 1 Goodman v. Chase, 1 Barn. & Adol. 297 ; Bird v. Gammon, 3 Bing. N. C. 883; Butcher v. Steuart, H Mees. & Wels. 857; Gull v. Lindsay, 4 Wels. Hurl. & Gor. 45; Stone v. Symmes, 18 Pick. (Mass.) 467; Curtis «. Brown, 5 Cush. (Ma,ss.) 492, per Shaw, C. J. ; Anderson v. Davis, 9 Verm. Rt 136 ; Watson V. Randall, 20 Wend. (N. Y.) 201 ; AUshouse v. Ramsay, 6 Whart. (Pa.) 331 ; Draughan v. Bunting, 9 Ired. (N. C.) 10 ; Click v. McAfee, 7 Port. (Ala.) 62 ; Armstrong v. Flora, 3 T. B. Mon. (Ky.) 43. So if the estate be discharged, the executor's promise to pay the debt is binding without writing. Harrington v. Rich, 6 Verm. R. 666. In Skelton v. Brewster, 8 Johns. (N. Y.) 376, and Cooper v. Chambers, 4 Dev. (N. C.) 261, the debtor was discharged, but the court took another and a less satisfactory ground for their decision. In Tompkins v. Smith, 3 Stew. & Port. 54, the court " incline to think there is no difference between a promise on consideration of giving day to the original debtor, and his discharge, they both relate to his indebtedness." (!) 2 Ex parte Lane, 1 DeGex, 300. 3 Lane v. Burghart, 1 Adol. & Ell. (N. S.) 933, 937; Goodman v. Chase, 1 Barn. & Aid. 297 ; Cooper v. Chambres, 4 Dev. (N. C.) 261. 4 The entry of such discharge on the books of the plaintiff, and his debiting the new promisor with the amount, will be sufficient. Corbett v. Cochrane, 3 Hill, (S. C.) 41. But an agreement to submit a demand to arbitration is not such an extinguishment of it that a guaranty made in consideration of such an agreement shall be taken out of the statute. Harrington v. Rich, 6 Verm. R. CH. X.] GUARANTIES. 193 § 1941. It must be observed here, that though there is no doubt that, when the original debtor has been discharged, the defendant's promise is good without writing, it is necessary to be careful in applying the converse of the rule, namely, that in order that the defendant's promise should be good with- out writing, the original debtor should be discharged. This is undoubtedly true in cases of mere guaranty, where the relation' of the defendant to the plaintiflf is principally and essentially that of surety for the debt owing to him, and nothing else. But there are many cases in which the plaintiff may not have discharged his original debtor, and may still have a double remedy, and yet the promise of the defendant be good vidthout writing, its object and character being other than that of guar- antying the debt, though the discharge of the debt may be incidental to the performance of that promise. These cases form a most important topic in the present chapter and are hereafter separately discussed.^ § 195. That the two liabilities must concur, when the promise of the defendant is to answer for the third person's discharge of his liability contemporaneously incurred, (or for what may be technically called his default or miscarriage,) is even more clearly true than in the case of a guaranty of an old debt.^ If, for instance, goods are sold upon the sole credit and responsibility of the defendant, though delivered to a third 1 See post, § 207, et seq. Mr. Chitty, after referring to some of these cases, remarks ttait they would probably be held otherwise now, because the original debtors therein were not discharged ; but doubtless he had not had occasion to give them very close attention. The distinction is recognized in 1 Saund. 211 b, (note to Forth v. Stanton). " The question whether each particular case comes within this clause of the statute or not, depends on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defend- ant or his property, except such as arises from his express promise." 2 Roberts on Frauds, p. 216; Tileston «.. Nettleton, 6 Pick. (Mass.) 509; Doyle V. White, 26 Maine, (13 Shep.) 341 ; Arbuckle v. Hawkes, 20 Verm. R. ,538 ; Antonio v. Clissey, 3 Rich. (S. C.) 201 ; Brown v. Curtiss, 2 Comst. (N. Y.) 229; Booker v. Tally, 2 Humph. (Tenn.) 308; Rhodes v. Leeds, 3 Stew. & Port. (Ala.) 212. 17 194j statute of frauds. [ch. X. person, there is no liability to which that of the defendant can be collateral, and consequently it does not require a memoran- dum in writing-. In such case, the common action of indebitatus assumpsit is the proper remedy against him, and a special count upon the promise is not necessary, as it would be if his undertaking were collateral. On the same principle it has been very lately held, in the Common Pleas, that when one advances money at the request of another (and on his promise to repay it,) to pay the debt of a third party, as the payment creates no debt against such third party, not being made at all upon ^lis credit, the liability of the party on whose request and promise it was made is original and not collateral, and not within the Statute of Frauds.^ § 196. Not only must the two liabilities accrue together, but they must, it would seem, continue together. It was held recently, in the Supreme Court of Vermont, that where the original debtor's liability is contingent, and, the contingency occurring, ne is discharged, the defendant's guaranty made before it occurred was discharged with it. "-The accessory obligation must necessarily fall with the principal obligation."^ And conversely, if the obligation, either on the part of the third party or on the part of the defendant, is simply contin- gent at the time of the contract, the happening of the contin- gency in the interim can have no eiBfect to draw the case within the operation of the statute.^ The case of Buckmyr v. Dar- nall is strongly illustrative of this point. There the defendant, in consideration that the plaintiff at his request wouW hire a horse to one English to ride to another town, promised that English should return him again. At the first hearing of the iPearce «. Blagrave, 30 Eng. Law & Eq. 510; Prop's of Upper Locks v. Abbott, 14 N. H. 157. 2 Smith V. Hyde, 19 Verm. R. 64. 3 Harrington v. Rich, 6 "Verm. R. 666 ; Elder v. Warfield, 7 Harr. & J. (Md.) 391, per Buchanan, C. J., ante, p. 161. GH. X.] GUARANTIES. 195 case, a majority of the Judges thought the defendant's promise was not within the statute, because English was not hable upon any contract ; but that, if any action could be maintained against him, it must be for a subsequent wrong in detaining the horse or actually converting it to his own use. The last day of the term, the Chief Justice delivered the opinion of the court. He said the objection had been made by some of the Judges that if English did not deliver the horse, he was not chargeable in an action on the promise, but in trover or detinue, which are founded upon the tort and are for matter subsequent to the agreement. But it was held by all that, as English might be charged in the bailment in detinue on the original delivery, and detinue was the adequate remedy, the promise of the defendant was collateral and within the reason and the very words of the statute.^ This case has been already referred to as showing that the defendant's assumpsit may be collateral to a third person's liability in tort, but it determines also by implication, that that liability must begin to run with the defendant's as- sumpsit ; for it was only upon the ground that detinue would lie, the root of which action was the original delivery, raising at the instant a contract for the redelivery, that the Judges found themselves enabled to apply the statute. § 197' As to the liability of the person for whose benefit the promise is made, it was laid down by Mr. Justice BuUer, in the case of Matson v. Wharam, that if he be himself UaMe at all the promise of the defendant must be in writing.^ If this rule be understood as confined to cases where the third 1 Buckmyr (or Birkmire, or Bourquemire) v. Darnall, 1 Salk. 27 ; 6 Mod. 248; 2 Ld. Raymond, 1085. Lord Hardwicke, in Tomlinson v. Gill, Ambler, 3^30, commenting.on this case, remarks that the distinction taken in it " is a veryjp slight and cobweb distinction." It is not easy to see, however, how it related to the case before him. I do not understand his lordship to condemn the doctrine in regard to the necessity of the liability of the third||party existing at the time of the defendant's promise. 2 Matson v. Wharam, 2 Term K. 80. 196 STATUTE OP FRAUDS. [cH. X. party and the defendant are liable in the same way, and to do the same thing, the one as principal and the other as surety, it may be accepted as the uniform doctrine of all the cases both in England and in our own country.^ The defendant is said to come in aid to procure the credit to be given to the prin- cipal debtor.^ The question therefore ultimately is, upon whose credit the goods were sold or the money advanced, or whatever other thing done which the defendant by his promise procured to be done. If any credit at all be given to the third party, the defendant's promise is required to be in writing as collateral,^ And the rule applies equally, where there is already an existing liability of the principal, and the evidence shows that the plaintiff by accepting the defendant as surety does not release his claim upon the principal.* AH the cases show that it does not matter upon which of the two parties the plaintiff principally depends for payment, so long as the third party is at all liable to him to do the same thing which the defendant has engaged to do. If, however, the credit is given to both jointly, as neither can be said to be surety for the other to the creditor, their engagement need not be in writing.^ § 198. It is sometimes a matter of difficulty to determine to whom the credit has been actually given, whether to the ' Barber v. Fox, 1 Stark. R. 270 ; Buckmyr v. Darnall, supra; Tileston v, Nettleton, 6 Pick. (Mass.) 509 ; Peabody «. Harvey, 4 Conn. R. 119; Hun- tingdon V. Harvey, lb. 124 ; Newell v. Ingraham, 15 Verm.R. 422 ; Cutler v. Hin- ton, 6 Rand. (Va.) 509 ; Ware v. Stephenson, 10 Leigh. (Va.) 155 ; Noyes v. Humphreys, 11 Grat. (Va.) 636; Leiand w, Creyon, 1 McCord, (S. C.) 100; Taylor V. Drake, 4 Strob. (S. C.) 431 ; Puckett v. Bates, 4 Ala. R. 390 ; Caper- ton V. Gray, 4 Yerg. (Tenn.) 563 ; Hall v. Wood, 3 Chand. (Wis.) 38. 2 Aldrich v. Jewell, 12 Verm. R. 123. 3 Anderson v. Hayman, 1 H. Black. 120 ; Cahill v. Bigelow, 18 Pick. (Mass.) • 369; Chase v. Day, 17 Johns. (N. Y.) 114; Brady v. Sackrider, 1 Sandf. "(N. Y.) 514 ; Elder v. Warfield, 7 Harr. & J. (Md.) 391 ; Conolly v. Kettle- well, 1 Gill, (Md.) 260 ; Larson v. Wyman, 14 Wend. (N. Y.) 246. 4 Fish V. Hutchinson, ^IVils. 94; Curtis v. Brown, 5 Gush. (Mass.) 491. 5 Wain Wright v. Straw, 15 Verm. R. 215 ; Williams ex parte, 4 Yerg. (Tenn.) 579. CH. X.] GUARANTIES. 197 defendant alone, in which case the debt is his own, and his promise is good withotit writing, or to the third party to any extent, in which case the defendant's promise, being only col- lateral to or in aid of the third party's liability, requires a writing to support it. In the absence of any other circum- stance to show the understanding of the parties, the expres- sions used by the party promising are doubtless to be resorted to. It has been held by Holt, C. J., that a promise ". to be the paymaster " of such an one as shall render services to a third party, is to be taken as an absolute engagement showing the promisor alone to be liable ; but that if the words ar^" to see him paid," this is only a promise to pay if the third party does not, and is collateral and within the statute.^ On the other hand, it seems to have been considered in subsequent English cases that the latter expression, uncontrolled by circumstances, would not ' necessarily import a collateral engagement.^ But even a promise in terms " to pay" does not make the promisor absolutely liable, so as to dispense with a writing, if it appear in point of fact thatlthe third party who received the benefit of the promise was liable with him.^ It is material to know to whom the charge is made on the plaintiff's books. In Matson V. Wharam and Anderson v. Hayman before cited, the charge was made to the third party, and this circumstance controlled the absolute expressions used by the defendants, and their en- gagements were held collateral.* And iiHike manner the fact of the bill being presented to the original debtor in the first in- ■ stance, if unqualified by other circumstances, proves the credit 1 Watkins v. Perkins, 1 Ld. Kaym. 224. And see Skinner v. Conant, 2 Verm. K. 453 ; and Bates v. Starr, 6 Ala. K. 697. 2 Jones V. Cooper, 1 Cowp. 227 ; Matson v. Wharam, 2 Term E. 80. See also Thwaites v. Curl, 6 B. Mon. (Ky.) 472. 3 Blake v. Paulin, 22 Maine R. 395 ; Moses v. Norton, 36 Maine R. (1 Heath,) 113, and the cases hereinafter cited ott thb subject. But see Russell v. Babcock, 2 Shep. (14 Maine,) 138. 4 See also Leland v. Creyon, 1 McCord, (S. C.) 100 ; Conolly v. Kettlewell, ' 1 Gill, (Md.) 260. 17* 198 STATUTE OF FRAUDS. [cH. X. given to him, and that the defendant's promise is collateral only.^ But it is material to remark that, though the debiting of the third party on the plaintiff's hooks or the presentation of the account to him is evidence against the plaintiff to show that he gave credit to the third party, so as to render a writing necessary to hold the defendant, his debiting of, or presenting the account to, the defendant is not evidence for him to show that he trusted the defendant only, while in fact the goods were delivered or the services rendered to the third party.^ The delivery to the third party is not conclusive against the plaintiff, but jfividence will be admitted to show that it was done by mistake.^ § 199. But after all, it is impossible to specify any one fact or set of facts, on which the question to whom the plaintiff gave credit is to be determined. In the language of C. J. Buchanan, in Elder v. Warfield,* " the extent of the undertaking, the ex- pressions used, the situation of the parties, and all the circum- stances of the case, should be taken into consideration." In Keate v. Temple, in the Common Pleas, J(n instructive case on this subject, the defendant was a lieutenant in the navy, and said ta a slop-seller, who was to supply the crew with clothes, that he would " see him paid at the pay-table," and afterwards, that he would "see him paid." Among other circumstances to show that the slop-seller actually relied upon the power of the defendant to stop me money out of the men's pay, and not upon his personal liability, the court laid great stress upon the fact that the sum claimed was very large, so much so that it seemed it never could have been contemplated to rely entirely 1 Larson v. "Wyman, 14 Wend. (N. Y.) 246. 2 Cutler V. Hinton, 6 Kand. (Va.) 509 ; Kinloch v. Brown, 1 Rich. (S. C.) 223 ; Noyes v. Humphreys, 11 Grat. (Va.) 636. In Scudder v. Wade, 1 South. (N. J.) 249, the jury found that in fact the whole credit was given to the defendant. 3 Loomis V. Smith, 17 Conn. R. 115. ^ 7 Harr. & J. 391. CH. X.] GUARANTIES. 199 for it upon the personal credit of a lieutenant in the navy, who could not he expected to be responsible for so large an amount.^ Of course the question to whom the credit was originally given, to be determined upon all the circumstances of the case, is one for the jury as matter of fact. § 200. Having now seen what kinds of obligations on the part of the original debtor and of the guarantor, respectively, the statute is intended to aflfect, and also that these two obliga- tions are to concur, in order to bring a case within it, it remains to be considered in the last place, in what cases the obligation of the guarantor is not within the statute, though it concur or coexist with that of the original debtor. Upon this by far the most intricate division of this title, it is found to be impossible to lay down any one general rule which shall com- prehend and reconcile all the decisions in our own courts and those of England, consistently with what is believed to be the intent and policy of the statute itself. The safest course to be pursued, and that which will probably lead in the end to the soundest conclusions upon the subject, will be to examine some of the leading English cases, ascertain upon what principles they were decided, and, if we may, how far the existing body of decisions are reconcilable therewith. § £01 . First, there is a large class of cases which hold that if the defendant, (meaning the party who makes the promise to answer for the debt, default, or miscarriage of another) for his own use and advantage, procures from the creditor the sur- render, release or waiver of a lien or security which* the latter holds for the debt owing him, the defendant's promise, made in consideration of such surrender, release, or waiver, to be answerable for the debt, is not embraced by the pi^ovisions of 1 KeatQ V. Temple, 1 Bos. & Pull. 158. See farther on this subject, Simpson «. Penton, 2 Cro. & Mees. 430; Payne v. Baldwin, 14 Barb. (N. Y.) 670; Chase v. Day, 17 Johns. (N. Y.) 114; Smith v. Hyde, 19 Verm. R. 54 ; Sinclair V. Richardson, 12 Verm. E. 33. 200 STATUTE OF FRAUDS. [cH. X. the Statute of Frauds. It is simply a purchase from the creditor of such hen or security, upon a fair consideration, namely, the substitution of the security of his own personal engagement. The leading case to this effect is Castling^ v. Aubert, decided by the- Court of Queen's Bench in 1 802. § 202. The plaintiff as insurance broker had effected various policies of insurance for one Grayson, and was under accom- modation acceptances for him, and had a hen on the policies to indemnify himself against the acceptances. A loss hap- pened, and Grayson needing the policies to present in order to get the money, the plaintiff was applied to to give them up for that purpose to the defendant, who was Grayson's agent at that time for the management of his insurance affairs. Some of the acceptances were outstanding, particularly one for ^181 Is., on which Grayson as drawer and the plaintiff as acceptor had been sued; and the defendant imder took verbally, in consideration of the policies being- made over to him, to pay that particular acceptance and the costs, and to deposit money with a banker for the satisfaction of the others as they became due. The plaintiff delivered up the policies, but the defendant did not pay the acceptance or costs. Beside the special count upon the agreement, the declaration contained a count for money had and received, upon which, as Lord Ellenborough observed, the plaintiff was entitled to recover, as the defendant had re- ceived a much larger amount from the underwriters. But after recapitulating the facts, and without reference to the common count, his* lordship remarked that in entering into the agree- ment the defendant " had in contemplation not principally the discharge of Grayson but the discharge of himself. That was his moving consideration, though the discharge of Grayson would eventually follow. It is rather, therefore, a purchase of the securities which the plaintiff held in his hands. This is quite beside the mischief provided against by the statute^ which was that persons should not, by their own unvouched CH. X. GUARANTIES, 201 undertaking, without writing, charge themselves for the debt, default, or miscarriage of another." And the plaintiff had judgment.^ § 203. It is to be carefally noted that in this case the very lien or security which the creditor held was procured by the defendant for his own use, and it is thus that the transaction acquires the character attributed to it by the court of a sale by one party and a purchase bj'^ the other. The circumstance that the payment of the price by the latter is to take the form of discharging the debt of another person, is treated by the court as merely incidental and as not depriving the arrangement of its other and primary and essential character. The true meaning of this decision is well illustrated by reference to a late case in the Court of Exchequer where it was attempted to be applied. The facts substantially were that the plaintiff had been em- ployed, by a then part-owner of the ship " Mathesis," to pro- cure a charter for the vessel under an agreement that, in consideration of his paying a certain sum due from the ship for repairs, he should have a lien upon her certificate of regis- ter and should collect and receive the freight. The " Mathesis " 1 Castling V. Aubert, 2 East, 325. The case of Walker w. Taylor, decided by- Chief Justice Tindal at nisi prius in 1834, presents a state of facts precisely analogous to those in the principal case, and upon that ground was rightly decided. 6 Car. & Pa. 752. The following are some of the American cases which seem to be in accordance with the principle of Castling v. Aubert. Allen V. Thompson, 10 N. H. 32. Here the plaintiff had obtained the account book of his_ debtor as a pledge to secure the debt, and the defendant, in consid- eration that the plaintiff would deliver up the book to one B. to collect the demands, verbally promised the plaintiff to pay him the amount due from the debtor if B. should not collect enough for that purpose ; the court holding that the delivery of the book to B. on the defendant's request was in effect the same as a delivery to the defendant himself. Also Gardiner v. Hopkins, 5 Wend. (N. Y.) 23; French u. Thompson, 6 Verm. E. 54; Olmstead u. Greenly, 18 Johns. (N. Y.) 12, 13 ; Hindman m. Langford, 3 Strobh. (S. C) 207. And Wolff u. Koppel, 5 Hill, (N. Y.) 458, wher^the rule was applied (perhaps unnecessarily) to the case of a factor guarantying his sales under a del credere commission. 202 STATUTE OF FRAUDS. [cH. X. made her voyage and returned to England, and it turning out that there was difficulty in effecting a settlement between various parties having various interests in or claims upon the ship, they all, including the plaintiff, executed a writing by which, among other things, the defendants agreed to pay the plaintiff his com- missions on the charter-party when ascertained, and all to- gether agreed that no person signing the agreement should put or cause to be put any stop on the freight, and that if such stop was put on, the defendants undertook to have the same removed. This was the writing produced in evidence, and in regard to which the defendants contended that it purported to be an agreement to answer for the debt, default or miscar- riage of another, within the Statute of Frauds, and did not dis- close upon the face of it any consideration moving from the plaintiff, and was therefore nudum pactum. They contended also that there was a variance between it and the declaratioii, which set forth the plaintiff's lien, and that the defendants were the brokers for parties who during the voyage had be- come owners of the ship, and that it became desirable for them to obtain immediate possession of the ship, and they were therefore anxious that the plaintiff should abandon his right of receiving the freight, and that in consideration of the premises and that the plaintiff would relinquish his right to collect the freight, the defendants promised and agreed to pay him his commission ; that the plaintiff did relinquish his right of col- lecting the freight, but that the defendants would not pay him his commission; — allegations evidently framed to bring the case within the rule in Castling v. Aubert. The court, however, held there was a variance, and that the contract proved was within the Statute of Frauds, Pollock, C. B., saying: "It is not an agreement by the defendants to pay, in consideration of the plaintiff abandoning his rights," but that it was " in con- sideration of his not asserting any lien upon the freight, with- out regard to the question whether he was or not entitled to CH. X.] GUARANTIES. 203 such lien." ^ In another case, not quite so recent, where the discontinuance of a suit was the consideration of the defend- ant's promise, and it was contended that the statute did not apply, because a new consideration moved between the parties to the guaranty, the Court of Queen's Bench held otherwise, Patteson, J., remarking that the cases on that point "had been where something had been given up by the plaintiff and acquired hy the party malting the promise; as the secuaty for a debt." 2 § 204. The Supreme Court of Massachusetts have very clearly announced the same doctrine, in these cases where the promise is made in consideration of the relinquishment of a lien. They say " Wtiere the plaintiff in consideration of the promise has relinquished some lien, benefit, or advantage, for securing or recovering his debt, and where, by means of such relinquishment, the same* interest or advantage has enured to the benefit of the defendant, there his promise is binding with- out writing. In such case, though the result is that the pay- ment of the debt of the third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase by the defendant from the plaintiff of the lien, right, or benefit in question." " It is not enough that the plain- * Gull V. Lindsay, 4 Wels. Hurl. & Gord. 45. The same court, a year later, apply Castling v. Aubert to the case of a verbal agreement that a judgment previously obtained against the defendant as surety on certain old obligations of a third person, should stand as collateral security for certain new obligations of that person. (Macrory v. Scott, 5 W. H. & G. 907.) Parke, B., speaks of the judgment as a fund which is only to be appropriated in a different way, and considers that the case falls within the principle of the decision in Castling v. Aubert. It would seem, however, that as the judgment was already binding on the defendant and the effect of his promise was only to apply the amount to a different account of the same party, it is better to let the case stand on the ground that in reality no new obligation is imposed upon the defendant, tiiau to strain unnecessarily so plain a decision as that referred to. 8 Tomlinson v. Gell, [not GUI,'] 6 Adol. & Ell. 564. See also Chater v. Beckett, 7 Term R. 201, where the plaintiff gave up a ca. sa., but still the defendant's promise was held bad by the statute. 204) STATUTE OF FRAUDS. CH. X. tiiF has relinquished an advantage or given up a lien in conse- quence of the defendant's promise, if that advantage has not also directly enured to the benefit of the defendant, so as in ef- fect to make it a purchase by the defendant from the plaintiflf."^ § 205. The case of Houlditch v. Milne, decided by Lord Eldon at nisi prius prior to Castling v. Aubert, seems to stand by itself in English law, so far as it holds that the mere relinquishment of a lien by the creditor, without regard to whether it enures to the defendant, is sufficient to take the promise of the latter, made in consideration of such relinquish- ment, out of the statute. In that case, certain carriages be- longing to one Copey had been sent by the defendants to the plaintiff's to be repaired, and the defendant gave the orders concerning them. The bill was made out to Copey when the repairs were finished ; but the order came from the defendant to pack them up and send them on board ship, and about the same time a verbal statement from him that he would pay for them. Upon the receipt of that engagement, the carriages were packed and shipped accordingly. It was in evidence also that afterwards, when the bill was presented to the defend- ant, he said he had the money to pay it, though he did not say whether it was his own or Copey 's. ' Lord Eldon said, if a person had obtained possession of goods on which a 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 Avriting was not necessary, and that such a case appeared to apply precisely to the one before him. The plaintiffs had to a certain extent a lien upon the carriages, which they parted * Per Shaw, C. J., in Curtis v. Brown, 5 Cush. 491-492. Nelson v. Boynton, S Met. (Mass.) 396 ; Alger u. Scoville, 1 Gray, (Mass.) 398 ; Smith v. Sayward, 5 Greenl. (Me.) 604 ; Boyce v. Owens, 2 McCord, (S. C.) 208 ; Scott v. Thomas, 1 Scam. (JU.) 58, are all cases more or less clearly stating the same doctrine. The case of King v. Despard, 5 Wend. (N. Y.) 277, the facts of which are very similar to those in Curtis v. Brown, is perhaps determinable upon the ground that the claim against the original debtor was actually abandoned. CH. X.] GUARANTIES. S05 with on the defendant's promise to pay, and it was held that for that reason the case was out of the statute.^ From the circumstance that the goods in question passed into the hands of the defendant, when the lien was relinquished, it might be inferred that it enured to his benefit.^ But in several of the American States, more particularly in South Carolina, it has been broadly decided that the mere relinquishment of the lien by the plaintiflFs was sufficient to take the defendant's promise out of the statute.* In Tennessee the same doctrine has been urged, but the court declined to express an opinion, and deter- mined the case upon another ground.* § 206. But it is obvious that Houlditch v. Milne was de- cided upon the supposed application of Williams v. Leper, a very conspicuous case upon this branch of the subject, and one which must now be examined, both as afi'ording a test of the correctness of the first-mentioned decision, and as introducing us to another and most comprehensive class of cases. It will appear that the doctrine alluded to in the last section finds 1 Houlditch V. Milne, 3 Esp. R. 86. If, as is intimated in the report, the defendant in this case had money of the principal debtor in his hands to pay the debt -with, there would be no difficulty in the decision. It would be a mere case of trust, and of course not within the statute. See ante, and compare Wil- liams V. Leper, cited in the following section. In BusheU v. Beavan, 1 Bing. N. C. 103, there is an intimation of the court to a similar effect with Houlditch V. Milne, but it was unnecessary to the case, which was in point of fact deter- mined on another ground. 2 This was the case in Tindal v. Touchberry, 3 Strobh. (S. C.) 177. In 1 Saunders, 211 b, a note to Forth v. Stanton, it is suggested that Houlditch v. Milne may be reconciled with the other cases, because it appears upon all the circumstances of the case that the sole credit was given to the defendant, and that the real owner of the carriages was not at all liable ; on which ground the case would clearly be not within the statute. 3 See Mercein v. Andrus, 10 Wend. (N. Y.) 461, which, however, was actu- ally determined upon a different question unconnected with the statute. Also- Slingerland v. Morse, 7 Johns. (N. T.) 464. And the following Sputh Carolina cases: Adkinson v. Barfield, 1 McCord, 575; Sian u. Pigott, 1 Nott & McC: 124 ; Dunlap v. Thorne, 1 Rich. 213. 4 Eandle v. Harris, 6 Yerg. 508. 18 206 STATUTE OF FRAUDS. [CH. X. no support whatever in that case, when closely examined and rightly understood. The facts were that one Taylor, who was tenant to the plaintiff, being three quarters of a year (or forty- five pounds) in arrear for rent, and insolvent, conveyed all his effects for the benefit of his creditors. They employed Leper, the defendant, as a broker to sell the effects, and he advertised a sale of them accordingly. On the morning advertised for the sale, Williams, the landlord, came to distrain the goods in the house. Leper, having notice of the landlord's intention to distrain them, promised to pay the arrear of renfif he would desist from distraining ; and he did thereupon desist. All the Judges agreed that Leper's promise was not within the Statute of Frauds ; and although there are some differences in the language of their reported opinions, the ground of their decis- ion appears to be sufficiently clear. The Chief Justice, Lord Mansfield, 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 cus- tody. The defendant agrees that the goods shall be sold and the plaintiff paid in the first place. The goods are the fund. The question is not between Taylor and the plaintiff. 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. It is rather a fraud in the defendant to detain the £4)5 from the plaintiff who had an original lien upon the goods." Mr. Justice Aston said he looked upon the goods as the debtor, as a fund hetween both, and he thought that Leper was not bound to pay the landlord more than the goods sold for, in case they had not sold for £45. Mr. Justice Wil- mot 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 Ms own bailiff's hands. Therefore an action would have lain against Leper for money had and received for the plaintiff's use." And in this view Mr. Justice Yates concur- CH. X.] GUARANTIES. 207 red.^ Now the promise of Leper was in terms, it is* true, to pay the debt in consideration of the surrender of the landlord's lien, and it was argued that he promised absolutely to pay it, and not to pay it out of the goods or with any other restriction. But it is clear, in the first place, that it was not simply because the landlord surrendered his lien, which being a damage •to him was a special consideration moving ^o?w him and support- ing the defendant's promise, that such promise was held good ; and hence Houlditch v. Milne, which depends upon this notion, cannot to any such extent be sustained. And in the second place, it is clear that the decision did not proceed upon the mere ground that Leper had acop^red the lien which the land- lord had lost, so as to make him personally a purchaser of that lien for a certain value, to wit, the amount of the debt he un- dertook to pay ; for he was considered by all the Judges as the mere trustee of the creditors whom he represented, and not as a purchaser of the lien for his own benefit ; and hence the case is to be distinguished from that of Castling v. Aubert which was merely and purely a sale of the security.^ The Judges really treat it, not as a promise to pay the debt in consideration of the forbearance to distrain, (which is the manner in which it is presented upon the statement of facts,) but as a transaction by which certain goods were entrusted out of the landlord's constructive possession and put in Leper's hands, for the pur- pose of his converting them into money wherewith to pay, among other debts, that due to the landlord. It was a mere case of agency or trust. The goods were the fund in regard 1 Williams v. Leper, Burr. 1886. See Clark v. Hall, 6 Halst. (N. J.) 78; Alger V. Scoville, 1 Gray, (Mass.) 391. 2 Both these points are well illustrated in the similar case of Edwards v. Kelly, (see post, § 208,) where the argument was that, as no consideration moved to the defendant, and as the defendant had no personal interest in the transaction, Williams v. Leper did not apply ; but, notwithstanding those facts, the court held it did apply because of another and the true point in that case. STATUTE OF FRAUDS. [CH. X. to whioh it was to be exercised. As Mr. Justice Wilmot said, Leper became the bailiff of the landlord ; and it is most worthy of notice that the court seem to agree that, if the goods had not sold for more than the landlord's debt, Leper would not have been liable beyond the proceeds of the sale. The result is, that Leper's obligation hardly arose out of his special promise at all. The res gestcB would have entitled the land- lord to his action against him, as Lord Mansfield expressly says. 8 207. It is deemed well worth while to have analyzed this decision, because out of a misunderstanding of it has gro^n a rule, which seems to make^ dead lettei- of the Statute of Frauds in all cases of promises to pay the preexisting debt of another, namely, that any new consideration, distinct from the debt and moving between the parties to the guaranty, will take it out of the statute. However true that may be, the case of Williams v. Leper does not, it is believed, establish the doc- trine. § 208. In a modern case in the Queen's Bench, the facts were almost identical with those in Williams v. Leper, and the correct view of that decision well enforced and illustrated. A third party owed the plaintiff for rent, and the plaintiff dis- trained upon the premises cattle, goods, and chattels of greater amount than the rent arrear, and the same were about to be sold to satisfy his claim ; whereupon it was agreed between him and the defendants that he should deliver up the distress and permit the goods to be sold by one of them for the tenant, upon their jointly undertaking to pay the plaintiff the rent due. That undertaking was. held binding. Lord Ellenborough, C. J., said : " Perhaps this case might be distinguishable from Williams v. Leper, if the goods distrained had not been de- livered up to the defendants. But here was a delivery to them in trust, in effect, to raise by sale of the goods sufficient to satisfy the plaintiff's demand ; the goods were put into their CH. X.] GUARANTIES. 209 possession subject to this trust." All the Judges concurred that Williams v. Leper was decisive of the case.^ Still more recently, that decision has been recognized and applied in the Common Pleas. The defendant, an auctioneer, was em- ployed by third parties to sell certain goods on the premises, and the plaintiff's agent applied to him, for rent due to the plaintiff, saying " it was much better so to apply than to put in a distress and stop the sale," when the defendant, after • inquiring the amount, said, "Madam, you shall be paid; my clerk shall bring you the money." The court were all clearly of opinion that the case was not distinguishable from Wil- liams V. Leper, and refused to set aside a verdict for the plaintiff.^ § 209. It seems therefore that the English courts have cleai'ly apprehended the force of Williams v. Leper as embracing mere cases of a trust assumed by the defendant in regard to property in the hands or under the control of the plaintiff, and in which the discharge of the third person's debt was merely incidental to the execution of that trust. It does not decide, any more than Castling v, Aubert decides, that the mere relin- quishing by the plaintiflF of his hold upon the property is, as being a new consideration moving between the immediate parties to the guaranty, a circumstance sufficient to take the promise of the defendant out of the statute. In the case of Slingerland v. Morse, in New York, the declaration stated that the defendants, in consideration that the plaintiff had delivered to tkem certain articles, undertook and promised by their agree- ment in writing (which, however, as it did not express any consideration, was inefficient as a memorandum,) to deUver the same articles to the plaintiff on demand or pay $450. The proof was that one Buys was duly authorized by the plaintiff to distrain for rent to that amount due to the latter from his 1 Edwards v. Kelly, 6 Maule & S. 204. 2 Bampton v. Faulin, 4 Bing. 264. 18* 210 STATUTE OF FRAUDS. [cU. X. tenant, and that the articles mentioned in the declaration were duly distrained, of which notice was given to the tenant, accom- panied with an inventory of the articles distrained, but the goods were not removed ; and that the defendants, at the re- quest of the tenant, signed an agreement indorsed upon the inventory of the goods, as follows : " We do hereby promise to deliver to Peter Slingerland all the goods and chattels con- tained in the within inventory, in six days after demand, or pay the said Peter |450." Buys thereupon suspended the sale of. the goods and left them in the house of the tenant. The court below considered this to be a mere collateral undertaking, but on motion for a new trial the Supreme Court held the case of Williams v. Leper to be in point and granted the motion.^ But it is obvious that the distinguishing feature of that case escaped the court, inasmuch as the proof before them did not show that the defendants were to do any thing with the goods towards paying the debt, their agreement being, in substance, that the distress should be simply forborne for six days, at the end of which time the goods should be delivered up or the money paid. The doctrine in Williams v. Leper, however, may be rightly applied, as it has been in South Carolina, to cases where the plaintiff simply suspends an execution upon goods of the debtor, in consideration of the promise of the defendant to apply the proceeds of the goods to the satisfaction of the execution,^ or where the defendant simply holds the goods from the original debtor for the purpose of paying the debt, and promises to pay it, if the creditor will postpone his attachment.^ In such cases the remark of Mr. Justice Bayley perfectly applies ; the substance of the contract " is as if the defendants had proposed to the plaintiff in these words : You must convert the goods into money in order to satisfy 1 Slingerland v. Morse, 7 Johns. 463. 2 Kogers v. Collier, 2 Bailey, (S. C.) 581. 3 McCray v. Madden, 1 McCord, (S. C.) 486. CH. X.] GUARANTIES. 211 yourself. If you will allow us to do this, we will pay you. * § 210. The next of the leading English cases to which it is deemed necessary to call particular attention, in connection with this branch of the subject, is one which establishes a principle entirely distinct from any of those which have been before ex- amined, though it has been strangely confounded with them. The principle is, that where the transaction between the parties is in its nature a purchase of the debt, itself, the defendant's promise to pay the whole or any part of the amount to the original creditor as the consideration of the purchase, is not affected by the statute. The case referred to is that of Anstey v. Marden in the Common Pleas, where the facts were briefly as follows : The defendant being insolvent, it was ver- bally agreed between him and one Weston and the defendant's creditors, (among whom was the plaintiff,) that Weston should pay, and the creditors should accept, ten shillings in the pound upon Marden's debts, in full discharge and satisfaction thereof, and that the creditors should assign their claims to Weston. When it was afterwards proposed to reduce this agreement to writing, the plaintiff refused to sign, and brought this action against Marden for the full amount of his claim, objecting to the defence upon the agreement and Weston's readiness and ability to perform it, that it was not enforceable against Weston for want of a memorandum in writing, and consequently his own engagement to accept ten shillings was nudum pactum. The defence was held good. Chambre, J., said : " This was a contract to purchase the debts of the several creditors, instead of being a contract to pay or discharge the debts owing by Mar- den. It was of the substance of the agreement that those should remain in full force to be assigned to Weston. When he had purchased them, he did not mean to exact them rigor- ously, but the contract was a contract of purchase, and he had a 1 Edwards v. Kelly, 6 Maule & S. 204. 212 STATUTE OF FRAUDS. [cH. X. right to make use of the names of the original creditors to recover the same to the full amount, if Marden had effects to satisfy the debts. Instead of leing a contract to discharge Marden from his debts, it was a contract to keep them on foot "^ If the effect of the decision should be taken to be, that the mere discharge of the third person's liability to his original creditor, with- out discharging him altogether, is not what the statute contem- plates, it might seem to be setting up a nice distinction. But its real drift and force is conceived to be that the primary and essential character of the transaction was a purchase for value of certain choses in action, differing from any other purchase merely in the fact that incidentally the debt of a third party was satisfied.^ And it is well perhaps to observe that this decision is not, as was intimated by one of the Judges, in con- flict with the previous case of Chater v. Beckett, nor with the still earlier case of Case v. Barber ; for in both, while there was a strong resemblance in other respects to Anstey v. Mar- den, the circumstance of the assignment of the debt to the party making the promise was wanting, and the promise was rightly held to be within the statute.^ § 211. Lastly, the case of Tomlinson v. Gill requires to be noticed, with a view to an accurate understanding of the ques- tion under discussion. The reporter's statement of facts is that " the defendant Gill promised that, if the widow of the intestate 1 Anstey v. Marden, 1 Bos. & Pull. N. K. 124. 2 It is necessary to remark in regard to Mr. Koberts's account of this case, (Treatise, p. 226,) that he omits in his statement of it the cardinal fact that the debts were assigned to Weston. This is what gives the transaction the dis- tinctive character of a purchase. The same author classes this case with Castling V. Aubert as being both cases of " considering the transaction in the light of a purchase." But it should be borne in mind that the former was a purchase of the debt, the latter of a security for the debt ; the former completely extin- guished the original creditor's claim upon the original debtor ; the latter left that claim unimpaired. 3 Chater v. Beckett, 7 Term K. 201 ; Case v. Barber, T. Kaym. 450, decided four years only after the enactment of the statute. CH. X.] GUARANTIES. 21S would permit him to be joined with her in the letters of ad- ministration of his assets, he would make good any deficiency of assets to discharge the intestate's debts ; " and he adds that the case was on a " bill by creditors of the intestate against Gill, for a satisfaction of their debts and performance of the promise." But apparently this is incorrectly stated, for the Chancellori Lord Hardwicke, says, " The bill is founded on an argument [agreement] which is not' unusual where there is a contest about obtaining administration. It is not uncommon upon such occasions for the simple contract creditors to agi'ee that administration shall be granted to a specialty creditor, upon terms of his agreeing to pay the debts equally and pari passu. Such agreements are seldom put in writing." Again, when speaking of the creditors' right to relief in equity, he says they are entitled to it, for the promise was for the benefit of the creditors and the widow is a trustee for them. 2dly, the bill is brought for an account, and that draws to it relief like the common case of a bill to be paid a debt of assets."^ This language is scarcely reconcilable with an absolute en- gagement to see the whole amount of the debts paid, but indi- cates rather a transaction, in part like that in Castling v. Aubert, the control of the assets being the security acquired by the defendant, and in part like Williams v. Leper, the assets being a fund hetween loth the defendant and his fellow creditors. The case was, however, decided prior to either of them. The Chancellor remarks that " the modern determina- tions have made a distinction between a promise to pay the original debt and on the foot of the original contract, and where it is on a new consideration ; but his only reference is to Read v. Nash, which occurred a few years earlier than that be- fore the court, and which is declared to be strong to the purpose that here was a new, distinct consideration, such as would take ' Tomlinson v. Gill, Ambler, 330. 214i . STATUTE OF FRAUDS. [cH. X. the defendant's promise out of the statute.-' It is difficult to see how that case apphed. There the defendant promised to pay a certain sum and costs, in consideration that the plaintiff would not proceed to trial, and would withdraw his record, in an action against a third person for assault ; and the express ground for the decision was that the third party, the defendant in the action for the assault, was not a debtor, that he did not appear to have been guilty of any default or iniscarriage, and that as the cause was not tried, and he might have succeeded, he never was liable to the particular debt, damages, or costs. Clearly, therefore, the case affords no support to the decision in Tomlinson v. Gill, where the debt was certainly actually exist- ing, if that decision be taken as broadly as the reporter's state- ment indicates. § 212. Having now examined these several cases at length, let us see if any one general and comprehensive rule can be stated, as justified by them and as not violating the spirit and policy of the Statute of Frauds. It is said by Mr. Roberts, in his excellent treatise on the construction of the statute, and as the broad result of these cases, that if the consideration of the new promise " spring out of any new transaction or move to the party promising upon some fresh and substantive ground of a personal concern to himself, the Statute of Frauds does not attach."^ If taken after a critical examination of the cases themselves, this rule can hardly be said to assert any error ; but the generality of the expressions used is such that it is not surprising to find it extended to cases which bear not the least resemblance to those on which the rule professes to be based.^ . 1 Read v. Nash, 1 Wils. 305. 2 Roberts on Frauds, 232. 3 Myers u. Morse, 15 Johns. (N. Y.) 425 ; Meech v. Smith, 7 Wend. (N. Y.) 315 ; King ti. Despard, 5 Wend. (N. Y.) 277 ; Creel u. Bell, 2 J. J. Marsh. (Ky.) 309 ; Taylor v. Drake, 4 Slrobh. 431 ; Cooper v. Chambers, 4 Dev. (N. C) 261 ; Tompkins ». Smith, 3 Stew. & Port. (Ala.) 54. It is uniformly held, however, that forbearance by the creditor is not enough to take the defend- CH. X.] GUARANTIES. 215 Again, Chief Justice Kent, in the case of Leonard v. Vreden- burgh, took occasion to classify all guaranties under the Statute of Frauds with reference to the consideration, and his third class consists of cases where, as he says, " the promise to pay the debt of another arises out of some new and original consid- eration of benefit or harm moving between the newly contracting parties."^ In the rule, as thus stated, for which Mr. Roberts is (not quite correctly) cited as authority, we perceive scarcely any recognition of the distinctive features of the cases them- selves, from which the doctrine was first extracted. But acting upon this /rule, and too often pressing it against the clear appli- cation of the statute, some of the American courts have held that, wherever there was a new consideration distinct from that which supported the original debtor's liability, and moving be- tween the parties to the guaranty, the defendant's promise was saved from the operation of the statute.^ However great the countenance it has received, this doctrine, if unqualified, must be repudiated as not based upon authority and as to a great degree nullifying the statute. And it may also be fairly said that the better opinion of courts and of commentators is now leaning against it.' Upon a very careful examination of all the cases, the proper limitation of the rule is believed to be this : That wherever the transaction between the parties is such that the primary and distinctive obligation assumed by the defendant is ant's promise out of the statute. Hilton v. Dinsmore, 21 Maine K. 410, over- ruling Kussell V. Babcock, 14 lb. 138 ; Harrington v. Rich, 6 Verm. 666 ; Caston u.Moss, 1 Bailey, (S. C.) 14 ; Musick v. Musick, 7 Missouri E. 495 ; King v. Wil- son, Stra. 873. Nor the creditor's merely stating and swearing to the account. Brown c. Barnes, 6 Ala. 694. 1 Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29. 2 See the cases cited in the preceding note. Several decisions whose language affirms this doctrine have, in previous pages of this chapter, been referred to other prii^ples by which they were clearly determinable. 3 Kingsley v. Balcome, 4 Barb. (N. Y.) 131, per Sill, J. ; Noyes v. Humphreys, 11 Grattan, (Va.) 636 ; Floyd v. Harrison, 4 Bibb, (Ky.) 76 ; Barker v. Buck- lin, 2 Denio, (N. Y.) 45 ; Chitty on Contracts, 450. 216 STATUTE OF FRAUDS. [cH. X. different from that of a guarantor, although as incidental to, and in the course of, the discharge of that obligation, the debt of another is satisfied, the defendant's promise is not within the statute.^ It has been said that so long as the original debtor remains liable, so long as the plaintiff has a double remedy, one against him and the other against the defendant, the latter 's promise is necessarily affected by the statute. But if this is so. Castling v. Aubert and Williams v. Leper are wrong, for in neither of them was the claim of the creditor against his original debtor discharged. And, indeed, if in any case such claim should be held so discharged, there could be no question under the statute, the defendant's promise then being, as we have heretofore seen, original and not collateral. The words of the statute itself, in their simple meaning, seem to give us the. true rule. It contemplates a promise to answer for another's debt, a promise for that purpose, a mere guaranty ; and it never was meant that a man should set it up as a pre- text to escape from the performance of a valid verbal promise for another purpose, because, in performing that, the discharge of another's debt was incidentally involve^.^ 1 A similar idea is well expressed by Sill, J., in Kingsley v. Balcome, 4 Barb. (N. Y.) 131. " The actual indebtedness must be shifted to the new promisor, so that, as between him and the original debtor, he must be bound to pay the debt as his own, the latter standing to him in the relation of surety." The Supreme Court of Indiana say the new consideration must be " of such a char- acter that it would support a promise to the plaintiff for the payment of the same sum of money without reference to any debt from another." Chandler v. DaYid- son, 6 Blackf. 367. 2 Nelson V. Boynton, 3 Met. (Mass.) 396, per Shaw, C. J. In another case quite lately decided in the Supreme Court of Massachusetts, we find the true principle applied upon the following facts. The plaintiff being the owner of a major part of the stock in an incorporated company, and holding a note of fhe company for $3,350, and being also indorsee on their notes for about $4,000, agreed with the defendant to transfer to him the shares and the note of $3,350 ; in consideration of which the defendant conveyed to him a certain farm, and Terb^UyjBndertook to save him harmless on his indorsements. The plaintiff, having afterwards taken up the indorsed notes brought his action against the defendant on his promise to save him harmless. It was contended that the prombe was void by CH. X.] GUARANTIES. 217 § £13. Upon the principle just stated, the Court of Ex- chequer have recently settled the question, whether the guaranty of a factor selling on a del credere commission was within the statute, as a promise to answer for those to whom his sales were made. Parke, B., delivered the opinion of the court to the eflFect that it was not. " Doubtless," he said, " if they [the factors defendant] had for a per centage guarantied the debt owing, or performance of the contract by, the vendee, being totally unconnected with the sale, they 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 pre- cluding 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 Wil- the statute. The court considered that, as a promise made to the debtor, the statute could for that reason have no application to it, (ante, § 188,) but held that, if it should be construed as a promise, the effect of which, if performed, would amount to a guaranty that the company as promisors should pay the notes and thus save the plaintiff from his liability thereon as indorser, still tfiis would hot, under the circumstances of the case, be within the statute. Chief Justice Shaw, delivering judgment, says: " Was the defendant to take the plaintiff's large interest in the stock and property of the Iron Company, constituting the natural fund out of which these indorsed notes were to be paid, without taking it subject to the incumbrances ? Paying the debts of the company, after the defendant had become a shareholder of more than half, would, in effect, and to the extent of his interest in those shares, enure to his own direct benefit. We, are therefore of opinion that this was a new and original contract between these parties, originating in a new consideration moving from the plaintiff to the defendant, in effect placing the funds in the hands of the defendant, out of which these notes, in due course of business, would be expected to be paid." Alger v. Scoville, 1 Gray, (Mass.) 391. 19 218 STATUTE OF FRAUDS, [cH. X. liams V. Leper, and Castling v. Aubert." ^ And in Wolff v. Koppel, in the Supreme Court of New York, Cowan, J., (whose opinion Mr. Baron Parke speaks of as a very able one, and adopts as expressing his own views upon the subject,^ takes the same ground, remarking that the contract of the factor in such a case " has an immediate respect to his own duty or obligation. The debt of another comes incidentally as a measure of damages." ^ The observation of Parke, B., that if the defendants in the case before him had, merely and with- out being connected with the sale, guarantied the debt owing or pei^fbrmance of the contract by the third party, for a per centage, doubtless their engagement would have required a writing, is especially noteworthy ; for such a case would pre- sent the naked point of a new and independent consideration moving from the creditor to the guarantor, and thus the rule which has been referred to, that such a consideration of itself takes a guaranty out of the statute, is shown to be distinctly denied by this recent and most respectable English authority. § 214. In conclusion of this subject it may be stated that a court will enforce an undertaking by one of its own attorneys to pay his client's debt and costs in an action, although the undertaking be void by the Statute of Frauds.* 1 Couturier v. Hastie, 16 Eng. Law & Eq. 562. 2 Wolff w. Koppel, 5 Hill, (N. Y.) 458. See also Swan v. Nesmith, 7 Pick. (Mass.) 220 ; Bradley i-. Richardson, 23 Verm. R. 720. 8 Evans u. Duncan, 1 Tyrw. 283, on the authority of Senior v. Butt, Hil. 1827, K. B. CH. XI.] AGREEMENTS IN CONSIDEUATION OF MARRIAGE. 21Q CHAPTER XL AGREEMENTS IN CONSIDERATION OF MARRIAGE. § 215. In the earliest decision which took place upon that clause of the fourth section requiring written evidence of a promise in consideration of marriage, the point determined by the Judges of the Queen's Bench was, that it embraced mutual promises to marry.-' But this has been entirely overruled by subsequent cases, and it appears to be now uniformly held that the statute intends to affect only what are commonly known as marriage settlements.^ Any promise made since the enactment of the statute, to give a portion to, or settle property upon, either of the parties to an intended marriage, as an inducement to, and consideration for, entering into it, is therefore incapable of supporting an action at law for damages for non-performance, or of a decree for a specific execution in equity, unless there be a memorandum thereof in writing signed by the person to be charged upon the promise.^. Per- haps there might arise cases, not coming under the head of marriage settlements properly, so called, which a strict applica- tion of the statute would nevertheless bring within its provis- ions; as where a party should agree to undertake some duty 1 Philpot V. Walcot, Skin. 24 ; Ereem. 541 ; 3 Lev. 65 ; decided in 33 Car. II . 2 Harrison v. Cage, 1 Ld. Kaym. 386 ; Salk. 24; 5 Mod. 411 ; *Cork v. Baker, Str^. 34 ; Clark v. Pendleton, 20 Conn. E. 508 ; Dunn v. Thorpe, 4 Ired. Eq. (N. C.) 7. 3 In South Carolina, where the English statute has been literally reenacted, it has been said in Chancery that an ante-nuptial agreement founded on the consideration of marriage, though resting in parol merelyi provided it be satis- factorily established by proof, would be set up and enforced. The case, how- ever, did not require the remark, which it would seem must have been incorrectly reported. Hatcher v. Robertson, 4 Strobh. Eq. 179. 320 STATUTE OF FRAUDS. [CH. XI. or office in consideration of another's contracting a marriage; but the courts do not appear to have hitherto had occasion to deal with any such, and as the construction of this clause now stands, it is limited to contracts of marriage settlement. No distinction, however, is found either in the language of the statute or in the decisions upon it, as to the nature of the property in relation to which the promise is made, and whether it he to give real or personal estate- the statute is equally ap- plicable. 8 216. The marriage is the consideration, a legal and suf- ficient consideration, for the defendant's promise, and one which, it is said, courts regard with especial favour, as of a most meritorious character.^ In a case in Maryland, where it was held that an agreement made by a father with His daughter, in contemplation of her marriage, by way of advancemrat and as a marriage endowment, and followed by her marriage as then contemplated, could not be revoked by the father, Martin, J., delivering the judgment of the Court of Appeals, said that the daughter was regarded as a purchaser, as much so as if she had paid for the property an adequate pecuniary consideration, and that the consummation of the marriage was to be consid- ered as equivalent to the payment of the purchase-money.^ &216 a. The marriage is also an acceptance of the promise. In a case in the Irish Chancery, a promise was made to give a marriage portion to a young lady, and upon its being communi- cated by letter of the promisor's agent to the intended husband, he expressed his desire to have the promisor's bond to the same effect, but it was not given, and nothing farther took place until the celebration of the marriage. It was urged that the promise had not been accepted, but Lord Chancellor Sugden 1 See the remark of Lord Chancellor Siogden, in Greene v. Cramer, 2 Con. & Law. 54 ; S. C. nom. Saunders v. Cramer, 3 Dru. & War. 87. Also, Dugan V. Gittings, 3 Gill, (Md.) 138. ^ Dugan V. Gittings, supra. CH. XI.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 221 said that " no acceptance could be more solemn than the fact of marrying the lady." ^ Where marriage follows upon the agreement, a distinct and positive dissent from the proposition of settlement would be required to be shown, in order to avert a decree of specific execution according to its terms.^ § 217. The marriage must, however, have been celebrated upon the strength of the promise, as any other consideration must be connected with the engagement it is to support. In Ayliffe v. Tracy, a father had written a letter to his daughter, agreeing to give her ^68,000 portion, but this letter "was not shown to the plaintiff, who became her husband, and afterwards brought his bill to have the promise enforced. Lord Chancel- lor Macclesfield dismissed the bill, remarking that there was here no ingredient of equity, and that the husband could not be supposed to have married in confidence of the letter.^ In point of fact the letter, as another report of the same case * shows, referred to a previous verbal promise as having been made to the husband ; so that it would seem the case did not necessarily present the point which was determined, and that the decree should rather have been the other way, the verbal promise to the husband being ratified and perfected by the subsequent written acknowledgment to the daughter. But there can hardly be a doubt of the accuracy of the principle indicated by his lordship, as applied in a court of equity, and it is difficult to see why it should not equally prevail in an action at law. § 218. It is laid down by an eminent writer, that a promise by letter (or in writing generally) will be specifically aenforced, although the person making it afterwards dissent from the marriage and declare he will give the parties nothing.® Such 1 Greene v. Cramer, 2 Con. & Law. 54. 2 Luders »,,;Anstey, 4 Ves. Jr. 501. 3 Ayliffe v. Tracy, 2 P. Wms. 6,5. * In 9 Mod. 3. See Atherley on Marriage Settlements, 82. 6 Mr. Atherley, p. 84. 19* 222 STATUTE OF FRAUDS. [cH. XI. a rule broadly stated, seems to be not altogether reasonable, there being nothing in the language of the statute, nor in the nature of such contracts themselves, to prevent them from being revocable at any time before they have been acted on. In the case cited by the writer in question, Wanchford v. Fotherley, the treaty for the settlement, upon the basis of a letter of the lady's fath^, depended long, and meanwhile the' young couple married. The father, before they went to church, revoked his promise and said he would give them nothing, but this the Lord Keeper Somers said he looked upon as nothing "after the ybung people's affections were engaged; " regarding such a tardy revocation, apparently, in the light of a fraud upon those who, reposing upon the prom- ise, had permitted their relations to each other to suffer an entire and irrevocable change.^ § 219. It is hardly necessary, nor if it were necessary, would it be altogether practicable, to show with much precision what will in point of substance be deemed to amount to con- tracts to bestow a portion in consideration of marriage ; the ordinary rules of interpretation of contracts applying to them alike as to any others. The promise must of course be abso- lute in its terms, in order to be binding ; even though it be reduced to writing. This is illustrated in the case of Randall V. Morgan, where the lady's father, in a letter to the intended husband, says : " The addition of 561,000, 3 per cent stock, is not sufficient to induce me to enter into a deed of settlement. I Wancliford v. Fotherley, Freem. Ch. 201. The reporter adds in a note that this decree was affirmed on appeal in the House of Lords. In D'Aguilar V. Drinkwater, 2 Ves. & Bea. 234, the question was whether a marriage had taken place with consent of trustees. Sir Wm. Grant's . language illustrates the position of the court in the case just cited. He says that after a mutual attachment had been suflfered to grow up under the sanction of the trustees, it would be somewhat late to state terms and conditions on which a marriage between the parties should take place, as they must either have done violence to their affections, or have submitted to any terms, however arbitrary and unreason- able, that the trustees might choose to dictate. CH. XI.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 228 Whether Mary [the daughter] remains single or marries, I shall allow her the interest of ^2,000 at 4 four per cent ; if the latter, / may bind myself to do it and to pay the prin- cipal at her decease to her and her heirs." Sir William Grant, Master of the Rollsj • said there were passages in the letter which, if they were detached from it and could be considered by themselves, would amount to an agreement ; but that there was no agreement whatever upon the whole letter taken together ; that it was clear that the father meant to reserve it entirely in his own power to bind himself or not after the marriage had taken place, and that the expressions used showed clearly that he did not intend to bind himself then} § 220. It seems to have been considered in an early case, that satisfaction with the proposed marriage on the part of the person promising to give the portion, was in some degree essen- tial to such contracts. An uncle, by a letter to his niece, promised her ^S1,000 as a portion, but dissuaded her from the match ; and, though he was afterwards present at the cere- mony and gave her away, the court refused to decree the pay- ment, but left the husband to his action at law.^ The soundness of such a doctrine is doubted by Mr, Atherley,^ and perhaps, as the report does not show the grounds of the decision, the case may not be regarded as determining it. Where the promise is made upon condition that the particular marriage in question should not take place, very clearly no relief either at law or in equity could be had upon it on consideration of the marriage. In Montgomery v. Reilly, finally decided in the House of Lords, there was a letter by the father, upon which the husband and wife relied, and in which he says : " I can liever be reconciled to the marriage," &c. ; then he proceeds 1 Bandall v. Morgan, 12 Vea. Jr. 67. 2 Douglas V. Vincent, 2 Vem. 202. But compare Wainchford v. Fotherley, Freem. Ch. 201. 3 Marriage Settlements, p^ 84. 224) STATUTE OF FRAUDS. [cH. XI. to speak of the arrangement between himself and the family, stating what he intended to give to each of his children, and says : " This, I think, is an abstract of the agreement, and when put into the form of a deed, if assented to by them, I am ready to execute at any time," but adds, " I will not en- tangle myself with Mr. J. R." [the husband.] " If this match goes on, I will neither meddle nor make with [make nor med- dle with] it or their settlements." Lord Eldon advised their lordships that there would be a difficulty not easy to be over- come in enforcing the alleged settlement, if the question were obliged to be determined alone upon the letter, considering what the law of the land required to give eflfect to a marriage agreement. But in view of the other circumstances in the case, he advised them that the agreement was one which in equity ought to be enforced.^ § 221. In a case in Virginia, the question arose as to the time for performance of a contract for a marriage settlement, which was in that respect indefinite. The promise was, that if the plaintiflF married the defendant's daughter, the defend- ant would endeavour to do her equal justice with the rest of his daughters, as fast as it was in his power with convenience ; and it was held that he had not his lifetime to perform the promise in, but, in a reasonable time after the marriage, (taking into consideration his property and other circumstances,) was bound to make an advancement to the plaintiff and his wife equal to the largest made to any of his daughters.^ § 222. In what form the written contract which shall satisfy the statute is to be, as, for instance, whether a letter or other informal writing is sufficient, and when such writing is to be deemed properly executed, as also the general rule as to what should be contained in the writing, and to what extent parol 1 Montgomery v. Keilly, 1 Bligh, 364. 9 Chichester v. Vass, 1 Munf. (Va.) 98. CH. XI.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 223 evidence may be admitted , to explain or assist it, are matters which can probably be discussed to more advantage when we come to the consideration of the memorandum in writing which the fourth section of the statute reijuires to be produced in all cases of contracts falling within its provisions.' And in' like manner, and for the sake of obtaining a more systematic view of the subject, it is proposed to defer to the same time all questions as to the effect which any acts of part performance, or other equitable considerations, may have with courts of equity, in inducing them to direct specific execution of a verbal contract made upon consideration of marriage, notwithstand- ing the absence of the writing required by the statute.^ ' There will remain, therefore, only the question how far a writing or settlement made after marriage, upon the basis of an ante- nuptial verbal promise, will be binding and valid ; and the discussion of it will conclude this chapter. § 223. The case of Dundas v. Dutens is commonly cited as having determined that a post-nuptial settlement, reciting the ante-nuptial verbal contract, was good against intervening creditors. Lord Thurlow there strongly expressed his opinion that it was, and dismissed the creditors' bill to set such a set- tlement aside. It also appears, however, that he regarded the suit as part of a combination between the husband, the creditors and the solicitor, to defraud the children ; a circumstance which certainly takes from the weight of the case, as a decision upon the legal question of the validity of the settlement.^ Lord Thurlow's opinion was referred to by Lord EUenborough with apparent approbation, in the subsequent case of Shaw v. Jake- man, but he did not find it necessary to apply it decisively.*' Afterwards in Randall v. Morgan, Sir Wm. Grant, M. R., 1 See post, Chapters XTII. and XVIII. 2 See ,posi, Chapter XIX. 3 Dundas v. Dutens, 1 Ves. Jr. 196. * Shaw V. Jakeman, i East, 201. 226 STATUTE OF FRAUDS. [cH. XI. also referred to it, but as a dictum only, and said that he was not aware that the point had ever been decided ; and at the same time he expressed a strong doubt whether a writing after marriage would set up an ante-nuptial verbal promise, even as between parties ; but it was not necessary to decidcj nor did he decide, either question.^ Still later, in the case of Battersbee y. Farrington, Sir Thomas Plumer, M. R., re- marked that it would be difficult to maintain that a recital in a settlement after marriage was evidence, as against creditors, of articles made before marriage. " Such a doctrine " he said " would give to every trader a power of excluding his creditors by a recital in a deed to which they are not parties." But even here the point was not directly raised, as there were in fact no intervening claims of creditors in the case, and no decision was made upon it.^ The tendency, however, of the English courts appears, from the course of these cases, to be against upholding the validity of a settlement after marriage, although it recite an ante-nuptial verbal agreement in consid- eration of marriage, when intermediate creditors are to be cut off by it.^ In our own country, there is less uncertainty upon the point. Mr. Chancellor Kent, in the case of Reade' v. Livingston, reviews all the authorities which favour or appear to favour the validity of such a settlement, and doubts much whether it can be upheld by the mere force of a recital of the ante-nuptial verbal contract, and he inclines to think that the weight of authority, as well as the reason and policy of the case, are against it. This opinion has been much respected in our courts, and subsequent American decisions in various 1 Randall v. Morgan, 12 Ves. Jr. 67. 8 Battersbee «. Farrington, 1 Swanst. 106. 3 See farther on this point the early cases of Lavendar v. Blackstone, 2 Ler. 147, and Sir Ralph Bovey's case, 1 Vent. 193. Both Mr. Atherley (Marr. Sett. 149,) and Judge Story (Eq. Jur. § 374,) express their assent to the doctrine that such a settlement is invalid. CH. XI.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 2£7 States have established the doctrine that, as against creditors, such a settlement has no force.^ § 224*. The principle upon which this doctrine is sustained requires to be carefully noticed. In Randall v. Morgan, as 'has been seen, it was intimated that, even as between parties, a writing made subsequently to the marriage would be of no effect to set up an ante-nuptial verbal promise of a settlement ; and the reason given is, that otherwise the construction of the fourth section of the statute would be just the same as the seventh, which requires only, in the case of a trust of lands, that it be manifested or proved by writing; that upon that clause, it is not necessary that a trust be constituted by writing, but that it is sufficient to show by written evidence the exist- ence of the trust; whereas the fourth section requires the very agreement to be in writing and signed by the person to be charged.^ The weight of authority, however, seems de- cidedly to establish that a settlenient or other writing made after marriage and recognizing an ante-nuptial verbal contract, is binding upon the parties.^ Nor does it appear that any violence is thereby done to the spirit of the fourth section. The memorandum required by that section need not be con- temporaneous with the making of the contract ; it is only necessary that the contract be put in that form before any ' Reade «- Livingston, 3 Johns. Ch. 481 ; Winn v. Albert, 2 Md. Ch. Dec. 169, affirmed on appeal, 5 Md. R. 66 ; Izard v. Izard, Bailey, Eq. (S. C.) 236 ; Andrews v. Jones, 10 Ala. R. 400 ; Blow v, Maynard, and Lawrence v. Blow, 2 Leigh (Va.) 29 ; Smith v. Greer, 3 Humph. (Tenn.) 118 ; Wood v. Savage, 2 Doug. (Mich.) 316. The Court of Chancery in New Jersey, however, have said that where an ante-nuptial settlement was fairly shown, they would be inclined to give validity to the settlement in pursuance of it, even against creditors ; but they did not consider a recital in a post-nuptial deed of settlement, nor declarations of a husband made during coverture and shortly before the conveyance by the wife and himself to his son, as satisfactory proof. Satter- thwaite v. Emley, 3 Green, Ch. 489, per Haines, C. 2 Randall v. Morgan, 12 Ves. Jr. 67. 3 Montacute v. Maxwell, 1 P. Wms. 618 ; Stra. 236 ; Hammersly v. De Biel, 12 Clark & Kn. 45 ; Argenbright v. Campbell, 3 Hen. & Munf. (Va.) 144. 2^8 STATUTE or; FRAUDS. [cH. XU action can be maintained upon it.^ , Then it becomes a bindings agreement, and it seems to be no reason for holding otherwise in cases of marriage contracts, that the marriage has intervened, for that is, so to speak, but the payment of the consideration. No relief is sought or claim founded upon the contract, until after it is perfected by being put in writing. But when the rights of creditors accruing '^^ the meantime are concerned, the case is different. The writing ihade after marriage, or the recital of the ante-nuptial contract in the post-nuptial settle- merit, can have no relation back to the date of the verbal con- tract so as to make it effective as of that date, and consequently the settlement upon the basis of that verbal contract must be regarded as purely voluntary, and cannot affect preexistings rights against the property conveyed.^ 1 See post, § 348. 2 A very able discussion of this point will be found in the opinion of the Maryland Court of Appeals, in Albert v. Winn, 5 Md. K. 66. CH. XII.] CONTRACTS FOR LAND. 2^9 CHAPTER XII. CONTRACTS FOR LAND. § 225. Of the various topics embraced by the provisions of the Statute of Frauds, nothing seems to have attracted such anxious attention on the part of its framers as the whole class of transactions aflfecting the title to real estate. The expanded phraseology of the fourth section in this respect, although it may not indeed appreciably enlarge the scope of the section, evinces this spirit very clearly, specifying, as it does, those lighter shades of interest which may be said merely to concern land. But this general drift and policy of the statute may be especially apprehended by comparing together the several pro- visions bearing on this kind of property. We have already had occasion to examine those sections in which the formality of a writing is exacted in all cases of the creation or transfer of a legal title to land, and of written evidence of all declara- tions of trusts or confidences in land ; and we now find the same watchful disposition guarding against the too ready alien- ation of this important species of property, by denying any remedy upon a mere contract for the sale of it, unless proved by a memorandum in writing executed by the party to be charged thereby. In view of the fact that, in the course of their independent legislation, some of the States have omitted one or more of these provisions, while retaining others, it is well to observe how far those sections which concern the crea- tion and transfer of land may be made to supply the place of that which we have now to consider. We have already had occasion, in introducing the subject of trusts, to notice the rela- tion which the seventh section, covering trusts, bears to that which is now before us. 20 230 STATUTE OF FRAUDS. [cH. XII. § 226. In Pennsylvania, where the first three sections only of the English statute, those which relate to the creation and transfer ■ of estates in land, have been reenacted, the courts have repeatedly had occasion to deal with verbal contracts for the purchase or sale of such estates. And although there have been, particularly in the more recent decisions, indications of a disposition to consider the English statute, including the fourth section, as having some forccj by adoption into the common law of the State, to restrain the right of action upon such contracts, the law as it now stands clearly allows that right.^ But it allows it for the mere and narrow purpose of recovering damages for the non-performance of the contract, and, under the liberal and salutary application of those sections which have been preserved in that State, the right is considerably affected in its extent. Thus, in an action by the vendor on 1 Bell V. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Binn. 450 ; McDowell v. Oyer, 21 Penn. R. 417. In Pugh v. Good, 3 Watts & Serg. 56, Gibson, C. J., said : " I would hold the particular clause in the fourth section of the British Statute of Frauds to have been introduced here hy adoption, had not this court, very inconsistently I think, held it otherwise in Bell v. Andrews, [supra.'] As it is, we must take that clause with its equitable exceptions to be part of our peculiar common law adopted in analogy to the British statute, as we take the doctrine of charitable uses to be adopted in analogy to the statute of that name ; or if it must necessarily have a statute foundation we must forcibly engraft it on that clause of our act which limits the effect of a parol conveyance to the crea- tion of an estate at will, though there be great difficulty in doing this." The case, however, presented fair ground for a decree of specific execution on account of part performance, which was accordingly granted. In EUet v. Paxson, 2 Watts & Serg. 418, it was said that on an action for refusal to fulfil a contract to pur- chase land, the vendor was at most only entitled to recover his actual damage. In Whitehead v. Carr, 5 Watts, 368, which was an action for damages for refusal to convey land according to a verbal contract, brought as it appeared for the purpose of obtaining an opinion of the court on the point whether such an action would lie, Huston, J., said : " If the question were new, and there were no decisions on the subject, and it were necessary to decide it in this case, it would deserve and obtain very serious consideration." These expressions show that an important question in that State is still regarded as not quite closed. It would be unprofitable, however, for us to pursue it here, as in the great body if not all of the other States, the enactments referred to have been incor- porated together in the local law. CH. XII.] CONTRACTS FOR LAND. 281 such a contract, he is not allowed to recover the full amount of the purchase-money agreed to be paid ; for this, it is said, would be in effect to compel the vendee to a specific execution of the contract, against the spirit of the other sections forbidding the estabUshment of a title to land without writing.' The vendee may recover the actual damage he has sustained by the refusal of the other to carry out the contract, and nothing more. And where the vendee sues for a breach by the vendor, it should seem plain that^ he is to recover only his actual damage, and not the value of the land, which he bargained for, but cannot acquire a title to on account of the first three sections of the statute. The value of the land may indeed be his actual damage, as in a case where he has rendered services or given value in any way, upon an agreement to be reimbursed in land ; and here, of course, he is not debarred from recovering the whole amount of that valuation.^ But the learned Judges of that State have uniformly refused to decree a specific execu- tion of a verbal contract for the sale or purchase of land, un- less there existed such circumstances as in England are held, in equity, to deprive the fourth section of its application, such as part performance of the contract, to a certain extent, by one party on the faith of the other's engagement ; and their deter- minations have been placed upon the ground of the existence in their own law of the provisions against the creation of estates in land without writing.^ It is thus apparent that so far as the office of the fourth section is to cut off such an equitable claim of title in land as arises in a contract for the purchase of it, that office is fulfilled by the other provisions referred to. 1 Wilson V. Clarke, 1 Watts & Serg. 554 ; McDowell v. Oyer, supra ; Moore V. Small, 19 Penn. (7 Harr.) 461 ; EUet v. Faxson, su^a. 2 McDowell V. Oyer, supra ; Jack i?. McKee, 9 Barr, 235 ; Bash v. Bash, lb. 2G0. 3 See the various cases cited in this section, and, in addition, Soles v. Hick- man, 20 Penn. (8 Harr.) 180. 282 STATUTE OF FRAUDS. [cH. XII. § S27' With these preliminary observations, let us pass to the examination of that clause of the fourth section which imme- diately forms the subject of the present chapter. Two questions present themselves under this clause which will be examined in order ; Jirsf, What is embraced in the words " lands, tenements or hereditaments, or any interest in or concerning them," and secondly. What is a " contract or [for] sale of" such lands, &c. ; the one question relating to the suhjecirmatter, and the other to the nature of the transaction. § 228. We have already had occasion to remark that the language which, in the first section, is used to describe the in- terest intended to be made grantable from that time by writing only, appears to be no more comprehensive than that here employed to describe the interest which it was intended should, from that time, be bargained for by writing only.^ Such we saw was the opinion of a very eminent writer ; ^ and a broad and rational view of the whole statute taken together, as it affects real property, leads to the conclu- sion that the Parliament which enacted these several sections, as well as that which concerns trusts, did not design to make any distinction between them in this respect. In the case of Wood V. Lake, so prominent in a former chapter, on the subject of leases, it appears by one of the reports that Lee, C. J., took occasion to express an opinion upon the force of the term, " any uncertain interests," &c., used in the first section, and considered that it meant uncertainty of duration, and not un- certainty of quantity, of interest.^ And it seems to have been supposed, in a Massachusetts case, that the decision in Wood V. Lake, to the effect that the privilege of stacking coals on another's land for seven years, could be conferred without writing, might be supported on the particular words in ques- 1 Ante, §§ 4, 5. 2 Sir Edward Sugden, in his Treatise on the Law of Vendors and Purchasers, p. 95. 3 See the report of that case in note to § 23, ante. CH. XH.] CONTRACTS FOR LAND. 233 tion.^ The repeated decisions in England since, however, overruling the principle of Wood v. Lake, notwithstanding the words still remain in the English statute, show conclusively that no such virtue can now be attributed to them. The words " lands, tenements, and hereditaments," which occur in every part of the statute where real estate is dealt with, certainly seem to embrace all which can be embraced by the other phrases occasionally used ; ^ and we may perhaps find the latter to be important in the construction of the statute, only in the way of an illustration of the extreme solicitude of its framers to guard property of this nature from the perils of oral testimony. § 2£9. That the fourth section extends to and embraces equitable, as well as legal, interests in land is well settled. It has been held by Mr. Justice Story, that a verbal contract to buy a contract for lands, or in other words, to buy another man's rights under an executory agreement for the sale of 1 Stevens w. Stevens, II Met. 251. 2 Of the word tenements, which is the only word used in the statute de donis to express its subject-matter, Lord Coke says, that it " includes not only all cor- porate inheritances, which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisable within, the same, though they lie not in tenure." It was suggested by Lord Littledale in Evans v. Roberts, 5 Barn. & Ores. 829, that the words " lands, tenements, and hereditaments," in the fourth section were used by the legisla- ture to denote a fee simple, and the words " any interest in or concerning them," were used to denote a chattel interest, or some interest less than a fee simple. But it is settled that the seventh section, in regard to trusts, extends to trusts in chattels real, though the latter words are not 'used, {ante, § 82.) And, on an examination of the whole statute, it is impossible to conclude that the framers of it meant to affix to these words their technical sense. For instance, the fifth section provides that devises of lands and tene- ments shall be in writing, while the sixth provides that no written devise of lands, tenements, or hereditaments, shall be revoked except in certain modes, but that all devises of lands and tenements shall continue in force till so revoked. Again, the seventh section provides that declarations of trusts in lands, tene- ments, or hereditaments, shall be manifested by writing, while the eighth excepts resulting trusts in lands or tenements. Obviously it is unsafe, on a statute so looselv drawn, to determine any thing on merely verbal differences. 20* 284) STATUTE OF FRAUDS. [cH. XII. lands to him, was affected by tBe statute, because it was- for the purchase of an equitable interest in real estate.^ Nor can a mortgagor's equity of redemption in the mortgaged real estate be bought or sold without writing,^ nor it would seem, can it be pledged without writing, though the contrary -has been held in Kentucky.® The contract in such a case must eventually work a transfer of the equitable right and title. § 280. A widow's right of dower also is clearly an interest in land, which cannot be released, waived or discharged without writing.* Of course the statute extends to rents, commons, and all incorporeal hereditaments.* It also embraces agree- ments for the assignment of a lease,® and executory agreements for the creation of such leases as would be, after they were created, valid by reason of the exception contained in the second section of the statute.' § 231. Mere possession of land seems to be properly re- garded as such an interest in or concerning the land itself, as cannot be contracted for, or disposed of without writing. Mr. Baron Parke, it is true, in a case where the contract in ques- tion was really for an assignment of a lease, and of course not binding by parol, said, that if it had been to relinquish the pos- • Smitli V. Buriiliain, 3 Sumn. 435 ; Hughes v. Moore, 7 Cranch, (S. C.) 176 ; Simms v. Killian, 12 Ired. (N. C.) 252. 2 Scott u. McFarland, 13 Mass. R. 309; Marble v. Marble, 5 N. H. 374; Hughes V. Moore, supra ; Kelley v. Stanbery, 13 Ohio K. 408. But see Pomery V. Winship, 12 Mass. 11. 514. 3 Griffin v. Coffey, 9 B. Mon. 452. ♦ Finney v. Finney, 1 Wils. 34 ; White v. White, 1 Harr. (N. J.) 202 ; Keeler B. Tatnall, 3 Zabriskie, (N. J.) 62 ; Hall v. Hall, 2 McCord, Ch. (S. C.) 269 ; Shotwell V. Sedan, 3 Hamm. (O.) 5. The mere assignment of dower, however, may be by parol, as the estate is conferred upon the widow by the act of the law. Ante, § 77. 6 Roberts on Frauds, p. 127. 6 Anon. 1 Vent. 361 ; PouUney ti. Hohnes, 1 Stra. 405. 7 Edge V. Stratford, 1 Cro. & Jerv. 391 ; S. C. 1 Tyrw. 93 ; Delano v. Mon- tague, 4 Cush. (Mass.) 42 ; Staokberger v. Mostaller,'4 Ind. (Porter,) R. 461. But since the revision of the New York Statutes, (2 R. S. 134, §§ 6, 8,) see Young V. Dake, 1 Seld. (N. Y.) 463. CH. XII.] CONTRACTS FOR LAND. 235 session merely, it might not have amounted to a contract for an interest in land.^ But upon such a casual suggestion as this, it would be unreasonable to base an exception which goes more to the letter than to the spirit of the statute. As was said in the Supreme Court of New York, " Possession is primd facie evidence of title, and no title is complete without it," and accordingly they held that it " must be considered an in- terest in land, within the meaning of the Statute of Frauds."^ In Maine, where by statute a mortgagee might recover pos- session before any breach of the condition, if there was no agreement to the contrary, it was held that such an agreement , must be in writing as affecting the title to real estate by divest- ing the party of the right of possession.^ And it was appa- rently on the same ground that it was held in Connecticut, that a verbal agreement, made at the delivery of a deed, that the grantee should not take possession, nor record his deed, until he should pay the first instalment of the purchase-money, was inoperative.* § 2S£. An easement in the land of another is, by common law, grantable only by deed, and of course no verbal agreement •■ 1 In Buttemere v. Hayes, 5 Mees. & Wels. 456. ■ . 2 Howard v. Easton, 7 Johns. 205, ■which was afterwards quoted to the same point and affirmed in Lower v. Winters, 7 Cowen, 263. Shortly after Howard V. Easton, there was a case in New York, where one man agreed to remove his fence so as to open a certain ro^d to its original width, and in consideration thereof another agreed to pay him a sum of money ; the court held that this was not an agreement concerning an interest in land, since no interest in land was to be conveyed. But it would seem that here the former party gave up the possession of his land, if he did not give up the fee by dedication to the public, and that the fact that the latter party did not personally acquire it should make no difference. From the wprds former width, however, it may be gathered that the bargainor had without right inclosed part of the highway, in which case he evidently had nothing in the land in question to part with. The case is Storms V. Snyder, 10 Johns. 110. 3 Norton V. Webb, 35 Maine (5 Red.) 218. * Gilbert v. Bulkley,5 Conn. R. 262. In Kerr v. Shaw, 13 Johns. (N. Y.) 236, it was held that a warranty for the quiet enjoyment of land was within the statute, a;id must express the consideration of it. 236 STATUTE OF FRAUDS. [cH. XII. which amounts to conferring an easement or a right in the nature of one can be, as such, available to either of the parties to it. The law on this point is too well settled to require any detailed citation of authorities.^ Many cases have arisen, however, in England and in this country, where such a verbal agreement, when it has been so far acted upon by one of the parties that it would be a fraud upon him to repudiate it, has been held binding against the other in a court of equity ; but for these cases reference must be had to a subsequent chapter, in which the whole subject of the peculiar equitable doctrine as to con- tracts within the Statute of Frauds is examined.^ § 23S. Although the improvements put upon laiyi? such as buildings and other erections, tillage and labour generally, may be so incorporated with the land itself as to be inseparable there- from in fact, yet it would seem that they ought to be so far sepa- rately regarded as to be capable of a distinct purchase and sale by a verbal contract. In the comparatively late case of Falmouth V. Thomas, where the action was upon a verbal agreement by the lessee of a farm, " to take at a certain valuation growing crops thereon, and certain work, labour, and materials which the plaintiff had done and expended upon the land," Lord Lyndhurst said: " The defendant would not have the benefit of the work, labour, and materials, unless he has the land ; and we are of opinion that the right to the crops, and the benefit of the work, labour, and materials, were both of them an interest in the land ; but if either of the two were properly an interest in the land, this would form a sufficient objection to the special counts," &c. And again, of the latter part of the agreement he says, " it was a contract for that which was, at the time of such contract, an interest in the land, and for that which- never was and never 1 See the decisions collected and reviewed in Gale & Whatley on Easements, cap. 3,§ 1. Also in Angell on Watercourses, §§ 168, et seq. And see ante, § 21, e< seq., in relation to licenses to be exercised upon land. 2 See i)os<, Chapter XIX. CH. XII.] • CONTRACTS FOR LAND. 237 could be separated from it. " ^ It will be observed, however, that his lordship himself admitted it to be unnecessary to the case to decide this point, and doubtless his attention was upon that account less strictly bestowed upon it. It is certainly settled in JEngland, that an agreement to pay an increased rent in consideration of repairs is not to be treated as a new lease, and this seems to cover the principle which has been stated.^ The American courts have taken the broader and, on the whole, more reasonable view of the subject, and however the law might now be held in England in a case directly presenting the question, it appears to be settled, so far as this country is concerned, that these improvements put upon land are not ne- cessarily to be regarded as land, because incorporated with it. In New York, in a case where a verbal promise to pay the plaintiff (who had without any title entered and occupied and improved the defendant's land) for his tillage, and sundry buildings erected thereon, was held by the Supreme Court to be binding.' Spencer, J., delivering the opinion of the court, thus clearly and rationally set forth the view on which the decision proceeded : " This was not a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, but related to the labour only which had been bestowed upon the land, under the denomination of improvements. Was it ever supposed that a parol contract to pay for work to be done on land, or for what had been done, was a void under- taking as under the statute 1 The contract in such case does not go to take from the promisor the land or any interest in or concerning it." ^ 1 Earl of Falmoutli w-Thoinas, 1 Cro. & Mees. 89. 2 Hoby V. Eoebuck, 2 Marsh. 433 ; S. C. 7 Taunt. 157 ; Price v. Leybum, Gow, 109. 3 Frear i>. Hardenburgh, 5 Johns. 272, and the following New York cases: Benedict v. Beebee, 11 Johns. 145 ; Mitchell!;. Bush, 7 Cow. 185 ; Lower v. Win- ters, lb. 263 ; Howard v. Easton, 7 Johns. 205. A subscription paper for the erection of a church edifice was held (apparently on the same principle) to be 238 STATUTE OF FRAUDS. [cH. XII. § 284>. In the case of fixtures, which are in no sense incor- porated with, but merely annexed to, the freehold, the rule is well settled, that the fourth section does not apply to render verbal contracts for the sale of them inoperative.-' As has been very correctly observed, a transfer of fixtures simply seems to be nothing more than a transfer of the right which the vendor has to sever certain chattels attached to the soil, but not part of the freehold.^ § 285. Under the general head of contracts for the sale of what is annexed to, or incorporated with land, the most diffi- cult and embarrassing cases are those which deal with contracts for the sale of crops and other natural products growing upon land. Upon this subject, the decisions of the English courts have been singularly vacillating and inconsistent, and many cases in which particular rules have been laid down for deter- mining the question of the application of the statute have, on subsequent consideration, been in whole or in part overruled. It would, therefore, be presumptuous, and would onlj^ mislead the reader, to attempt to reconcile all the decisions ; at the same time it is impossible to escape the duty of investigating them and comparing the principles upon which they have been re- spectively decided. not a contract -witlim the New York Statute of Frauds, in Barnes v. Perrine, 15 Barb. 249. The doctrine expressed in Frear v. Hardenburgh has been also adopted^ in Alabama, Scoggin v. Slater, 22 Ala. K. 687 ; and in Missouri, Clark V. Shultz, 4 Miss. R. 235, where it was commended on the farther ground of the encouragement which it offered to settlers to occupy and improve unculti- vated lands. Perhaps also in Vermont, Forbes v. Hamilton, 2 Tyler, 356 ; and it has been referred to by the Supreme Court of Indiana as settled. Green v. Vardiman, 2 Blackf. 324. 1 Hallen v. Runder, 1 Cro. Mees. & Eos. 266. Per Parke, B., in Horsfall v. Kay, 17 Law J. Exoh. 26G ; Bostwick v. Leach, 3 Day, (Conn.) 476. But the price or value of fixtures cannot be recovered under a count for goods sold and delivered. The count should be for the price and value of fixtures, chattels and effects bargained and sold, &c. Chitty on Contracts, 320, note (h), and cases there collected. a Chilty on Contracts, p. 320. CH. Xir.] CONTRACTS FOR LAND. 239 § 2S6. There is, of course, nothing in the vegetable product itself, which is an interest in or concerning land. When severed from the soil, whether trees, grass and other spontaneous growth, fprima vesiura^J or grain, vegetables, or any kind of crops properly so called, fjructus industriales,J the product of peri- odical planting and culture, they are alike mere chattels, the sale of which, when their value exceeds a certain sum, may be affected by another provision of the statute,^ but is no way affected by that which we are now considering. And this severance may be a severance in fact, as when they are actually cut and removed from the ground ; or a severance in law, as when, while they are still 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.' In certain cases, also, though they are actually growing in land, they may never have any character of realty themselves, as, for instance, if the title to them and the title to the land were originally and have remained distinct. A familiar case of this is found in nursery trees; the nursery man merely iising the land for the purpose of nourishing his trees, the interest in the trees may be considered as separated from the realty, and they may well be denominated personal chattels, for the wrongful taking and conversion of which the owner may maintain an action de bonis asportatis} Such cases of 1 The seventeenth section. See post, Chapter XIV. 2 Warren v. Leland, 2 Barb. (N. Y.) 613 ; Smith v. Bryan, 5 Maryland R. 141. This appears to have been the case in Teal v. Auty, 2 Bred. & Biug. 99. 3 Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542. A mortgage of grow- ing trees or grass, given by the owner in fee of the land of which they are parcel, does not work a severance of them from the land nntil the mortgage be- comes absolute by the non-performance of the condition. Per Paige, J., Ibid. 4 Per Dewey, J., delivering the opinion of the Supreme Court of Massachu- setts in Miller v. Baker, 1 Met. 27 ; Penton v. Robert, 2 East, 88 ; Windham v. Way, 4 Taunt. 27. In Lee v. Risdon, 7 Taunt. 191, Gibbs, C. J., discussing the more general question of fixtures, says that trees in a nursery ground are a part of the freehold until severed ; but this must mean, as between the heir and the 240 STATUTE OF FRAUDS. [cH. XII. mere annexation to, without incftrporation with, the freehold, would seem to be properly regarded in the same light as cases of fixtures, which, as we have just seen, may be sold without writing.^ 8 £37. Considering these vegelable products, however, as growing in the land, there is great conflict in the cases upon the question whether a contract for the sale of them shall be regarded as a contract for the sale of an interest in latnd. But upon a careful examination, it seems that, whereas it is settled that the title to them, while growing, cannot be proved by oral evidence, the more approved and satisfactory rule is that, if sold specifically, and to be by the terms of the contract delivered separately and as chattels, such a contract of sale is not affected by the fourth section of the statute, as amounting to a sale of any interest in the land ; and that the rule is the same, when the transaction is of this kind, whether the product sold be trees, grass and other spontaneous growth, or grain, vegetables or other crops raised by periodical cultivation. This important principle requires to be fully developed and explained, and the authorities examined in detail and applied. § 238. In Emerson v. Heelis in the Common Pleas in 1809,^ the action was assumpsit for non-fulfilment of a verbal contract to remove certain hts of turnips, alleged to have been bought of the plaintiff by the defendant, and to bring back and lay on the ground a certain quantity of manure. The turnips were growing at the time, and were sold at auction by lots, each lot containing so many stitches or rows. The question directly executor, or where the entire property in the land and the trees growing thereon are united in the same person. See Miller v. Baker, supra. It is apprehended, however, that if a nursery-man having trees lodged in the land, should after- wards purchase the land, the trees would not thereby be made part of the realty. 1 Ante, § 234. 2 Emerson t>. Heelis, 2 Taunt. 38. — Overruled in Evans v. Koberts, 5 Bam. & Cres. 829. See post, § 240. CH. XII.] CONTRACTS FOR LAND. 241 before the court was upon the 'sufficiency of the auctioneer's memorandum of the purchase, and it was held to be sufficient. But Chief Justice Mansfield said, in passing : " Now as to this being an interest in land, we do not see how it can be distin- guished from the case of hops," i. e., Waddington v. Bristow, which was decided in the Common Pleas in 1801. Bearing in mind that this observation was gratuitous, there being a sufficient memorandum produced, and also that the circumi- stance that the turnips were sold as to be severed and removed from the land, does not appear to have been noticed by the Chief Justice, let us refer to the case he alludes to as indistin- guishable from that before him. In Waddington v. Bristow, the action was upon a verbal agreement for the purchase of all the growth of hops on a piece of land, at a.certain rate per hundred weight, to be in pockets and to be delivered at a place named within a, reasonable time after the hops were picked and dried. At the time of the contract, the hops, which were the subject of it, were not in existence, nothing but the root of the plant being in the ground. The question was whether it was a sale of goods, wares and merchandise, so as to be exempted under an exception in the Stamp Act. All the Judges, except Chambre, J., confined themselves to deciding that question in the negative ; he, however, went farther, and stated his opinion that the contract gave an interest to the vendee in the produce of the vendor's land ; but neither he nor the others niade any allusion to the Statute of Frauds. The point before the court was determined wdthout any reference to the statute, and unless the hops were necessarily an interest in land because they were not goods, wares and merchandise, the case afibrds no authority for the decision in Emmerson v. Heelis.^ § 239- In Warwick v. Bruce, decided in the Queen's Bench in 1813, a similar question arose. The defendant verbally 1 'Waddington v. Bristow, 2 Bos. & Pull. .452. 21 24i2 STATUTE OF FRAUDS. [gH. XH. agreed to sell to the plaintiff Ml the potatoes then growing on three acres, at so much per acre, to be dug up and carried away by the plaintiff; the plaintiff paid iSiO on the agreementj and dug up a part, and carried away a part of those dug, but was prevented by the defendant from digging and carrying away the remainder. It was held, that he was entitled to re- cover for this breach, the oral agreement being not within the fourth section of the Statute of Frauds. Lord Ellenborough said : " Here is a contract for the sale of the potatoes at so much an acre ; the potatoes are the subject-matter of the sale ; -and whether at the time of the sale they were covered with earth in the field or in a, hoz, still it was a sale of a mere chattel.^ § 24<0. Evans,t>. Roberts, decided in the Queen's Bench in 18Q6, was an action on the defendant's verbal agreement to pur- chase of the plaintiff a cover of potatoes then in the ground, to be turned up by the plaintiff', at the price of £5, of which the defendant paid one shilling earnest. A verdict had been directed below for the plaintiff, and a rule to set it aside was now discharged by the court. Mr. Justice Bayley said : " The eflfect of the contract was to give the buyer a right to all the potatoes which a given quantity of land should produce, but not to give him any right to the possession of the land. He was merely to have the potatoes delivered to him when the growth was complete." He admitted that Emmerson v. Heelis was against him, but rejected that decision as not upon a point before the court, and as founded upon a misconception of Waddington v. Bristow. He then proceeds' to say : " It has been insisted that the right to have the potatoes remain in the ground is an interest in the land ; but a party entitled to emblements has the same right, and yet he is not by virtue of that right considered to have any interest in the land." Holroyd, J., said : " This is to be considered a contract for the 1 Warwick v. Bruce, 2 Maule & S. 205. CH. XII.] CONTRACTS FOR LAND. 24S sale of goods and chattels to he delivered at a fiiture day. Although the vendee might have an incidental right, by virtue of bis contract, to some benefit from the larid while the potatoes were arriving at maturity, yet I think he had not an interest in the land within the meaning of the statute. He clearly had no interest so as to entitle him to the possession, of the land for a period however limited, for he was not to raise the potatoes. Besides this is not a contract for the sale of the produce of any specific part of the land, but of the produce of a cover of land. The plaintiff did not acquire by the contract an interest in any specific portion of the land. The contract only binds the vendee to sell and deliver the potatoes at a future time, at the request of the buyer, and he was to take them away." And he concludes with the remark that the contract was " to render what afterwards would become a chattel." Lord Littledale's remarks are too valuable to be omitted : " I am of opinion," says he, " that a sale of the produce of the land, whether it be in a state of maturity or not, provided it be in actual existence at the time of the contract, is not within the fourth section. The words ' lands, tenements and hereditaments ' in that section, appear to me to have been used by the legislature to denote a fee-simple, and the words ' any interest in or concerning them,' were used to denote a chattel interest or some interest less than a fee-simple. In the fifth section, the words lauds and tene- ments are clearly used to denote a fee-simple and do not extend to leaseholds. The legislature contemplated an interest in land which might be made the subject of sale. I think, therefore, they must have contemplated the sale of an interest which would entitle the vendee either to the reversion or to the present possession of the land. Now this contract only gives to the vendee an interest in that growing produce of the land which constitutes its annual profit. Such an interest does not con- stitute part of the realty." ^ 1 Evans v. Boberte, 5 Barn. & Cres. 829. 24<4i STATUTE OF FRAUDS. [cH. XII. § 241 . In this case just quoted, (the great importance of which seems to justify the extensive quotations which have been made from it,) frequent allusion is made to two other cases. The first is Crosby v. Wadsworth, which it is deemed convenient to examine at a later page.' The second is Parker v. Staniland, which, for the reason that it makes one of the series of cases necessary to be studied together upon this subject, rather than because it gives any especial light upon the rule which was laid down at the outset,^ should be here stated. It was upon a verbal contract for the sale of potatoes then in the ground, which the defendant was to get himself and immediately. «The defendant had partially gathered them, when the residue were spoiled by the frost, and he refused to take or pay for them, and for the price of the remainder the action was brought. A rule to set aside a verdict for the plaintiff was discharged. Lord EUenborough, C. J., said : " It does not follow that because the potatoes were not at the time of the contract in the shape of personal chattels, as not being severed from the land, so that larceny might be committed of them, therefore. the con- tract for the purchase of them passed an interest in the land, within the fourth section of the Statute of Frauds. The con- tract here was confined to the sale of the potatoes, and ^nothing else was in the contemplation of the parties. It is probable that in the course of nature vegetation was at an end, but he that as it may, they were to be taken by the defendant imme- diately, and it was quite accidental if they derived any farther advantage from being in the land." "The lessee primce vesturce may maintain trespass qu. cl. fr., or ejectment for injuries to his possessory right, but this defendant could not have main- tain either, for he had no right to the possession of the close. He had only an easement, a right to come upon the land for the purpose of taking up and carrying away the potatoes, but that 1 Post, § 244. 2 Ante, § 237. CH . XII.] CONTRACTS FOR LAND, 245 gave him no interest in the soil." Grove and Le Blanc, J. J., concurred, and also Bayley, J., who observed that " here the land was considered as a mere warehouse till the defendant could remove them." ^ §£42. The next case, and one to which especial attention should be paid, for its bearing upon a particular branch of this question, is that of Smith v. Surnam, decided in the Queen's Bench in 1829. The defendant verbally agreed to buy of the plaintiff a large quantity of timber which, at the time, the plaintiff was having cut down, most of it being then actually standing ; the "price was valued per foot, and no time was fixed for payment, and the defendant was to take and carry it away. A rule to show cause against setting aside a verdict obtained below for the plaintiff was made absolute, on the ground that, as a sale of goods, wares, and merchandise, there was no memo- randum or acceptance as required by the seventeenth section. The ease, however, presented the question whether the contract was for an interest in lands, and the Judges agreed that it was not. Bayley, J., said: " The contract was not for the growing trees but for the timber at so much a foot, that is, the produce of the trees when they should be cut down and severed from the freehold." Littledale, J., said the fourth section related " to contracts which give the vendee a right to the use of the land for a speciBc period. If, in this case, the contract had been for the sale of the trees with a specific liberty to the vendee to enter and cut them, I think it would not have given him an interest in the land within the meaning of the statute. The o5;ec^ 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 chattels. Here the vendor was to cut the trees himself. His intention clearly was, not to 1 Parker v. Staniland, 11 East, 362. 21* 24>6 STATUTE OF FRAUDS. [cH. XII. give, the vendee any property in the trees until they were cut and ceased to be part of the freehold." ^ § 248. Next, we must briefly notice the case of Sainsbury V. Matthews, decided in the Court of Exchequer in 1838, the facts of which were these. The defendant, in the month of June, agreed to sell to the plaintiff the potatoes then growing on a certain quantity of land of the defendant, at two shillings per sack, the plaintiff to have them at digging time, (October,) and to find diggers. It was held that here was not a contract for an interest in land, within the meaning of the fourth sec- tion. It was argued by the defendant that the* potatoes were not in such a shape at the time of the contract that they could be traiisferred as chattels ; they were to be taken up by the vendee when ripe, and he must necessarily have the benefit of the land for the three intervening months. But the Judges thought otherwise. Lord Abinger, C, B., said : " I think this was not a contract giving an interest in land ; it is only a con- tract to sell potatoes, at so much a sack, on a future day, to be taken up at the expense of the vendee. He must give notice to the defendant for that purpose, and cannot come on the land when, he pleases." Parke, B., said : " This is a contract for • the sale oi goods and chattels at a future day, the produce of certain land, and to be taken away at a certain time. It gives no right to the land ; if a tempest had destroyed the crop in the meantime and there had been none to deliver, the loss would clearly have fallen on the defendant." ^ § 24i4<. The American decisions, which upon the whole are quite harmonious with the general tendency of those we have heen quoting, will be referred to hereafter.^ Meanwhile, one more case, and that an early and most important one, requires 1 Smith V. Surnam,'9 Barn. & Cres. 561. 2 Sainsbury v. Matthews, 4 Mees. & Wels. 343. 3 Po««, §§ 255-257. CH. XII.] CONTRACTS FOR LAND. . 247 to be examined. This is Crosby v. Wadsworth, decided in the Queen's Bench in 1805. The plaintiff verbally- agreed to purchase from the defendant a standing crop of mowing grass then growing in the defendant's close, the plaintiff to mow the grass and make it into hay, but the time when the mowing was to begin was not fixed. Before the plaintifi" had done any act under this agreement, the defendant notified him that he should not have the grass, and sold it to another man. Plain- tiff afterwards made tender of the agreed price of the grass which was refused. Defendant locked plaintifi" out of the close, and the grass was finally cut and carried away by the second purchaser. The action was trespass, that the defend- ant " with force and arms broke and entered a certain close whereof the plaintifi" was lawfully possessed, and trode down the plaintiff's grass and hay, and cut down the plaintifi" 's grass then growing in the close, and took and carried away," &c. Lord Ellenborough, C. J., said : " As the plaintifi" appears to have been entitled (if entitled at all under the agreement stated,) to the exclusive enjoyment of the crop growing on the land during the proper period of its full growth, and until it was cut and carried away, he might in respect of such exclusive right maintain trespass against any persons doing the acts complained of in violation thereof." " This brings us to the question whether the plaintifi" had, under the agreement and circumstances stated, any legal title to this growing 'crop at the time when the injury complained of was done, or whether his supposed title thereto was not wholly void, as being created by parol, under any and which of the provisions in the Statute of Frauds, or on any and what other account"?" He then observes that the crop was not goods, wares, and mer- chandise, being an unsevered portion of the freehold, and also that for farther reasons the contract did not amount to a lease.^ 1 See this case referred to as bearing on the construction of the statute as it regards leases, ante, § 18. 248 STATUTE OF FRAUDS. [CH. XII. He then proceeds to say, " I think the agreement stated, con- ferring as it professes to do an exclusive right to the vesture of the land during a limited time and for given purposes, is a contract or sale of an interest in, or at least, an interest con- cerning lands." He adds that although the statute, not making such a contract «io?c?,!' but only prohibiting the bringing of an action for the breach of it, would not bar a mere general action, of trespass (such as the present) for injury to the plaintiff's possession, yet, being executory and not actionable, it might be discharged before any thing was done under it which could amount to a part execution. " On this latter ground, there- fore," he says, " namely, that this parol executory contract, supposing it to have been otherwise valid, was competently discharged by parol, we feel obliged to say that the plaintiff is not entitled to recover."^ It is very material to note his re- mark upon the case of Poulter v. Killingbeck, decided in the Common Pleas in 1799. There the plaintiff had let to the defendant land, without rent, from which he was to take two successive crops, and to render to the plaintiff a moiety of the crops in lieu of rent ; and afterwards the value of the crops was ascertained by appraisement, and action was brought in indebitatus assumpsit for moieties of crops sold, and for money had and received, to which it was objected that the contract was for an interest in land; but BuUer, J., said: " This agreement does not relate to any interest in land, which remains altogether unaltered by the arrangement concerning the crops." ^ Of this case Lord EUenborough says, (in the decision from which we have been quoting,) "The contract, if it had originally concerned an interest in land, after the agreed substitution of pecuniary value for specific produce no longer did so ; it was an agreement to render what shoitld ' Ante, Chapter VIII. 2 Crosby v. Wadsworth, 6 East, 602. 3 Poulter V. Killingbeck, 1 Bos. & Pull. 397. CH. XII.] CONTRACTS FOR LAND. ^49 have become a chattel^ that is, part of a severed crop in that shape, in lieu of rent, and by a subsequent agreement it was changed to money." § 245. Let us now attempt an analysis of the doctrines comprised in the cases we have examined. First. It is quite clear that the character of the contract for the growing produce of land is not to be determined by the mere circumstance that the purchaser is to have the liberty of entering upon the land to gather what he has purchased. In Crosby v. Wadsworth ^ the grass was to be mowed and made into hay by the purchaser, but that the reason why the contract there was held to convey an interest in land was not the right of entry given to the purchaser, is clear both on inspection of that case and from the fact that in Warwick v. Bruce ^ the same Judge held a contract which embraced the same right to be binding without vuMting. The remarks of Holroyd, J., in Evans v. Roberts,^ and of Littledale, J., in Smith v. Surnam,* are decisive on this point ; and in Parker v. Staniland, where the same feature occurred. Lord Ellenborough expressly said that the defendant's "easement," or right to come upon the land for the purpose of carrying away the potatoes, gave him np interest in the land.® It is indeed a very familiar rule that the license given to a purchaser of a chattel to come on the land and remove it is not revocable by the vendor,* and it is to be regretted that the subject under consideration should ever have been complicated by any distinction on such a point. But the rule as stated requires to be carefully applied. It may be that the privilege of entry is, by the terms of the contract, to continue so long, (as, for instance, during the pleasure of the • Ante,^ 244. 2 Ante,% 239. 3 Ante, § 240. * Ante, § 242. 5 Ante, § 241. And see Smith v. Surnam, ante, § 242 ; Jones v. Flint, 10 Adol. & EU. 753; Nettleton v. Sikes, 8 Met. (Mass.) 34 ; Claflin v. Carpenter, 4 lb. 580 ; Whitmarsh v. Walker, 1 lb. 313 ; Miller v. Bakgr, lb. 27. 6 Wood y. Manley, 11 Adol. & Ell. 34. 250 STATUTE OF FRAUDS. [CH. XII. buyer/ or even for a number of years,^) as to engraft upon a transaction which was nominally a purchase of a chattel the character of a lease of land. For certainly the privilege of occupying another's land is as much a lease when the occupancy is by leaving purchased articles upon it as when it is by deposit- ing any other articles upon it." Perhaps the only rule which can be safely stated on this point is, that the growing produce should be removed within such time as is reasonable for the purpose and under the circumstances in which the parties are placed. § 246. Secondly. There is no materiality, as to whether the Statute of Frauds aJ3fects the contract or not, in the circum- stance that the produce is fully grown or in process of growing, at the time of making the contract. True, Lord Ellenborough made such a distinction in the case of Parker v. Staniland,* observing that there the potatoes were^patured, whereas in Crosby v. Wadsworth the grass was in a growing state. But he abandoned it four years afterwards in Warwick v. Bruce,® where the sale was of a growing crop of potatoes, and was held good because the contract did not confer an exclusive right to the land for a time for the purpose of making a profit of the growing surface ; and the cases of Evans v. Robert^* and Sainsbury v. Matthews,^ were both upon sales of immature crops, and in both the sales, though verbal, were held good. § S^y. I^hirdly. The mere circumstance that the produce purchased may, or probably or certainly will, derive nourishment from the soil between the time of making the contract and the time of delivering the produce, is not conclusive as to the appli- 1 Erskine v. Plummer, 7 Greenl. (Me.) 447. 2 Putney v. Day, 6 N. H. 430 ; Olmstead v. Niles, 7 lb. 522 ; Buck ». Pickwell, 1 Williams, (Vt.) 157. But see SafFord v. Annis, 7 Maine R. 168. 3 Ante, § 21, et seq. in regard to licenses which amount to leases. 4 Ante, § 241. s Ante, § 239. 6 Ante, 240. 1. Ante, § 243. And See Jones v. Flint, ^osi, § 251. CH. XII.] CONTRACTS FOR LAND. 251 cation of the statute. In Warwick v. Bruce, where the potatoes were growing and no time was fixed for their removal, Lord Ellenborough said that " whether at the time of their sale they were covered with earth in the field or in a box, still it was a sale of a mere chattel." ^ So in Parker v. Staniland,^ he said, " It is probable that in the course of nature vegetation was at an end, but be that as it may they (the potatoes) were to be taken by the defendant immediately, and it was quite accidental if they derived any farther advantage from the land j" and -Bayley, J., remarked that the land was to be considered as a mere warehouse till the defendant could remove them. But is it necessary to the application of the rule that the pro- duce bargained for be, by the terms of the contract, to be taken immediately % We should hesitate to assert a fresh dis- tinction, upon the ground of the casual use of that expres- sion by Lord Ellenborough. The case in which it occurs was quoted by the Judges in Evans v. Roberts,^ with strong appro- bation, without any apparent apprehension of the materiality of the point to the decision, and they themselves decided the contract before them to be good, though the crop bargained for was to remain in the land until it was ripe. § 248. Fourthly. If the benefit of the soil is contracted for by the purchaser of the crop, if it be in the contemplation of the parties that the purchaser shall use the vendors land in the interval between sale and delivery, for the purpose of raising the crop which when matured is to belong to the purchaser, then clearly the contract is for an interest in the land. It is distinguished by form only from a lease of the land for that purpose; for it can make no difference whether the cultivation is to be by the purchaser himself or by his agent, the vendor. Lord Littledale's language in Evans v, Roberts* is marked to > Ante, § 239. 2 Ante, § 241. 3 Ante, § 240. And in Jonea v. Flint, post, § 251. 4 Ante, § 240. 252 STATUTE OF FRAUDS. [CH. XII. this effect: '" The legislature contemplated an interest in land which might be made the subject of sale. I think therefore they must have contemplated the sale of an interest which would entitle the vendee either to the reversion or to the present possession of ■ the land." And Holroyd, J., said the plaintiff "clearly had no interest so as to entitle him to the possession of the land for a period, however limited, for he was not to raise the potatoes." § 249. The general rule, therefore, furnished us by the cases we have had under review would seem to be this : 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 io the- land for a time for the purpose of making a profit of the grow- ing surface," it is affected by the statute and must be in writ- ing, although the purchaser is at the last to take from the land only a chattel. Whether, in a given case, the parties do con- template the use of land, or merely the sale of that which when delivered will be a mere chattel, ought not, it would seem, to present much difficulty. Notwithstanding the emphasis laid by Bayley, J., in Evans v. Roberts,^ upon the fact that there the contract was not for the sale of the produce of any specific part of the land, it is very clear that if it had been the statjite would not necessarily have applied. There are many among the cases quoted,, where, notwithstanding this fact, verbal contracts were held good. Nor would it seem, upon the au- thorities, that the mode of payment, whether in a gross sum for the entire yield, or at so much per card, foot, bushel, acre, &c., determines the contract to be for a sale of an interest in the soil or of a chattel only. If by the contract the purchaser is not to own the crop till it is severed and thus become a chattel, it is good without writing ; if he is to own it while it is grow- • Ante, § 240. CH. XII.] CONTRACTS FOR LAND. 233 ing, then he enjoys meanwhile the use of the land, and a verbal contract to that eflfect is not good. Such, it is submitted, is the doctrine established by the weight of authority. § 250. But there is another doctrine upon this subject which has attracted much favour of late years, and that is that the ap- plication of the statute is to be determined by the character of the growing crop ; verbal contracts for the fruetus industriales or growing grain, vegetables, &c., which are produced by periodical planting and culture, which at common law are con- sidered as emblements, which go to the executor, and which are leviable in execution, being good, and verbal contracts for the prima vestura or growing trees, grass, fruit, &c., which at common law go to the heir, as of the realty, being not good. A brief review of the cases quoted in its support seems indis- pensable to a mil understanding of the question. § 251. In Evans v. Roberts^ both Bayley and Littledale, J. J., allude to this distinction, the former remarking that in Crosby v. Wadsworth, the contract was for the " growing grass which is the natural and permanent produce of the land, renewed from time to time without cultivation ; " but neither of them professed to find the distinction mentioned therein, and the case before them was, as we have seen, determined on quite other grounds. In Scorell v. Boxall, decided in the Exchequer, in 1829, the action was trespass for cutting down and carrying away underwood, and the question presented was whether the plaintiff, who had verbally purchased the under- wood then standing, to be cut by him, had such a possession as would enable him to maintain the action. Chief Baron Alex- ander said : " The action in this case proceeds upon the right of property in the plaintiff to the wood in question, and the contract by which that right is sought to be sustained, is a mere verbal contract for the sale of growing underwood, part of the freehold, and in direct violation of the Statute . 1 Ante, § 240. 22 254) STATUTE OF FRAUDS. [cH. XII. of Frauds." The decision seems to be entirely tenable with- out relying on any distinction between underwood and any other growth of the soil ; for it was a case of an executory contract of sale, to be completed by the plaintiff's severing the under- wood from the freehold, and until it was thus severed it re- mained the property of the owner of the soil.^ Moreover, this case was followed within two years by Smith z;. Surnan,^ which held that the sale of standing trees, in prospect of severance and to delivered after severance, was good without writing ; and in that case the argument of the plaintiff took the same view of Scorell v. Boxall, and the court, not mentioning the case in terms, adopted the reasoning in the argument entirely. In Rodwell V. Phillips, a ease in the Exchequer in 1842, the con- tract was for the sale of all the growing fruit and vegetables on a certain part of the vendor's close, for the price of £30, the vendee to enter and gather the crop when it was ripe; and the question was, whether it was within the statute 55 Geo. TIL, Cap. 184, requiring a stamp upon an agreement for any interest in lands of the value of £20. It was held that it was. Lord Abinger, C. B., said : " The difference appears to be between annual productions of nature, not referable to the industry of man except at the period when they were first planted;" and again, " growing fruit would not pass to the executor, but to the heir ; it could not be taken by a tenant for life, or levied in execution under a writ oifi, 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."^ -— ■ ^ . — . 1 Scorell V. Boxall, 1 Yo. & Jerv. 396. See tte remarks of Wilde, J., on this case in Claflin v. Carpenter, 4 Met. (Mass.) 580. 2 Ante, § 242. 3 Rodwell V. Phillips, 9 Mees. & Wel^. 501. In making this decision, the court thus alluded to Smith v. Surnam : " Undoubtedly there is a case in which it ap- pears that a contract to sell timber growing was held not to convey any interest in the land, but that was where the parties contracted to sell the timber at so much 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 CH. XII.] CONTRACTS FOR LAND. 255 Here the action was assumpsit for- not permitting the plaintifi" to gather the crop. In Dunne v. Ferguson, a late Irish case, it was trover for a quantity of turnips which had been gathered and carried away by the defendant, he having previously, by a verbal bargain, purchased the crop of the plaintiff ; the same rule was followed and the plaintiff was held entitled to recover.^ Lastly, in Jones v. Flint, decided in 1889, which was an action of debt for the price stipulated to be paid for a crop of corn on the plaintiff's land and the profit of the stubble afterwards, some potatoes growing on the land, and whatever lay grass was in the fields J the defendant to harvest the com and dig the po- tatoes ; the plaintiff to pay the tithe ; and when the crops, &c., were actually taken by the defendant in conformity with this agreement, it was held that the Statute of Frauds did not apply to the contract. The opinion of the eminent and excellent Chief Justice, Lord Denman, while it clearly illustrates and perfectly accords with the principles which we have had occa- sion to deduce from previous cases, adopts in terms the modern distinction founded upon the nature of the crop. He observes, first, that at the time of the contract the crops were not ripe though nearly so, and that there was some dispute as to whether the sale was by the acre or not, and that " nothing' was expressly agreed on as to the possession of the land." That there were three things contracted for, corn, potatoes, and the after eatage of stubble or lay grass. " Of these," he says, "all but the lay grass are fructus industriales ; as such they are seizable by the sheriff under a fieri facias, and go to the executor, not to the heir. If they had been ripe at the date of the contract^ it may be considered now as quite settled that the contract would have been held to be a contract merely for the sale of goods, and chattels, and although they had still felled." But a glance at the cases which have been examined in the text will show that no weight has been allowed in them to the circumstance that the produce was to be sold by the foot or bushel, or by the acre or row. 1 Dunne v. Ferguson, 1 Hayes, 540. 256 STATUTE OF FRAUDS. [cH. XII. to derive nourishment from the land, yet a contract for the sale of them has heen determined, from this their original character, not to be on that account a sale of any interest in land." He then says : " We agree that the safer grounds of decision are the legal character of the principal subject-matter of sale, and the consideration whether, in order to effectuate the intentions of the parties, it be necessary to give the vendee an interest in the land. Tried by those tests, we think that if the lay grass be excluded the parties must be taken to have been dealing about goods and chattels." '•■'• It is very difficult to reconcile all the cases, and still more all the dieta, on this -subject from the case of Waddington v. Bristow to the present time ; and we are, therefore, at liberty to abide by a general principle." And he adds, referring to Crosby v. Wadsworth, that if the present was a case in which the parties intended a sale and purchase of the grass to be mown or fed by the buyer, both on principle and authority the contract must be held within the statute. Then he examines the facts, and inasmuch as it was doubtful whether what could be called a crop of grass was in the ground, or in the contemplation of the parties at all, and the plaintiff was to pay the tithe and resume the right, after the harvesting, to turn his own cattle into the field, he says : " We think that, however expressed, the more reasonable construction of the contract is that the possession of the field remained with the owner after the harvesting as before," and adds: " Upon these grounds, not impeaching the principle of Crosby v. Wadsworth, but deciding on the additional facts in this case, we think this incident in the contract does not alter its nature, and the objection founded on the statute will not prevail."^ ' Jones t). Flint, 10 Adol. & EH. 753. In Teal u. Auty, 4 Moo. 542, it was said that a contract for poles, made when they were growing, was a contract for an interest in land ; but there the contract was executed, and the sale being made by one who had previously purchased them and thus severed them in law from the land, they could no longer be regarded in any view as making part of the realty. (See Sugden on Vendors and Purchasers, p. 110, and ante, § 236, CH. XII,] CONTRACTS FOR LAND. 257 § 252. It is not to be denied that there thus appears a very strong tendency in the later Enghsh cases to stand upon the dis- tinction between the prima vestura and fructus industriales, as conclusive of these questions on sales of crops. Of the four cases which have been referred to under that head, however, Evans v. Roberts was decided on another- ground ; Rodwell v. Phillips was not upon the Statute of Frauds, and Jones v. Flint was, it appears, perfectly determinable without resorting to that distinction. With the greatest deference, it must be said that throughout these cases there appears to have been an entire misconception of the true doctrine of Crosby v. Wads- worth. The question there was one of title to trees then grow- ing, upon which parol evidence was plainly inadmissible.^ That Lord EUenborough did not intend in that case to say that a sale of growing trees, to be delivered separated from the soil, was void unless in writing, is quite manifest from the fact, that, though he alluded afterwards to that decision several times, he never intimated that it rested upon the circumstance of the nature of the groft^th, but especially because an early decision of Chief Justice Treby, which was to the contrary, and upon * which much stress was laid in the argument, was not alluded to in his decision. § 253. That case is thus given by Lord Raymond. " Treby, C. J., reported to the other Justices that it was a question befois^ him in a trial at nisiprius at Guildhall, whether the' sale of timber growing upon land,ought to bp in writing by the Statute ' of Frauds, or might be by parol, and he was of opipion that it might be by parol, because it was a lare chattel. And to this as to what works such a severance in law.) In Carrington v. Koots, 2 Mees. & Wels. 248, which was on a verbal agreement for the sale of grass, at so much an acre, to be taken by the purchaser, the court held that if it was for goods, &c;, it -ffas void by the 17th section, and if it was for land it was void by the 4th, but no point was made as to the subject-matter being ^rima vestura. 1 Gilmore V.Wilbur, 12 Pick. (Mass.) 120. ■ ' 22« ^58 STATUTE OF FRAUDS. [cH. XII. opinion Powell, J., agreed.^ Of course it was not a chattel while growing ; the case, therefore, clearly means a sale in prospect of severance from the land. § 254i. But it would seem that even those cases in which cultivated crops have been held capable of being sold mthout writing, have proceeded upon grounds inconsistent with this modern doctrine. The Judges have uniformly paid attention to the fact that these crops were to be, when the contract was consummated, separated from the ground and therefore mere chattels.^ Again, it is well settled that, if those crops which are fructus industriales growing on land are purchased with the land an-d by one entire contract, they are considered as part of the land, and no recovery can be had upon a special valuation of the crops.^ It seems, therefore, that unless these crops are 1 Reported anonymously in 1 Ld. Raym. 182. This case is pronounced by Mr. Baron HuUock in Scorell v. Boxall, 1 To. & Jerv. 396, to amount to a mere dictum. It (iertainly has the appearance of an actual decision at nisiprius, only reported at second hand. It is quoted as an authority by Mr. Justice Holroyd in Mayfield v. Wadsley, 3 Barn. & Cres. 357. Also by Mr. Roberts in his Trea- tise on the Statute of Frauds, who bases upon it the precise doctrine to -which it is quoted in the text. Also by the Supreme Court of Massachusetts in Claflin V. Carpenter, 4 Met. 580, where Mr. Justice Wilde speaks of it as the leading case on this point. To these add the high authority of Sir Edward Sugden, who approves it and says it ought not to have been lightly overruled. Law of Vendors and Purchasers, p. 110. 2 See, in addition to the cases which have been examined in the text, that of Watts V. Friend, 10 Barn. & Cres. 446, where A agreed to supply B with a quantity of turnip seed, and B agreed to sell the crop of seed produced there- from at one shilling per bushel, and Lord Tenterden held it was not a contract * for an interest in land for " the thing agreed to be delivered would at the time ■ of delivery be a personal chattel." 3 Earl of Falmouth v. Thomas, 1 Cro. & Mees. 89. In Mayfield v. Wadsley, 3 Barn. & Cres. 357, Littledale, J., said : " If the giving up of the land was any part of the consideration for the defendant's agreeing to take the wheat, which was then sown in the land, the wheat must be considered as part of the land Uself." " 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." " A parol agreement for the sale of crops may be good also between the outgoing and the incoming tenant, but then there would be no sale of any interest in the CH. XH.] CONTRACTS FOR LAND. 259 severed, in law when the contract is made, or to be severed in fact before the contract takes effect upon them, the contract must be bad without writing by the fourth section. And the same is certainly true of the prima vestura. § 255. The more ancient rule has been definitively adopted, by the Supreme Court of Massachusetts. In the case of Whitmarsh v. Walker, the defendant verbally agreed to sell to the plaintiflf at a stipulated price two thousand mulberry trees then growing in the defendant's close. The plaintiff paid a small sum at the time, and was to pay the remainder on the delivery of the trees, which was to be on demand. The de- fendant refused to carry out the agreement, and it was insisted that it was not binding, being for the sale of an interest in land within the meaning of the statute. Wilde, J., delivering the opinion of the court remarked, that the contract of sale was not to be considered as consummated at the time of the agree- ment; the delivery was to be at a future day,, and the defend- ant was not bound to deliver unless the plaintiff was ready and willing to pay ; that no property vested in the plaintiff by the agreement. He adds, " according to the true construction of the contract as we understand it, the defendant undertook to sell the trees at a -stipulated price, to sever them from the soil or to permit the plaintiff to sever them, and to deliver them to him on demand, he at the same time paying the defendant the residue of the price. And it is immaterial whether the sever- ance was to be made by the plaintiff or by the defendant. For a license for the plaintiff to enter and remove the trees would pass no interest in the land, and would without writing be valid notwithstanding the Statute of Frauds." ^ To the same effect is the subsequent case in the same court, Claflin v. Car- land, for that would come from the landlord." See farther on this subject Mechelen v. Wallace, 7 Adol. & Ell. 49 ; Vaughan v. Hancock, 3 C. B. 766 ; Forquet v. Moore, 16 Eng. Law & Eq. 466 ; Thayer v. Rock, 13 Wend. (N. T.) 53. 1 Whitmarsh v. Walker, 1 Met. 313, afltening Miller v. Baker, 1 lb. 27. 260 ~_ STATUTE OF FRAUDS. [cH. XII. penter, whiqji is the more noticeable as" there the opinion of ' Treby, C. J., that growing timber might be sold without writ- ing, is cited as a case and the leading case on this subject, and fully adopted, and the criticism of Hullock, B., upon it in •Scohall V. Boxall distinctly disapproved.^ And this doctrine isi adopted in Maine,^ if not in' Connecticut,® and particularly in Maryland where, in the case of Smith v, Bryan, the Court of Appeals said : " The principle to be gathered from a ma- jority of the cases seems to be this, that where timber or other producft of the land, or any other thing annexed to the free- hold, is specifically sold, whether it is to be severed from the soil by the vendor or to be taken by thie vendee under a special lic^se to, enter for that purpose, it is still, in conjemplation of the parties, evidently and substantially a sale of goods only,"* § 256. But the rule of determining the application of the statute by the character of the produce bargained for, has been adopted in the courts of the State of New York, as the ' simplest 'and best for such cases, not, however, disputing the great difficulty of doing so consistently with admitted authori- ties, but. exercising* the discretion which was open to them, the " , question being a new one in that State, and in default of- har- ftiony in the' decisions of other tribunals ; ■ namely, to establish a doctrine for themgelves on what they conrf dared to be first princi- ples.^ It has also been apparently approved in New Jersey.® 1 Claflin V. Carpenter, 4 Met. 580. 2 Safford v. Annis, 7 Maine R. 168; Erskine v. Plummer, lb. 447 ; Cutler v. Pope,.13lb. 377. , " ■ 3 Bogtwick V. Leach, 3 Day, (Conn.) 476. * Smitl V. Bryan, 'S Maryland R. 141. ' " 5 Green t). Armstrong, 1 Denio, ,550; Bank of Lansingburgh v. Crary, 1 Barb. 542 ; Warren v. teland, 2 lb. 613. And in a late caSe, the Court of Appeals of .that State have gone so far as to hold that poles used necessarily in ctiltivating hops, which were taken down for the purpose of gathering the crop and piled in the yard with the intention of being replaced in the season of Lop raising, weire a part of the real estate. Bishop v. Bishop, 1 Kernan, 123. 6 "V^estbrook v. Eager, 1 Harr. (N. J.) 81. CH. XII.] CONTRACTS FOR LAND. 261 § 23^. The Supreme Court of Vermont have lately had this subject under full consideration, and have pronounced in favour of the later English doctrine and that which is held in New York. The plaintiflF had purchased by verbal contract for a gross sum, all the timber standing on a particular part of the land of one Story, with liberty for an indefinite time to enter and take it off'. The land passed from Story thrbugh a long series of deeds to the defendant, whose deed from his immediate grantor contained no reservation as to the trees in question. The defendant, more than twenty years after the contract of Story with the plaintiff", and after the plaintiff" had cut and removed some of the trees, cut and removed the re- mainder, and for this the action was brought, i. e., " trespass for cutting down growing trees of the plaintiff." It was held that it would not lie. Bennett, J., who delivered the opinion of the court, quotes the recent English cases setting up the distinction between the jor/ma vestura and fructus industriales as decisive of the question whether the statute applies, and assents to them. But he remarks, at the close of his judgment, that in Scorell V. Boxall, (the authority principally relied on,) "the action was substantially based on title, and the title wholly dependent on the vdrbal contract which' was inoperative to convey a right." The case before the court was undoubtedly decided correctly, the action being based on title, and the tres- pass being complained of as committed in respect of " grow- ing trees of the plaintiff"."^ In a case in the Supreme Court of New Hampshire,^ where the action was, as in- that last quoted, trespass founded upon a claim of title in growing trees, the court in like manner held that the verbal contract was inoperative to convey a right ; but it is to be remarked that in that case the court considered that under certain cir- cumstances a sale of a growing crop or of timber, was not 1 Buck V. Pick-well, 1 Williams, 157. 2 Putney v. Day, 6 N. H. 480. 262 STATUTE OF FRAUDS. ['^H. XII. withiti the statute, to which they cited, among other authori- ties, Smith *«;. Surnam and Evans V. Roherts, in both of which, as we haveseen, the action was for breach of the contract, and the court sustained it because the sale contemplated the delivery of the growth as ,a chattel. We can hardly consider, there- fore, that' the law -of either New Hampshire or Vermont is distinctly settled against the doctrine of those cases. . §258. The impression appears to have prevailed at one time that shares in iricorporated or joint-stock companies, whose profit, and the consequent value of the shares held by the several stockholders, were derived from the use and ownership of real property, were themselves to be deemed an interest in or con- cerning land, so as not to be capable of purchase and sale with- out a memorandum in writing as required by the fourth section of the Statute of Frauds. The doctrine is stated with some cdnfidence by Mr. Roberts, at least "as applied to shares in canal navigatrons and all species of tolls.^. And, in part upon his authority, it was determined in an early case in Connecticut that shares in a turnpike company- which had power by its "charter to make and maintain a road and collect a -toll thereon, were real estate and were not Subject to testamentary disposition by a testator not qualified to devise real estate, notwithstanding their right of taking toll was limited to the reimbursertient of expenses and interest.^ These opinions, however, are founded principally on the case of Townsend v. Ash,^ where Lord Hardwicke held shares in the New River Corporation to be real estate; and that case has been since explained in the important decision of Bligh v. Brent, in the Court of Exchequer,* as proceeding on the ground that there the individual corporators owned the property and the corpora- 1 Roberts on Frauds, 126. 3 Welles I'. Gowles, 2 Conn. R. S67. 3 T6\ynsend ». Ash, 3 Atk. 336 ; Drybutter i). Bartholomew, 2 P. Wms. 127. 4 Bligb V. Brent, 2 Yo. & Coll. 268. CH. XII.] CONTRACTS FOR LAND. ' . ' ^ 268 tion only had the management of it. In a very late case in the same court, Bligh v. Brent has been affirmed and* the law finally settled on this point.^ The opinion of Martin, B., is very clear and satisfactory. After remarking; that all the great railway companies, canal companies and dock companies possessed land to a very great extent and value, and that land or real property was the main substratum of their joint- stock or partnership property, and their profits directly obtained from its use, he says : " The shareholder has only a right te receive the dividends on his share, that is,, a right«to his just proportion of the joint-stock, consisting indeed- partly, of land, but ivhilst he holds his shWe, he has no interest in,: or ri'ght to, the land or any part of it. He is indeed interested in the employment of it ; but he cannot proceed against it ' directly for any thing which is due to him, or make any part of it his own for the purpose of satisfying any demand which 'he may have as shareholder. He is not in the situation of a mortgagee, nor of one who has a direct interest in the land as a joint- tenapt or tenant in common, who may make a part of iPhis own in severalty. Upon the dissolution or determination of the joint concern, he may possibly, though not very probably, become the owner of a part or share in the land, but if he does, it is not by virtue of any terms in the memorandum of agreement, [or act of incorporation] but upon a new transaction whereby the parties to the joint concern may, by virtue of the new contract, become separate owners of separate shares in the land belonging to it. Upon his death, nothing descends -to his heir ; all goes to his personal representative, whether the land be held for years or in fee simple, and his representative acquires no interest in the land diflferent from what he himself had." " The land is merely a part of the joint-stock capital, and the real substantial interest of the shareholder and that I Watson V. Spratley, 27 Eng. Law & Eq. 507, decided July, 1854. 264i STATUTE OF FRAUDS, [cH. XII. which the share represents is the participation in, and right to participate in, the profits." Upon this case and those which are referred to in the opinions of the Judges, it must be con- sidered as now settled that shares in companies owning land are not necessarily themselves interests in land, whether the companies be incorporated or joint stock, or whether they be for mining, railway, canal, banking, or any other purpose.^ ■ § 259. Where land is owned by a partnership, each partner, of course, is entitled to his proper share in it. And herfe must be remarked an important exception (for so it seems we are forced to regard it,) to the operation of the statute as it afiFects interests in land. Where l^o men are found jointly occupying a piece of land, incurring equal expenditures upon it and enjoying equal profit from it, the relation which from such facts would be presumed to be existing between them is that of joint tenancy, and, as incidentto that joint tenancy, upon the death of either the whole would go to the other by right of survivorship. And naturally we should say that any agree- meM by which the course of the estate in the event of the death should be altered, must be in writing as affecting the title to real estate. But when the parties are really partners, and the land has been brought into, and actually held and used by, the partnership for partnership purposes,- the courts have dealt with it as partnership property, although the ownership has not been apparently in all the members of the firm, or, if in all, not apparently as partners but under some other title.^ 1 See Hilton v. Giraud, 1 De Gex & Sm. 183 ; Sparling v. Parker, 9 Beav. 450 ; Myers v. Perigal, 11 C. B. 90 ; Duncuft v. Albrecht, 12 Sim.189 ; Bradley ». Holdsworth, 3 Mees. & Wels. 422 ; Humble v. Mitchell, 11 Adol. & Ell. 205; Curling V. Flight, 5 Hare, 242 ; Vauxhall Bridge Co. ex parte, 1 Glynn & J. 101 ; Home, ex parte, 7 Barn. & Cres. 632. It was early held in Massachusetts that the shares in a turnpike corporation were personal property simply. Tippets v. Walker, 4 Mass. R. 595. But qucere, if the law in New York is not different from that stated in the text. Vaupell v. Woodward, 2 Sandf. Ch. 143. 2 Custance v. Bradshaw, 4 Hare, Ch. 315, recognized in Dale v. Hamilton, 5 lb. 369. See also Rowland v. Boozer, 10 Ala. R. 690. CH. XII.] CONTRACTS FOR LAND. ^265 As Lord Chancellor Loughborough says in Forster v. Hale, a very valuable case on this point, " the partnership being estab- lished by evid«nce by which a partnership may be formed, the premises necessary for the purposes of that partnership are by operation of law held for the purposes of that partnership." ^ For it seems that the earlier authorities to the effect that real estate used for partnership purposes maintains its character of realty and goes to the heirs of the partners respectively,^ have been overruled, and that all property, whether real or personal, involved in a partnership concern, is now upon the death of the partners, distributable as personalty, anc^enerally is to be for ordinary purposes regarded as stock in trade.^ § 260. In Dale v. Hamilton, the latest and a very important case on this subject, the question was presented in the English Chancery in a somewhat fnodified form. There the plaintiff, being a surveyor and land agent, alleged that he proposed to the defendant's testator an arrangement for the purpose of speculation, by which he and a third party were to furnish the capital for buying land, the plaintiff to lay out "the lots and effect the sales, and each of the parties to be interested one third in the profits and losses. It was admitted that lands were acquired under some such general arrangement, but denied that the plaintiff was, as alleged, a partner therein, and the farther question was made whether, if he was a partner in fact, verbal proof (or written proof imperfect in view of the Statute of Frauds,) of the .alleged partnership was sufficient to take the case out of the Statute of Frauds, in a case where, as here, the entire subject of the transaction was land, and the 1 Forster v. Hale, . 5 Yes. Jr. 308. 2 Thornton [Thompson] v. Dixon, 1 Bro. C. C. 199 ; Bell v. Phyn, 7 Ves. Jr. 453 6; Balmain u. Shore, 9 Ves. Jr. 500. Lord Eldon'as early as Crawshay ». Maule, 1 Swanst. 495, considered this an open question. " 3 Per Lord Eldon, in Selkrigg v. Davies, 2 Dow, P. C. 2S6 ; Townsend v- Devaynes, cited in Montagu on Partnership, 1 VoL App. p. 97. See also 1 Vol. p. 164 of that treatise, and Crawshay v. Maule, supra. 23 Q66 ^ STATUTE OF FRAUDS. [cH. XII. partnership grew solely out of that subject, and whether the cases in which that effect had been given to a partnership con- tract were not cases in which the dealing in land was only an incident • to the partnership business. Vice-Chancellor Sir Lancelot Shad well delivered a very elaborate and careful opinion, in which, while admitting the general principle as to land acquired by an established partnership, he remarked that whether a simple case like that before him, divested of every thing but an agreement for a partnership, could be brought . within the scope of the cases was a question of no inconsider- able difficulty. He ^o well stated the difficulty, in the way of principle, which must present itself, against holding such an agreement efficacious to affect the rights of the parties to the land ; for, says he, " if A alleges that B agreed to give him an interest in land the statute applies ; but if he adds that the land was to be improved and resold at their joint risk for profit and loss, then, according to the argument the statute does not apply." Nevertheless, upon a nearer view of the cases,^ he found himself unable to decide that the plaintiff was barred by the statute from recovering, if the agreement alleged was really made, and that fact he directed to be tried by a jury.^ § 261. This doctrine prevails, however, as would seem from a well considered case, very lately decided in the Supreme Court of Georgia, only as between the partners, or between them and third parties dealing with them in regard to the partner- ship land. Where a bill in equity alleged that of three persons who had formed a partnership for speculation in lands by pur- chases and resales, one (the defendant) agreed to sell to the plaintiff a third part of his interest in the lands held by the 1 Jeffreys v. Small, 1 Vern. 217 ; Jackson v. Jackson, 9 Ves. Jr. 591 ; Lake «. Craddook, 3 P. Wms. 158; Elliott v. Brown, 3 Swanst. 489, n.; (another report of which is alluded to by Lord Eldon in Jackson v. Jackson, supra;) Forster v. Hale, 3 Ves. Jr. 696 ; S. C. 5 lb. 309 ; Fereday v. Wightwick, 1 Russ. & Myl. 49. 8 Dale V. Hamilton, 5 Hare, Ch. 369. CH. XII.] CONTRACTS FOR LAND. 267 partnership, and in the proceeds from the sales, and, in the speculations and profits, that court refused to decree a specific execution of the agreement, in the absence of a sufficient memorandum or equitable circumstances avoiding the effect of the statute. They say : " It is true that in a court of •equity real estate owned by a partnership may be treated as a part of partnership funds and, as a consequence, as personal estate. But this rule grows out of the peculiar nature of the partnership relation, and is adopted for the purpose of doing justice between partners, or between them and others having dealings with them, and for the purpose of properly adjusting the relations between them and others having dealings with, or relations to, the partnership. It is not an arbitrary rule hy which a court of equity transmutes real estate into personal property when it is once owned and possessed hy a partnership^ and independetit of the existence of the partnership, and as to persons having no relations to that partnership." They add that here the purchase was, " of an interest in the profits to be realized by the defendant from the sale of these lands by the partnership, and that he was not and could not have been a partner, or had any relation to the partnership himself." The defendant " was individually responsible to him, and not as one of the partnership. The complainant there was a stranger to this firm, and as to him these lands were, to all intents and purposes, real estate." ' § 262. And although, as we have seen, where a partnership is actually formed, and land is acquired by it for partnership purposes, even though the sole object of forming it was to deal in the land so to be acquired, the partnership relation de- termines the rights of the parties in relation to the land, not- withstanding they do not as partners appear to hold the legal title ; it must be remarked that the mere agreement to form * 1 Black V. Black, 15 Georgia R. 445. S68 STATUTE 6f frauds. [cH. XII. such a partnership cannot be enforced or damages recovered for a dissolution of it unless it be in writing. This was dis- tinctly held by Judge Story, in a case of a verbal agreement between the plaintiff and defendant, to become copartners in the business of purchasing and selling lands and lumber ip the State of Maine. And he drew the line between such an agreement and one for the mere profits of a sale of land, which of course would be good.^ He said, the agreement before him, if good at all, attached to the land at the time of the purchase, and it was then an. agreement by way of trust in the land, a sort of springing trust, and it weis in virtue of this trust estate only that any right could attach to the moiety of the proceeds.^ § 26S. Coming now to the second division of this general subject, of contracts for interests in land, (which has been al- ready nearly anticipated) we are to inquire, what is the nature of the transaction which the statute requires to be in writing. Contract or sale, the expression used in the clause under con- sideration, clearly means contracts for sale.^ But it is not only contracts for Haa sale oi land which are intended to be em- braced ; for all the cases show that a purchase of land is as much within the statute as a sale of it, the policy of the law being not only to protect owners of land from being deprived of it without written evidence, but also to prevent a purchase of land from being forced by perjury and fraud upon one who never contracted for it. An agreement to devise an interest in land, though founded on a precedent valuable consideration, 1 Bunnell V. Taintor,r4 Conn. K. 568 ; Linscott v. Mclntire, 15 Maine, 201 ; Hess V. Fox, 10 Wend. (N. Y.) 436. And see Clancy v. Craine, 2' Dev. Eq. (N. e.) 363. 8 Smith V. Burnham, 3 Sumn. 460. 3 In Boyd V. Stone, 11 Mass. 346, Parker, C. J., remarked upon the singular circumstance that this error of phraseology was adopted both in the Provincial Act of 1692, and the Statute of the Commonwealth, 1783. It is corrected in the Revised Statutes. But the same thing occurs in many of the American Statutes of Frauds. See Appendix. CH. XII.] CONTRACTS FOR LAND. 269 is also within this section of the statute ; ^ and, as we shall see in the course of this chapter, the effect of the provision, as ex- pounded and applied by the courts, is to render unavailing to the parties, as the ground of a claim, any contract^ in whatever shape it may he put, by which either of them is to part with any interest in real estate. It may not be unnecessary to ob- serve, however', that by a contract for the sale, purchase, or other disposition of the land, is intended a contract by which one of the parties parts with the land to the other. For in- stance, a promise to buy land of a third party, paying the money to him, and the promisee getting no interest in the land, though it may be an object to him to have such purchase made, would of course be good without writing, if made upon any legal consideration.^ Still, if, in such case, the third party be the nominee of the party to whom the promise is made,^ or a relative for whom he wishes to provide,* or if, in any other respect, the act to be done is indirectly to be done to or for himself, the statute applies. § 264<. It was formerly supposed that auction sales of land were not embraced by the statute, but it is now clearly settled otherwise. Sir William Grant says : " From the public na- ture of a sale by auction, it does not follow that what passes there must be matter of certainty ; so far from it that I never saw more contradictory swearing than in those cases where at- tempts were made (b introduce evidence of what was said or done during the course of the sale."* And the cases show that there is no distinction in this respect between execution sales 1 Harder v. Harder, 2 Sandf. Ch. (N. Y.) 17 ; Mundorff w. Kilbourne, 4 Mary- land K. 459 ; Campbell v. Taul, 3 Terg. (Tenn.) 548 ; Quackenbush v. Ehle, 6 Barb. (N. T.) 469. 2 King V. Hanna, 9 B. Mon. (Ky.) 369. 3 Chiles V. Woodson, 2 Bibb, (Ky.) 72. * As was the case in Campbell v. Taul, supra. 5 Blagden v. Bradbear, 12 Ves. Jr. 466. The rule is too familiar to require the oitation of authorities. They will be found collected in Chitty on Con- tracts, 271. 23* 27Q. STATUTE OP FRAUDS. [cH. XII. by sheriffs, and any other sales at auction.^ They have, it is true, been sometimes treated as judicial sales, but this is in opposition to the general current of authority.^ ^265. The distinction in favour of what are called judicial sales appears to have been first made by Lord Hardwicke in the case of the Attorney-General v. Day. There, the Master in Chancery having reported a scheme for carrying out a verbal contract of which specific execution had been ordered, and his report having been allowed, his lordship said he did not doubt the propriety of carrying into execution against the representa- tive a purchase by a bidder before the Master, though the pur- chaser had subscribed no agreement; that it was a judicial sale of the estate, which took it entirely out of the statute."® This remark has been strongly criticized by Judge Kent, but ap- parently without necessity. He had occasion in the case before him only to hold that a sale by a sheriff required to be con- summated by deed, and that his seizure of land under a /./a. and return on the execution did not suffice to devest the debtor's estate in it.* This is true also of a judicial sale, which should be followed up by a deed from the Master, or other officer df the court. The decision of Lord Hardwicke was simply, that after confirmation of the report, the parties were bound to carry out the sale, notwithstanding no memorandum of it had previously been made in writing. The grounds of this rule are well stated by Story, J., in the case of Smith v. Arnold. " In sales directed by the Court of Chancery, the whole business is transacted by a public officer under the guidance and superin- 1 See preceding note. 2 Tate V. Greenlee, 4 Dev. (N. C.) 149 ; Ingram v. Dowdle, 8 Ired, (N. C.> 455. 3 Attorney-General v. Day, 1 Vez. Sen. 218. See also Blagden v. Bradbear, supra ; Smith v. Arnold, 5 Mass. (C. C.) 420 ; Boykins v. Smith, 3 Munf. (Va.) 102 ; Trice v. Pratt, 1 Dev. & Bat. Eq. (N. C.) 626 ;, Jenkins v. Hogg> 2 Cons. E, (S. C.)821, 4 Simonds w. Catlin, 2 Gaines, (N. Y.) 61. Ante, § 28. CH. XII.]} CONTRACTS FOR LAND. ^1 tendence of the court itself. Even after the sale is made it is not final until a report is made to the court and it is approved and confirmed. Either party may ohject to the report, and the purchaser himself, who becomes a party to the sale, may appear before the court and if any mistake has occurred, may have it corrected. He, therefore, becomes a party in interest, and may represent and defend his own interests; and if he ac- quiesces in the report, he is deemed to adopt it, and is bound by a decree of the court, confirming the sale. He may be compelled by process of the court to comply with the terms of the contract. So that the whole proceedings from beginning to end are under the guidance and direction of the court, and the case does not fall within the mischiefs supposed by the Statute of Frauds." ^ Sales by sherifis on execution are not, as we have seen, to be regarded as judicial sales,^ nor sales by town officers, nor by trustees, nor by administrators. The remarks of Judge Story in the case from which we have just quoted, and where the point decided was that an administra- tor's sale of land was not saved from the statute as a judicial sale, are entirely applicable to all these varieties: " In the case of an administrator, 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 administrator never come before the court for examination . or confirmation. They are mere matters in pais over which the court has no control. The administrator is merely account- able 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 adminis- tration of the estate. So that the present case is not a judicial 1 Smith V. Arnold, S Mas. (C. C.) 420. 2 Ante, § 264, n. 2. Also see Brent v. Green, 6 Leigh, (Va.) 16. 27^ STATUTE OF FRAUDS. [cH. XII. sale in any just sense, but it is the execution of a ministerial authority. The sale is . not the act of the court but of the administrator." ^ § 266. An agreement by which a party shall ultimately be bound to sell or purchase 'land is, of course, as much within the statute as if he bound himself immediately to do so. A verbal engagement, therefore, to execute a written agreement to convey land is invijlid.^ § 267. The statute extends to any agreement by which rights already acquired in real estate under a deed are enlarged or qualified. Not only is an agreement to execute a mortgage invalid without writing,^ but also an agreement to make a der feasance to an absolute conveyance,* or to convert a written mortgage into a conditional sale,^ or to foreclose a mortgage, even when the agreement is made by solicitors in anticipation of a decree of court to the same eflfect.® - It should seem to be very clear that a defunct mortgage cannot be revived by a parol agreement,^ and it has been decided that a defunct written agreement for the sale of land could not.® But an arrange-, ment merely to extend the efiect of a mortgage so as to cover other and farther liabilities, may perhaps be good without writing.^ A verbal extension of the time for redeeming mort- gaged land is also, it seems, to be regarded as conferring no interest in the land.^" Whether a mortgage can be verbally 1 Smith V. Arnold, supra. 2 Ledford v. Ferrell, 12 Ired. (N. C.) 285. 3 Clabaugh v. Byerly, 7 Gill, (Md.) 854. 4 Boyd V. Stone, 11 Mass. 342. 5' Woods V. Wallace, 22 Penn. (10 Harr.) 171. 6 Cox w. Peele, 2 Bro. C. C. 267. 7 A different doctrine, however, might be inferred from the New York cases . of Truscott V. King, 2 Seld. 147, and Mead v. York, lb. 449. 8 Davis V. Parish, Litt. Sel. Cas. (Ky.) 153. » Truscott V. King, and Mead v. York, supra. 10 Hamilton v. Terry, 10 Eng. Law & Eq. 473 ; Griffin v. Coffey, 9 B. Mon. (Ky.)452. CH. Xn.] CONTRACTS FOR LAND. ^S released or discharged, seems to depend upon the question ^on which, as we have seen, there is great contrariety of opinion in the courts of diflFerent States,) whether it is to be regarded strictly as a conveyance of the land or a mere incident to the debt.^ § 268. An agreement to establish the title to land in any party is, of course, equivalent to an agreement to sell him the land ; and it has accordingly been held that an engagement to break down a_ certain alleged title under which a third party claimed adversely, or in any way to perfect the title in the prom- isee, is within the statute.^ Also, as appears to have been the opinion of the Supreme Court of Massachusetts, a verbal agreement to release a covenant of warranty would be invalid.^ On the other hand a mere verbal guaranty of title, of course, gives merely a remedy in damages, and does not go to pass any interest in the land between the parties, nor does the statute affect an agreement to pay the expense of investigating the title to land in case it prove unsatisfactory.^ It is obvious that these are rather contracts concerning, than contracts for the sale of an interest concerning, land, § 269. It is undoubtedly the meaning of this branch of the statute that only those agreements which bind the parties to a change in some respect in the title to the land are required to be in writing. Thus, as we had occasion to see, in a former part of this book under the head of conveyances, a verbal agree- ment for the settlement of an uncertain boundary is binding 1 Hunt V. Maynard, 6 Pick. (Mass.) 489 ; Parker v. Barker, 2 Met, (Mass.) 423 ; Malins v. Brown, 4 Comst. (N. Y.) 403 ; Ante, § 65 ; As to a parol waiver of a devise of land, see Doe d. Smyth v. Smyth, 6 Barn. & Ores. 112. As to a parol discharge of a contract for land see^os^, § 429, ei seq. 8 DuVall V. Peach, 1 Gill, (Md.) 172 ; Bryan v. Jamieson, 7 Missouri R. 106. See Bishop ». Little, 5 Greenl. (Me.) 366. 3 Bliss V. Thompson, 4 Mass. R. 488. And it seems to have been considered by the Supreme Court of New York doubtful whether an agreement to pay off incumbrancea was not also within the statute. Duncan v. Blair, 5 Denio, 196. * Jeakes v. White, 14 Eng. Law & Eq. 350. 274 STATUTE OF FRAUDS. [cH. XII. between the parties, as no title of either is affected thereby ; neither could be said to own the disputed tract, as neither had any evidence whatever of title in it.^ And the same is true of an agreement which merely restricts the purchaser of land as to the manner "in which or the purposes for which he shall use the land, while at the same time his title to it is not impaired, as, for instance, stipulations that he shall not carry on a certain trade or use certain buildings upon the premises, or the like.^ Nor is there any reason why the statute should be held to cover mere arrangements as to the payment of taxes.' § £70- Where a deed has been actually executed or a title to the land in any way passed, agreements between the parties as to pecuniary liabilities growing out of the transaction, but not going to take any interest in land from the grantee, are not affected by the statute. Thus an agreement releasing damages for the taking of land for public uses,* or for the use of it by statutory privilege, as in certain cases of flowage,^ is binding without writing. And so, manifestly, is any special agreement to pay the price of land previously conveyed.** 1 Ante, § 75. - 2 Bostwick V. Leach, 3 Day, (Conn.) 476 ; Leinau v. Smart, 11 Humph. (Tenn.) 308. 3 Preble v. Baldwin, 6 Cush. (Mass.) 549 ; Braekett v. Evans, 1 Cush. (Mass.) 79. A verbal substitution of appraisers of the value of land for those originally appointed by writing, is not a contract for any interest in the land. Stark v. Wilson, 3 Bibb, (Ky.) 476. , * Embury v. Conner, 3 Comst. (N. Y.) 511 ; Fuller v. County Commissioners of Plymouth, 15 Pick. (Mass.) 81; 5 Pitch V. Seymour, 9 Met. (Mass.) 462 ; Smith v. Goulding, 6 Cush. (Mass.) 154; Clement v. Durgin, 5 Greenl. (Me.) 14. C' Qucere, if an agreement to discount for so much as a piece of land granted shall fall short of the amount named in the deed is affected by the statute ? • It has been determined both ways in early Connecticut cases. Mott v. Hurd, 1 Root, 73 ; Bradley v. Blodgett, Kirby, 22. The former of these cases, how- ever, was referred to as law by the Supreme Court of Indiana in Green v. Vardiman, 2 Blackf. 324. An agreement to pay an increased price for land if coal were found in it has been held void by the statute in Virginia. Heth v. Wooldredge, 6 Rand. 605. CH.. XII.] CONTRACTS FOR LAND. ^5 § £71- The last observation which it seems necessary to make before closing this chapter, is that a contract for the sale or purchase of land is within the statute, though no price be paid in money. A verbal agreement for an exchange of lands we have seen in a former chapter was not binding,^ and the same is undoubtedly true when the price of the proposed convey- ance is to consist of labour or services of any kind, or, generally, of whatever the law would regard as a good consideration.^ ' Ante, § 76. 2 Burlingame v. Burlingame, 7 Cow. (N. Y.) 92 ; Jack v. McKee, 9 Barr, (Pa.) 285 ; Helm v. Logan, 4 Bibb, (Ky.) 78. 276 STATUTE OF FRAUDS. [cH. XIII. CHAPTER XIII. AGREEMENTS NOT TO BE PERFORMED IN A YEAR. § 272. In that clause of the Statute of Frauds which we have now to consider, we perceive still another restriction placed upon the formation of binding contracts by mere verbal understanding. We have seen that all verbal promises to answer for the debt, default, or miscarriage of another, all agreements made upon consideration of marriage, and all contracts for an interest in real estate, must be reduced to writing in order that any action may be supported upon them or advantage taken of them ; and we shall hereafter see that the same is true of certain bargains for goods, wares, and merchandise. All these provisions relate to the subject-matter of the contract. But that which is at present before us relates to the period of the performance of the contract. It manifestly includes them all to a certain extent ; that is, a contract which any one of them would render invalid on account of the subject-matter, may be, so to speak, doubly invalid if it is to be of longer than a year's duration.^ But it includes also all those contracts which are of such a duration whatever be their subject-matter. And brief and, at first sight, simple as is this clause of the statute, it has been subjected to so much refined and critical discussion that it will probably be found to require for a correct under- standing of the construction put upon it by the courts, more 1 It is so for instance with executory contracts for such short leases as would be valid in esse. See Delano v. Montague, 4 Cush. (Mass.) 42 ; Roberts v. Ten- nell, 3 T. B. Mon. (Ky.) 247 ; Wilson v. Martin, 1 Denio, (N. Y.) 602. But as to the law in New York since the last revision of the statutes, see young v. Dake, 1 Seld. 163, overruling Croswell v. Crane, 7 Barb. 191. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 277 careful and exact discrimination than any other clause which we have had or will have to consider. § 37s. Setting out of view the questions, what is the per- formance of such an agreement, and what the meaning of the limitation as to time, we are first to ascertain the force of the words " to he performed." And on these words much reasoning has been expended. The result seemS to he that the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which is simply not expected to be performed, but that it means to include any agreement which, fairly and reasonably interpreted, does not admit of a valid execution within the space of a year from the making. § 27^'. Suppose that the parties make no stipulation as to time, but the performance of the agreement depends upon the happening of a certain contingency which may occur within the year. In such case, it is settled upon authority and reason- able in principle, that the statute shall not apply. The agree- ment may be performed entirely within the year, consistently with the understanding and the rights of the parties. There are many cases which illustrate this rule, and which may be conveniently divided into classes, for the purpose of showing more clearly the extent of the rule. § 275. First. Cases where the thing promised is to be done- when a certain event occurs ; as, for instance, to pay money on the day of the promisor's marriage,' to leave it by will, (the promise of course taking effect in the event of the prom- isor's death ; ^) or that his executor shall pay it ; ^ to pay on the death of a third party ; * to pay when a sum of money is 1 Peter v. Compton, Skin. 353. 2 Fenton v. Emblers, 3 Burr. 1278; Izard v. Middleton, 1 Dessaus. Cb. (S. C) 116. The case of Quackenbush v. Ehle, 5 Barb. (N. Y.) 469, so far as it must be taken to assert the contrary, is clearly opposed to prevailing authority. 3 Wells V. Horton, 4 Bing. 40. 4 Thompson v. Gordon, 3 Strobh. (S. C.) 196 ; King v. Hanna, 9 B. Mon. (Ky.) 369. 24 £78 ■ STATUTE OF FRAUDS. [cH. XIII. received by the promisor from a third person, which payment may be made within the year ; ^ to marry at the end of a voyage, which voyage may be accomplished within the year ; ^ to save a party harmless from signing an obligation, which obligation may be forfeited within the year.^ § 2'^6. Secondly. When the promise is to continue to do something until the confingency occur, as, for instance, to pay during the promisee's life ; * to pay during the life of another;^ to board the promisee during his life ; ^ to pay the expenses of a child so long as it should be chargeable to the town ; ^ to educate a child ; ^ to support a child, who is eleven years old, till she is eighteen,® In all these cases the promise is not affected by the statute because the party whose life is involved may die within the year. And so, of course, whatever else be the contingency provided it may happen within the year. § 277- Thirdly. Agreements to refrain altogether and for an indefinite time from doing something, are, upon the same general principle, saved from the operation of the statute, being necessarily limited in point of duration to the term of life of the party making the engagement. It has been so held by the Supreme Court of Massachusetts in a case of an oral promise not thereafter to engage in a certain business in a certain town. Dewey, J., deUvering the judgment of the 1 Artcher v. Zeh, 5 Hill, (N. Y.) 200. 8 Clark V. Pendleton, 20 Conn. K. 495. See^josi, § 280. 3 Blake v. Cole, 22 Pick. (Mass.) 97. 4 See ToUey v. Greene, 2 Sandf. Ch. (N. Y.) 91, where the Assistant Vice- Chancellor intimates a distinction on this point between a contingency consisting in the happening of an event which neither party nor both together can hasten or retard, and the happening of which rests upon human effort or volition, inclining to the opinion that in the former case the statute applies. But the distinction, as the cases show, is entirely without foundation in authority. 5 Gilbert v. Sykes, 16 East, 150. 8 Howard v. Burgen, 4 Dana, (Ky.) 137. 7 McLees v. Hale, 10 Wend. (N. Y.) 426. 8 EUicott V. Turner; 4 Maryland R. 476. 9 Peters v. Inhabitants of Westborough, 19 Pick. (Mass.) 365. CH. XIII.] AGREEMENTS REQUIRING- A YEAR, ETC. ^79 court says : " This contract might have been wholly performed within the year. It was a personal engagement to forbear doing certain acts. It stipulated nothing beyond the defend- ant's life. It imposed no duties upon his legal representatives, as might have been the case under a contract to perform certain positive duties. The mere fact of abstaining from pur- suing the business, and the happening of his death during the year, would be a full performance of this contract." ^ § 278. Fowrthly. Agreements to perform a certain positive duty for an indefinite time are quite clearly saved from the statute, by inference from the case in Massachusetts just quoted, when the engagement is of such a nature as termi- nates with the life of the party making it. And it would seem upon sound principle equally clear that if in any other contingency the agreement is to be regarded as substantially and reasonably performed, then the possibility of that contin- gency happening within the year will suffice to withdraw an agreement which is indefinite as to time from the operation of the statute. This may be illustrated by reference to a case in New York, where the defence to an action for injury to the plaintiflF's cattle, by running over them with railwavy^rs, was that the plaintiff for a valuable consideration haa verbally agreed to build and maintain a fence along the railroad opposite his land, where his cattle escaped at the time of the injury. The Supreme Court decided the contract to be not within the statute, upon a somewhat different ground.^ But we should 1 Lyon V. King, 11 Met. (Mass.) 411. 2 Talmadge v. Eennsalaer and Saratoga K. K. Co. 13 Barb. (N. Y.) 493. The court took the ground, as sufficient for the decision of the case, that as the contract was, by present payment of the consideration, executed completely on one side, the statute did not apply. (Upon this point see post, § 286.) It seems that the case can hardly be sustained except upon the ground stated in the text. In Pitkin v. Long Island R. B. Co. 2 Barb. Ch. 221, it was held that a mere executory agreement between complainant and defendant that the latter should establish a turn-out track near his land, and stop there on their way, as a permanent arrangement, was void. But here the contract went to 280 STATUTE OF FRAUDS, [cH. XIII. say that here the duration of the promise was obviously limited, (though no words said to that effect,) by the duration of the circumstances of the parties which led to the making of it. If the road should cease to be used by the promisee or its assigns for railway purposes, it is unreasonable to suppose that the fence was still to be maintained, the reason for main- taining it no longer existing, and this might well happen within the space of a year, consistently with the understanding and rights of the parties. 8 279. It is very clear that it is immaterial, upon the ques- tion of the application of the statute' to a contract, that it has or has not been performed within the year. Otherwise the obligations of parties might be avoided by any acdndent which postponed their complete execution beyond the statutory period, though made in good faith with the expectation and intention that they should be executed within it. And still farther, the cases show that where the happening of a contingency may work a satisfaction or execution of the promise, the mere cir- cumstance that it was not likely to occur within the year will not bring the case within the statute. It would certainly add much ei^^rrassment to the duties of courts in construing the statute, ir they should be obliged to entertain questions of probabilities and degrees of probability in such cases. So long as there is nothing in the agreement itself to show that the parties contemplated, and contracted with reference to, its happening after the expiration of the year, it is reasonable to suppose that either party was to have the benefit of the uncer- tainty as the fact might result.^ And, to advance still another step, it can make no difference at what time the contingency create a negative easement in the property of tlie K. R. Co., a right which could not pass by parol, and so the case is explained in Talmadge v. Kennsalaer and Saratoga R. R. Co. supra. ' 1 Upon these two points it is unnecessary to collate cases. They will be found stated in almost any one of those cited. Ante, § 275-277. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. ^81 was expected to occur,^ understanding by expectation, the judgment either party may have formed upon the probabiUties of the case, and always supposing that such expectation has not so entered into their bargain that the disappointment of it would prevent the bargain from being considered executed and performed so as to be binding upon them. The statute, find- ing them perfectly free to make a certain contract without a writing, provides simply that if that contract does by its terms expressed, or, from the situation of the parties, reasonably implied, require more than a year for its performance, they must put it in writing. In other words it must affirmatively appear from the contract itself and all the circumstances that enter into the interpretation of it, that it cannot in law be per- formed within the space of a year from the making. *§ 280. There is a decision of the Supreme Court of New York, however, which it would seem cannot be supported, un- less a distinction be adopted as to the nature of the contingency. The parties there orally agreed that one of them should have a colt at a price, to be paid on dehvery, the colt to be got by his stallion out of the other's mare, and the latter to keep the mare in his possession, and to keep the colt until the ordinary weaning time, or until it was four or six months old ; and the court considered that, as the common period of gestation, eleven months, and the common period of weaning, four to six months, would carry the performance of the contract to the fifteenth or seventeenth month from the time of making it, the statute ap- plied.^ But in this case, or, at least, in many others which might easily be put, gestation might be completed and the young weaned within the year, notwithstanding the ordinary course of nature would require some months longer. Or sup- 1 Roberts v. Eockbottom Company, 7 Met. (Mass.) 46 ; Lockwood v. Barnes, 3 Hill, (N. Y.) 128 ; Clark v. Pendleton, 20 Conn. R. 495. The suggestion of a different doctrine by Redfield, J., in Hinkley v. Southgate, 11 Venn. E. 428, seems to stand quite unsupported. 2 Lockwood V. Barnes, 3 Hill, (N. Y.) 128. 24* 282 . STATUTE OF FRAUDS. [cH. XIII. pose the case of a contract to erect a certain building, which, in the ordinary course of busiijess, could not be erected under two years, or to do something on the completion of a voyage which would ordinarily occupy two years ;^ extraordinary exertion in the former case, or extraordinary weather in the latter, might bring about within the space of a year the event upon which the obligation was to take effect. It would seem to be pushing the rule, that possibility of performance within the year makes the contract good, to an extreme which sacri- fices the spirit of the statute to its letter, to hold that in such cases as these it does not apply. Perhaps (though upon so difficult a point the suggestion cannot be made with much con- fidence) it i§ proper to limit that rule so far as to say that, though the period of the execution of the contract may arrive within a year from the making, yet if that cannot possibly occur in the natural course of events, the parties cannot be sup- 1 In Clark v. Pendleton, 20 Conn. R. 495, the deolarsftion alleged that .the defendant being about to embark on a whaling voyage, and to be absent from the United States for about the term of eighteen months as was then ex- pected, in consideration that the plaintifif had at his request promised to marry him when thereto requested after his return from said voyage, he, &c., under- took, &o., to marry her, &c., alleging defendant's return after about twenty month's absence, request to marry the plaintiff and refusal to do so. The Su- preme Court held that the defendant's promise was not within the statute. They say : " It is not alleged in any form that it was made with reference to, or that its performance was to depend on, the determination of a voyage which would necessarily occupy that time. It is only alleged that it was expected by the parties that the defendant would be absent for the period of eighteen ■months. But this expectation, which was only an opinion or belief of the par- ■ties, 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 did, form one of the motives which induced them to make the agreement." " 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 by 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." CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 288 posed to have intended to abide thereby, and the statute apphes. § 281. There is, however, an important, though quite ob- vious distinction to be noted here, as to the apphcation of the foregoing rule, and which has been intimated in a previous section. If the happening of the contingency is to defeat or determine the contract, the statute applies nevertheless. Thus if a man agree to do a certain thing at the end of two years, and dies within the first year, the effect is that his agreement can never be performed at all ; whereas, if he agree to do that duty as long as he lives, and dies within the first year, having done it up to that time, his agreement is fully performed.^ And the same rule applies where one or either of the parties has a right to put an end to the contract within the first year.^ § 282. We have next to see in what cases a contract by its terms requires more than a year for its performance ; and upon this point there cannot generally be much uncertainty. Where a thing is stipulated to be done viithin a certain number of years, the liberty to do it in one year if the party bound elect, ordinarily takes the case out of the statute ; ^ and so, still more 1 Shute V. Dorr, 5 Wend. (N. Y.) 204 ; Koberts v. Tucker, 3 Wela. Hurl. & Gord. 632 ; Bracegirdle v. Heald, 1 Barn. & Aid. 722. In Peters v. Inhabi- tants of Westborough, 19 Pick. (Mass.) 365, the agreement was to support a child, who was then eleven years old, until she was eighteen, and it was held that the statute did not apply. Here it was clear that the agreement was fully and reasonably performed by supporting the child until her death, which might occur within the year. If the other party had agreed to pay a sum of money when the child came to be eighteen, aim had been sued on such agreement, the case would have precisely resembled Shute v. Dorr, supra, and would have fallen within the rule stated in the text. 3 Birch V. Earl of Liverpool, 9 Barn. & Cres. 392 ; Harris v. Porter, 2 Harr. (Del.) 27. In Souch «. Strawbridge, 2 Man. Gr. & Sc. 808, where the prom- ise was to keep the child as long as the defendant thought proper, the de- fendant's ceasing to keep her would have (not determined the agreement, but) left it finished and executed. 3 Plimpton V. Curtiss, 15 Wend. (N. Y.) 336 ; Kent v. Kent, 18 Pick. (Mass.) 569 ; Artcher v. Zeh, 5 Hill, (N. Y.) 200 ; Lapham v. Whipple, 8 Met. (Mass.) 284> STATUTE OP FRAUDS, [cH. XIII. manifestly, if the engagement is to perform a certain duty as long as the promisor see fit, which is practically no promise at all, though in fact he does perform it a number of years.i An agreement, on the other hand, may % its terms require more than a year for its performance. An agreement, for instance, made in January of one year to pay a sum of money in March of the next year, is not capable of execution within the first year. A tender before the March would not be good, the promisee would not be bound to accept payment any sooner.^ So an agreement made by one who sold a patent right, that he would refund the price paid if the purchaser did not in three years realize the amount out of the profits, is manifestly within the statute. The promisee might have realized the amount in less than a year whereby the promisor would have been discharged from his liability, but his promise would not take effect, and he be liable to an action for the non-performance, until the expira- tion of the three years.^ So with a contract to deliver a crop of hemp raised the present year, and that of two succeeding years.* An agreement for the payment of money by instal- ments at less than a year each is not, from that circumstance, saved from the statute. In Hill v. Hooper, a recent case in Massachusetts, the Supreme Court held that it applied to an agreement to employ an infant for five years, paying for his services certain sums semi-annually.^ Here the semi-annual payment was but a part performance of an agreement to pay for five years. On the other hand, an agreement to pay a certain sum per annum is manifestly within the stat- • 59 ; Linscott v. Mclntire, 3 Shep. (16 Maine,) 201 ; Smith v. Westall, 1 Ld. Raym. 316. 1 Sonch V. Strawbridge, siipra. 3 Lower v. Winters, 7 Cowen, (N. Y.) 263. 3 Lapham v. Whipple, 8 Met. (Masa.) 59. 4 Holloway u. Hampton, 4 B. Mon. (Ky.) 415. See alao Tuttle ui'Swett, 31 Maine K. 655. 5 Hill V. Hooper, 1 Gray, 131. And see post, §.285. ' CH. Xm.] AGREEMENTS REQUIRING A YEAR, ETC. 285 ute ; ^ though if it be shown that the payments were to be made in instalments at less than a year, and no term fixed during which they were to continue, the statute would not apply.^ § 283. Where the manifest intent and understanding of the parties are#that the contract shall not be executed within the year, the mere fact that it is possible that the thing agreed to be done may be done within the year will not prevent the statute from applying. Physical possibility is not what is meant when it is said that if the verbal contract may be performed within the year it is binding. Or to speak exactly, it is not enough that the thing stipulated may be accomplished in a less time, but sucTi an accomplishment must be an execution of the contract according^ to the understanding of the parties. § 284. On this point the leading case is Boydell v. Drum- mond, decided in the Queen's Bench, in 1809. The Boydells had proposed to publish by subscription a series of large prints illustrative of scenes from Shakespeare. There were to be eighteen numbers of the work, each number to contain four prints, and the price to be three guineas the number. The defendant became a subscriber. A prospectus issued by the Boydells, with reference to which the parties appeared to have contracted, set forth that " one number at least should be pub- lished annually, and the proprietors were confident they should be enabled to produce two numbers within the course of every year." The defendant having received two numbers and re- fused to take any more, this action was brought against him to recover the price of the remaining numbers, the Boydells having duly laid them aside for him as they came out. The 1 Giraud v. Eichmond, 2 Man. Gr. & Sc. 835 ; Drummond v. BurrelJ, 13 Wend. (N. Y.) 307. 2 Moore v. Fox, 10 Johns. (N. Y.) 244, referred to and explained in Drum- mond V. Burrell, supra. And see post, § 285, as to cases in which some items of an agreement are to be performed within the year, and are separable from the rest. S86 STATUTE OF FRAUDS. [CH. XIII. Judges were unanimous in holding that the statute applied to the defendant's engagement. Lord EUenborough said : " The whole scope of the undertaking shows that it was not to be performed within a year, and if,' contrary to all physical prob- ability, it could have been performed within that time, yet the whole work could not have been obtruded upon theisubscribers at once so as to have entitled the publishers to demand pay- ment of the whole subscription from them within the year." Grove, J., said that, considering the nature of the work, and of the prospectus, it was " impossible, to say that -the. parties con- templated that the work was to be performed within the year."^ And by the word contemplated, it is evident from the whole case that he meant, understood as matter of contract. The Supreme Court of Maine, in a case where the contract was to clear eleven acres of land in three years from date, one acre to be seeded down the present spring, one acre the next spring, and one acre the spring following, the compensation to be all the proceeds of the land for these years, except the two acres first seeded down, also held upon a similar view that the statute applied. They say : " 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 to the terms of the con- tract itself and see what he was bound to do, and what, accord- ing 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 be performed within one year % If not, the case is clearly with the de- fendant."^ ' Boydell v. Drutninond, 11 East, 142. '2 Herrm v. Butters, 20 Maine, (2 App.) 119 ; Saunders v. Kastenbine, 6 B- Mon. (Ky.) 17 ; Peters v. Inhabitants of Westborough, 19 Pick. (Mass.) 365 ; Linscott V. Mclntire, 3 Shep. (15 Maine,) 201 ; Hinkley v. Southgate, 11 Verm. K. 428. CH. XIII,] AGREEMENTS REQUIRING A YEAR, ETC. 287 § 285. The next question is, What is that performance within the space of a year from the making, the possibility of which removes a contract from the reach of this provision of the statute. One thing is well settled and admitted in all cases ; that the contract must be capable of entire and complete execution within the year. It is not enough that it may be commenced, or ever so nearly completed in that space of time. In certain kinds of contracts, however, as where a series of things is to be done, occupying in the whole more than a year, but each item, as it is performed, drawing with it a separate liability therefor, .the statute does not prevent an action upon such items as are performed within the year, to recover the stipulated pro rata compensation. Thus it was held by the Court of Com- mon Pleas, that upon a contract for twenty-four guineas of a periodical work, to be delivered monthly at a guinea a number, the plaintiff might sue for the numbers actually delivered, although the contract was not reduced to writing. And they distinguished this case (as one of a divisible contract) from Boydell v. Drummond, on the ground that there the defendant had paid for all the numbers he had actually received, and the action was upon that part which remained executory.^ But, as may be inferred from the reasoning of the Judges in the latter case, it is not true that because certain items of a divisible con- tract may be performed within the year, an action may be sus- tained for a breach of those items, thus severing what the con- tract made continuous.^ 8 286. A rule has been announced within a few years in England which requires very careful examination, namely, that if all that is to be performed on one side is to be performed within a year from the making of the contract, the statute does not apply to it, and an action will lie for the non-performance 1 Mavor v. Pyne, 3 Bing. 286. See ante, § 282, in regard to eases -where a sum of money is agreed to be paid in less than annual instalments. s Boydell v. Dtummond, 11 East, 142; Holloway v. Hampton, 4 B. Mon. (Ky.)415. • 288 STATUTE OF FRAUDS. [cH. XIII. of the other stipulations. The first intimation of this doctrind is found in Boydell v. Drummond, where the counsel for the plaintiff insisted that by accepting the earlier numbers of the Shakespeare the defendant had taken the case out of the Statute of Frauds by part execution, and compared it to selling and delivering goods, on thirteen month's credit, without writing, in which case, if no evidence could be given of the terms of pay- ment, as part of the contract, the vendor wouldteot be bound by the stipulated price, and the jury could only give a verdict for the value of the goods ; but Lord EUenborough said that there the delivery of the goods would be a comj)lete execution on one part within the year, and the question of consideration only would be reserved for the future. Nothing is given in the report to explain any farther his lordship's remarks.^ And afterwards in Bracegirdle v. Heald, which was a case of a contract for a year's service, to commence at a future day, and therefore clearly within the statute, Mr. Justice Abbott took occasion to remark that when all that was to be done on one side was to be done within the year, as in the case of goods to be delivered in six months and paid for in eighteen months, the contract would not be within the statute.^ § 287. The doctrine, however, was not directly decided until the case of Donellan v. Read, in the Queen's Bench, in 1882, There a landlord, who had demised premises fqr a term of years at ^50 a year, agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant agreeing to pay an increased rent of £5 a year during the remainder of the term, (fifteen years.) It was held that the landlord having done the work, he might recover arrears of the £5 a year against the tenant, though the agreement had not been signed by either party. Littledale, J., (delivering judg- ment for the court,) said : " As to the contract not being to be • Boydell v. Drummond, 11 East, 142. * 2 Bracegirdle v. Heald, 1 Barn. & Aid. 727. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 289 performed within the year, we think that as the contract was entirely executed on one siiS within the year, and as it was the intention of the parties founded on a reasonable expectation 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 hap- pens that they are not to be paid for in full till after the ex- piration of a longer period of time than a year, and surely the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods on his part." ^ § 288. In Sweet v. Lee, in the Court of Exchequer, 1841, the D^ntifi^ a publisher, sued the defendant upon an agreement to p^^re a law book for publication, in consideration of ^hich the defendant was by the agreement to have received ,£80 per annum for five years, and £60 per annum for the remainder of his life. It was held that he could not recover, as the only written memorandum between the parties was insufficient, not showing the consideration for the engagement to pay the money. In argument, it was urged that the work might be published within the year, but Maule, J., interposed, saying, that, although that might be, the annuity could not be paid within that time. The case of Donellan v. Read was urged upon the court, but it was held without any commentary on that case that the statute applied to this.^ Again, in the same court, in Souch v. Strawbridge, a few year^ later, where an action was brought for board, lodging, &c., supplied by the plaintiff to a child at the request of the defendant, Tindal, C. J., remarked that the action was brought for an executed consideration, and the Statute of Frauds did not apply ; that it m^nt only that no action should be brought to recover damages in respect to the non-performance of the contracts referred to ; but, assuming that to be otherwise, held that this contract was saved from the statute by the fact that the plain- 1 Donellan v. Read, 3 Bam. & Add. 899. 2 Sweet V. Lee, 3 Man. & Gr. 452; 4 Scott, N. R. 77. 25 290 STATUTE OF FRAUDS. [cH. XIII. tiff was by its terms to keep the child only so long as he thought proper, and it might, therefore, be executed within the year. The other Judges concurred upon the second point, but Coltman, J., said that if it had been necessary to decide the case upon the first, he should have wished to consider it, because he felt some difficulty in saying that the plaintiff might rely on an executed consideration, when he was obliged to resort to the executory contract to make out his case.^ So far it would seem that the doctrine in Donellan v. Read was not considered as settled in England. In the latest case upon the subject, however, Cherry v. Hemming, in the Court of Ex- cheqiler, 184i9, that decision was distinctly approved by^R^eral of the Barons. But there it was held that the memorandum produced was sufficient. § 289. It is much to be regretted that the English courts have not had occasion to review this doctrine, and definitely decide upon it. For it does not appear, unless Sweet v. Lee is to be taken as a direct judgment against it, that in any one instance it has been necessarily involved. Even in Donellan n. Read the plaintiff was entitled to recover upon his count for money paid to the defendant's use, without resorting to the special agreement. In our own courts there appears to be a disposition to follow that case. In Maine, the doctrine laid down by ,it has ijeen distinctly and strongly affirmed, but un- necessarily, the plaintiff in the case before the court (as is stated in the opinion) being entitled to recover on the common counts.^ In Massachusetts, it has been on one occasion appa- rently admitted to be law, though no judgment was passed or required to be passed upon it.^ The Southern and Western courts have also generally approved it.* In New York, on the 1 Souch V. Stawbridge, 2 Man. Gr. & Sc. 808. 2 Holbrook v. Armstrong, 10 Maine, (1 Fairf.) 31. 3 Cabot V. Haskins, 3 Pick. (Mass.) 83. ♦ 4 EUicott V. Turner, 4 Maryland R. 476 ; Hardesty v. Jones, 10 Gill & Johns. (Md.) 404 ; Johnson v. Watson, 1 Georgia K. 348 ; Bake v. Pope, 7 Ala. E. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 291 other hand, the Supreme Court have expressed very strong dissatisfaction with^t, and with great force of reasoning.^ § 290. It may well be doubted, indeed, whether this doc- trine would ever have been accepted in England, if the ques- tion had not uniformly arisen on cases where the stipulation sought to be enforced related solely to the payment of the money consideration. In such cases it is a mere point of form in bringing the action, the plaintiff's right to recover on the indehifatus assumpsit (which count is uniformly found to have been inserted in the declaration) being clear. It never has been held in England that an agreement to do some act after the expiration of a year, in consideration of a payment of money made presently, was binding. And the decision in Peter v. Compton, that a verbal agreement for one guinea paid down, to paj^so many on the day of the defendant's marriage, is manifestly to the contrary.^ But it is also shown by that case, and is settled law, that a promise to pay money, as much as a promise to do any other act after the expiration of a year, is within the statute.^ And no substantial reason appears to be furnished why the mere circumstance that the counter stipula- tion in such a case is fixed to be performed within the year, should hinder the statute from applying. Again, it is not now doubted that a mere partial execution of a contract that is required by the statute to be in writing, will have no effect at law to take it out of the statute, though it is often made the basis in equity of special relief on the ground of virtual fraud in 161; Bates D.Moore, 2 BaUey, (S. C.) 614; Gvdly v. Grubs, 1 J. J. Marsh. (Ky.) 387 ; Holloway v. Hampton, 4 B. Mon. (Ky.)' 415 ; Blanton v. Knox, 3 Missouri K. 241. 1 Broadwell v. Getman, 2 Denio, 87, the criticism upon which in Tahnadge V. Kennselaer and Saratoga K. K. Co. 13 Barb. (N. Y.) 493, seems to be quite unnecessary, the latter case being rightly decided upon another point. Ante, § 278. 2 Peter v. Compton, Skin. 353. 3 Cabot V. fiaskins, 3 Pick. (Mass.) 83. Parker, C. J. 292 STATUTE OF FRAUDS. [cH. XIII. the party repudiating the partially executed contract.^ And it is difficult to see why an entire executioif by one party of his part of the agreement shall be sufficient to do what is not done by his execution of however large e proportion of that part. Moreover, it is proper to observe, that if the English cases which hold that the memorandum of the agreement must show the consideration, because the word agreement embraces the stipulations of both sides, are right, those English cases can hardly be right which hold that the same word, in the clause just preceding, may embrace only the stipulations of one si^e.^ § 291 . It need only be added to what has been said upon this clause of the statute, that if the time to be occupied in the performance of the agreement exceeds a year never so little, the statute applies ; for, in the language of Lord EUenborough, " 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 an excess of twenty years will equally not be within the act." ^ 1 Pout, Chaptet XIX. 2 Post, § 386, et seq. ^Braoegirdle v. Heald, 1 Barn. & Aid. 722. CH. XIV.1 SALES OF GOODS, ETC. 293 CHAPTER XIV. SALES OF GOODS, ETC. § 292. The form of the seventeenth section itself suggests a method which will probahly be found convenient for its con- sideration ; and that is, to examine in the first place the ques- tion, What is a contract such as is contemplated by it, and in the second place the question, What evidence of such a contract it requires. The latter topic, however, embraces not only the acceptance and receipt of part of the goods sold, and the pay- ment of earnest, formalities which are peculiar to this section, but also the making of a written memorandum of the bargain, a formality which applies also to the fourth section and the various classes of contracts enumerated therein. It seems best therefore, to consider in this chapter nothing more than strictly belongs to contracts for the sale of goods, wares and merchan- dise, and to postpone the subject of the written memorandum to the succeeding chapter, where it can be discussed singly and separately, and in relation to the general topic of contracts as affected by the statute. § 293. Upon the first of the proposed divisions of the present subject, our attention is attracted at the outset to the inquiry, What transactions are to be regarded as contracts for the sale of goods, &c. As to the character of the parties the statute makes no distinction, and the established doctrines of the courts present none. It was at one time doubted whether the policy of the statute extended to sales at public auction,^ 1 Simon v. Metivier, 1 W. Bl. 2d edition, 599 ; Hinde u. Whitehouse, 7 East, 558. 25* 294 STATUTE OF FRAUDS, [cH. XIV. -t but it is now settled beyond dispute that it does, and that sheriffs' sales in execution are also included by its provisions.^ Another distinction, which has been supposed to be established by some of the earlier cases, was that the statute did not em- brace executory contracts for the sale of goods, &c., but only those which contemplated an immediate execution.^ But this was so manifestly against the intent and spirit of the whole enactment, that it has of late years -been entirely rejected,^ and those cases upon which it was imagined that it rested have been shown to relate to quite another point, of great importance, and which we will presently have occasion to examine.* Nor is it necessary that the contract should be particularly formal or ex- plicit, so that there appear to be a bargain made ; a common order, given to the seller for the article required, is clearly equivalent to a contract for the purchase.® A stipulation that the subject of the sale may be returned in a certain event, is not to be regarded as a contract for resale, so as to be affected by the statute. Thus, in a case where the plaintiff sold a mare to the defendant for a£20, with the understanding that if she should prove to be in foal he might have her back again on paying £1% and the mare was delivered to the de- fendant, and afterwards, when she proved to be in foal, the plaintiff tendered the a£12, but the defendant refused to return her, and set up the Statute of Frauds as a bar to any recovery on the agreement to return her, the Court of Queen's Bench 1 Sugden on Vend. & Purch. Ch. V. § 6 ; 2 Kent, Com. 540 ; Chitty on Contracts, 272, and cases cited by those authors. 2 Rondeau v. Wyatt, 2 H. Bl. 68 ; S. C. 3 Bro. Ch. 154 ; Alexander v. Comber, 1 H. Bl. 20 ; Towers v. Osborne, 1 Stra. 506 ; Clayton v. Andrews, 4 Burr. 2101. 3 Cooper V. Elston, 7 Term R. 14 ; Acker v. Campbell, 23 Wend. (N. Y.) 372; Bennett t). Hull, 10 Johns. (N. Y.) 364; Ide v. Stanton, 15 Verm. E. 690 ; Carman v. Susick, 3 Green, (N. J.) 252 ; Newman v. Morris, 4 Harr. & McH. (Md.) 421. i Seejjosi, §§ 299-309. 5 Allen V. Bennett, 3 Taunt. 169. CH. XIV.] SALES OF GOODS, ETC. 295 held that it did not apply. It was considered that this stipula- tion was not an independent contract of sale, but was part of the original contract, which was a qualified one, and which had been taken out of the statute by the delivery of the mare.^ But it may be necessary to distinguish between such* case as this, where the stipulation to return is annexed to the original sale by way of condition, and the case of a stipulation to resell at a future time for the same or a diSerent price, although made contemporaneously with the original sale. It must de- pend, it seems, upon whethftr the latter is a complete transaction of itself, and, in some degree, upon the language used by the parties. § 294^. Whether a mortgage of goods, wares and merchan- dise, is without the scope of the Statute of Frauds is, ap- parently, to be considered a doubtful question. The Supreme Court of Maine have expressed themselves not satisfied that the statute was to be so construed. They say, " it manifestly contemplates an absolute sale, where the vendor is to receive pajTnent and the vendee the goods purchased. But the mort- gagee is not expected or intended to pay any thing. His lien is created to secure what he is to receive. Nor is he to take pos- session unless his security requires it. That is retained by the mortgagor, and herein a mortgage differs from a pledge. As this is a contract, then, in which neither payment nor dUivery is expected, we are not prepared to say that it comes within the statute." ^ It is manifest, however, that the mortgagee has paid something before, or contemporaneously with, the execu- tion of the mortgage ; and it is a familiar principle of law that the mortgagee of personal property may, and as a general rule ought to, take possession. Such a mortgage is simply a con- 1 Williams u. Burgess, 10 Adol. & Ell. 499. The case was likened by Little- . dale, J., to a delivery on trial; bat it must be observed that the stipulation was to return, not to receive back, and was made in favour of the vendor, not of the vendee. 2 Gleason v. Drew, 9 Greenl. (Me.) 79. 296 ■ STATUTE OF FRAUDS. [cH. XIV. ditional or defeasible sale ; and where the opinion above quoted speaks of an absolute sale as what the statute manifestly con- templates, we should say it must intend an actual sale, as dis- tinguished perhaps from a merely nominal onp ; for that a de- feasible Bale is within the Statute of Frauds, can hardly be doubted on principle, and is, by implication, decided in the English case last referred to. But the court in Maine did not, it will be observed, find it necessary to rest their judgment upon the ground we have been considering. § 295. In the next place, we hftve to inquire what is the proper scope of the words " goods, wares and merchandise," as used in the seventeenth section to denote the subject-matter of the contracts' embraced by it. On this point there has been considerable diversity of opinion in the courts, arising, it would seem, from their having adopted, on the one hand, that inter- pretation which is founded upon the abstract legal signification of the words, and, on the other, that which limits this significa- tion by a reference to the other clauses of the section. § 2Q6. The most difficult class of cases under this head have grown out of contracts for the sale of shares or stock, notes, checks, bonds, and generally evidences of value as distinguished from palpable personal property having an intrinsic value of its own. In the early case of Pickering v. Appleby, the ques- tion ^as submitted, as appears by Comyn's report, to all the Judges of England, whether a contract for the purchase of shares in fhe stock of a copper company was afiected by the seventeenth section of the statute, and they were divided in opinion.-' Subsequently Lord Chancellor King, in Colt v. Netterville, upon the ground of that division, declined to take the responsibility of deciding the point.^ But within compara- tively a few years, and notwithstanding the interveittion of sev- eral cases in which a disposition was shown to hold otherwise,^ 1 Pickering v. Appleby, 1 Com. 354. 2 Colt v. Netterville, 2 P. Wms. 304. 3 Mussell V. Cooke, Prec. Ch. 533 ; CruU v. Dodson, SeL^Cas. Ch. 41. CH. XIV.] SALES OF GOODS, ETC. 297 it has been directly determined in England, and so far as that country is concerned must be taken to be entirely settled, that the statute is not applicable to such contracts. Such was the decision of Sir Lancelot Shadwell in Duncuft v. Albrecht and of Lord Denman in Humble v. Mitchell, cases decided about twenty years since, and which have been fully acquiesced in by the English courts.^ Both of these decisions proceeded upon the ground that shares were mere choses in action, and were not in their nature capable of that delivery and acceptance by the respective parties to the contract, which the statute provides as one method of making it binding. § £96 a. The Supreme Court of Massachusetts have taken a different view of the question. In Tisdale v. Harris, they flecided that shares in a manufacturing corporation were to be deemed included by the words, " goods, wares and mer- chandise." The opinion of the court, deUvered by Shaw, C. J., places the decision on two grounds, first, that by correct legal definition " goods " and " merchandise " were both suffi- ciently comprehensive to include shares, and secondly, that the policy of the statute required that they should be included. Upon the latter point he says, " There is nothing in the nature of stocks or shares in companies which, in reason or sound policy, should exempt contracts in respect to them from those reasonable restrictions designed by the statute to prevent frauds in the sale of other commodities. On the contrary, these com- panies have become so numerous, so large an^ amount of the property of the community is now invested in them, and as the ordinary indicia of property arising from delivery and possession cannot take place, there seems to be peculiar reason for extend- ing the provision of the statute to them." He does not con- 1 Duncuft V. Albrecht, 12 Sim. 189, affirmed by the Chancellor ; Humble v. Mitchell, 11 Adol. & Ell. 205 ; S. C. 3 Per. & Dav. 141 ; Hesseltine v. Siggers, 1 Wels. Hurl. & Gord. 856 ; Tempest v. Kilner, 3 Mann. Gr. & So. 249 ; Bowlby V. Bell, lb. 284 ; Bradley v. Holdsworth, 3 Mees. & Wels. 422 ; Wat- son V. Spratley, 28 Eng. Law & Eq. 507. See Pawle v. Gunn, 4 Bing. N. R. 445. 298 STATUTE OF FRAUDS. [( CH, XIV. sider the circumstance that shares cannot he actually accepted and received as at all conclusive of the question, and says that seems to be rather a narrow and forced construction of the statute. " The provision is general that no contract for the sale of goods, &c. shall be allowed to be good. The exception is where part are delivered, but if part cannot be delivered then the exception cannot exist to take the case out of the gen- ial prohibition. The provision extends to a great variety of objects, and the exception may well be construed to apply only to such of those objects to which it is applicable, without affecting others to which, from their nature, it cannot apply." ^ In the doctrine of this case the Supreme Court of Connecticut has fully concurred.^ § 297- It has subsequently been still farther extended ft Massachusetts in the case of Baldwin v. Williams, where it was held that a contract for the sale of promissory notes was within the seventeenth section. Wilde, J., who delivered judg- ment, said it was certainly within the mischief thereby intended to be prevented, and that the words " goods " and " merchan- dise," both of them of large signification, were sufficiently comprehensive to include proniissory notes ; applying the defi- nition merx est quicquid vendi potest.^ 1 Tisdale v. Harris, 20 Pick. (Mass.) 13. 2 North V. Forest, 15 Conn. R. 404. An early case in Maryland also seems to be to the same effect. Calvin v. Williams, 3 Harr. & Johns. 38. 3 Baldwin v. Williams, 3 Met. (Mass.) 367. The learned Judge refers in sup- port of this judgment to two prior decisions of the same court, Mills v. Gorei 20 Pick. 28, and Clapp v. Shephard, 23 Pick. 228, to the effect that a bill in equity might be maintained to compel the redeliTcry of a deed and note of hand on the provision in the Massachusetts Revised Statutes, (c. 81, s. 8,) giving the court jurisdiction in all suits to compel the redelivery of any goods or chattels whatsoever taken and detained from the owner thereof and secreted or with- held so that the same cannot be replevied. But it is the deed and note, the papers on which they are written, that the words goods and chattels are held to embrace ; not the right, interest or obligation represented by those papers, as in the case of Baldwin v. Williams. There is a decision of the U. S. Circuit Court, reported in 2 Cranch, 143, (Kiggs v. Magruder,) to the effect that a contract for the notes of a private bank was within the seventeenth section ; but the bench was not full at the time, and the grounds of the decision are not furnished. CH. XIV.] SALES OF GOODS, ETC. 299 § 298. It seems impossible to regard the doctrines of these cases as entirely free from doubt and difficulty, whether the meaning of the words used in the statute be taken abstractly or In connectiop with the context. Of the word " merchan- dise," Judge Story says, "it is usually if not universally limited to things that are ordinarily bought and sold, or are ordinarily the subjects of commerce or traffic. The fact that a thing is sometimes bought and sold is no proof that it is merchandise. The term merchandise is usually applied to some specific articles, having a sensible intrinsic value, bulk, weight or measure in themselves and not merely evidences of value." ^ That merx est quicquid vendi potest is not to be taken strictly as the definition of this word, as used in the statute, seems to be very clear ; for, if it is, certainly goods and wares, if not lands also, must be embraced by it. More- over, it appears by the report! of those cases in which first the collected Judges of England, and afterwards Lord Chancellor King failed to determine the application of the statute to sales of shares, that in both the same definition was urged by coun- sel. And in regard to goods also, it seems dangerous to found a construction of the statute on a mere verbal definition. As was said in one of the superior courts of Georgia, where it was held that treasury checks on the Bank of the United States were not covered by the seventeenth section, " In the civil law it is a teriji that embraces all things over which a man may exercise private dominion, divided into goods movable and im- movable. This cannot be the sense attached to the word In the statute, for other sections of it treat of Immovables. Nor can it be designed to include every class of movables, for wares and merchandise are expressly mentioned, which latter embrace every thing usually rendered in commerce." And it Is added that It is " a fair construction of the statute to limit the mean- 1 Clark V. Bumham, 2 Story, K. 15, and see Sewall v. Allen, 6 Wend. QST. Y.)' 335. • 300 STATUTE. OP FRAUDS. [cH. XIV. ing of the word goods to such personal "property, other than wares and merchandise, as is usually transferred by sale and delivery."^ This view, which, as we have seen, nearly cor- responds to that taken by the English courts, appears to be reasonable. Indeed, upon that taken by the Supreme Court of Massachusetts the words used in the statute appear to be made coextensive with personal property.^ As to the principle that the goods, wares and merchandise intended by the statute must be such as are capable of acceptance and receipt by the pur- chaser, it is true that there are many cases ^ in which sales of articles not in existence at the time of the bargain have been held to be within the statute ; but there the articles contracted for were essentially capable of acceptance and receipt, and were to be in time bodily accepted and received according to the contract. Nevertheless the difficulty presents itself that shares or stocks, and even (though that*would be far more doubtful) promissory notes, bonds, &c. may become in the course of com- mercial development so much the subject of ordinary traffic, that the construction of the statute must be expanded so as to mkke it reach them, as being one kind of merchandise.* And there is another and rapidly enlarging class of transactions to which it may be a very important question, in this view, whether the statute would not be held to apply ; we mean the purchase and sale of patent rights, the business, as it has now become, of many individuals and even partnerships in this country. In a case in the Court of Exchequer it has been lately held that 1 Beers v. Crowell, Dudley, 28. 2 In Florida, the expression used to deaeribe the subject-matter of the seven- teenth section is " personal property," which has of course been held to include shares. So. Life Ins. & Trust Co. v. Cole, 4 Flor. R, 360. In New York, choses in action are expressly specified as requiring a writing for their sale, and the foUomng cases may be referred to as illustrative of that enactment. Allen v. Aguirre, 3 Seld. 543 ; S. C. lOBarb. 74 ; People u.Beebe, 1 Barb. 379 ; Thomp- son V. Alger, 12 Met. (Mass.) 436, which arose on the New York statute. 3 See post, §§ 299-309, * diadsden v. Lance, 1 M'MuU. Eq. (S. C.) 87. CH. XIV.] SALES OF GOODS, ETC. SOi the purchase of a right to use a patented furnace which was already erected by the purchaser was not within the seventeenth section ; ^ but on the principles of the Massachusetts cases we have quoted, it would seem it must be otherwise held in that State, and others which have followed its decisions. § 2^9. Several questions which might require attention in this place, such as those arising on contracts for the sale of fixtures and growing crops, particularly the latter, have been anticipated in the course of our consideration of the fourth section as it regards interests in land. But a most important one remains to be examined, and that is how far, if at all, the condition of the goods, wares and merchandise, at the time of making the bargain, is to be regarded in determining whether the statute will apply to it. § SOO. In Clayton v. Andrews, a case early decided in the Queen's Bench, the defendant agreed verbally to deliver to the plaintiflF a quantity of wheat at a future day, for a certain price, of which, however, no part was paid by way of earnest, nor was there any portion of the wheat accepted and received by the plaintiff" at the time, nor was any memorandum of the bargain made in writing ; but the wheat was unthreshed and of course unjlt for delivery when the bargain was concluded. Lord Mansfield and the other Judges held, upon the supposed authority of a previous case,^ that the statute did not apply for the reason that the wheat was not to be delivered imme- diately.^ This doctrine, of the necessity of the parties' contem- plating an immediate execution of the bargain in order to bring it within, the prohibitions of the seventeenth section, has long since been abandoned, but the case itself has often been quoted as an authority to the position that where work and labour, are required to be performed upon the article sold in 1 Chanter v. Dickinson, 5 Mann. & Gra. 253. 2 Towers v. Osborne, 1 Stra. 506. 3 Clayton v, Andrews, 4 Burr. 2101. 26 802 STATUTE OF FRAUDS. [cH. XIV, order to put it in condition to be delivered, the statute does not apply to the contract of sale. This, however, as will amply appear by the cases to which reference will be presently made, is not a tenable doctrine. § 801. In Towers v. Osborne, upon which the decision in Clayton v. Andrews was rested, the defendant bespoke a chariot, (to use the language of the report,) and after it was made refused to take it. In an action for the value of the chariot, it was held that the statute did not apply ; and here also the decision was put upon the ground that the statute only related to contracts for the sale of goods to be delivered imme- diately. It was not till long after these two cases that this opinion was directly condemned ; and it is a singular fact that they have been made the foundation of a distinction, as to the application of the statute, not alluded to in them, but which is one of the most important on this branch' of our subject, namely, the distinction which regards th6 condition of the article at the time of the bargain. It will be perceived that Towers v. Osjjorne differs from Clayton v. Andrews in this particular, that whereas in the latter the wheat only required the operation of threshing to be performed to prepare it for delivery, in the former the chariot contracted for did not exist at all. And the courts have shown a disposition, while doubt- ing the authority of Clayton v. Andrews to place the authority of the other case upon the simple ground of that difference. Thus in Groves v. Buck, Lord Ellenborough held that the statute did not apply to a contract for the purchase of a quan- tity of oak pins which were not then made but were to be cut out of slabs and delivered to the buyer ; for, he said, the sub- ject matter of the contract did not exist m rerum naiura ; it was incapable of delivery and part acceptance ; and when that was the case the contract had been considered as not within the statute.^ 1 Groves «. Buck, 3 Maule & S. 178. CH. XIV.] SALES OF GOODS, ETC. 303 § 802. In the later New York cases, this distinction between contracts for an article to be entirely manufactured and an article already existing but to be fitted for delivery by the - application of work and labour, the latter being within the statute and the former not, appears to be adopted as decisive in questions of this class.^ But, as a fixed criterion, it is liable to some practical objections. For it may often be a mat- ter of great nicety whether the labour to be applied to the . article really amounts to constructing it or only to preparing it, as, for instance, where articles are kept on hand by manu- facturers, in parts or pieces ready to be put together.^ And it is difficult also to see the reason for the distinction ; for, in either case, the article is incapable at the time of being delivered according to the contract ; it is as much so when incomplete as when not existing. * § 303. The great body of authority, both English and American, has of late proceeded upon principles entirely inde- pendent of this distinction. In a case occurring only a year after Groves v. Buck, where the contract was to sell and de- liver oil not yet expressed from seed in the vendor's possession, it was held by the Common Pleas to be within the exception of the stamp act exempting from duty contracts relating to goods, wares, and merchandise ; and C. J. Gibbs thus illus- trates the fallacy of the distinction referred to. " A baker agrees to produce me a loaf to-morrow. He has not the bread but he has the flour and is to make it into bread and deliver it. How often does a butcher contract to t^liver meat when he 1 Downs V. Rosa, 23 Wiend. 270; Sewall v. Fitch, 8 Cow. 219; Crookshank V. Burrell, 18 Johns. 58 ; Robertson v. Vaughan, 5 Sandf. 1 ; Bronson v. Wiman, 10 Barb. 406. The delivery to be made of goods purchased has never been considered as work and labour done upon them. Waterman v. Meigs, 4 Cush. (lilass.) 499 ; Jackson v. Covert, 5 Wend. (N. Y.) 139 ; Downs v. Ross, 23 Wend. (N. Y.) 270. 2 See the case of Mixer v. Howarth, 21 Pick. (Mass.) 207, where nothing was done but to put on to the carriage contracted for a certain lining selected , by the buyer. 304 STATUTE OF FRAUDS. [cH. XIV. has not the meat and the beast is not yet killed. It is out of all common sense to say this is not a contract for goods, wares, and merchandise." -^ Again, in the case of Watts v. Friend, the Court of Queen's Bench held that the seventeenth section of the statute applied to a contract to sell a crop of turnip seed»not yet planted. Lord Tenterden, C. J., said that accord- ing to good common sense this must be considered as suhstan- . tially a contract for goods and chattels, for the thing agreed to be delivered would at the time of delivery be a personal chattel.^ And to the same effect, it will be remembered, is the case of Smith y. Surnam, which, like that last quoted, was examined in another chapter in connection with the subject of contracts for land.^ These authorities, with many others to be presently referred to, conclusively show that so far as the Enghsh courts are concerneSJ the mere circumstance that the article is not existing at the time of the bargain will not prevent the appli-^ tion of the statute.* § 304. There is, however, a distinction taken in many recent authorities between the purchase of articles such as the vendor regularly manufactures from time to time and has for sale in the ordinary course of his busiiiess, and those which he manufactures to order though from materials in his possession. Thus, in Garbutt v. Watson, a case frequently quoted on this subject, where the plaintiflFs, who were millers, verbally agreed with the defendant, who was a corn merchant, for the sale of one hundred sacks of flour to be got ready to ship in three weeks, the Court of Queen's Bench refused to set aside a non- 1 Wilks V. Atkinson, 6 Taunt 11. 2 Watts V. Friend, 10 Barn. & Cres. 446. . 3 Smith V. Surnam, 9 Barn. & Cres. 561. See also Northern v. State, 1 Carter, (Ind.) 112. * The same is true, as appears by several of the cases cited, where the articles contracted for are not at the time in possession of the vendor but are expected to be received by him in season. See Bronson v. Wiman, 10 Barb. (N. Y.) 406 ; Seymour v. Davis, 2 Sandf. (N. Y.) 239 ; Ide v. Stanton, 15 Verm. K.689. CH. XIV.] SALES OP GOODS, ETC, 805 suit obtained below, holding , that the bargain was within the statute; and when the decision in Towers v. Osborne was urged, Abbott, C. J., said that in that case " the chariot which was ordered to be made Would never but for that order have had any existence ; but here the plaintiflPs weje proceeding to grind the flour for the purposes of general sale, and sold this quan- tity to the defendant as a part of their general sale. The dis- tinction is indeed somewhat nice, but the case of Towers v, Osborne is an extreme case and ought not to be carried far- ther." ^ § 305. In Massachusetts a similar view has repeatedly been expressed. In Mixer v. Howarth, the facts were that the defendant went to the plaintiflF's shop, where the plaintiflF had the unfinished body of a carriage, and gave directions to him to fibish the carriage, putting in a certain lining which the de- fendant selected. The carriage was to be finished in about a fortnight. The Supreme Court held that it was essentially an agreement on the plaintiff's part to build a carriage and on the defendant's part to take it when finished and pay for it at the agreed or a reasonable late, but that it was not a contract of sale within the meaning of the Statute of Frauds. Chief Justice Shaw, who delivered the opinion of the court, proceeds to say : " Where 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 co«tract, 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 materials together and con- struct 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 actual or cqpstructive delivery or acceptance, and the I Garbutt v. Watson, 5 Barn. & Aid. 613. 26* m 306 STATUTE OF FRAUDS. [gH. XIV. remedy for not accepting is on the agreement." ^ So in Lamb V. Crafts, a later case in the same court, where a person whose business was that of collecting rough tallow and preparing it for market made an oral agreement with anotheV to furnish Mm-at a certain time and place with a certain quantity of pre- pared tallow, it was held to be a contract for the sale of the tallow and within the Statute of Frauds. And the same emi- nent Judge, (C. J. Shaw,) said : " The distinction we believe is now well understood. Where a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale and not a contract for labour. Otherwise where the article is made pursuant to the agreement." ^ § 806. This distinction has not been recognized in the courts of New York, which have preferred to abide by the rule asserted in the earlier English cases but, as We have seen, more lately repudiated, particularly in Garbutt v. Watson, namely, that if the goods, &c., do not at the time of making the bargain exist m solido the statute cannot apply. Thus in Sewall V. Fitch, the plaintiflfs by their agent contracted with the defendants for a quantity of nails. The defendants' clerk (with whom the bargain was made) told him the quantity was not then on hand, but that they could be soon mad*, or " knocked off," and be obtained from the manufactory at Nor- wich at the opening of the navigation. The Supreme Court (per Savage, C. J.,) said : " The contract in this case was "for the delivery of nails thereafter to be manufactured. It was, . therefore, a contract for work and labour and materials found, and so out of the statute."® Subsequently, in a case where the facts were very similar, except that the agreement proved was in terms to ma/ce and deliver the articles, the same court ' • 1 Mixer v. Howarth, 21 Pick. (Mass.) 207. 2 Lamb v. Crafts, 12 Met. 356. 3 Sewall V. Fitch, 8 Cow. 219. CH. XIV.] SALES OF GOODS, ETC. 807 decided that the statute did not apply, proceeding, however, simply on the authority of Sewall v. Fitch, and very strongly and forcibly condemning the doctrine on which that case rested.^ . * § 307. But, reverting to the distinction between thfe cases where the articles to be sold are to be made up in the ordinary course of the vendor's business, and those where they are to be made pursuant to the purchaser's special order, we may on farther examination discover a broader rule, and one more manifestly derived from the terms of the statute itself, on which the cases advancing that distinction may be naturally and firmly supported. In Gardner v. Joy, in the Supreme Court of Mas- sachusetts, the plaintiff" asked the defendant his price for can- dles, the defendant named it, the plaintiflE" said he would take a hundred boxes, and the defendant said the candles were not manufactured, but he would manufacture and deliver them in the course of the summer. C. J. Shaw said : " The con- tract was essentially a contract of sale. The inquiry was for the price of candles, the quantity, price, and terms of sale were fixed, and the mode in which they should be put up. The only reference to the fact that they were not then made and ready for delivery, was in regard to the time at which they would be ready for delivery ; and the fact that they were to be manufac- tured was stated as an indication of the time of delivery, which was otherwise left uncertain,"^ Here, although the agreement was in terms, as in Robertson v. Vaughan, to manufacture and deliver the articles, yet the statute was held to apply ; because, upon all the circumstances of the bargain, it was clearly no 1 Kobertaon v. Vaughan, 5 Sand. 1. In a late case In New York, where it was held that the statute applied to a contract for cider to be' obtained bj the seller from farmers and refined before delivery, the decision in Garbutt v. Wat- son was cited as law. Seymour v. Davis, 2 Sand. 239. But see Bronson v. Wiroan, 10 Earl). (N. Y.) 406. , 2 Gardner v. Joy, 9 Met. 179. 308 STATUTE OF FRAUDS. [cH. XIV. part of it that the vendor should manufacture them.^ On the other hand, there are repeated New England cases where a contract expressly to manufacture articles out of materials to be fouftd by the manufacturer, has been held not affected by the statute." § 308. It would seem then to be broadly true that if the contract is essentially a contract for the article, manufactured or to be manufactured, the statute applies to it; but if it is for the manufacture, for the work, labour, and skill, to be bestowed in producing the article, the statute does not apply. The former is within the terms of the seventeenth section ; the latter is not. Where the article contracted for is not such as the vendor has for sale in the ordinary course of his busi- ness, in other words, not with him an ordinary article of traffic, that fact will go to show thftt, in contracting with him for the production of it, the purchaser contemplates getting by his bargain the work, labour, and skill of the other.^ Another circumstance from which the same intention in the minds of the parties may quite conclusively appear, will be that the article, when complete, is to be of a peculiar kind, suitable only to peculiar uses, or perhaps only to those of the purchaser himself. This point is dwelt upon with much force in an opinion of the Superior Court of Georgia, delivered by Nis- bet, J., where he refers to Towers v. Osborne, and considers it as belonging to a class of cases where articles are " to be made by the work and labour, and with the material of the ven- dor, and which when made may reasonably be presumed to be 1 Eichelberger v. MeCauley, 5 Harr. & Johns. (Md.) 213. 2 Spencer v. Cone, 1 Met. (Mass.) 283, (affirming Mixer v. Howarth) ; Mat- tison V. Westcott, 13 Verm. R. 261 ; Allen v. Jarvis, 20 Conn. E. 38. 3 In Cummings v. Dennett, 26 Maine, (13 Shep.) 401, Whiteman, C. J., said: " It is very clear that if application is made to a manufacturer or mechanic [though] for articles in his line of business, and he undertakes to prepare and furnish them in a given time, such a contract, though not in writing, is not , affected by the statute." . • CH. XIV.] SALES OF GOODS, ETC. 309 unsuited to the general market, such as contracts for the manu- facture of goods suited alone to a particular market, or for the painting of one's own portrait." Of which contracts he says : " The work and labour and material constitute the prime consid- eration. They 5re for work 'and labour, and are, by authority and upon principle, without the influence of the statute. Ex aequo et bono, a man who agrees to bestow his labour in the manufacture of goods for a price, and which price he must lose unless the goods are received by him who ordered them, ought to be paid, and a statute which would protect the purchaser frorfi liability in such a case would be alike impossible and unjust." Of the case before them, which was an action on a contract for a crop of cotton, to be delivered as soon as it could be gathered and prepared for market, the court say : " The manufacturer does not necessarily lose the price of his labour. If the purchaser does not take the goods, others will. The work and labour bestowed are in the line of his business, and his work and labour would have been bestowed in the produc- tion of such goods had the contract not bgen made. The goods and their price are the consideration of the contract, and not the work and labour and their price." ^ And so the Su- preme Court of Maine have held that a contract by which the defendants bound themselves to furnish as soon as possible a quantity of malleable hoe shanks, agreeable to patterns left with them, and to furnish a larger amount if required at a diminished price, was to be cdnsidered as a contract for the manufacture and delivery and not for the mere sale of the ar- ticles, and so not within the statute. ' The opinion of the court contains the following important suggjfction as to the distinction between the two kinds of contracts : " The person ordering the article to be manufactured is under no obligation to receive as good or even a better one of the like kind purchased from 1 Casoh w.'Cheely,' 6 Georgia R. 554, approving Bird v. Muhlinbrink, I Rich. (S. C.) 197. See^lso Buxton t). Bedall, 3 East, 303. SIO STATUTE OF FRAUDS. [CH. XIV. another and not made for him. It is the peculiar skill and lahpur of the other party, combined with the materials, for which he contracted and to which he is entitled."^ A very late decision of the Court of Exchequer, also, is instructive upon this point. An author, by verbal agreeiftent, employed a printer to print a certain work, and placed the manuscript in his hands for that purpose. The printer having completed the work (with the exception of the dedication, which, discovering it to be libellous, he refused to print,) brought his action for what he had done, in the form of work, labour, and materials supplied. A verdict was obtained for the plaintiff", and in gup- pprt of a rule to set it aside and enter a nonsuit, the Statute of Frauds was relied upon, the book being above the value of ten pounds. It was held that the form of the action was correct, and that the statute did not apply. Lord Chief Baron Pollock remarked that the true rule was, to consider whether the es- sence of the qontract consisted in the work and labour, or in the materials that were to be supplied ; and his impression was, that in cases of works of art, which were applications of labour of the highest description, the material was of no sort of im- portance as compared with the labour.^ § 308 a. Perhaps it might not be always correct to say that when the purchaser could refuse the goods as not being of the vendor's manufacture, then the statute would not apply ; but the cases which have been referred to seem clearly to establish that the true question is, whether the essential consideration of the purchase is the work and labour of the seller to be applied upon his materials, or the product itself as an article of trade ; 1 Eight V. Kipley, 19 Maine, (1 App.) 139. Upon the principles of these cases holding an agreement to manufacture an article for another to be not affected bythe statute, we should say that the common case of a bargain for a suit of clothes, to be macte up to fit the purchaser, did not require a writing ; but the contrary seems to be intimated by Lord Abinger, in Scott v. Eastern Counties R. K. 12 Mees. & Wels. 33. 2 Clay V. Yates, 36 Eng. Law & Eq. 540, May 3, 1856. CH. XIV,] SALES OF GOODS, ETC. ' Sll and that, in determining this question, the pecuHarity of the arti- cle ordered, and the seller's not commonly dealing in such arti- cles, are material and may be conclusive circumstances. In other words, while a contract for the sale of an article, (in whatever state it is at the time,) is within the seventeenth sec- tion, a contract for the manufacture and delivery of an jft-ticle is not ; either expression, however, as used by the parties, being liable to such an interpretation as the circumstances of the transaction show, to be that intended by them. , § SO9. The statute 9 Geo. IV. c. 14<, s. J, commonly called Lord Tenterden's- Act, provides that the seventeenth section of the statute of Charles " shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstand- ing 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 requisite for the making or completing thereof, or ren- dering the same fit for delivery." This statute, following as it did closely upon the decision of Garbutt v. Watson, in 1822, seems to be no more than declaratory of the paramount opinion in England as to what was the construction of the seventeenth section of the Statute of Frauds, touching the classes of cases which it enumerated. In the case just referred to, of the suit by a printer for work, labour, and materials found in printing a book. Lord Chief ]Baron Pollock expressed his opinion that Lord Tenterden's Act applied only when the bargain was for goods afterwards to be made, and not for goods for which the material was found. § 310. Before passing from this subject, we must remark the distinction between a contract to sell and deliver, ahd a contract to procure and deliver, goods, wares, or merchandise; In the case of Cobbold v. Caston, the master of a vessel agreed to carry the plaintiff's corn from one port to another, and then proceed to a third and fetch a cargo of coals, which he would bring back and deliver to the plaintiff at the first port, at a 312 • STATUTE OF FRAUDS. [CH. XIV. certain price per chaldron. The Court. of Common Pleas held that this was not a contract for the sale of the coals within the meaning of the seventeenth section of the statute, but simply a contract to procure and deliver them ; in illustration of which distinction, C. J. GiflFord remarked that if no coals could be found at the port specified, it was clear that the plaintiflF could not have maintained an action against the defendant for goods bargained and sold, or for a breach of the contract in not, delivering them ; that the contract was founded on the purchase of coals by the defendant at a certain port, but there was none whatever that he would sell them to the plaintiflF.^ §311. The last point to be considered, in determining whether a contract for the sale of goods, wares, or merchan- dise, falls within the provision of the seventeenth section of the statute, is the price. The statute declares that such contracts must be proved by writing, when the subject-matter of them is of the price of ten pounds sterling and upwards ; and this lim- itation as to the amount has been generally adopted in the American States. Of course the price is not to be presumed to reach this sum ; it has been decided in New York, and is according to manifest reason, that the defendant who seeks the protection of the statute must affirmatively show that it does reach it.^ But it does not prevent the application of the statute that the price of the goods has been enhanced by the vendor's being bound to deliver them, and there bripg no separate charge for their delivery.^ In cases where, at the time of making the bargain, it is uncertain what the amount of the price to be paid will be, there seems to arise some embarrassment. In Watts V. Friend, (which has been already examined under ano- ther^ead,) the defendant agreed to supply the plaintiflF with a quantity of turnip seed, and the plaintiflF agreed to sow it on 1 Cobboldw. Caston, 8 Moo. 456. And see Bird v. Muhlinbrink, 1 Kich. (S. C.) 199. 2 Crooksharik v. Burrell, 18 Johns. (N. Y.) 58. 3 Astey V. Emery, 4 Maule & S. 262. CH. XIV.] SALKS OF GOODS, ETC. 818 his own land, and sell the crop of seed produced therefrom to the defendant at £1 Is. the Winchester bushel ; and the seed so produced at the price agreed upon exceeded in value the sum of jGlO; it was held by the Court of Queen's Bench (though without any particular attention being paid to the point of uncertainty of value,) that the contract for the sale of the seed was covered by the seventeenth section.^ § 812. From this decision it appears that, whereas that clause of the fourth section which prohibits bringing an action upon any verbal agreement not to be performed within the space of a year from the making, does not apply if the agree- ment may by possibility be so performed, the seventeenth sec- tion must be diflferently construed, and will cover a contract for articles for which a sum exceeding the statutory limit becomes payable eventually, though it might have fallen within that limit consistently with the terms of the contract. On the other hand, in the case of Cox v. Bailey, where, the defence to an action upon an undertaking of indemnity was that the amount of the indemnity might and in fact did exceed twenty pounds, and that the undertaking was therefore affected by a certain statute requiring an agreement stamp where the matter of the agreement was of the value of twenty pounds or up- wards, the Court of Exchequer held that statute not to apply, because the matter of the agreement might be of, no value at all.^ In the former case it is true that the turnip seed would surely be of some value, but this seems to be a mere distinction without a difference. Looking at the policy of the statute in this particular, which is to remove the strong temptation to peijury in the proof of commercial transactions of a certain magnitude, we should incline to follow the authority of Watts V. Friend ; for if a bargain may, by the understanding of the parties, attain that magnitude, it seems but reasonable that they ' Watts V. Friend, 10 Barn. & Ores. 446. 2 Cox V. Bailey, 6 Mann. & Gr. 193. 27 314 STATUTE OF FRAUDS. [cH. XIV. should defer to the provisions of the law and put their hargain in writing. § 313. The force of the word price next demands inquiry. Ordinarily it means a consideration stipulated by one party to be paid to the other; and the question arises whether the statute shall apply in any case where no price is expressly agreed upon. In Hoadley V. McLaine the defendant gave the plaintiff an order for a landaulet to be built for him, and signed a memo- randum to that effect, but without fixing any price. Evidence being introduced of what it was fairly worth, the Court of Common Pleas held the defendant bound to pay that sum, though it exceeded ten pounds, there being nothing to the con- trary in the memorandum. The case involved to a certain extent the consideration of Lord Tenterden's Act before re- ferred to, and Chief Justice Tindal remarked upon the substi- tution in that act of the word value for the word price, (which latter is used in the statute of Charles,) as showing its framer's extreme accuracy of mind, and that, hy force of that substitu- tion, where the parties had omitted to fix a price it was open to a jury to ascertain the value in dispute.^ From this it must be inferred that the learned Judge was of opinion that the seventeenth section of the statute of Charles would not apply where the parties had not fixed a price. In the case before him, however, it was only necessary to decide, as he did, that the memorandum was sufficient though silent as to price, the jury being of course called upon to determine the value of the article which the memorandum had first shown the defendant to be bound to pay for. And there is certainly room for much hesitation in accepting, without an express judgment upon the point, the intimation of the court as to the narrow meaning of the word price in the seventeenth section. Apart from the manifest policy of the statute which, as we have before re- marked, is to prevent the fraudulent assertion of commercial 1 Hoadley v. McLaine, 10 Bing. 482. CH. XIV.] SALES OF GOODS, ETC. 315 bargains of a certain magnitude, it is no straining of words to say that, where parties make no stipulation as to the amount to be paid for goods, wares, or merchandise bought and sold, and thus agree tacitly upon the quantum valet, they do con- tract for a fair price, which is capable of being ascertained by proof, and thus their bargain is brought within the reach of the statute, where that price is shown to exceed the amount therein fixed. § 314. When a purchaser buys a number of articles at one transaction, and the aggregate price exceeds the statutory limit, the seventeenth section will be held to apply to the bargain. The mere fact that a separate price is agreed upon for each article, or even that each article is laid aside as purchased, makes no difference so long as the different purchases are so connected in time or place or in the conduct of the parties that the whole may be fairly considered one entire transaction.^ 1 Baldey v. Parker, 2 Barn. & Cres. 37. See the authorities cited to the corresponding point under the head of acceptance and receipt. Post, Chap. XV. 816 STATUTE OF FRAUDS. [cH. XV. CHAPTER XV. ACCEPTANCE AND RECEIPT OF THE GOODS, ETC. § 315. It has been repeatedly observed that the primary intention of the framers of the seventeenth section of the statute was, that contracts for the sale of goods, wares, and merchandise should be put in writing, although two alternative modes of binding the bargain are allowed by it.^ And this appears very reasonable, in view of the language of the other section relating to contracts, the fourth, where nothing but writing is admitted as sufficient. And while, as if in defer- ence to the exigencies of trade, so incessant and sudden as they must be, the legislature saw fit to provide other formali- ties to which the parties might with more readiness and facility resort, it is quite clear that this was not meant as a relaxation of the spirit of the statute, but that those formalities were in- tended to be such, and so strictly observed, as to supply as far as possible the .place of a written memorandum. They were, as we will have occasion to see fully hereafter, to be performed in pursuance of the contract and to a certain extent to afford evidence of it.^ §316. In the present chapter, we have to deal only with that mode of concluding the contract which consists in the ac- ceptance and actual receipt by the buyer of part of the goods purchased.^ From the words used we see that the confirmatory 1 Per Denman, C. J., in Bushel w. Wheeler, reported in note to 15 Add. & Ell. N. S. 442. Per Bayley, J., in Smith v. Surnam, 9 Barn. & Ores. 569. 2 See /)os(,§ 326 a. 3 See the subject of the memorandum in writing, separately treated in Chap- ters XVn and xvin. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. S17 and binding act is to proceed from one party only, the buyer. In regard to the antecedent act of delivery by the seller, the statute is silent. What was a good delivery at common law is a good delivery still. But, whereas at common law deliv- ery was the consummation of the contract, from which neither the seller, nor, (unless the goods delivered turned out to be not according to contract,) the buyer could go back, it is now, since the Statute of Frauds, the privilege of the buyer to refuse alto- gether to accept the goods ; for by that statute the bargain is not binding upon him until he has accepted and actually received them or a part of them. It is, then, this act of the buyer, which is thus required as the consummatioii of the transaction, that we have to consider. It is very common in judicial de- cisions, as well as in treatises on this subject, to speak of the delivery required by the statute. But as this must lead, and has already led to considerable confusion, we shall find it desir- able carefully to avoid using that form of language. § SI7. That there cannot be such an acceptance and receipt as shall conclude the purchase until there has been a delivery by the seller, is manifest from the very meaning of the former words, and has often been judicially affirmed.^ And, as bearing on this rule, it sometimes becomes an important question whether a delivery has taken place, in order to determine whether acts of the buyer, which might otherwise indicate acceptance by him, are to be so regarded. Thus, if by the terms of the contract, the sale is to be for cash, or any other condition precedent to the buyer's acquiring title in the goods be imposed, or the goods be, at the time of the alleged acceptance, not fitted for delivery according to the contract, or any thing remain to be done by the seller to perfect the delivery, such fact will be generally conclusive that there was no acceptance so as to bind the par- ties.^ There must be first a delivery by the seller, with intent 1 See cases cited in next note. 2 Maberley v. Sheppard, 10 Bing. 99 ; Proctor i>. Jones, 2 Carr. & Pa. 532 ; Agraman v. Morrice, 8 Man. Gr. & Sc. 449 ; Phillips v. BistoUi, 2 Barn. & Cres. 27* 318 STATUTE OF FRAUDS, , [CH. XV. to give possession of the goods to the buyer. A series of most respectable decisions has established the rule that so long as the seller's lien upon the goods for the price remains, and the buyer cannot maintain trover against him for detaining them, there can be no acceptance within the meaning of the statute.^ If, however, the buyer has taken possession, and merely remains under an engagement restricting his use or disposition of the goods until payment of the price, that re- striction, will not, it seems, be deemed inconsistent with his having accepted and received them so as to conclude the con- tract. In a case in the Queen's Bench, the buyer of some wool had it removed to a warehouse belonging to a third party, but where he was in the habit of collecting his various pur- chases of wools and having them packed, and there he had the wool in question weighed and packed in his own sheetings, but by the course of dealing he was not to remove it till the price was paid ; it was held that there was a sufficient delivery and acceptance to ground an action for goods sold and delivered. After remarking that every thing was complete but the pay- ment of the price, Lord Denman, C. J., who delivered the opinion of the court, says : " We think that, upon the evidence, the place to which the goods were removed must be considered as the defendants warehouse, and that he was in actual pos- session of it there as soon as it was weighed and packed ; that it was thenceforward at his risk, and if burnt must have been 511 ; Bill V. Bament, 9 Mees. & Wels. 36 ; Leven v. Smith, 1 Denio, (N. Y.) 571 ; Saunders w. Topp, 4 Wels. Hurl. & Gor. 390, overruling apparency the case of Anderson v. Scott, 1 Camp. 135, n., so far as the latter is opposed to the rule laid down in the text. 1 Carter v. Toussaint, 5 Barn. & Aid. 855 ; Baldey v. Parker, 2 Barn. & Cres. 37; Phillips u. Bistolli, sUpra ; Smith v. Surnam, 9 Barn. & Cres. 569 ; Proctor V. Jones, and Maberley v. Sheppard, supra ; Bushel v. Wheeler, reported in note to 15 Adol. & Ell. N. S. 442 ; Bill v. Bament, supra; Holmes v. Hoskins, 28 Eng. Law & Eq. 564 ; Wright, J., in Shindler v. Houston, 1 Comst. (N. Y.) 261, where the judgment of the Supreme Court of New York, (1 Denio, 48,) was reversed. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. S19 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 im- properly, 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 obtained in respect to the term agreed on, that the goods should not be removed to their ultimate place of destination before payment." ^ In a later case, where the defendant had bargained for a carriage from the plain tiflF, and after leaving it for a few days in the plaintiff's shop took it out for a drive, paying for the horse and man, it was held by the Court of Exchequer that there was an accept- ance and receipt of the carriage, and Maule, J., remarked that " assuming that the man who drove it was the plaintiff's ser- vant and had directions from the plaintiflf to bring back the carriage, still that which passed clearly amounted to an accept- ance, subject to a contract on the defendant's part to send the carriage back to the plaintifi" and repledge it for the price." ^ Mere retention of possession by the vendor after the property of the goods has passed, and for the purpose of performing some duty in regard to them as the agent of the purchaser and owner, of course does not invalidate the bargain of the parties.^ § SI 8. In order to work an acceptance and receipt of goods purchased, it is not necessary that there should be an actual manual handling of them by the buyer. In many cases this is impracticable, and the statute requires no other acts of acceptance and receipt than are consistent with the nature, locality, and condition of the goods ; and though these acts be merely symbolical, the statute will be satisfied when the case admits of none other. Thus, goods lodged in a warehouse 1 Do^sley v. Varley, ^ Adol. & Ell. 632. 2 Beaumont v. Brengeri, 5 Man. Gr. & Sc. 301. 3 Boynton v. Veazie, 24 Maine, (U Shep.) 286. 320 STATUTK OF FRAUDS, [cH. XV. may be transferrecl by the delivery and acceptance, with that intent, of the key of the warehouse;^ or by the warehouse- man's making an entry of the transfer in his books ;^ and, in the case of a ship or cargo at sea, the dehvery and accept- ance of the bill of sale or the bill of lading will suffice to per- fect the transfer.^ When the goods are in the custody of a third party, however, the mere acceptance by the buyer of an order upon him for them will not amount to an acceptance of the goods themselves ; * there must be an agreement by such third party to hold as the bailee of the buyer ; an attornment, so to speak, to him.^ The general rule in regard to the ac- ceptance and receipt of inaccessible or ponderous and bulky articles, is that it n^ay be accomplished by the performance of any act which shows that the seller has parted with the right and claim to control the property, and that the purchaser has acquired that right.® § SI9. Mr. Chancellor Kent refers to a doctrine contained in the Pandects to the effect that the consent of the party upon the spot is a sufficient possession of a column of granite, which from its weight and magnitude was not susceptible of any 1 Wilkes V. Ferris, 5 Johns. (N. Y.) 343 ; Ciiappel v. Marvin, 2 Aik. (Verm.) 79. . 2 Harman !>. Anderson, 2 Camp. 243 ; Proctor v. Jones, 2 Carr. & Pa. 632. 3 Badlam v. Tucker, 1 Pick. (Mass.) 389 ; Gardner v. Howland, 2 lb. 599 ; Higgins V. Chessman, 9 lb. 6 ; Turner v. Coolidge, 2 Met. (Mass.) 350 ; Tucker V. Buffington, 15 Mass. K. 477 ; Brinley v. Spring, 7 Greenl. (Me.) 241 ; Peters V. Ballistier, 3 Pick. (Mass.) 495 ; Hodges v. Harris, 6 lb. 359 ; Gallop v. New- man, 7 lb. 382 ; Pratt v. Parkman, 24 lb. 42. 4 Compare the cases of Wilkes v. Ferris, 5 Johns. (N. Y.) 335; Searle v. Reeves, 2 Esp. R. 599 ; Withers v. Lyss, 4 Camp. 237; Tucker v. Ruston, .2 Carr. & Pa. 86, with those next cited. 5 Farina v. Home, 16 Mees. & Wels. 119; Bentall v. Burn, 3 Barn. & Cres. 423 ; Lackington v. Atherton, 7 Man. & Gr, 860 ; Lucas v. Dorrien, 7 Taunt. 278 ; Stanton v. Small, 3 Sand. (N. Y.) 230 ; Franklin v. Long, 7 Gill & Johns. (Md.) 407. 8 Boynton u. Veazie, 24 Maine, (11 Shep.) 286. Delivery and acceptance of the export entry of goods in store is insuflScient. Bailey v. Ogden, 3 Johns. (N. Y.) 420; Johnson v. Smith, Anthon, (N. Y.) 60. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 321 other delivery or acceptance.^ This illustration, thus used hy so eminent a writer, has been quoted as establishing a general rule that bulky or ponderous articles might be sufficiently ac- cepted, within the statute, by mere verbal consent. In the case of Shindler v. Houston, in the Supreme Court of New York, the facts were these : The plaintiff and defendant bar- gained respecting the sale by the former to the latter of a quantity of lumber piled apart from other lumber on a dock and in the view of the parties at the time of the bargain, and which had been before that time measured and inspected. The defendant offered a certain price per foot, which being satisfactory to the plaintiff, he said, " the lumber is yours ; " the defendant then told the plaintiff to get the inspector's bill of the lumber and take it to the defendant's agent, who would pay the amount ; this was soon after done, but payment was refused. The court held that the Judge below had properly sub- mitted these facts to a jury with instructions^ that they might find an absolute delivery and acceptance of the lumber at the time of the bargain. Jewett, J., who pronounced judgment, said: " Delivery jn 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, when the thing does not admit of actual delivery, and such delivery is sufficient and equivalent in its effects to actual delivery. It must be such as the nature of the case admits."^ The Court of Appeals reversed this 1 4 Kent, Com. 600. And see Calkins v. Lockwood, 17 Conn. R. 174. 2 Shindler v. Houston, 1 Denio, 48. The learned Judge refers to the case of the column of granite, and also to a case in Massachusetts, as supporting his conclusion that here was a sufficient acceptance of the timber. In the latter, however, (Jewett v. Warren, 12 Mass. 300,) which was an action of trover, by the seller of some logs against the administrator of the buyer, whose estate was insolvent, there was no allusion made to the Statute of Frauds, the single ques- tion before the court being whether there had been a valid pledge of the logs ; moreover, there was a bill of parcels in the case signed by the buyer. 322 STATUTE OF FRAUDS. [cH. XV. decision,^ not objecting to the rule as stated by Jewett, J., but holding that there had not been any symbolical delivery and acceptance of the lumber ; and the opinions of some of the Judges most clearly and forcibly draw the important line of dis- tinction between a symbolical acceptance and one which rests in verbal agreement merely. Gardiner, J., said: "We are presented with a naked verbal agreement. The declarations relied upon as evidence of a delivery arfd acceptance constitute a part of the contract, and of course are obnoxious to all the evils and every objection against which it was the policy of the law to provide. The acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement of which they are a part performance, and which they assume as already existing." While admitting the decisions to the effect that the delivery and acceptance of a key, for instance, will work a transfer of the stored articles, he says : " To aid the plaintiff, an authority must be shown that a stipulation in the contract of sale for the delivery of the key will constitute a delivery and acceptance within the statute. No such case can be found." Wright, J., says: " Far as the doctrine of constructive delivery has been sometimes carried, I have been unable to find any case that comes up to dispensing with all acts of parties, and rests wholly upon the memory of witnesses as to the precise form of words to show a delivery and receipt of the goods." Upon the citation of the granite column case from. the Pandects, he remarks: "So far as this decision may be in opposition to the general current of decisions in the common law courts of England and of this country, it is sufficient, perhaps, to observe that the Roman Law has nothing in it analogous to our Statute of Frauds." And after observ- ing that the most extreme of the English cases do not furnish authority for the doctrine that words unaccompanied hy acts 1 1 Comst. 261. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. S2S are sufficient to satisfy the statute, he remarks that if such doctrine should prevail, " for all beneficial purposes the law might as well be stricken from our statute book." ^ § SSO. It is important to observe at this point that though the words of the parties cannot be admitted as a substitute for such acts of acceptance and receipt as the statute requires, still they are clearly admissible as part of the res gestae, to explain those acts. This rule was applied in a case of some delicacy, in the Queen's Bench, where the goods in question then be- longing to the plaintiff were already in the defendant's hands for the purpose of selling them as his agent ; and the defendant told the plaintiff that he would take them himself at a price then named, and afterwards sold them to a third party, and in a written account current delivered to the plaintiff debited himself with the price of the goods as sold, but without stating to or for whom they were sold. It was held that the parol evi- dence of the conversation between the parties was admissible to go to the jury, on the question whether he had sold the goods as his own, thus accepting them within the meaning of the statute. Lord Denman, C. J., delivered judgment, and upon the objection to the admission of the parol evidence as defeat- ing the policy of the statute, he says : " No case warrants the holding the rule so strict, nor does convenience 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." ^ § 321. We have now to see what acts are regarded as in the nature of an acceptance and receipt by the buyer, when done upon or in regard to the goods themselves. The rule may be broadly stated, that any acts from which it may be inferred that 1 See Bailey v. Ogden, 3 Johns. (N. Y.) 420, where Chief Justice Kent strongly upholds the same view. 2 -Edan v. Dudfield, 1 Adol. & Ell. N. S. 302. Andsee Lillywhite v. Dev- ereux, 15 Mees. & Wels. 283, and Shindler v. Houston, 1 Comst. (N. Y.) 265. S24i STATUTE OF FRAUDS. [cH. XV. the buyer has taken possession as owner, may be so regarded. In all cases it is for the jury to draw this inference,^ and hence the shghtest circumstances are often submitted to them for that purpose. But it is for the court to withhold the facts from the jury when they are not such as can afford any ground for find- ing an acceptance ; and this includes cases where, though the court might admit that there was a scintilla of evidence tend- ing to show an acceptance, they would still feel bound to set aside a verdict finding an acceptance upon that evidence.^ § S£3. When the buyer, subsequently to the verbal contract of sale, deals with the article as his own, that is held to be evi- dence of an acceptance within the statute, ChapUn v. Rogers is a leading case on this point, and there the Court of Queen's Bench held that, after a verbal bargain and sale of a stack of hay, evidence that the buyer actually sold part of it to another person was sufficient to warrant the jury in finding a delivery to and acceptance by him, so as to take the case out of the statute. Lord Kenyon, C. J., (with whom the other Judges agreed,) said: " I am not satisfied that in this case the jury have not done rightly in finding the fact of a delivery. Where goods are ponderous and incapable, as here, of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tantamount, such as the de- livery of the key of a warehouse in which the goods are lodged, or by delivery of other indicia of property. Now here the defendant dealt with this commodity afterwards as if it were in his actual possession, for he sold part of it to another person." ^ In this case the plkintiff objected to the hay being taken away by the person who bought it from the defendant, and in the subsequent 1 Chaplin v. Kogers, I East, 192 ; Blenkirisop v. Clayton, 7 Taunt. 597 ; Hunt V. Hecht, 20 Eng. Law & Eq. 524; Edan u. Dudfield, 1 Adol. & Ell. N. S. 302 ; Lilly white v. Devereux, 15 Mees. & Wels. 283. 2 Norman v. Phillips, 14 Mees. & Wels. 277 ; Bushel v. Wheeler, reported in note to 15 Adol. & Ell. N. S. 442. 3 Chaplin v. Kogers, 1 East, 192. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 825 cases of Blenkinsop v. Clayton, and Baines v. Jevons the buyer merely offered to sell to a third party, and it was held to he evidence of an acceptance under the original bargain.^ And so, where upon a purchase of cattle, the agreement was that they should remain in the possession of the seller until called for, the buyer's afterwards coming and carrying them oflf", thus treating the bargain as complete and the cattle as his own, was held in New York to amount to an acceptance.^ It is, therefore, the mere fact of the buyer's assuming to dispose of the article or treating it as his own, which constitutes the acceptance. In the case of Smiths?;. Surnam, the defendant oflFered to sell parts of the timber which was the subject of the contract, and the court held that there was no acceptance to satisfy the statute ; but there it would seem the seller had not parted with his lien upon the timber for the price and so had never delivered it.^ § 323. In Maberley v. Sheppard, the defendant employed the plaintiff to construct a wagon, and, while it was in the plaintiflf's yard unfinished, procured a third person to fix on the iron work and a tilt. The Court of Common Pleas held that this was no acceptance by the defendant, because the wagon was unfinished \^en the acts relied on were done ; admitting, however, that if, after it was completed and ready for delivery, the defendant had sent a workman of his own to perform addi- tional work upon it, such conduct, as being an assertion of ownership, might have amounted to an acceptance.* Here also, the decision stands upon the ground that there never had been, because the article was not in fact ready for, a delivery. And so, in Tempest y. Fitzgerald, where the buyer of a horse or- dered him to be taken out of the stable, and he and4iis servant 1 Blenkinsop v. Clayton, 7 Taunt. 597; Baines v. Jevons, 7 Carr. & Pa. 288. 2 Vincent y. Geombnd, 11 Johns. 283. 3 Smith V. Surnam, 9 Barn. & Cres. 561. See anfe, § 317; and Beaumont V. Brengeri, 5 Man. Gr. & So. 301. • * Maberley v. Sheppard, 10 Bing. 99. 28 826 STATUTE OF FRAUDS. [CH, XV. rode him, and his servant cleaned him, and he gave directions for his treatment,^ and in Holmes z'. Hoskins, where the horse, though remaining in the seller's field, was fed with the buyer's hay,^ the inference of acceptance arising from these acts indica- tive of ownership, was held to be controlled by the fact that, in each case, the terms of the sale were cash, and; as the seller could not have intended to part with his property until he was paid, the buyer could not accept it within the meaning of the statute so as to conclude the bargain.^ ■ § 824*. The case of Elmore v. Stone deserves especial con- .sideration. It was an action to recover the price of two horses alleged to have been sold to the defendant, who, as it appeared in evidence, after concluding the bargain verbally, sent word that "the horses were his, but that, as he had neither servant nor stable, the plaintiff must keep them at livery for him ;" and upon this the plaintiff removed the horses out of his sale stable into another, where he kept horses at livery. Lord Mansfield, in sustaining the verdict found for the plain- tiff, said : " I thought at the trial that there was no need of a memorandum in writing, because of the direction given that the horses should stand at livery. Thei/ were^n fad put into another stable, hut that is wholly immaterial. It was after- wards agreed that this was not a sufficient delivery, but upon consideration we think that the horses were completely the horses of the defendant, and that when they stood in the plain- tiff's stables they were in effect in the defendant's possession." He then refers to cases of constructive delivery and acceptance by some symbolical act, and in regard to the case before him says : " 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 livery at the vendor's 1 Tetnpest v. Fitzgerald, 3 Barn. & Aid. 380. 2 Holmes V. Hoskins, 28 Eng. Law & Eq. 564. 3 See also Carter v. To'ussaint, 5 Barn. & Aid. 855. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 827 stable or whether they had been taken and put in some other stable."^ It is manifest, however, that in such a view of the case, we miss the overt symbolical act which is essential to the perfecting of a bargain where there is no change of the situa- tion of the^ article. And accordingly the courts have generally admitted that this decision was to be sustained only on that feature which Lord Mansfield declares to be immaterial, namely, that the horses were actually removed from the sale to the livery stable. Even in this light, they appear to have regarded it as an extreme case. The act of acceptance upon which it is supported seems to consist merely in the buyer's acquiescence in a proceeding on the part of the seller, by which the latter indicated that he had ceased to hold the horses as owner, and had become hailee of them for the buyer. But where the de- fendant orally purchased of the plaintiff a quantity of tares by sample, and left them on the plaintiff's premises, saying that he had no immediate use for them, and requested that they might remain there till he wanted to sow them, which was agreed to ; and afterwards the tares were measured out by the agent of the plaintiff g,nd set apart in his granary and ordered to be delivered to the defendant when he called, and the defendant afterwards refused to take them, for which the action was brought ; the Court of Queen's Bench nonsuited the plaintiff, hplding that the defendant had not accepted the tares within the meaning of the statute. The case appeared to be distin- guished from the case of Elmore v. Stone in the fact that here the buyer would have the right, when the tares were tendered to him, to reject them as deficient in quantity or as not agreeing with the sample, a right which he could not be presumed to have waived.^ But Bayley, J., remarked that in Elmore v. Stone, the defendant ha^ directed expense to he incurred, and added : " The case goes as far as" any case ought to go, and I 1 Elmore v. Stone, 1 Taunt. 457. 2 gge post, § 330. 328 STATUTE OF FRAUDS. [cH. XV. think we ought not to go one step beyond it. I must say I doubt the authority of that decision." ^ On the whole this case seems to show very clearly, that the mere measuring out and setting apart of the articles, with the buyer's knowledge and consent, cannot be regarded as conclusive of tlje bargain. And so, if in Elmore v. Stone the horses had merely been set apart for the buyer, it would have been impossible to sustain the decision ; but their being put at livery was an act to which both parties were privy, and which was inconsistent with the seller's ownership of them. And if the change in the seller's relation to them had not been so evinced, but had been proved only by the conversations of the parties, the decision could not be maintained. In a case in New York, the plaintiff purchased a span of horses, but left them in the seller's hands, who, after- wards, and, as it was suggested, in the capacity of agent for the plaintiff, and on his account, undertook to sell them again ; pending the execution of which alleged agency, the horses were attached in suits against the alleged agent, and the plain- tiff sued the attaching officer to recover their value ; the Su- preme Court considered that no property in the horses had passed to the plaintiff, for even if they were really being held, at the time of the attachment, for the plaintiff and on his account, the existence of such an agency, shown only by oral proof, would not be sufficient to establish an acceptance and receipt by him.^ § 825. In the early cases of Hodgson v: Le Bret, and i Howe V. Palmer, 3 Barn. & Aid. 321. 2 Ely V. Ormsby, 12 Barb. 570, which appears to be distinguished from the case of Edan v. Dudfield, by the fact that in the latter the purchaser had done an overt act, namely, resold the article, and parol evidence was admitted to show thatfehe had done so as purchaser and owner, not as agent, which he had previously been. In Ely v. Ormsby there was no act to explain ; the parol evi- dence -was offered simply to show that the seller was holding as the agent of the buyer. See farther Bailey v. Ogden, 3 Johns. (N. Y.) 420, and Johnson v. Smith, Anthon, (N. Y.) 60. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 829 Anderson v. Scott, it was held by Lord Ellenborough that the marking of the purchaser's name upon the article in his pres- ence, and with his consent or direction, was an act amounting to acceptance within the statute.^ The latter of these decisions was afterwards disapproved by Best, C. J., but, it would seem, not upon this point, and the case before him was determined upon another ground.^ At any rate the English courts have upon several subsequent occasions recognized the sufficiency of such an acceptance,^ and upon principle it is not easy to see the objection to it, always supposing that the inference of an intention to pass the property in the goods is not controlled by the fact that the seller retains his lien for the price.* If he does not retain it, it would seem plain that in continuing to hold the goods, so marked and designated, until actually transmitted to the buyer, he acts merely as the warehouseman of the latter. § S26. It is of course essential to the efficacy of the acts relied on to show an acceptance and receipt by the buyer, that they be done with that view and intent; it is not enough that the buyer should have taken them into his possession. Taking out. a sample,^ or even examining the whole lot delivered, for the purpose of ascertaining the quantity or quality,® and though the lot be injured or depreciated thereby,'' will not conclude the 1 Hodgson V. Le Bret, 1 Camp. 233 ; Anderson v. Scott, cited in note to Hodgson V. Le Bret. 2 Proctor V. Jones, 2 Carr. & Pa. 53^. And so with Hodgson ih Le Bret, which was declared in Elliott w. Thomas, 3 Mees. & Wels. 170, to have been overruled, but this was upon another point. See next note. 3 Boulter v. Arnott, 1 Cro. & Mees. 333, where Bayley, B., spoke of Hodgson V. Le Bret as law. Also Bill v. Bament, 9 Mees. & Wels. 36, where Parke, B., said that the buyer's direction to mark the goods was evidence to go to the jury quo animo he took possession of them. 4 As was the case in Bill v. Bament and Proctor v. Jones, supra. 5 German v. Boddy, 2 Carr. & Er. 145. 6 Kent V. Huskinson, 3 Bos. & Pull. 233. 7 Curtis V. Pugh, 10 Adol. & Ell. Ill ; Elliott v. Thomas, 3 Mees. & Wels. 170. As to the presumption of acceptance arising from an unreasonably Ion" detention of the article, see post, § 333. • 28* 330 STATUTE OF fRAUDS. [cH. XV. buyer. Upon the same ground, it is held that a taking of articles by one who is to put them into a certain condition and pay for them at a rate to be then ascertained, is not an accept- ance, his taking not having been with that view.^ Nor can a taking which was at the time a trespass, and so regarded by the parties, be afterwards at the option of one of them con- verted into an acceptance to bind the bargain.^ § 826 a. It was said by Heath, J., in Kent v. Huskinson, that the acceptance by the buyer must be "such as completely affirms the contract," It is obvious, however, that the mere act of ac- cepting goods, though it may give an indication more or less sure of the quantity and quality bargained for, gives none what- ever as to the price and time or other conditions of payment, and the same remark applies with nearly the same force to the giving of earnest to bind the bargain. So far, then, as these alternative methods of fixing the liabilities of the parties go to prove the contract, they fall far short of the written memoran- dum, which, as we shall see hereafter, is required to afford evi- dence in itself of the terms agreed upon. When it is said that the acceptance and receipt must completely affirm the contract, it must be understood, either that the contract is first proved by parol, or that the acceptance and receipt being such as to establish the relation of vendor and vendee, parol evidence is .then admitted to define the particulars of that relation. It is quite remarkable that this point has never, until within the last twelve months, been judicially ^onsidered. This was in a case before the Court of Common Pleas, where the plaintiff deliv- ered to the defendant a piano at the price of £15, and it was 1 Ward V. Shaw, 7 "Wend. (N. Y.) 404. But see Gray v. Payne, 16 Barb. (N. Y.) 277. 9 Baker v. Cuyler, 12 Barb. (N. Y.) 667. In Tempest v. Fitzgerald, however, (3 Barn. & Aid. 680,) Abbott, C. J., disclaimed committing himself to the opin- ion " that i^ the buyer were to take away the goods without the assent of the -seller, that would not be sufficient to bind Mm." 4 CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 331 accepted and received by him. In an action for the price it was proved that when the piano was delivered, the plaintiflf asked ready money for it, but the defendant said he was en- titled to keep it as security for the payment of certain bills, and refused to deliver it up again to the plaintiff. Parol evi- dence was heard at the trial as to what the agreement really was, and the jury having found for the plaintiff, the defendant on leave moved to set it aside and enter a nonsuit. In sup- port of the motion it was contended that by acceptance of the goods " so sold," the statute meant acceptance of them as sold under the contract alleged, and that it must be such an accept- ance as is equivalent to a memorandum in writing, and shows all the terms of the contract, and that parol evidence should not have been admitted to explain the acceptance of the piano. The court discharged the rule on grounds which appear in the following extracts from the opinions of the Judges. Jer- vis, C. J. : " My mind has wavered considerably during the discussion of this case. At one time I was inclined to think that there had been no acceptance under the statute ; but, after looking into the matter, I now think that there was, and that the rule ought, therefore, to be discharged. In order to satisfy the statute, on a sale of goojjs for £10 or more, there must be either a writing, or a part payment, or a delivery and acceptance of the goods ' so sold.' I think those words mean an accept- ance, of goods sold at a price of ,£10 or more. In this case, there is no doubt that there was a delivery of that which the plaintiffs say was sold for more than £10; and there is no doubt there was an acceptance, as the defendant says that he accepted on certain terms. It is just as if the defendant had said he accepted on six months' credit. The terms of the con- tract as to the time when the money is to be paid, would then fee 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 « 332 STATUTE OP FRAUDS. [cH. XV. the ordinary case where a man says to another, ' I have sold you goods for present payment,' and the other answers, ' 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 statHte. I think, in this case, the defendant is preclu- ded by the finding of the jury, and that, therefore, the rule ought to be discharged." Williams, J. : "I think there is no doubt there was a delivery and acceptance under the Statute of Frauds. No doubt the acceptance was accompanied by a denial by the defendant of one of the terms necessary to support this action, and for some time I felt great dif- ficulty in saying that any proof could be offered, in lieu of writing, which amounted, instead of a corroboration 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 consis- tent with the alleged contract of sale as acceptance, it would be quite safe to dispense with the necessity of a writing. The statute does not mean that the thiqg 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," Crowder, J, : "I think there was an acceptance within the Statute of Frauds. The jury having found the accieptance, there is no doubt there was a delivery and accept- ance, and that enables the plaintiff to lay before the jury evi- dence 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 CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 333 on *lhe parol evidence, what were the precise nature and terms • of the contract." ^ § S27. The acceptance and receipt which the statute requires may be by the agent of the buyer empowered for that purpose.^ But the seller himself cannot, it seems, in any case be regarded as such agent.^ And the authority of the agent to bind his principal by- accepting goods is a matter on which the courts have of late inclined to exercise some care ; as is shown par- ticularly by the course of decisions in cases where the goods in question have been delivered to, and received by, a carrier for transportation to the buyer. In an early case atnisiprius, where a hogshead of gin, purchased verbally by the defendant from the plaintiff, was shipped to him by a certain vessel, and it appeared that, in the course of dealing between the parties, it had been customary for the plaintiffs to ship similar goods to the de- fendant by the same vessel, and the defendant had always- received them ; it was held that under those circdfastances the defendant must be considered as having constituted the master of the ves- sel his agent to accept and receive the goods.* And in another instance it appears to have been held by the Court of Queen's Bench that the same effect of concluding the contract followed from the goods being delivered to a carrier designated by the buyer for that purpose.® But as to the latter class of cases it is obvious that, as was remarked by an eminent Judge, the very fact of such designation of the mode of conveyance, being part of the contract itself, cannot be established by oral L._ . . 1 Tomkinson v. Staight, 33 Eng. Law & Eq. 328. a Snow u. Warner, 10 Met. (Mass.) 133 ; Cutwater v. Dodge, 6 Wend. (N. T.) 400 ; Barney v. Brown, 2 Verm. 574. ; Howe v. Palmer, 3 Barn. & Aid. 321 ; Astey V. Emery, 4 Maule & S. 262. An acceptance by a mere shopboy, out of the scope of his duty, is of course not sufficient. Smith v. l(Iason, Anthon, (N. Y.) 164. 3 Clark V. Tucker, 2 Sand. (N. Y.) 157. But qumre, if the agent of the seller may be the agent of the buyer for this purpose. Howe v. Palmer, supra, remarks of Holroyd, J. 4 Hart V. Sattley, 3 Camp. 528. 5 Dawes v. Peck, 8 Term'R. 330. , 884! STATUTE OF FRAUDS. fcH. XV. proof; ^ and moreover the buyer may well appoint an agenf to see the goods properly delivered, without giving him power to • bind him by an acceptance and receipt.^ The later decisions, however, have entirely overthrown the doctrine that the recep- tion by a carrier is an acceptance and receipt by the buyer, and upon the ground of an important • principle which they have laid down, namely, that there can be no acceptance and receipt affirming and binding the contract, so long as the buyer has the privilege of returning them as objectionable in quantity or quality.* § ^28. This principle, as a rule for determining the question of acceptance, has been very forcibly attacked in a late judg- ment of the Queen's Bench, delivered by Chief Justice Lord Campbell. The defendant purchased a quantity of wheat of the plaintiff, by sample, and directed that the bulk should be delivered on the next morning by a carrier named by himself, who was to convey it^om the place where it then was to a market town ; and he took away the sample with him. On the following morning the bulk was delivered to the carrier, and the defendant resold it at the market town that day by the same sample. The carrier conveyed the wheat by order of the defendant, who had never seen it, to the sub-vendee who re- jected it as not corresponding with the sample ; and the defend- ant, on notice of this, repudiated his contract with the plaintiff on the same ground. The plaintiff having obtained a verdict below, a rule to set it aside and enter a nonsuit on the ground 1 Alderson, B., in Norman v. Phillips, 14 Mees. & Wels. 277. a Astey V. Emery, 4 Maule & S. 262 ; Howe v. Palmer, 3 Barn. & Aid. 321 ; per Holroyd, J. 3 Hanson v.. Armitage, 5 Barn. & Aid. 557 ; Howe v. Palmer, 3 Barn. & Aid. 321 ; Acebal v. Levy, 10 Bing. 376 ; Nicholle v. Plume, 1 Carr. & Pa. 272 ; Norman v. Phillips, 14 Mees. & Wels. 277 ; Bushel v. Wheeler, reported in 15- Adol. & Ell. N. S. 442, n. ; Smith v. Surnam, 9 Barn. & Cres. 561 ; Coats v. •Chaplin, i Adol. & Ell. N. S. 483 ; Jordan v. Norton, 4 Mees. & Wels. 155 ; and see to the same effect, Shindler v. Houston, 1 Comst. (N. Y.) 261 ; Out- water V. Dodge, 6 Wend. (N. Y.) 400. . " CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 885 that there had been no acceptance and receipt of the wheat by the defendant, was now discharged. Lord Campbell said: " Judges, as well as counsel, have supposed that to dispense with a written memorandum of the bargain, there must first have been a receipt of the goods by the buyer, and after that an actual acceptance of the same. Hence, perhaps, has arisen the notion that there must have been such an acceptance as would preclude the buyer from questioning the quantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor." He then recites the laiiguage of the seventeenth section, and proceeds to say : " It is remarkable that, notwithstanding the importance of having a Avritten memorandum of the bargain, the legislature ap- pears to have been willing that this might have been dispensed Tsdth, where by mutual consent there has been part performance. Hence the payment of any sum in earnest, to bind the bargain, or in part payment, is sufficient. The same effect is given to the corresponding act by the vendor, of delivering part of the goods sold to the buyer, if the buyer shall accept such part and actually receive the same. As part payment, however minute the sum may be, is sufficient, so part delivery, however minute the portion may be, is sufficient. This shows conclu- sively that the condition imposed was not to be the complete fulfilment of the contract to the satisfaction of the buyer. In truth, the effect of fulfilling the condition is merely to waive written evidence of the contract, and to allow the contract to be established by parol as before the Statute of Frauds was passed. The question may then arise whether it has been per- formed either on the one side or the other. The acceptance is to be something which is to preclude, or at any rate to he con- temporaneous with, the actual . receipt of the goods, and is not to be a subsequent act after the goods have been actually re- ceived, weighed, measured, or examined. As the act of parlia- ment expressly makes the actual receipt of any part of the goods sold sufficient, it must be open to the buyer to object, at 886 STATUTE OF FRAUDS. [cH. XV. all events, to the quantity and quality of the residue^ and, even where there is a sale by sample, that the residue offered does not correspond with the sample. We are, therefore, of opin- ion th^t, whether or not a delivery of the^ goods sold to a car- rier or any agent of the buyer is sufficient, still there maybe an acceptance and receipt within the meaning of the act, with- out the buyer having examined the goods, or done any thing to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which aifords conclusive evidence of the contract having been fulfilled." After an elaborate review of the cases upon which the doctrine he contended against was rested, he remarks that in the case before him the buyer specially sent his carrier to receive the wheat; " after the delivery of the wheat to his agent and when it was no longer in the possession of the vendor, in- stead of rejecting it, as in the other cases, he exercised an act of ownership over it by reselling it at a profit, and altering its destination by sending it to another wharf, there to be delivered to his vendee. The wheat was then constructively in his own possession ; and cpuld such a resale; and order take place with-r out his having accepted the commodity'? Does it lie in his mouth to say that he has not accepted that which he has re- sold and sent to be delivered to another \ At any rate is not this evidence from which such an acceptance and receipt may be inferred by the jury ]" ^ § 329. It will be observed that the court do not here decide that the receipt of the goods by a carrier appointed by the buyer is an acceptance and receipt by the buyer himself so as to make the purchase binding on him, and that it is not must now be con- sidered settled both by the cases.which preceded and by those which have followed the case now under consideration.^ Lord 1 Morton w.Tibbett, 15 Adol. & Ell. N. S. 428. 2 Hunt V. Hecht, 20'Eng. Law & Eq. 524. And see also Meredith ». Meigh, CH, XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 887 Campbell simply says that there may be such an acceptance and receipt of the goods without tlm buyer's having precluded himself from " contending that they do not correspond with the contract." The case before him comprised an act on the part of the buyer emphatically and unequivocally asserting his ownership of the wheat, namely, his reselling it at a profit; and the sum of the decision appears to be, that such an act de- bars the buyer from that locus penitentice which would other- wise be allowed him between the delivery to the carrier and in- spection by himself; in the same way as we have before seen that, conversely, very strong acts of acceptance will be deprived of their effect, if it appear that the seller has not parted with his lien upon the goods. The correctness of the decision, therefore, was acknowledged in the subsequent case of Hunt v. Hecht, where the Court of Exchequer, notwithstanding, ex- pressed their doubt of much that fell from Lord Campbell, and reasserted the rule, as correctly inferred from the previous au- thorities.^ § 880. The observations of that learned and eminent Judge are, however, full of consequence, and demand of us a careful inquiry into the meaning of the rule that the buyer will nol^ be held to have accepted and received goods until he has exer- cised, or has had an opportunity to exercise, his option to return them. . And we think the cases commented upon by his lordship do not go so far as to hold, — what it would be most difficult, in the face of his reasoning, to maintain, — that the 22 lb. 91, where Lord Campbell himself said that Hart v. Sattley, holding ac- ceptance by the customary carrier to be sufficient was no longer law. In the case of The Frostbnrg Mining Co. v. The N. E. Glass Co., (9 Cush. 117,) the Supreme Court of Massachusetts have lately determined the same point. In the clear and able opinion delivered by Fletcher, J., the case of Morton v. Tibbett is referred to and shown to be not in conflict with it. This action of the Su- preme Court removes all do^bt attending Snow v. Warner, previously decided by them, (10 Met. 132,) in which, it would seem, the carrier's agency to accept for the buyer was rather proved as a fact than Inferred from the buyer's having selected him as a carrier. 1 Hunt V. Hecht, supra. 29 838 STATUTE OF FRAUDS. [cH. XV. acceptance by the purchaser must be that final acceptance, which, following upon thM-eceipt and inspection of the goods, " preclijdes the buyer from contending that they do not corres- pond with the contract." It is true that the buyer has at com- mon law the privilege, which the Statute of Frauds has not taken away from him, to send back the goods and resist suit for the price, if they do not turn out to be what they were represented, and that he retains this privilege even though he has signed a written memorandum of the bargain, and of course as much so if he has done the alternative, accepted and received the goods ; consequently, if it is this privilege, the continuance of which the cases in question assert to be incom- patible with an acceptance and receipt within the statute, they clearly cannot be law. But in those cases, it is to be observed, that the articles were bought by sample, or merely ordered by the buyer, and that he had no opportunity of seeing what he had purchased. And the rule which, when understood by the light of the facts involved, they really lay down, appears to be simply the very reasonable rule that until the buyer has seen the goods and had an opportunity of judging whether they are ^he goods he purchased^ he cannot be said to have accepted them. Even this privilege he may waive, as in the case be- fore Lord Campbell, by a resale of them, or any other act dis- tinctly and unequivocally asserting ownership, himself taking , the risk of an error in the quantity or quality ; but in the absence of such act concluding him, he seems clearly to retain it. Indeed, it is hard to see how he can accept and receive what he has never seen. The distinction suggested is between accepting and receiving the goods as those which he purchased, and accepting them as satisfactory, so as to preclude subsequent objection on the ground of concealed, defects ; and it seems to be well illustrated in the late case, already referred to, of Hunt V. Hecht, in the Court of Exchequer. § 331. In that case, one of the defendants, who were part- ners, called upon the plaintiff, a bone merchant, for the pur- pose of buying bones. He there saw a heap containing a CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. S8Q quantity of the kind he desired to buy, but intermixed with others which were unfit for manufacturing purposes. He ulti- mately agreed with the plaintiff to buy the heap if the objec- tionable bones were^taken out. It was arranged between the parties that the plaintiff should deliver the bones at a certain quay in sacks marked in a particular way, and the defendants then sent to the wharfingers an order to receive the bones and ship them by a certain lighter, the order containing a memo- randum that the wharf charges were to be paid by them, the defendants. The bags, marked as requested, were received by the wharfingers on the day named, but the defendants did not hear of their being sent until the following day, when the in- voice was received. They then examined the bones, and wrote to the plaintiff complaining of their quality and declining to accept them. The jury found that the plaintiff had sent the bones of the description agreed upon ; but the Judge (Martin, B.,) ruled at the trial that there was no acceptance within the seventeenth section, and nonsuited the plaintiff. A rule having been obtained to set aside the nonsuit, and enter a verdict for the plaintiff, the court on hearing ordered it to be discharged. Pollock, C. B., said: "I am of opinion on the facts that the. nonsuit was right. The goods were received by the person appointed by the defendants, but they were not at any time ac- cepted. The defendants never saw them when they were in a state to be accepted, because they had not been separated. A man does not accept flour by looking at the wheat that is to be ground." And so with Martin, B., who said : " The contract was for such bones in the heap as were ordinarily merchantable, and they were only bound to accept such merchantable bones. Directions were no doubt given to the wharfinger to receive the bones, and in one sense they were received, but this was not an acceptance within the statute. There is no acceptance unless the purchaser has exercised his option, or has done some- thing that has deprived him of his option." ^ « 1 See also what is said by Holland, B., in Jordan v. Norton, 4 Mees. & Wels. 135. 340 STATUTE OF FRAUDS. [cH. XVi As was before remarked, however, there may be an act done by the buyer, pending this option, so decisive of an intention to be bound by the contract, as to debar him from the exercise of the option and control the inference of non-accept- ance arising from the continuance, as for instance, reselHng the goods for his own profit. The execution of a written memorandum in the interim would also certainly be such an act. On this ground, it was said by Coleridge, J., in Bushel v. Wheeler that it was not a fair test that the buyer could not be held to have accepted the goods so long as the seller's right to stop them in transitu remained.' § 333. But the locus penitentice of the buyer extends only until he has exercised his option, or done something to deprive himself of it. He may deprive himself of it, not only by an un- equivocal and conclusive course of conduct affirming the con- tract, but also by an unreasonable detention of the goods after they have come under his control ; what amounts to such a detention being, in each case, and in view of all its circumstances, a question for the jury.^ Such appears to be the clear eflfect of the modern decisions, though the rule is applied with much caution. In Bushel v. Wheeler, to which frequent reference has been made, the buyer designated the vessel for the carriage of the goods, which on their arrival were placed in a warehouse belonging to the owner of the vessel, and the buyer saw them there, and said to the warehouseman that he should not take them, but did not communicate this refusal to the seller till the end oifive months. The court held that the learned Judge who tried the case had done wrong in instructing the jury that there had been no acceptance, but should have left that question to them upon the facts in the case. In Norman v. Phillips, the 1 Bushel «. Wheeler, reported in note to 15 Adol. & Ell. N. S. 442. 8 Coleman v. Gibson, 1 Mood. & Rob. 168 ; Percival v. Blake, 2 Carr. & Pa- 514; Curtis. ». Pugh, 10 Adol. & Ell. N. S. Ill; Bushel w. Wheeler, supra ; Meredith v. Meigh, 22 Eng. Law & Eq. 91 ; *Cunlyffe w. Harrison, 6 Wels-. Hurl. & Gor. 903. See, however, NichoUe v. Plume, 1 Carr. & Pa. 272. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 341 goods were sent by a particular road to a particular station, as had been the course of dealing between the parties, and, on be- ing informed by the railway clerk of its arrival, the buyer stated to Mm that he would not take them ; but six weeks elapsed before he communicated this refusal to the seller. The Court of Exchequer held that, after the decision in Bushel v. Wheeler, it was impossible to say that there was not a scintilla of evi- dence of acceptance to go to the jury, but that there was not enough to sustain the verdict for the plaintiflF below, wHich they accordingly set aside.^ Whether the pertinency of such deten- tion to the question of acceptance arises from the buyer's being, so to speak, estopped by it, or from its going to show that the carrier was really intended by the buyer to be his agent for accepting and receiving the goods, is a matter upon which the decisions are not clear. Lord Campbell in Meredith v. Meigh seems to put it on the latter ground.^ § SS4j. The acceptance and receipt by the buyer must be of part of the goods, wares, or merchandise sold. It is clear that the mere taking of a sample, as and for a sample, is not an acceptance and receipt, so as to make the contract binding. But if the sample taken make part of the goods, &c., which are the subject of the purchase, it is held that the taking of it is such an acceptance and receipt.^ This rule is laid down without qualification, and no case appears to have arisen in which it was found necessary to modify it. It may, however, be proper to suggest a question whether it might not some- times, from all the circumstances of the bargain, so clearly appear that the parties did not intend the taking of the sample to be binding, that it would not be so held, even though it were understood that, in case the bargain was carried out, the quantity 1 Norman?;. Phillips, 14Mees. & Wels. 277. 2 Meredith v. Meigh, supra. 3 Talver v. West, Holt, K. 178; Hinde v. Whitehouse, 7 East, 558 ; Klinitz V. Surry, 5 Esp. K. 267. 29 * 34)2 STATUTE OF FRAUDS. [cH. XV. taken by way of sample should be deducted fronj the bulk to be delivered. § 835. In considering the question, where the price of the goods sold was held to amount to the sum fixed by the statute, we saw that the prices of a number of articles, each less than that sum, but in the aggregate exceeding it, were to be taken together so as to bring the contract within the statute, if the purchases were all rnade at the same time, or so Connected as to shovi^he transaction to be one and the same. And in like manner, me acceptance and receipt of one, or part of one, of such parcels in a combined purchase is sufficient to perfect the contract as to the whole. It may often be a matter of some difficulty to determine whether the transaction was one and the same. In the common case of a number of articles purchased at private sale, of a shopman for instance, at the same time though at separate prices, it is clear that the aggregate is to be taken as the purchase.^ The same has been held as to the aggregate of various purchases made by a party in the course of an auction ; ^ and also in a case where the parties had met by appointment for the purchase of timber, and had proceeded together to several places some miles apart, making bargains for timber at each place at separate prices, but all on the same day.^ In each of the instances referred to there was a memorandum or bill of the whole made out and presented and assented to by the buyer, to which fact much weight was al- lowed, as showing that the parties regarded the transaction as one and entire. 'Perhaps as safe a general test as any will bej whether either party can be made to take or part with any less than the whole lot. Where the defendant gave the plaintiff's 1 Elliott V. Thomas, 8 Mees. & Wels. 170, (in whicli Hodgson v. Lebret, 1 Camp. 233, so far as it is opposed to the rule stated in the text, was declared to be no binding authority) ; Scott v. Eastern Co. R. R. 12 Mees. & Wels. 33. And see Hart v. Mills, 15 Mees. & Wels. 85 ; Champion v. Short, 1 Camp. 63. s Mills V. Hunt, 17 Wend. (N. Y.) 333 ; affirmed on error, 20 Wend. 431. 3 Biggs V. Whisking, 25 Eng. Law & Eq. 257 ' CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 343 travelling agent a positive order for a quantity of cream of tartar, and offered to take a quantity of lac dye at a certain price, which the agent said was too low, but agreed to write to his principals, and that if the defendant did not hear from them in one or two days he might consider that his offer was accepted, and the principals never wrote to the defendant, but sent all the goods ; it was held by the Court of Queen's Bench that this was not a joint order for them all, so as to make the acceptance of the cream of tartar the acceptance of the lac dye also, and render the defendant liable for refusing to accept the latter.^ § 336. The Court of Exchequer have determined an inter- esting point, and one not unlikely to be of frequent recurrence, touching the combined effect of the Statute of Charles, and of Lord Tenterden's Act, so called, (which it will be remembered concerns contracts for unmanufactured or unfinished goods,) as regards this matter of accepting one of a lot of articles. The defendants ordered of the plaintiffs certain lamps, some of which were ready-made, and one was to be made to order ; the former were afterwards delivered and paid for, and the ques- tion was whether the defendants were thereby bound for the whole. Lord Abinger, C. B., said : " The two statutes must be considered as incorporated together, and then it is plain that where an order for goods made and for others to be made, forms one entire contract, acceptance of the former goods will take the case out of the statutes as regards the other also ; " and Alderson, B., said : " The articles bargained to be made are treated for this purpose as goods actually made, although they are not in existence at the time of the agreement."^ There seems to be a difficulty in reconciling this case with the settled rule that there cannot be an acceptance of an article before it is delivered or ready for delivery ; but the spirit of 1 Price V. Lea, 1 Barn. & Cres. 156. 3 Scott V. Eastern Co. R. R. 12 Mees. & Wels. 33. 84)i) STATUTE OF FRAUDS. [CH. XT. that rule is to the effect that the inference of acceptance, arising from the buyer's assuming to exercise more or less control over an article, is repelled by showing that no delivery could have or in fact had taken place.^ The case just cited, however, is peculiar in respect that so much as was accepted was, in fact, delivered, and that valid acceptance was made effectual prospeo' twely as to the unfinished article, by virtue of the connection between the statutes involved.^ And in connection with this point of the acceptance of one of a number of articles not all ready for delivery, it may be proper to refer to the case of goods owned by two or more persons in severalty ; it has been held in New Jersey that if all the owners together make sale of the goods, a delivery aind acceptance of part of one parcel is sufficient as to the whole,^ § 8S7. We next come to the question, when the acceptance and receipt may take place. On this the seventeenth section is silent ; but whatever doubt may have formerly existed, a series of recent and most respectable decisions has established that it may take place subsequently to the making of the verbal agreement.^ The grounds upon which the opinion is supported are presented with great clearness, in a late opinion of the Supreme Court of Massachusetts, delivered by Bigelow, J., where the point was directly presented and decided. The opinion is so valuable, in its bearing upon the true interpretation of the whole section 1 Anle, § 323. 2 Several oases which at first sight create embarrassment on this point may be here referred to; e. s. Ragg «. Mihet, 11 East, 210; Khode v. Thwaites, 6 Barn. & Ores. 388, and Logan v. Mesurier, 6 Moo. P. C. 116. The two former however were determined before the passage of Lord Tenterden's Act ; and the latter was determined, the report seems to show, upon the old French law pre- vailing in Lower Canada. 3 Field V. Runk, 2 N. J. 525. * Walker v. Mussey, 16 Mees. & Wels. 302 ; Field v. Runk, 2 N. J. 525 ; McKnight V. Dunlop, 1 Seld. (N. Y.) 542 ; Davis v. Moore, IS Maine, (1 Shep.) 427; Sprague v. Blake, 20 Wend. (N. Y.) 61. And see Whitwell u. Wyer, 11 Mass. 6 ; Damon v. Osborne, 1 Pick. (Mass.) 481. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. §45 under consideration, as to justify an extended quotation from it. " 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 bar- gain, or in part payment. It would fully satisfy its terms if the delivery or part payment were made in pursuance 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 cer- tain contracts. This is effected by providing that mere parol proof of such contracts shall be insufficient 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 commission of perjury ; it only renders it less probable by rendering proof in support of the contract more difficult. So in regard to other provisions of the same statute ; perjury is not entirely prevented by them ; the handwriting of the party to be charged or the agency of the person acting in his behalf, may still be proved by the tes- timony of witnesses who swear falsely. Absolute prevention of perjury is not possible. In carrying this great purpose of the statute into practical operation, it can add no security against the damage of perjury, that the act, proof of which is necessary to repder a contract operative, is not contemporaneous with the verbal agreement. A memorandum in writing will be as effectual against perjury, although signed subsequent 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 pursuance of an agreement for their sale previously made, will be as efficacious to secure parties against false swearing, as if delivery had accompanied the verbal contract. It is the fact of the delivery under and in pursuance of the agreement of sale, not the time when the delivery is made, that the statute renders essential to the proof 84iG STATUTE OF FRAUDS. [cH. XV. of a valid contract. It is to be borne in mind that in all cases where there is no memorandum or note in writing of the bar- gain, the verbal agreement of the parties must be proved. The statute does not prohibit verbal contracts. On the con- trary, it presupposes that the terms of the contract rest in parol proof, and only requires, in addition to the proof of such verbal agreement, evidence of a delivery or part payment under it. It does not therefore change the nature of the evidence to be oflfered in support of the contract. It merely renders it necessary for the party claiming under it to show an additional fact in order to make it " good and valid." The fallacy of the argument pressed by the counsel for the defendant, seems to us to consist in assuming that the contract takes its legal force and eflfect, from the time when its terms are verbally agreed upon ; and that therefore, being void when made, it cannot become valid by any subsequent act of the parties. It would be more correct to say, that, until the formalities required by the statute are complied with, there is no legal and valid con- tract entered into. The terms verbally agreed upon by the parties amount to little else than a proposition for a contract ; and it is not until delivery of part of the goods takes place, or part payment is made, that it assumes the qualities of a legal contract; in the same manner as the written memorandum of the previous verbal agreement of the parties becomes in law the binding agreement between them. It is not, therefor^ the subsequent delivery of goods, which gives vitality and force to a contract previously void. Until the delivery is made no binding contract exists ; and when it takes place the act of the parties unites with their previous verbal understanding to create a full, complete, and obligatory agreement. In all cases like the present, a single inquiry operates as a test by which to ascertain whether a contract is binding upon the parties under the Statute of Frauds, It is, whether the delivery and accept- ance, whenever they took place, were in pursuance of a pre- vious agreement. If the verbal contract is proved, and a CH. XV.J ACCEPTANCE AND RECEIPT OF GOODS, ETC. S^ delivery in pursuance of it is shown, the requisites of the statute are fulfilled." ^ § 338. It was suggested by Chief Justice Tindal, in a recent case, that acceptance and receipt after action brought might be sufficient, considering the statute in this particular as merely eft'ecting the evidence of the contract.^ He had no oc- casion to decide the point, however, and it is quite clear by the authorities upon an analogous question in regard to the written memorandum,* as well as upon the language of the section, that such an acceptance and receipt would not answer. The plaintiff must have a cause of action before he sues ; the con- tract, until acceptance and receipt, or earnest or part payment, or the making of a written memorandum, is not " allowed to be good," or, in other words, not recognized as a valid con- tract at all. , § 339. It is a very material question, what is the date of the contract, when a verbal agreement is thus made perfect by a subsequent acceptance and receipt ; — the date of the acceptance and receipt, or that of the original agreement, both of which go to compose the complete and binding contract ? On the one hand, we may say, the terms of the contract are in the first instance agreed upon, and would be binding but for a difficulty which the subsequent acceptance removes, and thus establishes the contract -ab initio ; on the other hand, we may say, the acceptance is all that gives the parties any rights, and it does so by drawing to itself the original agreement, which then, and of that date, becomes binding in law. Suppose a damage occur to the goods in the meanwhile, shall the pur- chaser pay the full value % This question seems to have been decided by the Supreme Court of New York in the negative. The defendant verbally purchased four oxen, and left them in • Marsi v. Hyde, 3 Gray, 331. 2 Fricker v. Tomlinson, 1 Man. & Gr. 772. 3 Post, § 348 a. 348 STATUTE OF FRAUDS. [cH. XV. the plaintiff's hands till he should call for them ; meanwhile, one of the oxen died ; the defendant came afterwards and took away the remaining three, and he was held liable for the whole. There was a clear understanding that, until called for, the cattle were at the defendant's risk, but it was verbal only.^ It is to be regretted that the point attracted so little attention from the court as appears to have been the case. § 340. It is hardly necessary to remark, in conclusion of this part of our subject, that an acceptance once intelligently made cannot be afterwards revoked, and its effect avoided.^ 1 Vincent v. Germond, 11 Jolins. 283. 2 Jackson v. Watts, 1 MoCord, (S. C.) 288. CH. XVI.] EARNEST AND PART PAYMENT. S4i9 CHAPTER XVI. EARNEST AND PART PAYMENT. § 34<1. Besides the acceptance and receipt of part of the goods sold, the statute provides that the giving of something in earnest or in part payment of the price shall also have the effect of perfecting the contract and making it binding upon the parties. The giving of earnest, for the purpose of bind- ing a bargain, was recognized at common \a.w, and the statute simply permits it as still valid for that purpose, though the bargain be by word of mouth.^ As at commbn law, however, so under the statute, its only effect is to make the bargain obli- gatory and to give the buyer a right to demand the goods on payment of the price.^ It seems to be agreed that the earnest must be money or money's worth", in other words, something of value, though the amount be immaterial.^ And it must be actually paid ; merely giving it and then taking it back again, or " crossing the hand " with it, will not suffice.* § 84<2. What shall amount to part payment of the price seems to be a question not altogether free from difficulty. In a case of much authority in New York, the defendant owed a sum of money to a third party, who owed the'plaintiff a larger sum upon a promissory note, and all three agreed that the 1 See Glanyil, Cap. XIV., an interesting reference to show how closely the seventeenth section of the statute, except in the matter of the memorandum, pursues the rules of the common law. 2 Langfort v. Tyler, 1 Salk. 113; 2 Bl. Com. 447; 2 Kent, Com. 389; 3 Camp. •126. 3 Artcher v. Zeh, 5 Hill, (N. Y.) 200. * Blenkinsop i'. Clayton, 7 Taunf. 697. 30 350 STATUTE OF FRAUDS. [cH. XVI. defendant should p^y to the plaintiff directly the amount which he owed to the third party, and that the plaintiff should credit the amount on the third party's note held by him ; the agree- ment was entirely oral, and the Statute of Frauds of New York was objected to the plaintiff's recovery, that statute extending- to the sale of choses in action as well as goods. On #rror, it was, contended that here was something equivalent to part pay- ment of the money, because the terms of the agreement were such as to extinguish, pro tanto, the debt due from the third party to the defendant ; in other words, that the transfer was accepted as a payment, and per se worked a satisfaction. But the court held that, even if there had appeared to be an express agreement between the third party and the defendant that the latter would absolutely credit the amount on the former's note, (whereas it was not clear but that it was conditional on his finally recovering the whole amount from the plaintiff,) still it was hot sufficient to take the contract out' of the statute, because no indorsement or receipt was ever actually made. Gowen, J., speaking for the court, said the object of the statute " was to have something pass between the parties besides mere words, some symbol like earnest-money. Here every thing lies in parol." ^ § 84^ a. The principle of this decision, that a mere agree- ment to pay money, without actual payment or giving credit by some manual act, is not sufficient to satisfy the Statute of Frauds, has been affirmed in New York, and seems to be entirely conformed to the spirit and policy of the statute.^ In a case which has somewhat lately come before the Court of Exchequer, the plaintiff, then owing the defendant four pounds 1 Artcher v. Zeh, 5 Hill, (N. Y.) 200. That tffi note of a third person given as payment will take a bargain for goods out of the statute is clear. See Combs V. Bateman, 10 Barb. (N. Y.) 673. Qumre, how it may be in Massachu- setts as to the purchaser's own note, which is there regarded as payment if given with that intention. a Ely v. Ormsby, 12 Barb. 570. CH. XVI.] EARNEST AND PART PAYMENT. 351 and odd, sold him a lot of leather, the price of which exceeded ten pounds, and agreed that the defendant might deduct or set ofi' from the payment to be made for the leather the amount already owing to him by the plaintiff. The defendant returned the leather as inferior to the sample, and demanded the money previously due him, on which the plaintiff brought his action for the agreed price of the leather, less the old debt, insisting that the agreement as to the allowance of the old debt, on the price of the leather, was a part payment of such price and took the bargain out of the statute. All the Barons agreed that it could not be so regarded, because such agreement was part of the bargain for the leather ; such bargain being to buy the leather at a certain "price, less the old debt ; and so denied the motion for a new trial. But it was said that if the defend- ant had agreed to extinguish the old debt, and receive the plain- tiff's goods fro tdnto instead of it, the law might have been satisfied without the ceremony of paying to the defendant and repaying it by him.^ The decision, however, went upon the ground, clearly presented by the case, that the agreement was that the defendant, when he paid for the goods, and if he paid, might deduct the old debt ; thus evidently leaving that deduction contingent, somewhat as in the New York case above quoted. So far as the suggestions of the Barons on the other point are concerned, they seem to involve a little difficulty. Doubtless, if the parties to the suit had been changed, the defendant suing the plaintiff for the four pounds and odd, the latter could have defended on showing that he had paid the debt in leather ; but suppose the bargain of the leather had been wholly fixed by the parties, and afterwards they had agreed that the old debt might be waived or released by way of part payment ; would that have been sufficient, without any receipt or other act showing the release 1 1 Walker v. Mussey, 16 Mees. & Wels. 302. 852 . STATUTE OF FRAUDS. [cH. XVI, § S^S. We have seen that the acceptance and receipt of part of the goods may be subsequent to the making of the oral bargain, but that it should be before action brought. The same cases and the same reasoning seem to apply so clearly to a part payrjient also, that it is not considered necessary to refer to them here.^ 1 Ante, §§ 337, 338. And see Thompson v. Alger, 12 Met. (Mass.) 435. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. S5S CHAPTER XVII.. THE FORM, ETC., OF THE MEMORANDUM. § S4i4i. In considering the important subject of the memo- randum in writing required by the Statute of Frauds in cases of contracts, it seems expedient to examine, first, those matters which are, so to speak, external to the contract, or such as merely concern the execution of the memorandum, and secondly, the contract itself, or the contents or substance of the memo- randum. The first branch of the subject will include all ques- tions relating to the form, material, &c., of the memorandum, as well as to the signature required and the agency for signing; and the discussion of it will be attempted in the present chap- ter. § S^:5. The fourth section- of the statute provides that no action shall be brought ujjon any of the contracts there enumerated, " 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 person thereunto by him lawfully authorized." And the provision in regard to the memorandum under the seven- teenth section, relating to the sales of goods, is the same except in the use of the plural, "parties to be charged."^ A note or memorandum, then, is all that is required ; not a solemn or formal agreement. § S^&. This note or memorandum must, of course, be such as to import, generally, a transaction of the nature which is claimed to be proved by it ; ^ but the form of it is entirely 1 See po»t, § 365. 2 First Baptist Church of Ithaca v. Bigelow, 16 Wend. (N. Y.) 28. 30* 854) " * STATUTE OF FRAUDS. [cH. XVII. • immaterial. It is settled that a letter, properly signed and con- taining the necessary particulars of the agreement, is a sufficient memorandum.^ But it must be such a letter as furnishes evi- dence of an existing and binding contract. If iWoes not dis- tinctly refer to the alleged agreement,^ or if it state* one which materially differs therefrom,^ or show only a treaty pending and not a contract concluded,* or repudiate the alleged agree- riient and declare it to be violated and not binding,^ it has no effect as a memorandum to hold the party from whom it pro- ceeds. It seems to be considered, however, that although one party in his letter dispute the binding existence of the contract, his letter may be taken in connection with a subsequent one from the other party, insisting upon its performance, so as, in the whole, to make out written proof, as against the latter, of the agreement which he has insisted upon.^- • § 347. The memorandum may also be in the form of a 1 Forster v. Hale, 3 Ves. 696 ; Tawney v. Crowther, 3 Bro. C. C. 318 ; Western v. Russell, 3 Ves. & Bea. 188; Saunderson v. Jackson, 2 Bos. & PuU. 238 ; Brettel v. Williams, 4 Wels. Hurl. &&ord. 623 ; Allen v. Bennet, 3 Taunt 169. See post, § 350. 2 Montacute v. Maxwell, 1 P. Wms. 618. 3 Smith «. Surnam, 9 Barn. & Cres. 561. * Whaley v. Bagnel, 1 Bro. P. C. 345 ; Gaunt v. Hill, 1 Stark. K 10 ; Stratford v. Bosworth, 2 Ves. 8e Bea. 341 ; Roberts v. Tucker, 3 Wels. Hurl. & Gord. 632 ; Barry v. Coombe, 1 Pet. (S. C.) 640. 6 Cooper V. Smith, 15 East, 103 ; Richards v. Porter, 6 Barn. & Cres. 437 ; Haughton v. Morton, Irish Q. B. Mich. T. 1855 ; Archer v. Baynes, 5 Wels. Hurl. & Gord. 625 ; Wood v. Midgley, 27 Eng. Law & Eq. 206 ; Fyson v. Kil^ ton, 30 lb. 374. In Tawney v. Crowther, 3 Bro. C C. 318, the defendant's letter put off signing the prepared draft of agreement, saying that " his word should be as good as his bond," and it was held an acknowledgment of the agreement. Where the defendant wrote a letter agreeing to give a marriage portion, and afterwards wrote another retracting it, and in the end agreed orally to stand by his first letter, it was held that the first letter was set up by the oral agreement and made binding upon him. Bird u.'BIosse, 2 Vent. 361. 6 Jackson v. Lowe, 1 Bing. 8 ; Dobell v. Hutchinson, 3 Adol. & Ell. 355. And see Saunderson v. Jackson, 2 Bos. & Pull. 238 ; and Allen v. Bennet, 3 Taunt. 169. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. S55 receipt for the purchase-money of land ; ^ or of a bill of par- cels ; ^ or of a stated account, in which the vendor of land charges himself with the price ; ? or of the return of a sheriflf upon an execution.* In cases of sales by auction, the entry of the purchaser's name, with the price, &c., in the sales book of the auctioneer, completes the memorandum ; ^'provided that the book be so headed and otherwise arranged that the entry shall be intelligible and show what the transaction is.® So with the note book of a broker, so far as his entries therein are to be resorted to for proof of any bargain'and sale effected by him in that capacity. But it has been much disputed, whether the broker's entry in his book is the memorandum intended by the statute, or the bought and sold notes which he hands to his respective parties. It is clearly settled that the bought and sold notes together constitute a binding memoran- dum, though the broker make no entry in his book.^ But for 1 Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ;■ Ellis v. Deadman, 4 Bibb, (Ky.) 467. 2 Salmon Falls Manufacturing Co. v. Goddard, 14 How. (S. C.) 447 ; Bat- turs V. Sellers, 5 Harr. & Johns. (Md.) 117 ; Hawkins v. Chace, 19 Pick. (Mass.) 502. 3 Barry u. Coombe, 1 Pet. (S. C.) 640; Parker o. Mclver, 1 Desaus. Ch. (S. C.) 289. * Hanson v. Barnes, 3 Gill & Johns. (Md.) 359 ; Fenwick v. Floyd, 1 Harr. & Gill, (Md.) 172 ; Barney v. Patterson, 6 Harr. & Johns. (Md.) 205 ; Elfe «. Gadsden, 2 Kich. (S. C.) 378 ; Nichol v. Ridley, 5 Yerg. (Tenn.) 63. 5 See the cases cited in note to ^69, post. A copy of such entry, however, is not admissible to bind the parties. Davis v. Robertson, 3 Cons. R. (S. C.) 71. 6 Gill V. Bicknell, 2 Cash. (Mass.) 358 ; First Baptist Church of Ithaca v. Bigelow, 16 Wend. (N. Y.) 28. The Revised Statutes of New York have expressly provided what shall be the nature of the book in which an auctioneer's entry, to be binding, must be made. See Appendix. 7 Hawes u.Forster, 1 Moo. & Rob. 368; Rucker v. Cammeyer, 1 Esp. R. 105 ; Hicks V. Hankin, 4 lb. 114 ; Chapman «. Partridge, 5 lb. 256 ; Dickerson v. Lilwal, 1 Stark. R. 128 ; Soames v. Spencer, 1 Dow. & Ry. 32 ; Short v. Spack- man, 2 Barn. & Adol. 962; Grant v. Fletcher, 5 Barn. •& Cres. 436 ; Goom v. Aflalo, 6 lb. 117 ; Truman v. Loder, 11 Adol. & Ell. 589 ; Sirewright v. Archi- bald, 6 Eng. Law & Eq. 286. 356 STATUTE OF FRAUDS. [cH. XVII. this purpose, the rule is, they must agree in their terms.^ When they do not agree, or when they both state a contract different from that entered in the book, the question is presented, which is the memorandum ; and on this point there is unques- tionable conflict in the decisions. In the latest of the JEnglish cases, howevel*, it was determined by a majority of the Judges of the Queen's Bench, that if the bought and sold notes differ, reference may be had to the book entry, as being really the memorandum, of which the notes were merely meant as copies.^ Which of the tvt^ shall govern when the notes state a different contract from the book ?ntry, is the more direct and essential question, and it seems to be still undecided ; though Erie, J., in the case in the Queen's Bench, intin\ates that, in the absence of any commercial usage to rely exclusively on the notes, the parties, by accepting and acquiescing in them, might be taken to have ratified the bargain therein expressed, and so adopted it instead of the original entry. Of course, if there are no bought and sold notes, or none which agree together, and no book entry, the contract cannot, so far as it depends upon written evidence, be enforced ; * unless, indeed, as has been suggested, the defendant, by recognizing one of the notes as containing correctly the terms of the bargain, may be considered to have accepted and ratified it.* 1 Gumming ii. Roebuck, Holt, 172; Thornton v. Kempster, 5 Taunt. .786 ; Gregson v. Ruck, 4 Adol. & Ell. 9. S. 737 ; Grant v. Fletcher and 8ivewright v. Archibald, supra; Peltier v. Collins, 3 Wend. (N. Y.) 459; Davis V. Shields, 26 lb. 841 ; Suydam v. Clark, 2 Sand. (N. Y.) 183. 2 Sivewright v. Archibald, supra. And see Hawes v. Forster, supra ; Hinde «. Whitehouse, 7 East, 558 ; Pitts v. Beckett, 13 Mees. & Wels. 743 ; Heyman v. Neale, 2 Camp. 337 ; Thornton v. Meux,-Moo. & Mai. 48; Thornton i>. Charles, 9 Mees. & Wels. 802 ; Townend v. Drakeford, 1 Car. & Kir. 20 ; Toomer v. Dawson, Chevea, (S. C.) 68. Where the bought and sold notes constitute the ■memorandum relied on, it must be so averred in the declaration. Rayner v. Linthorne, Ry. & Moo. 325. 3 Grant v. Fletcher, 5 Barn. & Cres. 436 ; Sivewright v. Archibald, supra. < Erie, J., in Sivewright v. Archibald, supra. In this case the Judges, being ■divided, delivered opinions seriatim, and the whole subject of broker's notes and CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 857 § S48. It is equally immaterial whether the memorandum is written in ink, or pencil, or otherwise, or it may be not written at all but printed or stamped.^ § 348 a. As to the time when it must be executed, it is settled that it may be at any time subsequent to the formation of the contract by the parties and before action brought.^ It has been sometimes doubted whether it might not be after action brought, upon the ground that the statute only m^nt to secure written evidence of the contract.^ But there appears to have been no direct decision to that effect, and the weight of opinion as well as of reason is against it.* § S^P. In the case of auctioneers, the general rule just stated seems not to apply. In Buckmaster v. Harrop, Lord Chancellor Erskine decided, (the point being directly presented on the facts,) that an auctioneer's entry, to be valid as a mem- orandum, must be made contemporaneously with the sale;* entries will be found there discussed at length and the authorities carefully examined. ' Saunderson v. Jackson, 2 Bos. & Pull. 238 ; Schneider v. Norris, 2 Maule & S. 286 ; Jacob v. Kirk, 2 Moo. h, E^b. 221 ; Pitts v. Beeket, 13 Mees. & Wels. 743 ; Geary v. Physic, 5 Barn. & Cres. 234 ; Clason v. Bailey, 14 Johns, (N. T.) 484 ; Vielie v. Osgood, 8 Barb. (N. Y.) 132 ; M'Dowell v. Chambers, 1 Strob. Eq. (S. C.) 347; Draper v. Pattina, 2 Speers, (S. C.) 292. As to signature by printing, see joosi, § 356. 2 See anle^ § 346, and cases there cited, where letters of the defendant recog. nizing the contract were held sufficient to charge him. 3 Fricker v. Thomlinson, 1 Man. & Gr. 772. And see Nelson v. Dubois, 13 Johns. (N.Y.) 175. 4 Bill V. Bament, 9 Mees. & Wels. 36. Erie, J., in Sivewright u. Archibald, 6 Eng. Law & Eq. 289, 290. See ante, § 338. In Rose u. Cunynghame, 11 Ves. 550, before Lord Eldon, where it was necessary for the plaintiff' to show a binding contract for the purchase of land, existing prior to the execution of .a will by the purchaser, so that, (the contract being regarded in equity as executed,) the will would pass that land, it was argued that a letter, written prior to the execution of the will, might be read in connection with a deed made subsequently to its execution, so as to constitute a sufficient memorandum of the purchase. It does not appear that Lord Eldon noticed the point, but he decided against the sufficiency of the writings relied upon, on other grounds. 5 Buckmaster w. Harrop, 13 Ves. 456. 358 STATUTE OF FRAUDS. [cH. XVII. and the language of many of the cases, apparently uncontra- dicted, is that the name of the purchaser must he written -down hy him immediately after the announcement of the hid and the descent of his hammer ; by which we should understand, before proceeding to put up another article. Mr. Justice Story, refer- ring to this rule as to auctioneers, puts it on the ground that men are not to he " ensnared by contracts subsequently reduced to writing by their agents."^ His remark is casually made, however, and the rule itself is referred to by him in illustration merely, of an entirely different question under the statute. If we except this remark, there appears to be no decision upon 'the question, whether a memorandum made by an agent, (other than an auctioneer,) acting for the party to be charged, must be contemporaneous with, or immediately follow, the transaction, any more than if made by the party himself. No such excep- tion appears to have been suggested by those Judges who have had occasion to lay down the general rule, that the memoran- dum may be made at any time before action brought ; and we do sometimes find that ^-ule laid down with more or less dis- tinct inclusion of the case of signature by an agent, though, as was before remarked, without its being made a point in the decision.^ Again, the exception seems to be irreconcilable with what we have seen to be settled, namely, that a broker's bought and sold notes, though there be no previous book entry made by him, constitute a binding memorandum ; for such notes imply a legal contract antecedently made and concluded. And if the exception should be admitted in cases of agency gen- erally, it would leave open the question, what lapse of time would deprive the agent's signature of its efficacy ; a question which, there being no natural criterion, as in the case of the auctioneer's entry, could,not fail to present much difficulty. It 1 Smith V. Arnold, 5 Mass. (C. C.) 419. ' 2 See in particular Sivewright v. Archibald, 6 Eng. Law & Eq. 289, 290, per Erie, J., and Ibid. p. 293, per Patteson, J. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 359 is at all times in the power of the principal to revoke the agent's authority to sign, before he has executed it ; and, on the whole, we may be well justified in hesitating to accept a casual remark, even of such an eminent jurist, as a binding statement of the law on this point. § 850. The written memorandum need not be contained in a single paper, but may be made out by comparing and con- necting two or any number of papers .together.^ Correspond- ence by letter between the parties is frequently taken as a whole in order to constitute the writing required by the statute.^ And a letter, or other instrument, signed by the proper party, may be, for this purpose, taken in connection with a previous writing not signed.^ In all these cases, how- ever, according to the established rule, the mutual relation of the several writings relied upon must appear upon their face, and cannot be established by parol evMence.* And although one writing refer specificalUy to another, the terms of the intended contract may still be left in doubt, and the requirement of the statute be unsatisfied, for want of certainty in the writing refer- 1 Allen V. Bennet, 3 Taunt. 169; Brettel v. Williams, 4 Wels. Hurl. & Gord. 623 ; Jackson v. Lowe, 1 Bing. 8 ; Owen v. Thomas, 3 Myl. & Keen, 353 ; Ver- lander v. Codd, Tur. & Kuss. 352; Salmon Falls Man'g. Co.u. Goddard, 14 How.. (S. C.) 447 ; Parkhurst v. Van Cortlandt, 14 Johns. (N. Y.) 15. 3 Huddlestone v. Briscoe, 1 1 Ves. 583 ; Howard v. Okeover, cited 3 Swanst^ 421 ; Forster v. Hale, 5 Ves. 808. In Chapman v. Bluck, 5 Scott, 515, 4 Bing. N. C. 187, a demise was made by letters. 3 Tawney v. Crowther, 3 Bro. C. C. 318 ; De Biel v. Thomson, 3 Beav. 469 ;■ Coles V. Trecothick, 9 Ves. 234 ; Saunderson v. Jackson, 3 Esp. R. 181 ; Western V. Russell, 3 Ves. & Bea. 187; Dodge v. Van Lear, 5 Cranch, (C. C.) 278 ; Gale V. Mixon, 6 Cow. (N. Y.) 448 ; Toomer v. Dawson, Cheves, (S. C.) 68. But if it refer to a writing to be subsequently prepared, that is not sufficient. Wood V. Midgley, 27 Eng. Law & Eq. 206. And see post, § 360. * Clinan v. Cooke, 1 Sch. & Lef. 22 ; Jacob v. Kirk, 2 Moo. & Rob. 221 ; Montacute v. Maxwell, Stra. 236 ; Morton v. Dean, 13 Met. (Mass.) 388 ; Moale V. Buchanan, 11 Gill & Johns. (Md.) 314 ; Freeport v. Bartol, 3 Greenl. (Me.> 345 ; Abeel v. Radcliff, 13 Johns. (N. Y.) 300 ; Nichols v. Johnson, 10 Conn. 198 ; Ide v. Stanton, 15 Verm. R. 690 ; Adams v. McMillan, 7 Port. (Ala.) 73 ;. Waul V. :prkman, 5 Cush. (Miss.) 823. 360' STATUTE OF FRAUDS. [cH. XVI I. red to. Thus, in the case of Brodie v. St. Paul, which was a suit in equity to enforce an agreement to execute a lease, the par- ties had signed an agreement referring to another paper as containing the terms and conditions ; but this paper contained other terms and conditions besides those which were to be em- braced in the proposed lease, the latter embracing only such among them as the defendant had, on a previous occasion, read to the plaintiff. The ciiurt rejected parol testimony to show what passages had been so read, as muuifestly against the Statute of Frauds.^ § 851. Boydell t;. Drummond is a conspicuous case, bearing upon the general rule above laid down.'^ The Messrs. Boy- dell, being about to publish an illustrated Shakespeare, pre- pared two prospectuses containing the terms, &c., on which the numbers were to be furnished, and had them, and also a book entitled simply " Shakespeare subscribers, their signa- tures," (but not referred to in the prospectuses, nor referring to them,) lying about the shop. The defendant put his name down in the book amoing the subscribers ; but it was held in the Court of Queen's Benuh that he was not liable on his sub- scription, there being no such connection between the pros- pectuses and the book, on their face, as to enable the court to consider them together as constituting one complete memoran- dum. There was also in the case a letter from the defendant, in reply to one from the plaintiff callhig upon him to talce and pay for his numbers, wherein he said tJiiit he ceased taking the numbers of the Boydell Shakespeare many years before, in con- sequence of the engagenmit not being fulfilled on the part of the proprietors, &c. ; but notwithstjmding it was urged by the counsel that no other engagement between the parties was shown to have existed, beyond what was contained in the pros- pectus, the court held the letter insufficient; Lord Ellenbo- 1 Brodio v. St. Paul, 1 Ves. Jr. 826. ^ Boydell V. Drummond, 11 East, 142. CH. XVII.J THK FORM, ETC., OP THE MEMORANDUM. S61 rough remarking that the engagement could not be shown to be that of the particular prospectus, without parol evidence, which the statute would exclude ; but if there had hien a plain reference to the particular prospectus, that might have helped the plaintiflP. § 35!2. It would seem, however, to be not entirely clear that, of the several writings relied upon as forming the memoran- dum, one must refer specifically to the other, although several of the cases state the rule, in general terms, to that eifect. In Allen V. Bennet, the defendant having, by his agent, made and signed a memorandum for the sale to the plaintiff of " 8 cwt. of fine shag tobacco," and of a quantity of rice and other tobacco, and it being objected, in an action for non- delivery, that the plaintiff's name did not appear in the writing, a letter was produced, written by him to the defendant, in which he says : " The 8 cwt. of fine shag tobacco I wish im- mediately forwarded, as I have sold it, and it is wanted. I likewise want the invoice of the rice and the other tobacco." It was held that this letter was so connected with the first memorandum that it might be read therewith to show the name of the buyer.^ Again, in the case of Johnson v. Dodg- son, in the Court of Exchequer, the memorandum of a bar- gain for the sale of hops, signed by the plaintiff's agent, was as follows : " Sold John Dodgson [the defendant,] 27 pockets, Playsted, 1836, Sussex, at 103s. j 4 pockets, Selme, Beckley, at 955. The bulk to answer the sample," &c. The defendant, on the same day, wrote to the plaintiffs requesting them to deliver " the 27 pockets Playsted, and the 4 pockets Selme, 1836, Sussex," to a third party. It was insisted that the de- fendant's letter and the previous memorandum should not be read together ; that parol evidence must be introduced to show that there was only one such contract, i. e., for hops of a cer- tain description. To that Lord Abinger said : " The statute « 1 Allen V. Bennet, 3 Taunt. 173. 31 S62 STATUTE OP FRAUDS. [cH. XVII. does not absolutely exclude parol evidence. It only requires that there shall be a note of the contract in writing, in order to excludetfraud or mistake in its terms." It was not found necessary in the decision to pass upon this point, but the opin- ion of the majority of the court appears to have been that the letter and the previous writing were so connected as to form one memorandum to satisfy the statute. Lord Abinger, in delivering judgment, after remarking that the case was clear on other grounds, said : " If it rested upon the question as to the recognition of the contract by the letter, there might have been some doubt, although even upon that I should have thought the reference to the only contract proved in the case sufficient." Bolland, B., expressed his inclination to hold the same ; but Parke, B., said, that if the question had turned upon that point, he should have had very considerable doubt whether the letter referred sufficiently to the contract ; remark- ing that it referred to the subject-matter, but not to the specific contract.^ § S58, It appears also to have been decided by the Supreme Court of the United States, in quite a recent case, that a mem- orandum of a bargain for the sale of goods, signed by the de- fendant, but ambiguous in some of its terms, might be read in connection with a bill of parcels subsequently made out by the seller and not signed by the defendant at all, for the purpose of explaining those ambiguities ; though the former writing con- tained no reference to any thing outside of itself, and the latter, so far as the report shows, merely imported a sale correspond- ing with that indicated in the memorandum.^ § 354i. We shall presently see that whether a memorandum 1 Johnson v. Dodgson, 2 Meea. & Wels. 653. It was said in the argument of this case, upon the authority of Kennett v. Milbank, 1 Moo. & Sc. 102, that a letter from a debtor, to save against the Statute of Limitations, must refer speci- fically to the debt in question ; but Parke, B., remaj^ed that that was question- able, and cited Lechmere v. Fletcher, 1 Cro. & Mees. 623. 2 Salmon Falls Man. Co. v. Goddard, 14 How. 446. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. ' S6S is or is not signed, within the meaning of the statute, depends upon the intention of the party in affixing his name. But the rule in regard to the intention of the party does not seem to be so narrowly applied, in determining whether a paper suffi- ciently executed for the purposes of a memorandum shall bind the party as such. Where a paper is drawn up and signed for the mere purpose of having an agreement prepared, as, for instance, an inventory of articles, or a list of heads to be em- braced therein, it is of course not to be itself taken as the agreement.^ And although drawn up as the final obligation, if it is retained by the party signing it, and never in any way delivered as his agreement, it cannot bind him.^ But an in- strument so drawn as to recognize the obligation, though not for that special purpose, will, if it is delivered to the other party and accepted by him, suffice for a memorandum under the statute.^ As was said by the Supreme Court of the United States, in a case where the memorandum relied on was a statement of account : " Courts of Equity are not particular as to the direct and immediate purpose for which the written evidence of a contract is created."* And it seems the same remark applies with equal force to Courts of Law, as regards the Statute of Frauds. It has been decided that letters ad- dressed to a third party, for instance, stating and affirming a contract, may be used against the writer as a memorandum of it.^ And an instrument intended to operate as of a higher ' Cooke V. Tombg, 2 Anst. 420 ; Pipkin v. James, 1 Humph. (Tenn.) 32-5. And see Whitchurch v. Bevis, 2 Bro. C. C. 559 ; Thynne v. Glengall, 2 CI. & Fin. N. S. 131; Montacute v. Maxwell, Stra. 236; Rose v. Cunynghame, 11 Ves. 550 ; Glengall v. Barnard, 1 Keen, 769. '■i Grant v. Levan, 4 Barr, (Pa.) 393. But see Bowles v. Woodson, 6 Grat. (Va.) 178. 3 Ellis V. Deadman, 4 Bibb. (Ky.) 467 ; Smith v. Arnold, 5 Mas. (C. C.) 416. And see Dobell v. Hutchinson, 3 Adol. & Ell. 355 ; Sugden, Vendors and Pur- chasers, 114. . 4 Barry v. Coombe, 1 Pet. (S. C.) 640. 5 Moore v. Hart, 1 Vem. 110; Ayliffe v. Tracy, 2 P. Wms. 65 ; Fugate v. Hanford, 3 Litt. (Ky.) 262. And see Neal v. Cox, Peck. (Tenn.) 443. A 364 STATUTE OF FRAUDS. [cH, XVn. nature, but insufficient for fbat purpose, as, for instance, a deed of land which is defective in not having an habendum, or a bond to convey land signed after the obligatory part instead of at the foot, may be available as a simple memorandum.^ Of course, a memorandum prepared and intended to bind the parties is not deprived of its efiect, because it is preliminary to the preparation of a more solemn and formal instrument,^ § 855. Whatever be the form of the memorandum, the statute requires that it be signed. Though it should be all virritten out with the party's own hand, there must still be a signature.' Sealing does not appear ever to have been consid- ered necessary under the fourth section.* But whether sealing amounts to, and may take the place of, a signature, within the meaning of that section, is a question which, it seems, must be considered still open. It was said by a majority of the Judges in the case of Lemayne v. Stanley, decided within four years after the enactment of the Statute of Frauds, that a party's sealing his will was a sufficient signature, for that " signum was no more than a mark, and sealing was a sufficient mark that this was his will." ® Next, it is reported by Strange that Chief Justice Raymond, on an issue directed out of Chancery, suggestion is apparently made to the contrary, though not acted upon, in Buck w. PickweU, 1 Will. (Verm.) 167 ; Clark v. Tucker, 2 Sand. (N. Y.) 157; Kin- loch V. Savage, 1 Speers, Ch. (S. C.) 470. 1 Reeves v. Pye, 1 Cranch, (C. C.) 219 ; Argenbright v. Campbell, 3 Hen. & Mun. (Va.) 144. 2 Fowle V. Freeman, 9 Ves. 351. See, however. Wood v. Midgley, 27 Eng., Law & Eq. 206. 3 Bawdes w. Amhurst, Free, in Ch. 402 ; Hawkins v. Holmes, 1 P. Wms. 770 ; and Ithel v. Potter, there cited. Selby v. Selby, 3 Meriv. 2 ; Hubert u. Morean, 12 Moo. 216; Hubert v. Turner, 4 Scott, (N. R.) 486; Bailey v. Ogden, 3 Johns. (N. Y.) 399; Anderson w. Harold, 10 Ohio R. 399; Barry u. Law, 1 Cranch (C. C.) 77. 4 Wheeler v. Newton, Preo. in Ch. 16 ; S. C. more fully reported in 2 Eq. Cas. 44, c. 5 ; Worrall v. Munn, 1 Seld. (N. Y.) 283 ; Farris v. Martin, and Martin v. Farris, 10 Humph. (Tenn.) 495. 5 Lemayne v. Stanley, 3 Lev. 1. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 865 ruled that sealing a will was a signing within the Statute of Frauds and Pequries.^ And still later, as appears in the report of Atkyns, Lord Harkwicke " seemed to think that sealing without signing, in presence of the witness, would have been sufficient " to make a will good, but said it was a point proper to be determined at law.^ A few years afterwards the Exchequer Barons condemned the opinion of the Judges in Lemayne v. Stanley, considering it a strange doctrine, for that, " if it were so, it would be very easy for one person to forge any man's will by only forging the name of any two obscure persons dead, for he would have no occasion to forge the testator's hand;" and they said that if the same thing should come in question again, they should not hold that seal- ing a will only was a sufficient signing within the statute.^ More lately, Lord Eldon, in the case of Wright v. Wakeford, alluding to the old doctrine that sealing was sufficient where the statute prescribed signing, declared that the contrary had been held for a long time, adding that " so far is sealing from being equivalent to signing that it is determined that sealing is not necessary."* But his lordship refers to no cases ia sup- port of his remark. § 355 a. Within a very few years, the Court of Exchequer have had this question under consideration in a case arising directly upon the fourth section of the statute, where an agree- ment, which was by its terms not to be performed within a year from the making, was put in writing and sealed but not 1 Warneford v. Warneford, Stra. 764. 2 Gryle v. Gryle, 2 Atk. 177. But see Grayson v. Atkinson, 2 Ves. Sep. 454. 3 Smith V. Evans, 1 Wils. 318. * Wright V. Wakeford, 1 7 Ves. 454. With submission, however, it may be said to be quite obvious that although sealing may not be precisely equivalent to, it may be something higher and more solemn than, mere signature ; so that the inference that it was insufficient would not follow from its being unneces- sary. See also Morrison v. Tournour, 18 Ves. 175. 31* 866 ' STATUTE OF FRAUDS. [cH. XVII. signed. There was a subsequent written notice signed by the defendant, referring to this writing so as in the opinion of the court to make a complete memorandum, and to render a decis- ion as to the sufficiency of sealing unnecessary ; but notwith- standing that, each of the Barons expressed his unquahfied opinion that the prior instrument, being sealed, was sufficient within the statute. Baron Rolfe's remarks very clearly present the argument upon which his associates and himself rested that opinion. He says : " I am strongly inclined to think that the statute does not extend to deeds, because its requirements would be satisfied by 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 distinction between what was sealed and what was not sealed, and that went on until society be- came more advanced, when the statute ultimately said that certain instruments must be authenticated by signature. That means that such instruments 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 signa- ture or a mark." ^ § 855 b. Although, in this case, as in all its predecessors, (except perhaps that reported by Strange,) the point of the sufficiency of sealing was not necessarily passed upon, still the deliberate expression of the opinion of so eminent a bench must be admitted to carry with it great weight, and, it seems, goes nearly to settle the question. Upon what may be really considered the most serious argument against it, namely, the facility of forging an instrument authenticated by sealing alone, it must be admitted that there is no more danger than in 1 Cherry v. Hemming, 4 Wels. Hurl. & Gord. 631. See ante, § 9, as to sealing being a sufficient execution of a lease under the first section of the statute. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 867 allowing the mark of the party for that purpose, and the latter has always been held sufficient.' § 356. A printed signature will also answer the require- ments of the statute, if it appear to have been so intended. Thus, if a trader who is in the habit of delivering printed bills of parcels to which his name is prefixed, delivers one contain- ing the necessary particulars of the contract, it is sufficient.^ In a case where the defendant's name as vendor was printed at the head of a bill of parcels, and the plaintiff's name as vendee was written in below in the defendant's handwriting, Lord Ellenborough held that the defendant had thus affirmed the printed name as his own ; but remarked that if the case had rested merely on the printed name, unrecognized by, and not brought home to, the party, as being printed by him or by his authority, so that the printed name had been unappropriated to the particular contract, it might have afforded some doubt whether it would not have been trenching upon the statute to have admitted it.^ There would seem to be no doubt that a man's stamping or impressing his name himself on the memo- randum is a good signature.* § 357. In regard to the place of the signature, there is no restriction. It may be at the top, or in the body, of the memo- randum as Well as at the foot. It was held in a very early case that an instrument in a testator's handwriting, commencing 1 Selby V. Selby, 3 Meriv. 2 ; Schneider v. Norris, 2 Maule & S. 286, per Lord Ellenborough. And see the following cases holding the execution of a will by mark to be good. Wilson v. Beddard, 12 Sim. 28 ; Taylor v. Dening, 3 Nev. & Pen 228 ; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144. In re Field, 3 Curt. (Prer.) 752. 2 Saunderson v. Jackson, 3 Esp. R. 181. 3 Schneider v. Norris, 2 Maule & S. 286. Since the Revised Statutes of New York, requiring the memorandum to be " subscribed," it is held in that State that an actual manual subscription in writing is necessary, and that a printed signature is not sufficient. Vielie v. Osgood, 8 Barb. 132 ; Davis v. Shields, 26 Wend. 351. 4 Pitts t!. Beckett, 13 Mees. & Wels. 743. Qucsre, if this would not satisfy the New York statute cited in the last note ? 368 STATUTE OF FRAUDS. [cH. XVII. " I, A. B., do make," etc., was sufficiently signed as a will ; ^ and the same rule has been applied in many cases of memo-' randa of agreement commencing in the same way, or in the third person, as " Mr. A. B., proposes," etc.^ But the name, besides being in his handwriting, must always be inserted in such a manner as to authenticate the instrument as the act of the party executing it, or, in other words, to amount to an acknowledgment that it is his agreement.^ The mere insertion of his name in the body of an instrument, where it is appli- cable to a particular purpose, will not constitute a signature within the meaning of the statute.* And although it be so inserted as to control and direct the entire instrument, still the better opinion seems to be that its insertion must also be intended as a final signature, and that if it appear that the instrument was to be farther executed, it will not be taken to have already been sufficiently signed. Such was the decision of the High Court of Delegates, in a case of a will where both real and personal property were disposed of, and the tes- tatrix signed and sealed it, a clause of attestation in the com- mon form being subjoined, but there was no subscription of witnesses ; and the will was found, at her death, wrapped in an envelope on which was written, " I signed and sealed my will to have it ready to be witnessed the first opportunity I could get proper persons ; " it was held not well signed so as 1 Lemayne v. Stanley, 3 Lev. 1 ; Freem. 538. 2 Knight V. Crockford, 1 Esp. R. 188 ; Ogilvie v. Foljambe, 3 Meriv. 53 ; Morrison «. Tournour, 18 Ves. 175; Propert v. Parker, 1 Euss. & My. 625; Western v. Russell, 3 Ves. & Bea. 187 ; Penniman v. Hartshorn, 13 Mass. R. 87 ; Hawkins v. Chace, 19 Pick. (Mass.) 502 ; Yerby «. Grigsby, 9 Leigh, (Va.) 387. The New York Court of Appeals have decided, (reversing the judg- ment of the Supreme Court,) that since their Revised Statutes requiring the memorandum to be subscribed, the signature must be at the foot. James v. Patten, 2 Seld. 9. 3 See cases cited in last note. The Supreme Court of Maryland has repu- diated this doctrine. Higdon v. Thomas, 1 Harr. & Gill, 139. « Stokes V. Moore, 1 Cox, 219 ; Hubert v. Turner, 4 Scott, N. R. 486 ; Cabot V. Haskins, 3 Pick. (Mass.) 95. But see Higdon v. Thomas, supra. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. S69 to pass even the personal property.^ The same view has been taken by high authority in several cases arising upon the fourth section.^ It was criticized by Lord Eldon, it is triie, in Saunder- son V. Jackson, wher6 he said that if a man make a memoran- dum commencing, "I, A. B.," etc., it is held sufficient, though it is manifest he intends a farther signature.* But it may be, with diffidence, questioned whether this broad observation is justified by the authorities. Where instruments commencing in the first person have been taken to be well signed, without subsequent subscription, they generally appear to have been so attested, or accompanied by acts of the' party so clearly show- ing that he regarded the instrument as complete, as to repel the presumption of an intention to make a farther execution ; * in cases of instruments commencing in the third person, as " Mr. A. B. agrees," etc., such a presumption does not arise. Actual delivery of a memorandum of the former class as the agree- ment of the party, and perhaps the res gesta, the circumstances attending the writing of it, would be taken into consideration to determine whether it was signed within the intent and mean- ing of the law.® § 358. In an early case in Massachusetts,® the memorandum 1 Walker v. Walker, 1 Jleriv. 503. 2 Hubert v. Turner, 4 Scott, N. R. 486 ; Hawkins v. Chace, 19 Pick. (Mass.) 502; Barry v. Coombe, 1 Pet. (S. C.) 640. And. see Parker v. Smith, 1 Coll. 608. Also the valuable remarks of Mr. Fell, Merc. Guar. Appendix, No. V. 3 Saunderson v. Jackson, 2 Bos. & Pull. 238. 4 See the remark of L. C. B. Skinner in Stokes v. Moore, 1 Cox, 219. In Knight V. Croekford, 1 Esp. B,. 188, the defendant drew up a paper in the first person, and the plaintiff, after approving of its terms, required the following to be added : " That the parties bound themselves to its performance under a pen- alty of £100;" and the defendant, added it with his own hand, and it was signed by the plaintiff and attested by a witness, and the defendant, though he did not sign it, allowed the plaintiff to take it away: it was decided that the memorandum was binding upon the plaintiff. The decision seems to be amply justified upon the ground that the defendant, by his written addition to the instrument, repognized it as perfectly executed by him beforehand. 5 Hawkins w. Chace, supra: Evans v. Ashley, 8 Missouri R. 177. 6 Penniman v. Hartshorn, 13 Mass. R. 87. 370 STATUTE OF FRAUDS. [cH. XVII. was as follows : " Hartshorn Sf Arnold, of Providence, Dec. 13, 1813. r sold to the above gentlemen 39 bales upland cotton at 40 cents, 60 days for approved security. Silas Penniman. Bills to he made out in the' names of Hartshorn is Arnold, Warden ^ Billings, and Andrew Taylor." The words in italics were written by the defendant Hartshorn, the residue by the plaintiflF; and it appeared, (parol evidence being admitted for that purpose,) that the plaintiff read the memo- randum to Hartshorn. It was objected that it was not prop- erly signed, the names of the defendants being above, and not below, the body of ther paper. This objection the court over- ruled ; but there was another point, not taken at the argument or noticed in the decision, which seems worthy of considera- tion. The paper was actually signed by Penniman, the plain- tiff, and, from its whole structure, seems to have been intended for his signature ; and this feature, on the principle stated in the preceding section, should ordinarily have deprived of its efl&cacy as a signature the insertion of the defendant's name above.-^ According to this case, therefore, it seems that the same paper, though adapted to the signature of one party only, may be signed by both ; -the one subscribing, and the other inserting his name elsewhere in the instrument by way of recognition of the contract.^ The wor^s which follow the signature of Penniman are, in the present instance, particularly to be noticed, as conveying such recognition quite unequivocally. § 359. But it has been decided that a signature as witness may bind as principal the party signing ; and this, certainly, is not easy to reconcile with the rule that a signature, to be valid, must be so placed as to authenticate the instrument as the act of such party. The doctrine was strongly condemned by Lord Denman, C. J., in a comparatively late case,^ but 1 Evans v. Ashley, 8 Missouri R. 177. 2 See Bluck ti. Gompertz, 14 Eng. Law & Eq. 345 ; Knight v. Crockford, 1 Esp. R. 188 ; Johnson "• Dodgson, 2 Mees. & Wels. 653. 3 Gosbell V. Archer, 2 Adol. & Ell. 508. CH. XVir.J THE FORM, ETC., OF THE MEMORANDUM, 371 still appears to be tenable under such limitations as are pre- sented in the instances where it was actually applied. It was first held in Welford v. Beazley, where the defendant ver- bally promised to give the plaintiflp ,£1,000 as a marriage por- tion, and, articles being drawn up to that effect and read over to her, she put her name to them in the place for the witness' signature ; Sir Thomas Sewell, M, R., held it sufficiently signed by her as principal.^ And afterwards, in Coles v. Trecothick, an auctioneer who had authority to sell certain lots of land at private sale, told the owner that he had two confidential clerks through whom he transacted great part of his business, and who, in his absence, would enter into contracts, and the owner assented, and afterwards the auctioneer contracted for the sale of one of the lots, and after he had left town, one of the clerks signed the memorandum thus : " Witness, Evan Phillips, for Mr. Smith, Agent for the Seller." Lord Eldon held the sig- nature sufficient to bind the owner, and laid down the rule, that " where a party, or principal, or person, to be bound signs as, what he cannot be, witness, he cannot be understood to sign otherwise than as principal." ^ He adds that the signature of an agent, not a contracting party, as a witness would not be suffi- cient ; and this qualification appears to apply to the case before Lord Denman, where the signature (in the witness' place) was by one who was proved aliunde to be the clerk of the auc- tioneer, the principal, but did not on the face of the instrument appear to be or to represent the contracting party ; whereas, in Coles v. Trecothick that fact did appear. § S60. Notwithstanding the doctrine that the signature must be such as to authenticate the instrument, it has been held in an early case, in Massachusetts, that a signature in ' Welford V. Beezley, 1 Wils. 118. 2 Coles V. Trecothick, 9 Ves. 234. See Hill v. Johnston, 3 Ired. Eq. (N. C.) 432. In Parks v. BrinkerhoflF, 2 Hill, (N. Y.) 663, it was held that a signature at the foot of a promissory note, following those of the makers, must be intended to be a signature as guarantor. 372 STATUTE OF FRAUDS. [cH. XVII, blank will suffice to bind the party to a guaranty afterwards inserted over it by his agent, whose express authority to do so may be proved by parol.^ The decision is briefly reported, and stands directly opposed to that of the Supreme Court of New Hampshire a few years later, where the reasons against the admission of such an exception are very forcibly stated. It is there urged that such a signature cannot be said to authenticate, or bind the party signing to an admission of, what is after- wards inserted ; and the court say : " There is a material dif- ference between authorizing an agent to sign a contract already written j or make and sign an agreement, and authorizing an agent to reduce to writing a contract already made. Where an agent has been authorized to sign a contract reduced to writ- ing, as soon as his authority and signature are proved the writing becomes evidence of the terms of the contract. The authority of signature may be proved by parol." " So where an agent has been authorized to make a contract, and has reduced it to writing and signed it, when bis authority and signature are proved the writing itself becomes evidence of the^ contract, and although the principal may deny the f,uthority and signa- ture of the agent, he would not be permitted to introduce evi- dence to show that the contract made by the agent was different from the written contract. In both these cases the signature of the agent is an admission that the contents of the writing are true, and it is this circumstance that makes the writing evidence. But where an agent has been authorized to write over the sig- nature of the principal a contract already made, it is not enough to prove the signature of the principal, and the au- thority of the agent to write a contract over it ; this does not make the writing evidence of the contract, unless it is to be presumed to be any thing that the agent pleased to 1 Ulen V. Kittredge, 7 Mass. R. 235. From the manner in which this case was afterwards referred to in Paokaird v. Richardson, 17 Mass. R. 122, the court do not seem altogether to approve it. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 373 write. It would still be necessary to show that the agent had pursued his authority, and this could be done only by showing what the contract was, and comparing it with the writing.^" § 361. It is quite reasonable, however, and has lately been decided in the Court of Exchequer, that words afterwards introduced into a paper signed by a party, or any alteration in it, may be considered as authenticated by a signature already on the paper, if it is clear that they were meant to be so authen- ticated, and that the act of signing after the introduction of the words is not absolutely necessary.'^ Indeed, the case where this was held, and the circumstances of which were somewhat sin- gular, went still farther, and held the previous signature to authenticate the subsequent alteration, though the latter was made by the plaintiff himself, and not by the party signing. The declaration stated that one O'Connell agreed with the plaintiff to buy certain wines, part for ££00, and part for £150, and the defendant undertook to procure two bills, one for each of those sums, to be accepted by O'ConneH'on their being drawn by the plaintiff and delivered to the defendant, and to see them paid at maturity. The breach alleged was, that he did not see them paid. The evidence showed that the defendant's engagement, which was in writing, was that upon the plaintiff's handing him two drafts on O'Connell fo%£200 Mid £146 respectively, he would get them accepted by the de- fendant and see them paid. It also appeared that afterwards, the true price of the second lot turning out to be £150 instead of £146, the bills were drawn for the correct amounts, and the defendant got them accepted and gave them to the plaintiff, and then wrote across the face of his guaranty the following 1 Hodgkins v. Bond, 1 N. H. 284. See also Jackson v. Titus, 2 Johns. (N. T.). 432, the decision of Chief Justice Kent, (ant^, § 12,) and Wood v. Midgley,. 27 Eng. Law & Eq. 206. 2 Bluck V. Gompertz, 14 Eng. Law & Eq. 345. 32 874 STATUTE OF FRAUDS. [cH. XVII. • in his own hand : ' I have received the two drafts, (one being for £150 instead of ^614*6, there being an error in the invoice of £4',') both accepted by Mr. O'Connell;' and the plaintiflF signed this memorandum, but the defendant did not. It was held that the defendant's undertaking was rightly described as an undertaking to see the two bills of ^200 and £150 re- spectively paid by O'Connell, and that the original signature covered and authenticated the subsequent correction, as to the amount of the smaller bill, within the Statute of Frauds, al- though it was in form signed, not by the defendant, but by the plaintiff. The view taken by the Barons, who confessed great difficulty in coming to their conclusion, is very clearly stated by Mr. Baron Piatt. He says : " Suppose, after this instrument had been drawn, the defendant had with his own hand altered the ,£146 into £150, the agreement, there can be no dpubt, would be sufficient without resigning. Then the effect of this memorandum, as it seems to me, is just the same as if the defendant had written upon the face of one of the two bills, ' that hal been drawn for £150 instead of £146, there being an error in the invoice,' and then for the plaintiff to have writ- ten ui^erneath that, ' I have received the two above-mentioned bills.' That, being in the handwriting of the defendant, on the face of the original agreement, seems to me to be quite sufficient to justify the holding that this operates as a signature within the Statute of Frauds." § S62. A farther question, not without difficulty, on this point of signature is, whether the name of the party must be actually signed to the instrument. In Selby v. Selby, Sir William Grant, M. R., held that a letter from a mother to her son, beginning with, " My dear Robert," and concluding with, " Your affectionate Mother," was not signed, so as to consti- tute a binding agreement on the part of the mother, within the intent of the Statute of Frauds. He said : " It is not enough that the party may be identified. He is required to sign; there may be in the instrument a very sufficient description to CH. XVn.] THE FORM, ETC., OF THE MEMORANDUM. 375 answer the purpose of identification, without a signing-, that is, without the party having either put his name to it, or done some other act intended by him to be equivalent to the actual signature of the name." ^ With submission to so high a judi- cial authority, it may be asked, whether such a conclusion as was borne by the letter before him was not manifestly intended by the writer to be equivalent to the actual signature of her name ; especially as the letter was sent to its address, as a completed communication ] In cases where the initials only of the party are signed, it is quite clear that, wdth the aid of parol evidence, which is admitted to apply them, the signature is to be held valid.^ There certainly seems to be some difficulty in distinguishing the cases. § 363. It has been often attempted to carry the point that where a memorandum is inserted by the plaintiff or his agent, in the defendant's book, and at his request, the latter should be taken to have signed it ; but the courts appear to have uni- formly rejected such notion, and with manifest reason.' It is not enough that there is evidence that the party sought to be dharged upon the contract regarded it as concluded by him ; the statute specifies actual signature as the proper proof of that fact. § 364f. As regards more especially the manner of signing by an agent, it seems now quite well settled, as a rule appli- cable to all simple contracts in writing, that the instrument, in "order to bind the principal, need not be executed in his name, or as his act ; but that it is sufficient if, from the terms and scope of the instrument, it appear that the party signing acts 1 Selby V. Selby, 3 Meriv. 2. 2 Phillimbre v. Barry, 1 Camp. 513; Salmon Falls Man. Co. v. Goddar^, 14 How. (S. C.) 447; Barry u. Coombe, 1 Pet. (S. C.) 640. See, however, Sweet V. Lee, 3 Man. & Gr. 452. 3 Champion v. Plummer, 5 Eap. R. 240 ; Graham v. Musson, 5 Bing. N. R. 603 ; Graham v. Fretwell, 3 Man. & Gr. 368 ; Barry v. Law, 1 Cranch, (C. C.) 77. 376 STATUTE OF FRAUDS. [cH. X\ II. as agent in so doing, and with intent to bind the third party as his principal.^ Later cases in England, however, go so far as to hold that, though the agent execute the instrument in his own name, without describing himself as agent, and even though the principal be at the time unknown, if it does not ap- pear that exclusive credit was given to the agent, not only will he be liable upon it, but also his principal, whom parol evidence will be admitted to charge ; and this, whether the agreement be or be not required to be in writing, by the Statute of Frauds. This was laid dovni in the case of Higgins v. Senior, where Baron Parke remarks, of the admission of parol evi- dence for such a purpose, that it " in no way contradicts the written agreement. It dpes not deny that it is binding on those whom, on the face of it, it purports to bind ; but shows that it also binds another, by reason that the act of the ^gent, in signing the agreement in pursuance of the authority, is in law the act of the principal." At the same time he holds to the established rule that an agent signing apparently as principal cannot discharge himself by parol proof of his agency ; re- marking that to allow evidence to be given that the party who appears on the face of the instrument to be personally a con- tracting party is not such, would be to allow parol evidence to contradict the written agreement ; which cannot be done.^ This doctrine is supported by the strong approbation of our own great jurist, Judge Story ,^ and by the high authority of the Supreme Court of the United States, which has recently • acted upon it.* Still it may be considered in some degree an open question in the American courts. In a late case in New York, the various decisions upon which the doctrine is 1 Stackpole v. Arnold, 11 Mass. R. 27. Kice v. Gove, 22- Pick. (Mass.) 158; Minard v. Mead, 7 Wend. (N. Y.) 68 ; Spencer v. Field, 10 lb. 87 ; Pentz v. Stanton, lb. 271. 2 Higgins V. Senior, 8 Mees. & Wels. 834. 3 Story on Agency, § 160 a. * Salmon Falls Man. Co. v. Goddard, 14 How. 447. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 377 supposed to rest are very closely and carefully examined, and it is denied that it is supported by them, while it is forcibly attacked on grounds of principle. The court say : " It re- quires very lyce powers of discrimination to perceive how the introduction of a new party into the contract is not a contra- diction of the writtten instrument, as well as the striking out of a party already in." ^ § 363. The requisition of the statute in the fourth section is that the memorandum be signed b^ the "party to he charged. And it is now uniformly held that, under this clause, the signa- ture of the defendant alone, or the party who is to be charged upon the agreement, is sufficient, although, as we shall see here- after, it is necessary, in another view, that the plaintiff, or party in whose favour the engagement is made, be designated in the memorandum.'^ In the seventeenth section, relating to sales of goods, &c., the word parties, in the plural, is used ; and from this difference it appears to have been once considered that both must sign a memorandum to be binding under that section.^ Later decisions, however, reject the distinction and place both sections under the same construction ; * and, indeed, as we have 1 Fenly v. Stewart, 5 Sand. 101. And see Stackpole v. Arnold, supra; Pentz V. Stanton, 10 Wend. (N. Y.) 271 ; Newcomb v. Clark, 1 Denio, (N. Y.) 226. 2 Laythoarp v. Bryant, 2 Bing. N. C. 735 ; Huddle%tone v. Briscoe, 1 1 Ves. 583 ; Hatton v. Gray, 2 Ch. Cas. 164 ; Seton v. Slade, 7 Ves. 265 ; Fowle V. Freeman, 9 Ves. 351 ; Schneider v. Norris, 2 Maule & S. 286 ; Allen v. Bennet, 3 Taunt. 173 ; Martin v. Mitchell, 2 Jac. & Walk. 426 ; Clason v. Bai- ley, 14 Johns. (N. Y.) 484 ; McCrea v. Purmort, 16 Wend. (N. Y.) 460 ; Pen- niman v. Hartshorn, 13 Mass. E. 87 ; Shirley v. Shirley, 7 Black. (Ind.) 452 ; BarstowM. #ray, 3 Greenl. (Me.)*409;»Douglass v. Spears, 2 Nott & McC. (S. C.) 207. 3 Champion t». Plummer, 5 Esp. K. 240. ■* Egerton v. Mathews, 6 East, 307 ; Stapp v. Lill, 1 Camp. 242. In New York, the Revised Statutes (see Appendix) provide that in contracts for the sale of land the vendor shall always sign. Coles v. Bowne, 10 Paige, 526 ; McWhorter v. McMahan, lb. 386 ; Champlin v. Parish, 11 lb. 405 ; National Fire Ins. Co. v. Loomis, lb. 431 ; Worrall u. Munn, 1 Seld. 229. It has been suggested, that, possibly, the legislative of that State, by simply providing that 32* 378 STATUTE OF FRAUDS. [cH. XVII. taken the liberty to remark once or twice before, it would be manifestly unsafe, even if it were possible with consistency, to base broad rules of interpretation upon mere literal variations in the language of different parts of an enactment so incohe* rently drawn as the Statute of Frauds and Perjuries. That the singular and plural of the word in question were intended to be taken in the same way seems, moreover, quite plain from the addition of the same words, "to be charged," after each; those words being, in the seventeenth section, merely redun- dant, if both parties must sign. § 366. It has been seriously doubted by a very eminent Judge, whether an agreement, of which the memorandum was signed by one party only, should be enforced against the other in a court of equity ; upon the ground that," if so, it would fol- low that the court would decree a specific performance when the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet, if advantageous to him he co.uld not compel a performance.^ Notwithstanding this doubt, however, the rule is firmly settled that in equity for obtaining a specific execution, as well as at law for recovering damages, the signature of the party who makes the engage- ment is all that the statute requires ; and this is put upon the ground, in addition to the unqualified language of the statute itself, that the plaintiff by his act of filing the bill has made the remedy mutual.^ Indeed, there are several New York cases in the vendor shall sign, and being silent as to the purchaser, have left the law in such position that the latter may be bdind b*y an agreement whioff he has not, •though the former has, signed. Miller v. Pelletier, 4 Edw. Ch. 102. 1 Lawrenson v. Butler, 1 Sch. & Lef. 13, per Lord Redesdale. And see Ar- miger v. Clark, Bunb. Ill ; Troughton v. Troughton, 1 Ves. 86 ; Parkhurst v. Van Cordlandt, 1 Johns. Ch. (N. Y.) 282 ; Benedict v. Lynch, lb. 873. s Hatton v. Gray, 2 Cas. Ch. 164 ; Coleman r. Upcot, 5 Vin. Ab. 528, pi. 17; Flight V. BoUand, 4 Kuss. 298 ; Seton v. Slade, and Hunter v. Seton, 7 Ves. 265 ; Child v. Comber, cited in 3 Swanst. 423 ; Bowen v. Morris, 2 Taunt. 373 ; Lord Ormond v. Anderson, 2 Ball. & Beat. 363 ; Martin v. Mitchell, 2 Jac. & CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. S79 • which it is treated as an open question, whether a memoran- dum signed by one party and dehvered to, and accepted by, the other, as the statement of the agreement between them, might not be binding upon the latTter.^ In none of them, however, is it found necessary to pass upon it, nor is the rea- soning given upon which the proposed rule would be sustained. With all due respect, we may be allowed to doubt whether, if applied, it would not be a dangerous relaxation of the provision of the law in this particular. § 867. The statute does not require the party's own signature • to the memorandum, but allows it to be signed by " some other person thereunto by him lawfully authorized." It is held that a member of a corporation is a competent agent under this clause to sign for the corporation,^ or a partner for his firm ;^ and generally little difficulty can arise as to who is qualified to act as such agent, the statute having imposed no disabilities in that respect beyond those existing at common law. One rule, however, has been settled, both under the fourth and seven- teenth sections, that neither party can be the other's agent to bind him by signing the memorandum.* And it makes no diflFerence that the pretended agent has not himself any bene- ficial interest in the contract, but stands in a fiduciary relation to third persons, so long as he is, in a legal point of view, the real party to, and the proper one to sue upon, the contract.® Walk. 413 ; Palmer v. Scott, 1 Rass. & My. 391 ; Sujjd. Yendors and Purchasers, 112, 113 ; BuUard v. Walker, 3 Johns. Cas. (N. Y.) 60; Shirley v. Shirley, 7 Black. (Ind.) 452 ; Roget v. Merritt, 2 Caines, (N. Y.) 120 ; Parrish v. Koons, 1 Pars. Eq. (Pa.) 79 ^ Lowry v. Mehafiy, 10 Watts, (Pa.) 387 ; Clason v. Bailey, 14 Johns. (N. Y.) 484. 1 Roget V. Merritt, 2 Caines, 120; Gale v. Nixon, 6 Cow. 448; Reynolds v. Dunkirk and State Line R. R. Co. 17 Barb. 613. 2 Stoddert v. Vestry of Port Tobacco Pariah, 2 Gill & Johns. (Md.) 227. 3 Kyle V. Robei-ts, 6 Leigh, (Va.) 495. * Wright w. Dannah, 2 Camp. 203 ; Farebrother v. Simmons, 5 Barn. & Aid. 333; Rayner v. Linthorne, 2 Car. & Pa. 124; Bailey v. Ogdens, 3 Johns. (N. Y.)417. . s Buckmaster v. Harrop, 18 Ves. 456 ; Smith v. Arnold, 5 Mas. (C. C.) 417. 380 STATUTE OF FRAUDS. [cH. XVII. § 368. One of the cases in which the rule that neither of the parties to the contract could be agent to sign for the other, was applied, was Farebrother v. Simmons, decidefl in the Queen's Bench. There the action* was on a memorandum made by an auctioneer, and was brought in the auctioneer's own name, and it was held that his entry was not evidence to take the case out of the statute.^ In a later case, Bird v. Boulter, in the same court, the facts proved respecting the proceedings at the auc- tion sale were somewhat peculiar. The auctioneer (who was the plaintifi", as in Farebrother v. Simmons,) received the bids of the buyers and repeated them aloud, and when the hammer . fell, one Pitt, who attended for the purpose, called out the name of the purchaser, and, if the party assented, made an entry accordingly in the sale book. In the case on trial, the auctioneer, having named the defendant as purchaser of a lot of wheat which was knocked down to him, Pitt said to him, " Mr. Boulter, it is your wheat ; " the defendant nodded, and Pitt made the entry in his sight, he being then within the- distance of three yards. After verdict obtained for the plaintiff, it was urged, upon a motion for nonsuit, that signature by the auc- tioneer's clerk was the same as signature by the auctioneer, and the rule insisted upon that one of the contracting parties could not be agent for the other, and Farebrother v. Simmons cited, but the verdict was sustained.^ The several Judges, in their opinions, while fully admitting the authority of that case, strongly dwelt upon a distinction to the effect that under the peculiar circumstances of the case before them, Pitt was not merely the auctioneer's clerk, but his agent for taking down the names, and also the agent of the purchasers, whom they constituted such for the same purpose by acquiescing in his proceedings. But some of the Judges placed their decision 1 Farebrother v. Simmons, supra ; Robinson v. Garth, 6 Ala. R. 204. But see Ennis v. Walker, 3 Black. (Ind.) 472. 2 Bird V. Boulter, 4 Barn. & Adol. 443. • CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 881 upon the farther ground that the party who signed the memo- randum was not the plaintiflf of record. And this seems to distinguish the case satisfactorily from Farebrother .w. Sim- mons, while it suggests an important consideration in con- nection with the rule laid down in that case. For though the entries at an auction sale should be really made by the mere clerk of the auctioneer, still, in this view, the auctioneer could read it in evidence upon an action brought by himself. If the auctioneer were in any just sense a party in interest, or a party to the contract, it would be hard to admit the signature of his clerk as competent evidence, his own not being so. B ™there is a clear diiFerence between the invalidity of a memorandum as signed by one who had no power to sign it, and its ina2. In cases of sales, the credit stipulated is an essential term of the contract, and must appear in the memorandum. Such appears to be the established rule in actions at law.^ Though it seems it is not so strictly applied in suits in equity for a specific execution of the contract. Where an advertise- ment of land for sale at auction stated that it was to be on a credit, and the auctioneer's entry at the time of sale made no allusion to the credit, and the proprietor, at the expiration of the time alleged by the defendant as having been really allowed, brought a bill to compel a specific execution of the purchase, the Court of Appeals of Virginia made a decree accordingly. Brockenborough, J., remarking that the defendant, by the memorandum of sale, had bound himself to pay in cash ; and, although that niemorandum did not state the truth as to the time of pa5maent, yet the bill did, and the defendant could not \ Morton «. Dean, 13 Met. (Mass.) 388 ; Davis v. Shields, 26 Wend. (N. ST.) 341; M'Farson's Appeal, 11 Penn. (1 Jones,) 503; Soles u. Hickman, 20 Penn. (8 Harr.) 180; Buck v. Pickwell, 1 Will. (Verm.) 167 ; Ellis v. Dead- man, 4 Bibb, (Ky.) 467; Parker v. Bodley, lb. 102 ; Elfe v. Gadsden, 2 Rich. (8. C.) 373. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 395 object ; but that if the plaipti'S' had claimed specific execution at cash, the defendant might have resisted on the ground of the credit really agreed to be given. In the absence of any evi- dence that credit was to be allowed, the memorandum may be silent in that respect, and a sale for cash will be presumed." And it seems to be in no case material that it should appear in the writing whether the payment on time is to be with interest.^ § 383. In a late case in the Supreme Court of the United States, already repeatedly referred to in this chapter,* the mem- orandum stated that the " credit was to commence when ship sailed, not after Dec. 1st," and the court held the time of credit to be sufficiently expressed, although there was no evi- dence what ship was referred to.* § 384<. The memorandum need not stipulate any time or place for the delivery of goods sold, or for the performance of any other contract, for in the absence of such stipulation a rea- sonable time and the vendor's customary place will be presumed to have been contemplated.® But where time is stipulated, then it is in the nature of a condition, which goes to the essence of the contract and must appear in the memorandum.^ And so with a warranty of quality in case of a sale of goods.^ § 385. It must, of course, appear from the memorandum, 1 Smitli V. Jones, 7 Leigh, 165. 2 Valpy V. Gibson, 4 Man. Gr. & Sc. 837 ; Fessenden v. Mussey, 16 Law Reporter, 349, (1853.) 3 Atwood V. Cobb, 16 Pick. (Mass.) 230, 231 ; Neufville w. Stuart, 1 Hill, Eq. (8. C.) 166, 167. i Salmon Falls Manf. Co. v. Goddard, 14 How. 448. 6 See the dissenting opinion of Mr. Justice Curtis, in which he exhibits very clearly the difficulties attending this and other points in the decision of the ma- jority of the court. * Saljpon Falls Manf. Co.^ v. Goddard, supra ; Atwood v. Cobb, 16 Pick. (Mass.) 230. ^ 1 Davis V. Shields, 26 Wend. (N. Y.) 341 ; on error, reversing the decision of the Supreme Court, 24 Wend. 322. 8 Peltier v. Collins, 3 Wend. (N. Y.) 459. 896 STATUTE OF FRAUDS. [cH. XVIIll what is the subject-matter of the defendant's engagement.^ Land, for instance, which is purported to be bargained for, must be so described that it may be idcintified.^ And in the case of an agreement for a lease, the terra for which the lease is to be given must appear in the writing, and cannot be sup- plied by parol evidence.'* But the subject-matter may in any case be identified by reference to an external standard, and need not be in terms explained. Thus to describe it as the vendor's right in a particular estate,^ or as the property which the vendor had at a previous time purchased from another party ,^ is sufficient. And it is very common to identify the debt of a third person, for which the defendant has made himself responsible, as the debt then owing, or to become owing, by such third person to the plaintiflF, without farther description.® § a86. But by far the most difficult question presented in the present branch of our subject, and which has perhaps more engaged the attention of courts, and occasioned a more marked conflict of judicial opinion than any other arising upon any part of the Statute of Frauds is, whether the note or memo- randum in writing must show the consideration upon which the defendant's promise is founded. § 887. This question first arose in the case of Wain t;, Warlters, decided in the Queen's Bench in 1804. The decla- ration alleged in substance that the plaintiffs, being the in- 1 Clinan v. Cooke, 1 Sch. & Lef. 22 ; Lindsay v. Linch, 2 lb. 1 ; Harnett v. Yielding, lb. 649 ; (In regard to the case of Allan v. Bower, 3 Bro. C. C. 149, see the remarks of Lord 'Redesdale, in Clinan v. Cooke, supra); Barry v. Coombe, 1 Pet. (S. C.) 640 ; Church of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378; Carmack w. Masterson, 3 Stew. & For. (Ala.) 411; Pipkin v. James, 1 Humph. (Tenn.) 325 ; Kay v. Curd, 6 B. Mon. (Ky.) 103 ; Meadows 0. Meadows, 3 McCord, (S. C.) 458. , ^ « Cliijpn V. Cooke, 1 Sch. k Lef 22 ; Abeel v. Radcliffe, 13 Johns. (N. T.) 300. 3 Nichols u. Johnson, 10 Conn. R. 198. f Atwood«. Cobb, 16 Pick. (Mass.) 230. - s Bateman v. Phillips^ 15 East, 270. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 897 dorsees and holders of a bill of exchange for £56, drawn upon and accepted by one Hall, which was then due and unpaid, and being about to sue the drawee and acceptor thereon, the de- fendant, upon a certain day, in consideration of the premises and that the plaintifiFs would forbear to proceed with their suit, undertook and promised to pay the plaintifiFs, by half-past four o'clock on that day, £56 and the expenses which had been in- curred by them on said bill. At the trial before Lord Ellen- borough, the plaintifiFs produced in evidence a writing, signed by the defendant, in these words : " Messrs. Wain & Co., I will engage to pay you by half-past four this day fifty-six pounds, and expenses on bill that amount on Hall. [Signed,] Jno. Warlters. [Dated,] No. 2, Cornhill, April SOth, 1803." The defendant having objected that, although his promise was in writing, the consideration of it was not in writing, and that the Statute of Frauds required both to appear in the memoran- dum, Lord Ellenborough nonsuited the plaintifiFs ; a rule nisi was obtained for setting this nonsuit aside, aiid for a new trial. Upon argument, all the Judges concurred in discharging the rule. Lord Ellenborough first referred with approbation to the remark of Lord C. B. Comyns, that " an agreement is aggregatio meniium, viz. : where two or more minds are united in a thing done or to be done ; a mutual assent to do a thing ; and it ought to be so certain and complete that each party may have an action upon it ; " ^ and then proceeded to say : " The question is, whether that word is to be used in the loose, incor- rect sense in which it may sometimes be used, as synonymous to promise or undertaking, or in its more proper and correct sense, as signifying a mutual contract or consideration between two parties '? The latter appears to me to be the legal con- struction of the word, to which we are bound to give its proper eflFect ; the more so, when it is considered by whom that statute is said to have been drawn, by Lord Hale, one of the greatest 1 Com. Dig. tit. Agreement, A. 1. 34 898 STATUTE OF FRAUDS. [CH. XVIII. Judges who ever sat in Westminster Hall, who was as compe- tent to express, as he was able to conceive, the provisions best calculated for carrying into effect the purposes of that law. The person to be charged for the debt of another, is to be charged, in the form of the proceeding against him, upon his special prorftise / but without a legal consideration to sustain it, that promise would be a nudum pactum as to him. The stat- ute never meant to enforce any promise which was before in- valid, merely because it was put in writing. The obligatorjt- part is indeed the promise, which will account for the word promise being used in the first part of the clause, but still in order* to charge the party making it, the statute proceeds to re- quire that the agreement, by which must be understood the agreement in respect to which the promise was made, must be reduced into writing. And indeed, it seems necessary for. effectuating the object of the statute, that the consideration should be set down in writing as well as the promise ; for otherwise the consideration might be illegal, or the promise might have been made on a condition precedent, which the party charged may not afterwards be able to prove, the omis- sion of which would materially vary the promise, by turning that into an absolute promise which was only a conditional one ; and then it would rest altogether on the conscience of the wit- ness to assign another consideration in the one case, or to drop the condition in the other, and thus to introduce the very frauds and perjuries which it was the object of the statute to exclude by requiring that the agreement should be reduced to writing, by which the consideration as well as the promise would be rendered certain The word agreement is not satis- fied unless there be a consideration, which consideration form- ing part of the agreement ought therefore to have been shown ; and the promise is not binding by the statute unless the con- sideration which forms part of the agreement be also stated in writing. Without this, we shall leave the witness, whose memory or conscience is to be refreshed, to supply a consider- CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 899 ation more easy of proof, or more capable of sustaining the promise declared on. Finding, therefore, the word agreement in the statute, which appears to be the most apt and proper to express that which the policy of the law seems to require, and finding no case in which the proper meaning of it has been relaxed, the best construction which we can make of the clause is to give its proper and legal meaning to every word of it." Grose, J. : " What is required to be in writing is the agree- ment, (not the promise, as mentioned in the first part of the clause,) or some note or memorandum of the agreement. Now the agreement is that which is to show what each party is to do or perform, and by .which hoth parties are to be bound ; and this is required to be in writing. If it were only neces- sary to show what one of them was to do, it would be sufficient to state the promise made by the defendant, who was to be charged upon it. But if we were to adopt this construction, it would be the means of letting in those very frauds and per- juries which it was the object of the statute to prevent. For, without the parol evidence, the defendant cannot be charged upon the written contract for want of a consideration in Jaw to support it. The effect of the parol evidence then is to make him liable ; and thus he would be charged with the debt of another by parol testimony, when the statute was passed with the very intent of avoiding such a charge, by requiring that the agreement, by which must he understood the whole agree- ment, should be in writing." Lawrence, J. : " From the loose manner in which the clause is worded, I at first entertained some doubt upon the question ; but upon farther consideration I agree with my lord and my brothers upon their construction of it. If the question had arisen merely upon the first part of the clause, I conceive that it would only have been necessary that the promise should have been stated in writing ; but it goes on to direct that no person shall be charged on such promise, unless the agreement, or some note or memorandum thereof, that is, of the agreement, be in writing ; which shows that the 400 STATUTE OF FRAUDS. [cH. XVIII. word agreement was meant to be used in a different sense from promise, and that something besides the mere promise was required to be stated. And as the consideration for the promise is part of the agreement, that ought also to be stated in writ- ing." Le Blanc, J. : " If there be a distinction between agree- ment and promise, I think we must take it that agreement in- cludes the consideration for the promise as well as the promise itself; and I think it is the safer method to adopt the strict construction of the words in this case, because it is better cal- culated to effectuate the intention of the act, which was to pre- vent frauds and perjuries, by requiring written evidence of what the parties meant to be bound by. I should have been well satisfied, however, if, recurring to the words used in the first part of the clause, they had used the same words again in the latter part, and said, ' unless the promise or agreement upon which the action is brought, or some note or memorandum thereof shall be in writing.' But not having so done, I think we must adhere to the strict interpretation of the word agree- ment, which means the consideration for which, as well as the promise by which, the party binds himself." ^ § 388. Within a few years after the determination of this case, it was several times disapproved by Lord Eldon, particu- larly, in Gardom ex parte^ where he said that until it was de- cided, he " had always taken the law to be clear that if a man agreed in writing to pay the debt of another, it was not neces- sary that the consideration should appear upon the face of that writing."^ But it was never overruled, and afterwards, the same point being directly presented to the Judges of the Queen's Bench, it was unanimously affirmed.^ From that time, the doctrine of Wain v. Warlters appears to haVe been • Wain V. Warlters, 5 East, 16. 2 Gardom ex parte, 15 Ves. 286 ; Minet ex parte, 14 Ves. 190. See also Boehm V. Campbell, 8 Taunt. 679. 3 Saunders u. Wakefield, 4 Barn. & Aid. 595. CH. XVm.] THE CONTENTS OF THE MEMORANDUM. 401 admitted as, beyond question, the English law upon this point.^ § 389. The case of Egerton v. Mathews, decided in the year following Wain v. Warlters, and by the same Bench, re- quires especial notice ; because upon it much of the opposition in this country to the doctrine of Wain v. Warlters is found to rest. The facts in that case have been recited at a previous page,^ where we saw that it arose upbn a bargain for the pur- chase of goods under the seventeenth section ; and that the memorandum produced described the goods purchased, and stated the price to be paid. An objection on the ground of Wain v. Warlters was made to the court and overruled ; the Judges recognizing that case, but discriminating between the requisitions of the fourth section and those of the seven- teenth, in respect to the statement of the consideration. Lord EUenborough observed that the words of the statute were satis- fied, if there was some note or memorandum of the bargain signed by the parties to be charged by such contract ; and that this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged there- with, and whose signature to it was all that the statute re- quired. Mr. Justice Lawrence said : " The case of Wain v. Warlters proceeded on this, that in order to charge one man with the debt of another, the agreement must be in writing ; which word agreement we consider as properly including the consideration moving to, as well as the promise by, the party to be so charged ; and the statute meant to require that the whole agreement, including both, should be in writing."^ 1 Lyon V. Lamb, in the Exchequer of Pleas, 1807, reported in Fell on Merc. Guar., Appendix, No. III. ; Jenkins v. Reynolds, 3 Brod. & Bing. 14 ; Morley v. Boothby, 3 Bing. 107 ; Hawes v. Armstrong, 1 Bing. N. C. 767; Cole v. Dyer, 1 Cro. & Jer. 461 ; James v. Williams, 3 Nev. & Man. 196 ; Clancy v. Piggott, 4 lb. 496 ; Eaikes v. Todd, 8 Adol. k Ell. 846 ; Sweet v. Lee, 3 Man. & Gr. 452 ; Bainbridge v. Wade, 16 Ad. & Ell. N. S. 89. 2 Ante, § 381. 3 Egerton v. Mathews, 6 East, 307. 34* 4i02 STATUTE OF FRAUDS. [cH. XVIIl. But, notwithstanding these remarks, it is obvious that the case did not turn upon the absence of the word " agreement," from the seventeenth section. In point of fact, the consideration for the defendant's engagement to pay, namely, the deUvery to be made to him of certain goods, did appear upon the face of the memorandum ; ^ although the plaintifi" had not himself signed the memorandum so as to be bound. The case does not stand at all opposed to Wain v. Warlters, the doctrine of which can- not indeed come in question under those clauses of the statute which relate to contracts of bargain and sale, where, of course, the memorandum must always show the price stipulated, as necessary to an understanding of the obligation of the party to be charged, whether the buyer or seller.^ § 390. In this country, such has been the contrariety of opinion upon the doctrine of Wain v. Warlters, that it would scarcely serve any useful purpose to attempt to weigh the cases with a view to ascertain which way the balance of judicial opinion may incline. In each of the States the point has been presented, and in each has been decided as seemed to its courts wisest in point of policy, or most commended by au- thority. §391. Of those States where the word "agreement" is retained in the clause requiring the memorandum, the doctrine of Wain V. Warlters is repudiated in Maine,^ Vermont,* Con- necticut,^ Massachusetts,® North Carolina,' Ohio,* and Mis- 1 Jenkins v. Reynolds, 3 Brod. & Bing. 14, per Park, J. 2 AjU^ 376, et seq. 3 Levy V. Merrill, ■ 4 Greenl. 189 ; Gillighan v. Boardtaan, 29 Maine, (16 Shep.) 81. * Smith V. He, S Verm. R. 299 ; Patchin v. Swift, 21 lb. 297. 5 Sage V. Wilcox, 6 Conn. Ri 81. 6 Packard v. Richardson, 17 Mass. R. 122. The Revised Statutes of Massa- chusetts have since expressly provided that the consideration need not appear in the memorandum. See Appendix. ^ Miller v. Irvine, 1 Dev. & Bat. 103 ; Ashford v. Robinson, 8 Ired. 114. 8 Reed v. Evans, 17 Ohio R. 128. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 408 souri ; ^ but it has received the sanction of the courts in New Hampshire,^ New York,* New Jersey,* Maryland,* South Carolina,® Georgia,'' Indiana,® Michigan,® and Wisconsin.^" In the statutes of some other States the word "agreement" does not so occur, but the word " promise " is coupled with it in the clause in question ; and the courts of those States have generally dispensed with the statement of the consideration, on the ground of that diflFerence." § 8Q2. It is important to observe that the American de- cisions which stand opposed to Wain v. Warlters, have almost exclusively considered that case as depending upon the force attributed by the Judges to the word " agreement," and the case of Egerton v. Mathews as depending entirely upon the distinction suggested between that word and " bargain." If there had been no other , ground upon which those cases could 1 Bean v. Valle, 2 Mo. R. 103 ; Halsa v. Halsa, 8 lb. 305. 2 Neelson v. Sanborne, 2 N. H. 414 ; Underwood v. Campbell, 14 lb. 393. 3 Sears v. Brink, 3 Johns. 215 ; Kerr v. Shaw, 13 lb. 236. But see Leonard V. Vredenburgh, 8 Johns. 37. The Revised Statutes of New York afterwards expressly enacted that the consideration must appear. See Appendix. * Buckley v. Beardslee, 2 South. 572 ; Laing v. Lee, Spencer, 337. 5 Sloan V. Wilson, 4 Harr. & Johns. 322 ; Elliott v. Giese, lb. 457 ; Wyman v. Gray, lb. 409 ; Edelen v. Gough, 5 Gill, 103. But see Brooks v. Dent, 1 Md. Ch. Dec. 530. 6 Stephens v. Winn, 2 Nott & McC. 372, note a ; though it was afterwards treated as an open question, in Lecat v. Tavel, 3 McCord, 158. ■^ Henderson v. Johnson, 6 Georgia R 390 ; Hargroves v. Cooke, 15 lb. 321. 8 Gregory v. Logan, 7 Black. 112. This was before the present Revised Statutes, which provide that the consideration may be proved by parol. See Appendix. 9 Jones V. Palmer, 1 Doug. 379. 10 Reynolds «. Carpenter, 3 Chand. 31. 11 Thus, in Virginia, Violett u. Patton, 5 Cranch, (S. C^ 151 ; Mississippi, Wren v. Pearce, 4 Smedes & M. 91 ; Tennessee, Taylor v. Ross, 3 Yerg. 330 ; Campbell v. Findley, 3 Humph. 330; Gilman v. Kibler, 5 lb. 19; Alabama, Thompson v. Hall, 16 Ala. R. 204 ; Kentucky, Ratliff v. Trout, 6 J. J. Marsh. 606 ; Florida, Dorman v. Bigelow, 1 Flor. R. 281. In Louisiana the civil law prevails, and by that law no consideration is necessary to be stated or proved. Ringgold V. Newkirk, 3 Ark. 97. See post, § 393, as to the materiality of such change in the phraseology. 4i04i STATUTE OF FRAUDS. [cH. XVIII. be sustained, and no other argument for the necessity of having the consideration stated in the memorandum, it may be doubted whether, even in England, the doctrine in question would have survived, and been finally established as law. The definition of "agreement," as adopted by Lord EUenborough from Corayns, is itself open to some question ; ^ but if it were cor- rect, the question remains, whether that word, so introduced into the statute, is to be taken in its strict legal sense. His lordship determines this in the affirmative upon the ground of the well-known sagacity and precision of Lord Hale, whom he asserts to have been the author of the Statute of Frauds. But besides the historical doubts which. exist upon this point,^ we find it difficult to maintain such an interpretation, when we come to compare the several clauses of the fourth section with each other and with the seventeenth. § 893. It is suggested by the Judges in Wain v. Warlters, that the fourth section discriminates between the " promise " and the " agreement ; " the former being that upon which the defendant is to be charged, but the latter being that of which the memorandum is required. On looking at the last clause of the section, however, we find that the party signing the "agreement" is spoken of as "charged" thereupon. More- over, the section commences by saying that " no action shall be brought, whereby to charge, &c., upon any special promise," &c., and in the last clause provides that "the agreement upon which such action is brought," &c., shall be in writing. The proper method of interpreting the word "agreement" in this section, if it must be conceded to have been used at all dis- tinctively, seems to be that suggested by Chief Justice Abbott, who said it sMIuld be read as a word of reference, as if all the precedent words were incorporated in it, and then the 1 See Mr. Pell's Treatise on Mercantile Guaranties, (Appendix, No. IV.) where this definition is examined with much research and critical skill. 2 Vide, Introduction to this Treatise. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 405 section would stand thus: "-Unless the agreement, special promise, contract, or sale, upon which such action is brought, shall be in writing," &c.^ But again, in the seventeenth sec- tion, which we may certainly compare with the fourth, as in pari materia to ascertain the force intended to be given to such words as they have in common, the word " bargain " appears to be used in the same sense as " contract," thus : " No contract for the sale of goods, &c., shall be allowed to be good, unless some note or memorandum of the said bargain," &c. Upon the whole, therefore, it is not easy to see that these several terms are employed in any such discriminating manner as can itself afford a precise, consistent, and satisfactory rule of construction.® § 894. But it is conceived that the doctrine of Wain v. Warlters is to be supported upon other and more substantial grounds. The case of Saunders v. Wakefield, which followed after those cases in which Lord Eldon had expressed his dis- satisfaction with Wain v. Warlters, re-asserted the rule that the memorandum must show the consideration ; and this, as is most important to observe, upon principle and reason, and with little more than a passing allusion to the leading case. The words of Mr. Justice Holroyd present with most admirable clearness and force what is conceived to be the true reason of the rule. He says : " The general object of the statute was to take away the temptation to commit fraud by perjury in important matters, by making, it requisite in such cases for the parties to commit the circumstances to writing. The particu- lar object of the fourth clause was to prevent any action being brought in certain cases unless there was a memorandum in • 1 Saunders v. Wakefield, 4 Barn. & Aid. 595. 2 In Thompson v. Blanchard, 3 Comst. (N. Y.) 337, it was held that an under- taking required by statute to be entered into by sureties, in order to give a right of appealgis valid if it contain the necessary stipulations, although it does not express a copsideration, and is not under seal. \ 406 STATUTE OF FRAUDS. [cH. XVIII. writing. The object of both was that the ground and founda- tion of the action should be in writing and should not depend on parol testimony. Unless, therefore, what is sufficient to maintain the action be in writing, no action can be supported." And upon the case before him, which was assumpsit on a promise to see a third party's bill of exchange paid, he says : " In the present case that which is reduced into writing is merely an engagement to pay the bill. Now, unless there be a consideration for that, no action lies upon such a promise. If a consideration is to be introduced it maybe either past or future, and must be proved by parol evidence. If that were allowed, all the danger which the Statute of Frauds was intended to prevent would be again introduced.^ § 395. It was said by Chief Justice Best, that if the clause in the statute had not expressed (as he thought it did;) that the whole agreement should be in writing, the law of evidence would have rendered it necessary, by declaring that nothing could be added by parol testimony to the terms expressed in writing ; and that, if he had never heard of Wain v. Warlters, he should have held that a consideration must appear upon the face of the written instrument.^ But even if this were not so,^ and if by the rules of common law parol evidence were admissible to show the consideration upon which a promise was founded, it does not seem to follow that it would be admissible in the case of a promise which the Statute of Frauds requires to be in writing. At common law there are but two classes of con- tracts made directly between parties, those under seal, and those not under seal or by parol ; the latter including written and verbal contracts, as both inferior in dignity to a contract under seal and indistinguishable in dignity between themselves. But 1 Saunders v. Wakefield, 4 Barn. & Aid. 595. 2 Morley v. Boothby, 3 Bing. 112. 3 See Sage m Wilcox, 6 Conn. K. 81, and Miller v. Irvine, 1 Dev.. & Bat. (N. C.) 103. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 407 the statute has distinguished between the two classes of parol contracts, and has created an independent class, i. e., contracts in writing, and has included in, and made amenable to the rules of, that class the various engagements which it enumerates. The question, therefore, must be, in the end, whether a contract is put in writing, where no consideration appears for its sup- port, and where, if the writing is taken by itself, the contract is a nullity for want of such consideration. 8 396. It is farther urged against the rule in Wain v. Warl- ters, that the statute only requires some " note or memoran- dum." But it seems to be overlooked that these words are put in apposition with " agreement," and that the intention manifestly is to dispense only, with the mere formal parts, and not with any of the essential parts, of a binding agreement. To use the words of Mr. Justice Richardson : " They who framed the clause were aware that it would be dangerous to leave the word agreement unaccompanied, because that might have occasioned difficulty through excess of strictness ; they therefore allowed a memorandum of the agreement to be made, which, though it should not state the whole agreement in detail, should sufficiently disclose the substantial cause of action." ^ § 397- Nor does there appear to be, as has been suggested by a very acute writer,^ any conflict between the rule that the memorandum must show the consideration of the engagement of the party who signs, and the rule that only the party to be charged need sign. There is surely a wide diflference between showing upon the face of the instrument what the other party is to do, and its being so executed as to bind him to do it. It is universally admitted that the names of both parties must ap- pear in the memorandum, and it does not appear to have been ever suggested that this in any. wise conflicted with the rule that it may be signed by only one of them. 1 Jenkins v. Keynolds, 8 Brod. & Bing. 14. 2 Roberts on Frauds, 117, note. 408 STATUTE OF FRAUDS [cH. XVIII. § 898. If the broad and wise policy of the statute be kept in view, namely, to prevent the false and fraudulent assertion against men of engagements which they never made, it is at least to be lamented that so many courts, illustrious for learning, have felt bound to hold that the character of the consideration, whether executed or executory, legal or illegal, on which the availability or the very existence of an agreement depends, should be left to the frail security of oral testimony. 8 399. But in those courts where the doctrine of Wain v. Warlters has been received as law, it is not held necessary that the consideration should be formally and precisely expressed in the memorandum. The rule is sometimes stated to be, that it is sufficient if it appear by " necessary imphcation " from the terms of the writing.^ Even this, however, broadly applied, would tend to give an impression of greater strictness than the courts have shown on this subject. As has been lately remarked by the learned Chief Justice of the Common Pleas, necessary imphcation does not mean " by compulsion, but so as a person's common sense would lead him to understand."^ The proper criterion in this difficult class of cases appears to have been very clearly and judiciously stated by Chief Justice Tin- dal : " It would undoubtedly be sufficient in any case," he says, " if the memorandum 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. Not that a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum, would be sufficient to satisfy the statute ; but there must be a well grounded inference, to be necessarily col- lected from the terms of the memorandum, that the considera- tion stated in the declaration, and no other consideration, was I Eaikes v. Todd, 8 Adol. & Ell. 846. And see Powers v. Fowler, 30 Eng. Law & Eq. 225. a Caballero v. Slater, 25 Eng. Law & Eq. 285. CH. XVIII.] THE CONTENTS OF THE ftJEMORANDUM. 409 intended by the parties to b6 the ground of, the promise." ^ To an exact appreciation of this rule a reference to some of the decisions is, however, indispensable. § 400. A memorandum in these words : "I guaranty the payment of any goods which F. S. delivers to F. N." was held by the Court of Queen's Bench, only four years after the decis- ion of Wain v. Warlters, and in affirmance of the ruling of Lord Ellenborough, (by whom, it will be remembered, that case was originally determined at msi prius,) to. import upon its face a sufficient consideration, namely, the stipulated delivery of the goods.^ For, as we have had occasion to see in an earlier part of this treatise, where a guaranty is made con- temporaneously with, and in order to procure, the giving of credit to the principal debtor, the consideration of the latter 's engagement enures to, and sustains, that of the guarantor also.' But if the words used are such that the court cannot by any effort of construction pronounce ^hat they import either a debt already incurred or a credit to be thereafter allowed, the memo- randum must be held insufficient, if no other means of arriving at the consideration be afforded by it.* Again, the following memorandum : "I do hereby agree to bind myself to be security to you for Mr. J. C, late in the employ of Mr. P., for whatever (while in your employ) you may trust him with, to the amount of £,50 ; in case of default to make the same good ; " signed by the defendant, was held -sufficient. It was argued that the only consideration must be that the plaintiff was bound to take J. C. into his service ; whereas, by the agreement he might or might not be bound to do so, or he might have already done so ; consequently, there being no 1 Hawes V. Armstrong, 1 Bing. N. C. 761. 2 Stadt V. Lill, 9 East, 348 ; S. C. at nisi prpis, nom. Stapp v. Lill, 1 Camp. 242. 3 Ante, § Ifll. • * Price V. Bichardson, 15 Mees. & Wels. 539. • 35 410 STATUTE OF FRAUDS. [cH. XVIII. mutuality, the contract was uo\ binding. But Chief Justice Tindal said : " I think you lay down your rule too largely. The written agreement must" show the consideration, but it need not show mutuality. If you can by reasonable construc- tion collect from it the consideration, it is enough. In this case, it rather appears from the words of the contract, mention- ing J. C. as lately in the employ of another master, that he was not at the time of its date taken into the plaintiff's service. If so, it is clear that the plaintiflF's doing so was the consideration of the defendant's promise, and if by fair construction we can as it were spell out from the contract that it was so, it is enough." ^ So where the guaranty was in these terms : " I dp hereby agree to become surety for R. G., now your traveller, in the sum of £500, for all money he may receive on your account," it was held sufficient to sustain a declaration averring the consideration to be that the plaintiflF would keep and con- tinue the traveller in his servjj e.^ 8 401. But a memorandum, " I hereby agree to remain with Mrs. Lees, &c., for two years from the date hereof, for the purpose of learning the business of a dressmaker," was held not binding, because it did not show that the plaintiff was bound on her part to teach the defendant that business.^ And so where one contracted in writing to work for the plaintiff, in his trade, and for no other person, during twelve months, and so on from twelve months to twelve months, until the em- ployer should give notice of quitting j the writing was held insufficient. In the latter case, it was urged that an agreement on the master's part ,to pay might be inferred as the consider- ation ; but Lord Denman, C. J., said : " I do not see how we can infer that as a consideration for his confining himself to 1 Newbury v. Armstrong, Moo. & Mai. 389. See also Kennaway v. Trelea- van, 5 Mees. & Wels. 498. 2 Kyde V. Curtis, 8 Dow. & Ry. 62. 3 Lees V. Whitcomb, 6 Bing. 34. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 41 1 one employer ; because any person with whom he worked would be obliged to pay him."^ § 402. Again, where a memorandum states the delivery of securities for the payment of money to the plaintiff by a third person, and at the same time, contains an engagement to see them paid at maturity, it is held that a consideration for the engagement sufficiently appears, namely, the plamtiff's extend- ing credit to a third person by accepting such securities.^ § 403. A rule of construction, however, well established in the general law of evidence, but of comparatively recent ap- plication, it would seem, to questions of this nature, is often called to the aid of a memorandum of guaranty, where the terms used are ambiguous and may refer either to a preexisting liability of a third party to the creditor, or to one which is allowed to be incurred contemporaneously with, and in confi- dence of, the defendant's undertaking. This is the admission of parol evidence to show the circumstances of the parties at the time of contracting, in order to understand correctly the language they employ. Under this rule a memorandum. of guaranty addressed to the plaintiffs, in the words, " In consid- eration of your being in advance to the third party," was sus- tained by parol evidence, showing that at the time of executing it no advance had been made.^ And in a case, so to speak, the converse of this, where the words were, " I hereby guarantee B's account with A," &c. ; it appearing that there was a pre- existing account to which the words could apply, it was held that the guaranty could not be sustained.* The Supreme Court of New York, upon the authority of this latter case, have held a guaranty employing the same expression to be good, on its being proved by parol that there was an account between the 1 Sykes ». Dixon, 9 Adol. & Ell. 693. 8 Morris v. Stacy, Holt, 153 ; Pace v. Marsh, 1 Bing. 216. 3 Haigh V. Brooks, (and Brooks v. Haigh,) 10 Adol. & EU. 309. * Allnutt V. Aahenden, 5 Man. & Gr. 392. 4)12 STATUTE OF FRAUDS. [cH. XVIII. plaintiiF and the third party, not existing when the guaranty was given, but contracted afterwards ; admitting, at the same time, that if the words " your account," had necessarily iraphed a ^ precedent account, the letter containing them would have been insufficient as not showing an available consideration.^ In a case in the Exchequer, the language of the memoranduni was, " In consideration of your having released the above- named defendant from custody I hereby engage, within one month from this date, to pay you," &c. It appeared that the release was in fqpt given after the memorandum was made and accepted. The court held that the engagement might be con- strued to be, as it really was, prospective on the release, and that it might be read thus : " I hereby engage, &c., within one month, in consideration of your having then released," &c.^ So also in the same court, where the words were, " In consid- eration of your having advanced," &c., and it was proved that the advance was made after the memorandum.^ And so in the House of Lords, in a case where the action had been brought upon a memorandum containing this expression : " Entertaining the highest opinion of P. C.'s integrity, &c., we hold ourselves responsible to you in the sum of ,£500 ster- ling for his discharging faithfully and honestly any duty as- signed to, or trust reposed in him," the rpemorandum was held sufficient ; Lord Tenterden advising the Lords, " It appears that at the time when this letter was written, C. had no situa- tion or employment under the defendants in error. The House therefore has a right to understand the letter as though it ex- pressed a promise to be responsible for C. if the defendants in error would employ him."* 1 Walrath v. Thompson, 4 Hill, (N. Y.) 201. But see Weed v. Clark, 4 Sand. (N. Y.) 31. 2 Butcher M.Steuart, 11 Mees. & Wels. 857. 3 Goldshede v. Swan, 1 Wels. Hurl. & Gor. 154. 4 Lysaght v. Walker, 5 Bligh, N. R. 1. See farther, in illustration of the „same rule, Thornton v. Jenyns, 1 Man. & Gr. 166 ; Steele v. Hoe, 14 Adol. & • CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 4il3 § 404i. We have seen in a previous chapter that a creditor's forbearance to sue his debtor is an adequate consideration, moving from the creditor, to support a guaranty by a third party that the debt shall be paid at a subsequent day. The memorandum of guaranty of such a debt, therefore, will be sufficient for the purposes of the rule we are now examining, if it afford a reasonable inference that the inducement of the guaranty was the creditor's giving time to the debtor.^ It is quite plain that this forbearance is not necessarily inferred to be the consideration of a guaranty, because the memorandum refers to the debt as already due.^ And although, as has been already remarked, a memorandum stating the delivery there- with to a cre4Jtor of securities for the payment of money by a third party, and engaging to see them paid at maturity, may be supported upon the inference that the consideration of such en- gagement was the plaintiff's giving the third person credit until their maturity ; yet it is held that such a memorandum cannot be construed to import the forbearance of the creditor, for the period which the securities have to run, to enforce an old debt; and a demurrer to a declatation setting out the memorandum, and alleging forbearance as the consideration, will be sustained.^ § 4*05. As a general rule, however, in all cases where the language of the memorandum shows with reasonable clearness that the defendant's promise is designed to procure something EU. N. S. 431 ; Edwards v. Jevons, 8 Man. Gr. & Sc. 436 ; Bainbridge v. Wade, 16 Adol. & Ell. N. S. 89 ; Shortrede v. Cheek, 1 Adol. & EU. 67; Raband v. D' Wolf, 1 Pet. (S. C.) 499. 1 Powers V. Fowler, 30 Eng. Law & Eq. 225 ; Emmott v. Kearns, 5 Bing. N. C. 559 ; Patchin v. Swift, 21 Verm. R. 297. 3 Wain V. Wariters, 5 East, 16 ; Clancy v. Piggott, 2 Adol. & Ell. 473 ; Cole V. Dyer, 1 Cro. & Jer. 461 ; S. C. 1 Tyrw. 304 ; James ti. Williams, 5 Barn. & Adol. 1109 ; Smith v. Ives, 15 Wend. (N. T.) 183. But see Neelson v. San- borne, 2 N. H. 415. 3 Hawes v. Armstrong, 1 Bing. N. C. 761, which in this respect appears to overrule Boehm v. Campbell, 8 Taunt. 679. 35* 4<14 STATUTE OF FRAUDS, [CH. XVIII. to be done, forborne, or permitted by the party to whom it is made, either to or for the promisor or a third party, such act, forbearance, or permission, so stipulated for by the defendant, is taken to be the induceqient!"to his promise ; and the sug- gestion of it in his memorandum, preventing him from assert- ing that his promise is without consideration, suffices to make the memorandum binding upon the plaintiflf.^ Where a guar- anty refers partly to a credit previously given, and partly to a credit to be thereupon given, to the third party, the latter of course will be sufficient to uphold the memorandum.^ § 406. But it is not always necessary that the defendant's memorandum should in itself contain any words from which the inducement to his promise can be inferred. If, for in- stance, he makes himself a party to a written agreement between two others, and in that agreement it is stipulated that he is to be answerable for the performance on the part of one of them, this close connection between his guaranty and the agreement will show that the consideration of the guaranty was the making of the agreement.^ Again, if at the time of 1 The rule is derived from the various cases previously cited and explained in reference to this subject ; to which may be added for farther illustration the following : Benson v. Hippius, 4 Bing. 455 ; Redhead v. Cator, 1 Stark. R. 14 ; Coe V. DufBeld, 7 Moore, 252 ; Peate v. Dickens, 1 Cro. Mees. & Ros. 422 ; Colburn v. Dawson, 4 Eng. Law & Eq. 378 ; Rogers v. Kneeland, 10 Wend. (N. Y.) 252 ; Marquand «. Hipper, 12 lb. 520; Waterbury v. Graham, 4 Sand. (N. Y.) 215. The Revised Statutes of New York (see Appendix) provided that the consideration shall be expressed in the memorandum. Upon the force of this word, much has been said in the courts of that State, but upon the whole it seems to involve no important modification of the principle stated in the text. See the cases, Packer v. Willson, 15 Wend. 346 ; Smith v. Ives, lb. 183 ; Ben- nett V. Pratt, 4 Denio, 275 ; Staats v. Howlett; lb. 559 ; Douglas v. How- land, 24 Wend. 35; Union Bank of Louisiana v. Coster, 1 Sand. 563 ; Gates ». McKee, 8 Kernan, 232. 2 White V. Woodward, 5 Man. Gr. & Sc. 810 ; Wood v. Benson, supra ; Rus- sell V. Mosely, 3 Brod. & Bing. 211 ; Gates v. McKee, supra. Also Raikes v. Todd, 8 AdoL & Ell. 846, which ia explained in Caballero v. Slater, 25 Eng. Law &Eq. 285. 3 Caballero v. Slater, 25 Eng. Law & Eq. 285. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 4fl5 making- the principal agreement, and as part of one entire transaction between those concerned, the guaranty be indorsed or otherwise written upon it, or, being on a separate paper, refers to it ; ^ the consideratl|r of the guaranty will in like maitoer be held to appear, namely, the plaintiff's becoming a party to the principal agreement ; and the €act that the two instruments were so connected in time, and that their delivery formed one entire transaction, may be proved by parol evi- dence. § 407. Such was the decision of the Supreme Court of New York, pronounced by Chief Justice Kent, in the case of Leonard v. Vredenburgh. There the defendant wrote and signed, at the foot of a promissory note, purporting to be for value received, the words, " I guaranty the above." The facts were that the maker of the note had applied' to the plaintifi' for certain goods upon credit, but the plaintiff had refused to fur- nish them to him without security ; whereupon the note was made, with the defendant's guaranty appended, the whole de- livered to the plaintiff, and the goods furnished as desired. At the trial, the plaintiff offered parol testimony to show this connection between the making of the note and the giving of the guara^^ ; but the Chief Justice himself rejected it, as an attempt to prove the consideration of the guaranty by parol. On subsequent argument before the full court, he united with them in a differ- • 1 Stead V. Liddard, 1 Bing. 196 ; Coldham v. Showier, 3 Man. Gr. & Sc. 312 ; Adams v. Bean, 12 Mass. R. 139 ; Bailey v. Freeman, 11 Johns. (N. Y.) 221 ; Douglas V. Howland, 24 Wend. (N. Y.) 36 ; Lecat v. Tavel, 3 McCord, (S. C.) 158 ; Dorman v. Bigelow, 1 Florida R. 281. But an indorsement, &c., subse- quently to the making and delivery of the principal obligation is not sufficient, without itself showing the consideration. Hall v. Farmer, 2 Comst. (N. Y.) 657, • .affirming on error the judgment of the Supreme Court, in 5 Denio, 584 ; Brewster v. Silence, 4 Seld. (N. Y.) 207, affirming the judgment of the Supreme Court, in 11 Barb. 144. Or even at the same time, if the principal obligation is made in payment of a preexisting debt. Hall v. Farmer, supra. The cases of Luqueer v. Prosser, 1 Hill, 256, and Manrow v. Durham, 3 lb. 584, seem to have been overruled by the two just cited. 416 STATUTE OF FRAUDS. [cH. XVIII. ent conclusion, and the opinion then delivered by him is one of important bearing upon this branch of our investigation. He remarks that, admitting the origin of the contract to be such as the plaiptiflF offered to show, there was no necessity for, nor was there in fact, any consideration passing directly bettSreen him and the defendant, and of course none was to be proved ; that it was one original and entire transaction, and the sale and delivery of the goods supported the promise of the defendant as well as that of the purchaser ; and he adds : " The writing imported upon the face of it one original and entire transac- tion ; for a guaranty of a contract imports, ex vi termini, that it was a concurrent act and part of the original agreement." " Upon the whole," he says, " we think the plaintiff was en- titled to recover upon production and proof of the writing ; but if there was any doubt upon the face of the paper, whether the promise of the purchaser and that of the defendant were or were not concurrent and one and the same communication, the parol proof was admissible to show that fact."^ § 408. It will be observed that such a case -as the above differs from those in which a guaranty is on its face expressed toAe for the security of credit which is to be allowed to the third party, in this, that it merely refers to another writing from which 6hat credit appears ; the parol evidence being ad- mitted for the purpose of establishing, between the two, that unity of time and transaction which would be manifeat if they 1 Leonard v. Vredenburgh, 8 Johns. (N. T.) 37 ; Union Bank of Louisiana v. Coster, 3 Comst. (N. Y.) 203 ; Rabaud v. D'Wolf, 1 Pet. (S. C.) 499. The first of these eases is sometimes said to have decided that the rule in Wain v. Warl- ters did not apply to guaranties made contemporaneously with, and for the pur- pose of, procuring the credit to be given to the third party. See Smith v. Ida, 3 Verm. R. 298 ; Lecat v. Tavel, 3 McCord, (S. C.) 158. But this appears to be a misapprehension of that case, which really decided, not that the memoran- dum of such guaranties need not show any consideration, but that it need not show a separate one from that which supported the third party's obligation. The decision has lately been disapproved, but it would seem unnecesBarily> in the N. Y. Court of Appeals. Brewster v. Silence, 4 Seld. 207. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 417 were both comprised in one instrument. And such seems to be the light in which the distinguished Judge, whose words we have been quoting, regarded it. But in another part of that opinion he remarks upon the case before him, that the pur- chaser's note "given for value received, and of course import- ing a consideration on its face, was all the consideration requi- site to be shown. The paper disclosed that the defendant guarantied this debt of the purchaser, and if it was all one - transaction, the value received was evidence of a consideration embracing both promises." Are we then t» conclude that the principal agreement, with which a memorandum of guaranty is thus shown to have been connected as one transaction, must itself express on its face, or necessarily import, a considera- tion 1 The whole tenour of the opinion seems to show that the case was not determined upon that rea^ning, and we mayj therefore be pardoned for suggesting a doubt in regard to it. If it were enough that the principal agreement expressed or imported a consideration, it would seem to follow that a guar- "anty written upon it at a subsequent date woilld be supported by such consideration ; but this is clearly not so.^ It must be written contemporaneously with it and as part of the same transaction. But if so written, is it not enough, although the principal agreement do not itself express or import a consider- ation.'? Suppose the case of an engagement from A to B, which would be good by parol, but is in fact reduced to writ- ing, and contains no statement or implication of the considera- tion upon which it is founded ; and upon this engagement, at the same time, and as part of the same transaction, C writes a guaranty that it shall be performed ; it is submitted that C is liable, his memorandum showing the consideration of his guar- anty, namely, B's acceptance of A's engagement. That en- gagement is binding upon A, though the consideration be not stated or necessarily implied in the writing, but proved by 1 See ante, p. 415, note. 418 STATUTE OF FRAUDS, [cH. XVIII' parol ; and consequently the acceptance of it by B is a valid inducement to support C's guaranty that, it shall be per- formed.^ § 409. In conclusion of the present chapter, we have to inquire to what extent the rules of the common law, in regard to the admission of parol evidence to aiSFect written contracts, prevail in cases of contracts within the Statute of Frauds. § 409 a- For most purposes, it may be said that the statute has neither added to, nor taken from, the stringency of these rules. At common law such evidence is not admissible to con- tradict or vary a written agreement by showing what passed, before or at the time of its execution, between the parties ; a rule which prevails as well in equity, wherever such evidence is offered to sustain the plaintiff's suit, as in actions at law. l|And this is so, a fSrtiori, in relation to any contract which the statute requires to be put in writing. On the other hand, parol evidence is admitted at common law to show the circum- stances under which the parties have executed a written agree- ment, with a view to fix its application to the subject-matter " which they had iri their minds. And for this purpose, as we have seen in various places in the present chapter, it is equally admissible, although the agreement be one which cannot, con- sistently with the statute, be made without writing Again, it is a familiar principle of equity, when the court is called upon to decree the specific execution of a written agreement, that the defendant may by parol evidence prove that by fraud, mis- take or surprise, the writing fails to show the real agreement entered into by the parties. And the Statute of Frauds does not interdict such evidence in such cases. To use the language of Lord Redesdale, " the statute does not say that if a written agreement is signed the same exception shall not hold to it that 1 The view Tyhich is here attempted to be controverted seems to be that en- tertained, however, by an American author of much consideration. See Parsons on Contracts, Vol. II. p. 297. CH. XViri.] THE CONTENTS OF THE MEMORANDUM. 419 did before the statute." "It does not say that a written agree- ment shall bind, but that an unwritten agreement shall not bind."^ § 409 b- There is, however, a farther rule, prevailing at common law, in regard to ^hich it is a matter of some diffi- culty, to ascertain how far, if at all, it applies to contracts required to be in writing, by the provisions of the statute. This rule is that a contract reduced to writing may, by oral agreement of the parties subsequently made and before any breach has occurred, be varied in one or more of its terms or be wholly waived or discharged ; the contract when so varied, subsisting partly in writing and partly in parol, and as such remaining obligatory upon the ^arties.^ I 410. We have already seen that by the " bargain," or " agreement," which the statute requires to be in writing, is meant only so much as is essential ; only the necessary ingre- dients of an intelligible and enforceable obligation. The ques- tion now is, not how much the memorandum must contain, but how far the parties may, by a subsequent oral agreement, waive or discharge or vary that which it does contain. § 411. It seems to be well established as the general rule under this head, that no action can be brought upon any agree- ment, of those which are embraced by the provisions ofnihe Statute of Frauds, unless it is wholly in writing; and that where the plaintiff, in a case of subsequent oral variation of some of the terms of the written agreement, declares upon the writing as qualified by the oral variation, he cannot prevail. The decision in Cuff v, Penn, one of the earliest and most important cases of this class, was in fact to the contrary ; ^ but 1 Clinan v. Cooke, 1 Sch. & Lef. 39. • 2 Goss V. Lord Nugent, 2 Nev. & Man. 33, 34 ; 5 Barn. & Adol. 65 ; 1 Greenl. Ev..§ 34 ; 1 Phillips Ev. (Cow. & Hill, Ed.) p. 563, n. 987. 3 Cuff V. Penn, 1 Maule & S. 21. In the judgment of the Supreme Court of MassachasettSrin Stearns v. Hall, 9 Cush. 85, this case appears to be misap- prehended in this respect. It is there spoken of as having been an action upon the original written contract. But, in fact, the declaration in Cuff v. Penn, 420 STATUTE OF FRAUDS. [cH. XVIII. from the report the point does not seem to have been distinctly in the mind of the court, the whole stress of the opinion bearing upon another position ; and later English autherities have con- clusively settled the rule as above kid down.-^ § 4il!2. But, this rule being admitted as correct, there r.e- main two questions of some interest and importance which it suggests. First. In what cases, if any, can it be said that notwithstanding a subsequent oral variation of the written agreement in some respect, the original contract substantially remains ; so that an Action could be brought upon the written agreement as so varied, Vvithout offending against the general rule. Secondly. How far may such variation be made avail- able to the parties, otherwise than by a direct proceeding to enforce the contract as varied. § 413. In the case of Cuff v. Penn, above referred to, where the parties to a written agreement for the sale of goods, specifying the times at which they were to be delivered, sub- sequently made a verbal change postponing such delivery, it was remarked by Lord EUenborough that, " the contract remained," notwithstanding the verbal stipulation for a " sub- stituted performance." The distinction here suggested between _» -. , contained three counts, the first upon that contract, and the second and third on the contract as afterwards varied by parol; and it was on these latter counts that the plaintiff's verdict was rendered and sustained. 1 See the cases referred to hereafter, § 414. The Supreme Court of Massa- chusetts fully admit the truth of this proposition in Cummings v. Arnold, 3 Met. 486. See farther Jordan v. Sawkins, 1 Ves. Jr. 402 ; Parteriche v. Powlet, 2 Atk. 383 ; Blood v. Goodrich, 9 Wend. (N. Y.) 68; Rogers v. Atkinson,! Kel- ly, (Ga.) 12. In Low V. Treadwell, 3 Fairf. (Me.) 441, and Grafton Bank v. Woodward, 5 N. H. 99, Mr. Chitty is cited as saying, in his Law of Contracts, ihat " a subsequent parol agreement not contradicting the terms of the original ♦bntract but merely in continuance thereof, and in dispensation of the per- formance of its terms,'as in prolongation of the time of execution, is good even in the case of a contract reduced into writing under the Statute of Frauds." In neither of those cases, however, was it found necessary to apply this doctrine judicially, the contracts in question not being within the statute; and it does not seem to have been reasserted in the later editions of that esteemed a,uthor. See 9th Amer. from 5th Lond. ed. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 421 the contract itself, as being alone that which the statute requires to be proved by writing, and the performance of it, as being something distinct therefrom and to which the statute has no application, has occasioned, by a somewhat undiscriminating application of it, much of the embarrassment attending this subject. For certain purposes, as will be seen hereafter, the distinction clearly exists and must be applied ; but not in any such way as to impair the integrity of the rule heretofore stated ; and such is the clear result of the later authorities both English and American. § 414. In the case of Goss v. Lord Nugent, there was a written agreement by which the defendant was to purchase certain lots of land, and the plaintiff bound himself to make a good title to them all. Subsequently he was, by verbal arrangement with the defendant, released from this obligation as to one of the lots, and the defendant took possession of the whole. Upon the plaintiff's suing him for the unpaid balance of the purchase-money of the whole, however, and declaring upon the agreement as so altered, he objected that the agree- ment, in order to charge him upon it, must be wholly in writ- ing ; and the court sustained the objection, and set aside the verdict which the plaintiff had obtained below.i So in Harvey V. Grahham," where the subject-matter of the oral variation was merely the method of valuation of certain straw, etc., which was, by written agreement for the sale of land, reserved to the vendor.^ So in Stead v. Dawber, a decision of the Queen's Bench, where the oral variation was, as in Cuff v. Penn, simply in the time of delivery of a cargo contracted for by the plaintiff.^ And so in Marshall v. Lynn, a decision of the Court of Exchequer upon similar facts.* 1 Goss V. Lord Nugent, 2 Nev. & Man. 33, 34 ; 5 Bam. & Adol. 65. 9 Harvey v. Grabham, 5 Adol. & Ell. 61, 73. 3 Stead V. Dawber, 10 Adol. & Ell. 57. 4 Marshall v. Lynn, 6 Mees. & Wels. 109. 36 422 STATUTE OP FRAUDS. [cH. XVIII. 8 4)15. The ground upon which the cases just cited were all decided, is this : that the plaintiflf sued upon a contract which the Statute of Frauds required to be in writing, but which in fact was partly in writing and partly in parol ; and that although originally put in writing, and varied only as to ^ the manner of performance, still the suit could not be said to be upon the original written contract, but upon a new contract made out by incorporating therewith certain oral stipulations. 8 416. It clearly appears from these cases, and indeed it could hardly be questioned, that the rule must apply equally to all contracts embraced by the provisions of the statute, whether bargains for goods, under the seventeenth section, or any of the various agreements enumerated in the fourth. 8 417. They show also that no exception can be founded upon the question whether the particular in respect of which the oral variation is made, is itself a material particular of the /contract. In the case of Stead v. Dawber, it is true, where the value of an article contracted for had risen in the interval between the time fixed by the writing for delivery and the time to which it was afterwards verbally postponed, the court lay some stress upon that fact as showing the time of delivery to have been essential to. the bargain.^ But this distinction finds no countenance in any other of the cases referred to, whether prior or subsequent to itself. Thus in Goss v. Lord Nugent, the Chief Justice Lord Denman said, alluding to the suggestion that the waiver of title as to one of the number of lots was only an abandonment of a collateral point, "We think that 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." And while insisting that the title to a piece of land was by no means a non-essential of a contract for its 1 Stead V. Dawber, 10 Adol. & Ell. 57. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 4€S purchase, he distinctly says that the opinion of the court is not formed upon that view, but " upon the general effect and mean- ing of the Statute of Frauds, and that the contract now brought forward by the plaintiff is not a contract wholly in writing." ^ § 418. Again, in Marshall v. Ljmn, where the oral variation was in respect of the time iSxed for the delivery of a cargo, and it was contended by counsel that this time appeared to be a material part of the contract, and the Court, on the broad ground heretofore stated, denied the plaintiff's claim to recover, Mr. Baron Parke took occasion to say that " it seemed to him to be unnecessary to inquire what were the essential parts of the contract and what not, and that every part of the contract in regard to which the parties are stipu- lating must be taken to be material ; " and he alludes to the suggestion made in Stead v. Dawber, with the remark that it might be considered as laying down too limited a rule. In the course of the argument he had already said, " No doubt every particular of the contract need not be mentioned ; but if mentioned it must be observed." ^ § 4*19. Again, in the case of Harvey v. Grabham, the oral variation was in respect of a particular which was in the first instance not required to be in writing, namely, the valuation back to one party of certain straw, etc., lying upon land which he had contracted to lease to the other ; but this particular had been, in fact, put in writing as part of one entire transaction with the contract to lease the land. Even there, the court held that on a declaration upon the stipulation for payment for the straw, etc., as making part of the entire contract, including the engagement to lease the land, the plaintiff could not enforce the orally substituted valuation. If he could, says Lord Den- man, speaking for the court, '*■ it would follow that should the present plaintiff hereafter refuse to execute the lease, the pres- 1 Goss V. Lord Nugent, 2 Nev. & Man. 33, 34 ; 5 Barn. & Adol. 65. 2 Marshall v. Lynn, 6 Mees. & Wels 109 4i24i STATUTE OF FRAUDS. [cH. XVIII. ent defendants, in suing for such a refusal, would be obliged to state the altered agreement as the consideration, and aver a readiness to perform it, and would have to prove their case partly by writing, and partly by oral evidence; the very pre- dicament which the Statute of Frauds was intended to prevent."^ § 4i20, And in illustration of this case and others which discard the distinction as to the oral variation being in respect of a particular which is material or immaterial to the contract, or within or without the Statute of Frauds, it may not be without profit to recur to a principle which has been discussed in a previous chapter. We there saw that where a defendant verbally agrees to do two or more things, one of which is without and the others within the Statute of Frauds, the plaintiff cannot recover upon the former engagement, if his declaration be framed upon the whole, as it must be where the several engagements are in their nature interdependent, and have not been in fact severed by thei anterior execution of so much as would have been affected by the statute.^ By apply- ing this principle to the cases in question, it is perhaps more clearly seen why an oral variation of a written agreement within the Statute of Frauds, though made in respect of a particular which might, if standing a^lone, be good by parol, cannot be available, so long as the whole contract, embracing that which is required to be in writing as well as that which is not remains executory. § 421. If, however, the case should arise of an action to recover upon that part only which had been so varied by parol, the other part having been severed therefrom by being per- formed, (as if, in Harvey v. Grabham, the lease had been exe- cuted, and the plaintiff had sued only for the valuation of the straw, etc., according to the substituted oral agreement,) it would seem, by analogy with the principle just referred to, that 1 Harvey w. Grabham, 5 Adol. & Ell. 61. a Ante, Chapter IX. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 425 the action may be sustained. For when the part in respect of which the oral variation is made, has ceased to be a part of a contract required by the statute to be in writing/the statute loses its hold upon the case, and the rule of common law inter- venes, allowing a contract reduced to writing to be afterwards varied by parol. § 4)22. The general rule which has thus far occupied our attention, finds perhaps its most appropriate illustration in a suit in equity for the purpose of enforcing a written contract with a subsequent oral variation engrafted upon it. Such a case has arisen in England within a few years, and Lord Chancellor Truro held the rule to be entirely applicable, in the absence of any suggestion of fraud ; and he referred also to the several cases we have reviewed, as clearly establishing it at law, and stated the case of Cuff v. Penn to have been overruled.^ § 423. But the farther question remains. In what manner may such an oral variation be made available to the parties, otherwise than by a direct proceeding to enforce the contract as varied. To this the correct answer seems to be that per- formance, or readiness to perform, according to the orally sub- stituted terms, is available to either party in like manner as would have been performance, or readiness to perform, accord- ing to the original contract. This is the well settled rule at common law, in cases where upon a simple contract in writing is stibsequently engrafted an • oral stipulation for a change in the time, place, or manner of performance ; and the clear weight of authority is to the effect that the Statute of Frauds does not stand opposed to it.^ To rely thus upon such oral stipulation is manifestly not to enforce an oral agreement within the Statute of Frauds, even by way of defence ; the oral stip- ulation is relied upon simply by way of accord and satisfaction ; it is relied upon for the purpose of proving performance alone. 1 Emmet v. Dewhirst, 8 Eng. Law & Eq. 88, 2 1 Greenl. Ev. § 304, and cased there cited. 36* 4i26 STATUTE OF FRAUDS. [cH. XVIII. which is thus, so to speak, dissociated from the contract itself. And in this sense, and for this purpose, there is no difficulty in accepting the distinction asserted, between the contract, which is within the purview of the statute, and the perform- ance, which is not. § 4241. Thus, where the plaintiff has brought his action upon the original contract, (as he must do,) alleging- non-per- formance by the defendant, the latter may answer that he has performed according to an oral agreement for a substituted performance, or, being ready to do so, was prevented by the fault of the plaintiff himself.^ It is not competent to him to set up the oral agreement in bar of the plaintiff's claim, not alleging his own performance or readiness to perform. § 4>^5. Again, the action having been brought upon the original contract, if the defendant set up that the plaintiff did not himself perform according to its terms, the plaintiff may reply that he was ready to do so, but that it was dispensed with by the oral agreement for the substituted performance ; and his proof of such agreement is not considered a variance from his declaration.^ § 426. Such seems to be the correct view of the application of the rule in question, at least in the courts of this country. It is sustained also by the English cases which preceded Cuff V. Penn.^ But in all the subsequent cases the declaration was framed upon the written contract as modified by the subsequent oral stipulation, with the exception of one which requires to be examined. • § 427. This was Stowell v. Robinson, decided in the Com- mon Pleas in 1836. The plaintiff declared upon a written agreement by which the defendant engaged to assign to him a lease, possession to be given by a certain day, and that he 1 Cummings v. Arnold, 3 Met. (Mass.) 489 ; NeU v. Cheves, 1 Bailey, (S. C.) 537. a Stearns v. Hall, 9 Cush. (Mass.) 81. 3 Warren v. Stagg, cited in Littler v. Holland, 3 Term R. 591, as having been decided in 1787, by Mr. Justice BuUer. Thresh v. Kake, 1 Esp. R. 53. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 4S7 had good right to assign ; breach, that he had not such right, and could not perform his engagement ; and a count was added for money had and received to recover back ,£50 which the plaintiflF had advanced as deposit, on the ground that the de- fendant had not completed the conveyance and given possession on the day agreed. The defendant pleaded that he had good right to assign ; that neither he nor the plaintiflF was ready on the day named for delivering possession ; that it was orally agreed to postpone it a reasonable time, if the defendant would make out title meanwhile ; that he did so make out title, but the plaintiff then refused to perform. A verdict having been obtained for the defendant, the court said they would not dis- turb it upon the special count, as it was not considered suffi- ciently proved ; but in view of the count for the deposit they set the verdict aside, the defendant not having assigned on the day originally agreed. Chief Justice Tindal, who delivered judgment, said that the question was whether the day for the completion of the purchase of an interest in land, inserted in a written contract, could be varied by a parol agreement, and another day substituted so as to bind the parties ; and that the court were of opinion it could not. And, although admitting that upon the case shown, neither party was ready on the day first agreed, he says that to allow the oral variation would be " virtually and substantially to allow an action to be brought on an agreement relating to the sale of land, partly in writing, and signed by the parties, and partly not in writing but by parol only, and amounted to a contravention of the Statute of Frauds." ^ § 428. From the report of this case, it nowhere appears that the distinction between relying upon the oral variation " so as to bind the_ parties," and reljang upon readiness to perform according, to its tenour as a defence in the nature of accord and satisfaction, was brought to the notice of the court; nor is _ 5 — _ : 1- Stowell V. Robinson, 3 Bing. N. R. 928 ; 5 Scott, 196. 4£8 STATUTE OF FRAUDS. [cH. XVIII. there, in the decision itself, any allusion to the English cases antecedent to Cuflf v. Penn, where this distinction appears to he recognized. It is to be remarked also, that in neither Stead V. Dawber nor Marshall v. Lynn, hoth decided subsequently to Stowell V. Robinson, and both asserting the rule that an action could not be maintained upon an agreement, embraced by the Statute of Frauds, partly in writing and partly resting in parol, do the Judges quote that case as an authority.^ These circumstances may incline us to doubt whether it can be so regarded. The Supreme Court of Massachusetts, in their careful and discriminating judgment in Cummings v. Arnold, say : " It appears to us that the case of Stowell v. Robinson was decided on a mistaken construction and application of the Statute of Frauds ; and that the distinction between the con- tract of sale which is required to be in writing, and its subse- quent performance, as to which the statute is silent, was over- looked or not sufficiently considered by the court ; otherwise the decision perhaps might have been different. We think there is no substantial difference, so far as it relates to the Statute of Frauds, between the plea in that case and the plea of accord and satisfaction, or a plea that the written contract had been totally dissolved, before breach, by an oral agreement ; either of which pleas would have been a good and sufficient bar to the action."^ § 429. The only question that remains is, how far parol evidence is admissible to prove the waiver or discharge of a contract once put in writing in obedience to the requirements of the Statute of Frauds. 1 In Home v. Wingfield, 3 Scott, N. R. 340, Mr. Justice Coltman refers to it as seeming to oppose an obstacle to a parol waiver of a promise to deliver an abstract of title, a case which it was said might be raised by an amendment of that actually before the court. s The court also say, " We are aware that the principle on which Stowell ». Kobinson was decided is supported by other English cases." But the admission was, as we have seen, unnecessary. CH. XVIII.J THE CONTENTS OF THE MEMORANDUM. 429 § 430. Mr. Chancellor Kent remarks, that in certain cases, and on certain terms, an agreement in writing concerning lands, (and the reason of the remark, doubtless, applies to all other classes of contracts within the statute,) may be discharged by parol ; but that the evidence in such cases is good only as a defence to a bill for specific performance, and is totally inad- missible, at law or in equity, as a ground to compel a perform- ance in specie.^ Passing by, for the present, the question whether such parol evidence may be introduced, in equity only, in defence, it may be remarked that the precise meaning of the learned Chancellor seems to be that it is inadmissible, either in equity to compel a performance in specie, or at law to support a claim for damages. And such seems to be clearly the cor- rect opinion. Lord Hardwicke has observed that an agree- ment to waive a purchase contract was as much an agreement concerning lands as the original contract.^ We have seen that a contract by one who holds an agreement for the sale of lands to him, to dispose of his rights to a third party, is to be treated as itself a contract for the sale of an interest in land ; * and it is substantially the same thing if he releases that right to him who executed the agreement to sell, or, in other words, waives and discharges the agreement, by parol. § 481. The question, how far the parol waiver in such cases may be set up, presents more difficulty, and may be considered in two views, as it may arise in equity or in law. § 433. In Goman v. Salisbury, an early case before Lord Keeper North, where a bill was brought for a specific execution of a written contract, it was held that a parol dis- charge was binding and the bill was dismissed.* Afterwards, when this case was cited upon a similar one before Lord Hard- 1 Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 429, 430. 2 Eq. Cas. Abr. 33 ; Bell v. Howard, 9 Mod. 302. 3 Ante, § 229. 4 Goman y. Salisbury, 1 Vern. 240. 430 STATUTE OF FRAUDS. [cH. XV III. wicke, he declared that he would not say that a contract in writing could not be waived by parol, yet he should expect in such a case very clear proof, and the defendant before him not furnishing such proof, the plaintiff had a decree.^ In another case he said it was certain that an interest in land could not be parted with or waived by naked parol without writing ; yet articles might by parol be so far waived that if the party came into e(juity for a specific execution, such parol waiver would rebut the equity which the party before had, and prevent the court from executing them specifically.^ § 433. And this opinion, that a parol disehargfe of a written contract within the Statute of Frauds is available in equity to repel a claim upon that contract, to which the mind of Lord Hardwicke came so reluctantly, is since firmly established by many authorities.' But it has been laid down by Lord Lynd- hurst that, although such waiver is unquestionably admissible according to the rule stated, it must be in effect a total dissolu- tion of the contract, such as would place the parties in their original situation.* 8 434. The question of the admissibility of such a parol waiver as a defence to an action at law was raised, and, it would seem, for the first time, in the case of Goss v. Lord Nugent, in the Queen's Bench, where the court remarked that the statute did not say that all contracts concerning the sale of lands should be in writing, but only that no action should be brought unless they were in writing ; and that as there was no clause in the act which required the dissolution of Such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands might still be waived and abandoned by a new agreement not in writing, and so as to ' Buckhouse v. Crosby, 2 Eq. Cas. Abr. 32, pi. 44. 8 Bell V. Howard, 9 Mod. 302. 3 Sugden, Vendors and'Purohasers, 173 ; Roberts on Frauds, 89. ■* Robinson v. Page, 3 Russ. 119. CH. XVIII.J THE CONTENTS OF THE MEMORANDUM. 431 prevent either party from recovering in an action on the con- tract which was in writing.^ § 435, As thus stated, the admission of the parol waiver is apparently put upon the ground that^it is only used for defence. But in an earlier part of this work it was shown that to defend upon a verbal contract within the Statute of Frauds was as much in opposition to its spirit as to prosecute a claim upon it.^ This reason is forcibly urged by Sir Edward Sugden against admitting parol evidence of waiver in such cases.^ And he gives it as his opinion, upon a review of the cases, that " perhaps the better opinion is that it is inadmissible at law."^ On the other hand, Mr. Phillips says that it seems to be generally understood that such parol evidence is admissible ; ® and Mr. Greenleaf considers that there is little doubt of its admissibility.® • § 436. It must be observed that those writers who stand opposed to Sir Edward Sugden upon this question, rest their opinions chiefly upon the somewhat unsatisfactory language used by the court in Goss v. Lord Nugent. If they are to be sustained, it would seem that it must rather be upon the ground, upon which a parol waiver even of an instrument under seal has been admitted in evidence, that he who prevents a thing being done shall not avail himself of the non-perform- ance he has occasioned.^ 1 Goss V. Lord Nugent, 5 Barn. & Adol. 65 ; 2 Nev. & Man. 34. 2 Ante, § 131, et seq. 3 Sugden, Vendors & Purchasers, 171, 172. 4 Ibid, 173, 174. 6 2 Phillips, 363, Cowen & Hill's ed. 1849. 6 1 Greenl. Ev. § 302. See also Phil. & Am. Ev. 776. 7 Fleming v. Gilbert, 3 Johns. (N. Y.) 531. In Cummings v. Arnold, 3 Met. 494, the Supreme Court of Massachusetts assert, and apparently upon the view suggested in the text, that to an action upon a written contract within the Statute of Frauds a plea that it had been totally dissolved before breach, by an oral agreement, would be a good and sufficient bar. 4l32 STATUTE OF FRAUDS. [CH. XIX. CHAPTER XIX. VERBAL CONTRACTS ENFORCED IN EQUITY. § 437. We now come to consider the doctrines which courts of equity maintain and apply in cases where verbal con- tracts, such as the Statute of Frauds has required to be put in writing, come before thera. These courts, as has been many times affirmed by the wisest and most learned of their Judges, are as much bound by the express provisions of the statute as courts of law. They cannot in general specifically enforce contracts embraced by them, any more than courts of law can give damages for their non-performance. But they have al- ways been clothed with the salutary power of preventing fraud, or affording positive relief against its consequences ; and this power they have not hesitated to exercise, by compelling the specific execution of a verbal contract to which the provisions of the Statute of Frauds apply, where the refusal to execute it would amount to practising a fraud. In so doing they dis- claim the power of engrafting exceptions upon the statute, but proceed upon the ground that to prevent fraud is their supreme duty as courts of equity and conscience. § 438. It is, indeed, often said that as the statute itself was intended for the suppression of frauds, it is but subserving more effectually the ends of its enactment for courts of equity to interpose, and prevent it from being made, by the liberty which it affords a party of protecting himself under its cover, the very engine and instrument of fraud. To this view it might be replied, however, that the fraud which the statute was intended to suppress consists in the assertion of a contract CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 48S which was never made, whereas the fraud against which courts of equity, in the cases we have to consider, aflford relief, consists in the repudiation of a contract which has been made, and upon which an innocent party has actually proceeded to do that for which the jurisdiction of the law courts afi'ords him no just recompense. Again, it seems to be no less than a contra- diction in terms to say that the object of a statute is«promoted by rejecting its authority. The correct view appears to be that equity will*at all times lend its aid to defeat a fraud, not- withstanding the Statute of Frauds ; and upon this simple ground it is believed that the many decisions in equity which it is now our duty to examine will be found substantially to rest. § 439. The fraud against which equity will relieve, notwith- standing the statute, is not the mere moral wrong of repudiating a contract actually entered into, but which, by reason of the statutes, a party is not bound to perform for want of its being in writing. This was early laid down by Lord Macclesfield, Chancellor, in a case arising upon a promise of a defendant, about to marry, that his wife should enjoy all her own estate to her separate use after the marriage, which promise, as one made " upon consideration of marriage," could not regularly be enforced. His lordship declared that " in cases of fraud equity should relieve, even against the words of the statute, as if an 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 where there was no fraud, only relying upon the honour, word, or promise of the defendant, the statute making those promises void, equity will not interfere."^ § 440. This distinction commends itself at once to the miiid, 1 Montacute v. Maxwell, 1 P. Wma. 618 ; S. C.,1 Stra. 236, nom. Mountacue V. Maxwell ; S. C. 1 Eq. Cas. Abr. 19 ; S. C. Prec. Ch. 526 nom. Maxwell v. Montacute ; Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 162 ; Kinard v. Hiers, ' 3 lb. 423. 37 4>S4) I STATUTE OF FRAUDS. [CH. XIX. it would seem, as one which must he regarded, or courts of equity he deemed not at all hound hy the Statute of Frauds. Mr. Justice Story has, indeed, dissented from it in the follow- ing strong language : " I doubt the whole foundation of the doctrine as not distinguishable from other cases which courts of equity are accustomed to extract from the grasp of the Statute of Frauds,"^ This doubt does not appear to have been asserted in his commentaries, and, as he says himself, it was unnecessary to act upon it in the case berore him ; and, notwithstanding there are in some late cases ^ expressions from whtbh the question seems to be considered in some degree an open one, at least where the contract is one of marriage settle- ment, no decision has ever passed in opposition to the ancient doctrine. § 441, A simple illustration of the rule that when the Statute of Frauds has been used as a cover to a fraud, equity will relieve against the fraud, notwithstanding its provisions, is found in a case reported by Viner, and stated by him to have occurred in Lord Nottingham's time, and to have been the first instance in which any equitable exception to the statute appears. There was a verbal agreement for an absolute con- veyance of land, and for a defeasance to be executed by the grantee ; hut he, having obtained the conveyance, refused to execute the defeasance and relied upon the statute ; but his plea was overruled, and he was compelled to execute according to his agreement.^ Here the attempted fraud consisted not 1 Iq Jenkins v. Eldredge, 3 Story, K. 181, quoted ante, p. 112, note. 2 In De Biel v. Thompson, 3 Beav. 475, Lord Langdale, M..R., passed it by as a question which it was unnecessary to decide ; and in Surcome v. Pinniger, 17 Jur. 196, 12 Law J. Rep. N. S. Chanc. 419, 17 Eng. Law & Eq. 212, Lord Justice Knight Bruce said that it was probably true that marriage only would not suffice. 3 5 Vin. Ab. 523, 524. And see Sir George Maxwell's case, in 1 Bro. C. C. 408 ; Crocker v. Higgins, 7 Conn. R. 342. So in Walker v. Walker, 2 Atk. 99, where Lord Hardwicke says : " Suppose a person -who advances money, should, after he has executed [received] the absolute conveyance, refuse to execute the defeasance, would not the court relieve against such fraud ? " CH, XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 4S5 merely in refusing to do what he agreed, but in deceiving the plaintiff out of his property. And the case is quite analogous to that put by Lord Macclesfield, as falling within the rule, where one agreement in writing is proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former. But where there is no fraud or deception in the original transaction, the decision of Lord Nottingham cannot be brought to apply. In an early case in Massachu- setts,^ the facts were that a deed of land was given, which the parties verbally agreed should be considered and operate in law as a mortgage to secure the grantees against a note then executed by them, and they promised to execute at a future day an instrument of defeasance. The court said : " If it were a case of direct fraud, there would be no difficulty. But no instance can be found in the reports of chancery cases, of a specific performance decreed, where the fraud consisted only in a breach of promise. Here the deed was made and delivered according to the real intent of the parties at the time. There was no trick or contrivance to get it out of the hands of the plaiiitiff without giving him security. The plaintiff intended that the defendant should have the deed, and relied altogether upon his promise to meet him at some future time and give the security. Without doubt the non-performance of this promise is, in a moral point of view, a fraud ; but it is no more fraudulent than any other breach of trust or of promise. There was nd false representations, tokens, or pretences, which are the indication of that species of fraud, which is the foun- dation of an action for deceit." , 8 442. In an earlier chapter, where the subject of trusts arising by implication of law was considered, we saw that in cases where an executor or devisee prevented a testator from making express provision for a third party, by assurances that his intentions should be carried oufa|equity would enforce such 1 Boyd V. Stone, 11 Mass. R. 342. 436 STATUTE OF FRAUDS. [cH. XIX. promise against them, as a trust in favour of the third party, arising out of the fraud so practised.^ The same doctrine seems to apply in cases of contracts made directly between the parties. Where one who had agreed to give the plaintiff a lease of certain lands, upon which, in consequence of the agreement, the plaintiff had entered and made valuable im- provements, was desirous and anxious, when near his death, to fulfil his promise, but was prevented by the fraudulent contri- vance of his relatives from seeing the plaintiff for that pur- pose, and died without executing the lease, the relatives who succeeded to the estate were afterwards compelled in equity to execute it themselves.^ While no case seems to go the length of determining that the defendant's promise to observe the agreement if it was not put in writing, would be regarded as a fraud upon which the agreement would be enforced against liiin ; there are several cases in which courts of equity have pursued that course upon the ground of acts done by the defendant which were of a fraudulent nature. § 4iS. Thus, in Cookes v. Mascall, a marriage was about to be celebraffed between the plaintiff and' the defendant's daughter, and the solicitor on behalf of the plaintiff was in the course of preparing articles of settlement ; and in the meanwhile a disagreement arose as to the articles, but the plaintiff was still allowed to come to the defendant's house, and afterwards married his daughter, the defendant being privy to it, helping to set them forward in the morning, and entertaining them, and seeming well pleased with the marriage upon their return to his house at night ; he was decreed to exe- cute the agreement according to what had been drawn up by 1 Ante, § 94. 2 Lester v. Foxcroft, Colles, P. C. 108; cited 2 Vern. 456; Gilb. 4, 11 ; "Free. Ch. 519, 526 ; Story, Eq. Jjjr. § 768. See also Chamberiaine v. Chatnber- laine, Freem. Ch. 34 ; S. C. 2 JEi^.Xas. Ab. 43, Free. Ch. 4 ; Chamberlain v. Agar, 2 Ves. & Bea. 262; MestS v. Gillespie, 11 Ves. 638 ; Stickland v. Aldridge, 9 Ves. 519 ; Dixon v. Olmius, 1 Cox, 414 ; Reech v. Kennegal, 1 Ves. Sen. 123 ; Sellaok v. Harris, 5 Vin. Ab. 621. CH. XIX.] VERBAL CONTRACTS 'ENFORCED IN EQUITY. 437 the solicitor, though it had not received his signature.^ This case has been considered hard to be reconciled with another decided by the same Judges at the sanae term, where an uncle, by letter, promised his niece a certain portion, but in the same letter dissuaded her from marrying the plaintiff; and they re- fused to decree the execution, but left the plaintiff to his action at law.^ But there seems to be no suggestion, in the latter case, of fraud or artifice on the part of the uncle ; wher*eas in Cookes V. Mascall the presence of such fraud and artifice was manifestly the ground upon which the court proceeded. § 444. Again, in Montacute v. Maxwell, as appears from one of the reports of that case,^ the defendant, having given instructions to have a marriage settlement drawn, privately re- voked those instructions, and persuaded the plaintiff to marry him ; and he was decreed to execute the settlement, the Lord Chancellor, as stated in still another report of the case,* as- serting the rule to be, that if the parties rely wholly upon the parol agreement, 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 to writing, and that is prevented by the fraud and prac- tice of the other party, the court would in such case give re- lief ; as where instructions are given and preparations made for the drawing of a marriage settlement, and before the comple- tion thereof the woman is drawn in, by the assurances and promises of the man to perform it, to marry without a set- tlement, § 445. Where the defendant, on a treaty of marriage with his daughter, signed a writing comprising the terms of the agreement, and afterwards, designing to elude the- force thereof 1 Cookes V. Mascall, 2 Vern. 200. And see Bawdes o. Amburst, Free. Ch. 404. 2 Douglas V. Vincent, 2 Vern. 202. , 3 1 Eq. Cas. Abr. 19. * Free. Ch. 528. 37* 488 STATUTE OF FRAUDS. [cH. XIX. and get loose from his agreement, ordered his daughter to put on a good humour and get the plaintifi' to dehver up the writ- ing and then to marry him, which was accordingly done, the Master of the Rolls decreed the execution of the agreement.^ § 446. Lord Keeper North, in a case arising a few years after the enactment of the statute, and where it was pleaded and the plea allowed, is reported to have been of opinion that if a plaintiff laid in his bill that it was part of the agreement that the agreement should be put in writing, it would alter the case and possibly require an answer.^ And he appears to have actually decided to that effect in the case of Leak v. Morrice, occurring shortly afterwards at the same term.^ But Lord Thurlow, when the first of these cases was quoted before him, remarked that it was never decided, and added : " I take that to be a single case and to have been overruled. If you inter- pose the medium of fraud by which the agreement is prevented from being put into writing, I agree to it ; otherwise I take Lord North's doctrine to be a single decision, and contradicted, though not expressly yet by the current of opinions."* In speaking of it as a single decision, his lordship would seem to have overlooked the case of Leak v. Morrice ; but however the 1 Mallet V. Halfpenny, 1 Eq. Cas. Abr. 20, pi. 6 ; 2 Vern. 373. This case is related very graphically- by Lord Chancellor Cowper, in Bawdes v. Amhurst, Free. Ch. 404. He says he well remembered that this case was heard .before the Master of the Rolls, and the plaintiff had a decree on the ground of the fraud, and " Halfpenny walked backwards and forwards in the court, and bid the Master of the KoUs observe the statute, which he humourously said, ' I do, I do.'" 2 Hollis V. Whiteing, 1 Vern. 151. 3 Leak v. Morrice, 2 Cas. Ch. 135. * Whitchurch v. Bevis, 2 Bro. C. C. 564, 565. His lordship at the same time says that the Earl of Aylesford's case (2 Stra. 783,) is directly contrary ; but) on reference to that decision, it is not clear that the point was involved in it. The report simply says : " There was a parol agreement for a lease for 21 years, upon which the lessee entered and enjoyed for six years, and then the Earl brought a bill against him to compel him to execute a counterpart for the residue of the term. The lessee pleaded the Statute of Frauds and Perjuries, which in argument was overlooked, the agreement in part carried into execution." CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 4S9 question might stand upon a view of the early authorities, the doctrine referred to has clearly not been recognized in those of later years. Indeed, as is remarked by an acute writer on equity pleadipgs, " If an allegation that it was part of the agreement that the contraqj; should be put in writing could prevent a plea of the statute, the effect in practice would be that the statute never could be pleaded, at least without a particular denial of such allegation, rendering the plea anom- alous."^ § 447. The next class of cases in which equity intervenes to enforce a verbal contract, notwithstanding the Statute of Frauds, consists of those where one party has done certain acts in part execution, and upon the faith of the contract, with the knowledge and consent of the other. And although, for the sake of convenience, it is here treated as a distinct subdivision of the general topic of equitable* doctrines in regard to the statute, it may be most useful to ascertain in what respect the principles upon which it stands differ from those of the cases we have already been considering. § 448. It is obvious that the mere circumstance that a ver- bal agreement has been in part performed, can afford no reason, such as to control the action of any court, whether of law or equity, for holding the parties bound to perform what remains executory. The doctrine of equity in su^Lcases is, that where an agreement has been so far executed^^one party, with the tacit encouragement of the other, and relying upon his fulfil- ment of it, that for the latter tp repudiate it and shelter himself under the provisions of the statutp, would amount to a fraud upon the former, that fraud will be defeated by compelling him to carry out the agreement.^ -The cases which have already 1 Beames' Elements of Pleas in Equity, 181, 182. 2 Seagood v. Meale, Free. Ch. 560; Savage v. Foster, 9 Mod. R. 37 ; Mor- phett w. Jones, 1 Swanat. 172; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Gunter v. Halsey, Ambler, 586 ; Allen's Estate, 1 Watts & S. 383 ; Greenlee v. Greenlee, 22 Penn. State K. 225 ;_ Moore «. Small, 19 Penn. (7 Harr.) 461 ; Church 440 STATUTE OF FRAUDS. [cH. XIX. ' been considered presented the feature of an actual fraud, an artifice, a trick, which being alleged and proved, was relieved against by the court of equity without any reference to the statute. The fraud in cases of part performance is no less fraud because not asserted to have been, and not, in fact, premeditated at the inception of the transaction. Hence those courts of equity whose established powers extend to all cases of fraud of whatever description are able to enforce them, and do so upon the ground of the fraud, and upon none other. But where, as in some of the American States, the power of courts of equity to enforce contracts in cases of fraud is specifically given them by statute, it is an important inquiry whether they can decree execution where the fraud is constructive only, arising upon the circumstances of part performance. § 449. By the Revised Statutes of Maine, power is given to the Supreme Judicial Court of that State to compel specific performance of contracts in writing made after a certain date therein mentioned, and in all cases of "fraud, trust, accident, and mistake;"^ enactments which have received the construc- tion of that court in the following case : The defendants verbally agreed to sell the plaintiffs a lot of land at a certain price, relying upon which agreement the plaintiffs built a house upon the land, and^terwards tendered the price and requested of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378; Sites u. Keller, 6 Hamm. (O.) 207 ; Anthony v. Leftwych, 3 Rand. (Va.) 255 ; Hamilton v. Jones, 3 Gill & J. (Md.) 127; Meach v. Stone, 1 ©hip. (Verm.) 189; Underhill v. Wil- liams, 7 Black. (Ind.) 125. The equitable doctrine of part performance as a ground for enforcing a verbal contract, notwithstanding the Statute of Frauds, has been repudiated in some few of the States. Ellis v. Ellis, 1 Dev. Eq. (N. C.) 341 ; Dunn v. Moore, 3 Ired. Eq. (N. C.) 364 ; Allen v. Chambers, 4 lb. 130 ; Albea v. Griffin, 2 Dev. & Bat. Eq. (N. C.) 9 ; Beaman v. Buck, 9 Sm. & Marsh. (Miss.) 210 ; Box v. Stanford, 13 lb. 93 ; Ridley v. McNairy 2 Humph. (Tenn.) 174 ; Patton v. M'Clure, Martin & Xer. (Tenn.) 333. So in Massachusetts, see Jacobs v. Peterborough and Shirley K. R. Go. 8 Cush. 224, and cases there cited. 1 Maine Rev. Stat. chap. 96, § 10. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 4i4 by virtue of that act, a claim to specific exe- cution may be sustained.^ Thus, in a late case before the Lords Justices, it was held that the son-in-law having, after the marriage and with the knowledgie of the father-in-law and without objection by him, entered upon and used and improved premises which it was verbally proved -the latter had said he intended to give to him and his wife, a case of part perform- ance 'Was made out, a,nd the petition of the administrator of th^ father-in-law for payment over to him of the purchase- money upon a sale of the premises by the son-in-law .to a third party, was dismissed.^ So also where an intended hus- band, whose wife was to receive upon her marriage a large settlement, engaged ,by the same agreement to settle a certain jointure upon her, which he did before the marriage took place, both Lord Cottenham and afterwards Lord Campbell and Lord Chancellor Lyndhurst, strongly inclined to hold it a sufficient part performance, thougn the marriage which had ensued was of itself not sufficient. Upon this point, how- ever, no decision was passed, the case being determined upon a distinct ground.* § 460. It is settled that acts which are mes'ely preparatory or ancillary to the agreement alleged are not to be considered as part performance. Of this nature are the following ; de- 298 ; Dundas v. Dutens, 1 Ves. Jun. 196, 199 ; S. C. 2 Cox, 235; Redding ». Wilks, 3 Bro. C. C. 400, 401 ; Story, Eq. Jur. § 768. 1 Dundas «. Dutens, supra. 2 Taylor v. Beech, supra. 3 Surcome 0. Pinniger, 17 Jur. 196; 22 Law J, Rep. !N. S. Chan. 419; 17 Eng. Law & Eq. 212 ; in which Lassence v. Tierney, 1 Mac. & G. 551, is explained. 4 Hammersly v. Baron de Biel, 12 Cla. & Fi. 65 ; Ibid, p. 61, where Lord Cottenham's opinion, on appeal from the Rolls, is reported ; S. C. at the Rolls, nom. De Beil v. Thomson, 3 Beav. 475. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 451 livering abstracts and giving directions for the preparation of conveyances, or even the soHcitor's taking notes and preparing the instrument ; going to view the' estate, fixing upon ap- praisers to value stock, or making valuations, measuring the land, executing and registering conveyances not accepted by the purchaser, etc.^ It is obvious that such acts as these, though tending to show a treaty in progress between the parties, do not prove any agreement executed between them, do not show the parties in a position different from that which they would be in, according to their legal rights, if there were no contract made. To the same class have been referred cases where the purchaser of land, under a verbal contract, has bound himself, on the faith of that contract, to make a lease of the land to a third party, and his so doing is not regarded as a part performance.^ And so, also, where the defendant agreed to convey land to the plaintiff, on the latter 's procuring a release from a stranger, which he did procure accordingly and paid a large consideration for it, it was held to be an act merely preparatory to the agreement and no part performance.^ But where the landlord of a coal set, having four tenants, partners, holding under a lease of which there were several years to run, entered into an agreement with the four lessees that two of them should retire from the copart- nership, so that the benefit of the lease and the business of the colliery should remain to the other two, and on this being done he would grant a new lease at a reduced rent, and in accord- ance with this agreement the firm dissolved and the two 1 Earl of Glengal v. Barnard, 1 Keen, 769 ; Cooth v. Jackson, 6 Ves. 12. Clerk u. Wright, 1 Atk. 12; Pembroke v. Thorpe, cited in 3 Swanst. 437 ; Thynne v. Earl of Glengall, 2 Cla. & Fi. N. S. 131 ; Gratz v. Gratz, 4 Eawle, (Pa.) 411 ; Hawkins v. Holmes, 1 P. Wms. 770 ; Montacute v. Maxwell, Stra. 236; Popham v. Eyre, Lofft, 786; Whitchurch v. Bevis, 2 Bro. C. C. 659 ; Redding v. Wilkes, 3 Bro. C. C. 401 ; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 171 ; Reeves v. Pye, 1 Cranch, (G. C.) 219. 2 Whitchurch «. Bevis, 2 Bro. C. C. 559. 3 O'Reilly v. Thompson, 2 Cox, 271. Post, § 463. 452 STATUTE OF FRAUDS. [cH. XIX. retiring partners released their interest therein, it was consid- ered by Sir Knight Bruce, Vice-Chancellor, impossible to treat these acts otherwise than as acts of part performance taking the case out of the statute ; and he distinguished the case from that last quoted, because there the release procured was not between the parties to the contract which was sought to be enforced, and the procuring of it was to be antecedent to, and formed no part of, the execution of the contract.^ 8 461. It was originally held that payment of the whole or of a considerable part of the purchase-money, upon a verbal contract for real estate, was such a part performance as entitled the party making it to a decree for the specific execu- tion of the contract, while, at the same time, payment of a small part was not held sufficient.^ The entire unsoundness of such a discrimination as to the amount paid is now, how- ever, generally conceded. The objections to it are stated, with his customary force and clearness, by Sir Edward Sugden, thus : " To say that a considerable share of the purchase- money must be given, is rather to raise a question than to establish a rule. What is a considerable share, and what is a trifling share ] Is It to be judged of upon a mere statement of the sum paid, without reference to the amount of the purchase-money 1 If so, what is the sum that must be given to call for the interference of the court '? What is the limit of the amount at which it ceases to be trifling, and begins to be sub- stantial 1 If it is to be considered with reference to the amount of the purchase-money, what is the proportion which ought to be paid ■? "^ And now, by an unbroken current of authorities, run- 1 Parker v. Smith, 1 Coll. Ch. 608. 2 Lacon v. Mertins, 3 Atk. 4 ; Skett v. Whitmore, Freem. Ch. 281 ; Owen v. Davies, 1 Ves. Sen. 82 ; Hales v. Van Berchem, 2 Vern. 618 ; Main v. Melbourn, 4 Ves. 724, and Dickenson v. Adams, there cited. See also Jones v. Peterman, 3 Serg. & R. (Pa.) 543 ; Hardesty v. Jones, 10 Gill & J. 404 ; Frieze v. Glenn, 2 Md. Ch. Dec. 361. 3 Treatise on Vendors and Purchasers, 146. And see Booth, Cas. & Opin. 136 ; Story, Eq. Jur. § 760. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 4)5S ning through many years, it is settled too firmly for question, that payment, even to the whole amount of the purchase- money, is not to be deemed part performance so as to justify a court of equity in enforcing the contract.^ § 462. Nevertheless it is important to notice with some particularity the grounds on which these authorities rest. One reason which is assigned, and that which was said by Lord Redesdale to be the great reason, why payment is not to be deemed part performance, is that the framers of the statute having expressly provided that payment in whole or in part shall be sufficient to exempt from its operation a contract for the sale of goods, wares, or merchandise, they must be pre- sumed to have intended that it should not be sufficient in cases of contracts for lands, no such provision in favour of the latter occurring in the statute.^ And upon this view, ^mcng others, the Court of Appeals of Delaware have decreed execution of a verbal contract for land, where part of the purchase-money had been paid ; the Statute of Frauds in that State not, as it then stood, presenting any such difference between the two sections.^ But it may be remarked that by the seventeenth section of the English statute, part payment is imde a substi- tute for the written memorandum ; whereas courts of equity, 1 Clinan v. Cooke, 1 Sch. & Lef. 40, 41 ; O'Herlihy v. Hedges, lb. 129 ; Leak V. Morrice, 2 Ch, Cas. 135 ; AUsopp v. Patten, 1 Vera. 472 ; Seagood v. Meale, Free. Ch. 560 ; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46, PI. 12 ; Buckmaster v. Harrop, 7 Ves. 341 ; Coles v. Trecothick, 9 Ves. 234 ; Fraine v. Dawson, 14 Ves. 388. See also the following cases in the United States : Johnston v. Glanoy, 4 Black. (Ind.) 94 ; Allen's Estate, 1 Watts & S. (Pa.) 383 ; M'Kee V. Phillips, 9 Watts, (Pa.) 85 ; Parker v. Wells, 6 Whart. (Pa.) 153 ; Gangwer t>. Fry, 17 Penn. (5 Harr.) 491 ; Thompson v. Tod, Pet. (C. C.) 380; Jackson V. Cutright, 5 Munf. (Va.) 308 ; Mialhi v. Lassabe, 4 Ala. E. 712; Anderson V. Chick, Bailey, Eq. (S. C.) 118 ; Church of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378 ; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 174 ; Letcher v. Cosby, 2 A. K. Marsh. (Ky.) 106 ; Wilber v. Paine, 1 Hamm. (Ohio) 252 ; Sites v. Keller, 6 lb. 483; Townsend v. Sharp, 2 Over. (Tenn.) 192. 2 Clinan v. Cooke, 1 Sch. & Lef 22 ; Lord Pengall v. Ross, 2 Eq. Cas. Ab. 46, 47 ; Lane v. Shackford, 5 N. H. 132-134. 3 Townsend v. Houston, 1 Harr. (Del.) 532. 4>S4) STATUTE OF FRAUDS. [cH. XIX. • as we have before noticed, never regard acts of part perform- ance in that light, but as demanding from them the application of certain rules which are of paramount force in Aeir juris- diction, and which override the statute altogether. I 463. Another view is, that payment is not part perform- ance, because nothing is to be so regarded which does not put the party performing it in such a position, that a fraud will be allowed to be practised upon him if the contract is not en- forced. And this is the view which is now generally adopted, and to which Mr. Justice Story gives his approbation.^ The money, it is said, may be recovered back by action, and the parties restored to their original position. If, from the nature of the payment, or the peculiar circumstances of the case, this cannot be done, this rule would seem to fail with the reason of it.* Thus an agreement by one, who was himself helpless from disease, to convey a piece of land to another, in consideration of being provided for and taken care of during his lifetime, has been enforced in New York, against the heirs at law of the former ; the court remarking that the rule ap- plied to a money consideration only, and that where, as here, the services^ere of such a peculiar character that it was im- possible to estimate .their value to the recipient by any pecu- niary standard, and where it was evident that they were not intended to be so measured, it was out of the power of any court, after the performance of the services, to restore the complainant to the situation in which he was before the con- tract was made, or to compensate him in damages.^ And so, also, where the complainant has not paid his. money, but has 1 Story, Eq. Jjir. § 761. 2 Rhodes v. Rhodes, 3 Sand. Ch. 279. A similar point was raised in argu- ment by Sir Samuel Romilly, as early as the case of Buekmaster v. Harrop, 13 Ves. 465. The payment there, however, was of the auction duty, and Lord Chancellor Erskine, admitting that the duty coiild not be recovered back, held that the payment was not to' be taken as an act of part performance, be- cause it wag required to be made, whether there was any effectual contract or not. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 455 involved himself in transactions including the contract in ques- tion, and upon the strength of it, from which he cannot retire without a damage, which would not be compensated by mere repayment, the highest court in the same State has decreed the contract to be specifically executed.^ § 464. In such cases as these, it will be observed, the contract is originally so made that the payment provided for cannot be satisfactorily returned ; and so it is, in effect, a fraud in the defendant to repudiate the contract. The case seems to be diflferent where, a mere money consideration having been originally provided for, the defendant has become bankrupt or otherwise unable to return it ; here there is no intrinsic fraud in the transaction on his part ; nothing but mere violation of his agreement.^ § 465. Although payment alone is not sufficient, yet it may serve to corroborate other acts which are generally regarded as amounting to part performance, so as to aflFord ground for a decree of specific execution. Where, for instance, it is accom- panied by a purchaser's entering into possession of land in pursuance of a verbal contract for the purchase of it, a case of part performance is quite uniformly considered to be shown.' And this leads us to some important considerations upon the taking or delivering of possession as an element of such a case. 1 Malins v. Brown, 4 Comst. (N. Y.) 407; German v. Machin, 6 Paige, Ch. 288. See --also Dugan u. Gittings, 3 Gill, (Md.) 138; Gosden v. Tucker, 6 Munf. (Va.) 1. Ante, § 460. 8 On this point compare §§ 760 and 761 of Story Eq. Jur. 3 See, in addition to those cited hereafter under the head of taking or giving possession, the folloT»ng cases : Wilkinson v. Scott, 17 Mass. R. 251 ; Sutton v. Sutton, 13 Verm. R. 7.9 ; Davis v. Townsend, 10 Barb. (N. Y.) 347 ; Gilday v. Watson, 2 Serg. & R. (Pa.) 407 ; Greenswalt v. Homer, 6 lb. 71 ; BiUington V. Welsh, 5 Binn. (Pa.) 129 ; Dugan ^ Gittings, 3 Gill, (Md.) 138 ; Drury v. Conner, 6 Harr. & J. (Md.) 288 ; Moale v. Buchanan, 11 Gill & J. (Md.) 314 ; Woods V. Farmare, 10 Watts, (Pa.) 195 ; Folmer v. Dale, 9 Barr, (Pa.) 83 ; Tibbs «. Barker, 1 Black. (Ind.) 58; Williams «. Pope, Wright, (Ohio) 406 ; Kelley v. Stanbery, 13 Ohio R. 408 ; Shirley v. Spencer, 4 Gilm. (III.) 583, 601 ; Thorn- ton V. Vaughan, 2 Scam. (111.) 218; Hawkins v. King, 2 A. K. Marsh. (Ky.) 548 ; Brewer v. Brewer, 19 Ala. R. 481. 456 STATUTE OF FRAUDS. [cH. XIX. § 466. It has been said that nothing was to be considered part performance of a contract for land, which did not include a change of possession in the land ; ^ but this would seem to be a merely arbitrary proposition, for there may be, obviously, many acts done by the vendor or purchaser under such a con- tract, which would, from their irrevocable character, and from the situation in which they would leave the party performing, demand the Specific enforcement of the contract.^ § 467. And it is well settled, that possession alone, without payment or other acts of ownership, is sufficient part perform- ance of a verbal contract for land to sustain a decree for its specific execution.^ Such is declared to be the law also in Pennsylvania, and equally so in that State, notwithstanding the omission, from its legislation, of the fourth section of the statute of Charles.* In the case of a parol gift of land, how- ever, something more seems to be required, than the mere taking possession ; as, for instance, the expenditure of money upon the estate, by the donee, upon the faith of the gift.® 1 M'Kee v. Phillips, 9 Watts, (Pa.) 85 ; MTarland v. Hall, 3 lb. 37 ; Peifer t). Landis, 1 lb. 392. 2 HoUis V. Edwards, (and Deane v. Izard,) 1 Vern. 159 ; Mundy v. JoUiffe, 5 Myl. & Cr. 167. 3 1 Powel on Contracts, 299 ; Newland on Contracts, 181 ; Sugden on Vendors and Purchasers, 105 ; 1 Fonbl. 175 ; 1 Madd. Ch. 303 ; Roberts on Frauds, 147 ; 4 Kent, Com. 451 ; 2 Story, Eq. Jur. § 761 ; Butcher v. Stapely, 1 Vern. 363 ; Seagood v. Meale, Prec. Ch. 560 ; Lacon v. Martins, 3 Atk. 3, 4 ; Boardman v. Mostyn, 6 Ves. 467 ; Eaton v. Whitafcer, 18 Conn. K. 229, 230 ; Harris v. Cren- shaw, 3 Band. (Va.) 14 ; Murray v. Jayne, 8 Barb. (N. Y.) 612 ; Ante, §§ 74, 76. Qiuoexe as to this, however, in Maryland. Shepherd v. Shd^hei'd, 1 Maryland, Ch. Dec. 244 ; Owings ». Baldwin, 8 Gill, 337 ; Morris v. Harris, 9 lb. 19. 4 Pugh V. Good, 3 Watts & S. 56, a decision of great fullness and learning. See also Ebert v. Wood, 1 Binn. 216 ; gassier v. Nlesly, 2 Serg. & R. 362; Jones V. Peterman, 3 Serg. & R. 543 ; Miller u. Hower, 2 Rawle, 53 ; Stewart I). Stewart, 3 Watts, 253 ; Rhodes v. Frick, 6 Watts, 315 ; Johnston v. Johnston, 6' Watts, 370; Wood v. Farmare, 10 Watts, 195; Reed u. Reed, 12 Penn. (2 Jones,) 117. 5 Stewart v. Stewart, 3 Watts, (Pa.) 253. And see Young v. Glendenning, 6 Watts, (Pa.) 509 ; Syler v. Eekhart, 1 Binn. (Pa.) 378. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 457 I § 468. The subject of possession under a verbal contract for land is to be regardfed from two points of view ; the one where the purchaser relies upon it as taken by him, and the other where the vendor relies upon it as deliveted by him, in pursuance of the contract. § 469. Where the purchaser goes into possession, and rests upon that act his claim for the specific execution of the con- tract, the reason assigned for allowing that claim is, that if there be no agreement valid, in law or in equity, he is made a trespasser, and is liable as a trespasser; a position which would amount to a fraud practised upon him by the vendor.^ "Now," says Mr. Justice Story, " for the purpose of defending himself against a charge as a trespasser, and a suit to' account for the profits, in such a case the evidence of a parol agree- ment would seem to be admissible for his protection ; and if admissible for such a purpose, there seems to be no reason why it should not be admissible throughout." ^ § 470. If the rule in question were not so firmly established, it might be a most pertinent inquiry, Whether it necessarily follows that a fraud is practised upon the purchaser unless the verbal agreement be valid in law or in equity, and whether there is sound reason for holding it valid for all purposes, after admitting evidence of it to repel the vendor's claim in tres- pass. To apply the forcible reasoning of one of our Judges: " Seeing that the English act gave to the party put into pos- session under the parol contract for the purchase of the land in fee, an implied, at least, if not an express estate at will, which was sufficient to prevent his being made a trespasser, until the vendor entered upon him and gave him notice to quit, it is difficult to imagine why it should have been- deemed neces- • Lockey !). Lockey, Free. Ch. 519; Clinan v. Cooke, 1 Sch. & Lef. 22;. Lord Pengall v. Koss, 2 Eq. fCas. Abr. 46, pi. 12; Underbill v. Williams,. 7 Black. (Ind.) 125.; Smith v. Smith, 1 Kich- Eq. (S. C.) 130 ; Story, Eq. Jur.. § 761. 2 Story, Eq. Jur. § 761. 39 458 STATUTE OF FRAUDS. [cH. XIX. sary to carry the contract into complete execution, in order to protect the vendee from being punished as a trespasser for having entered and occupied the land before he had notice to quit.i" § 471 . From the fact that the purchaser, when he has taken possession of the land, may on that ground enforce the con- tract of sale against the vendor, it seems to follow, upon equit- able principles, that the vendor should have a right to enforce it when he has delivered possession. At any rate, (and the cases are not explicit as to the reason upon which the doctrine depends,) it is held that he may enforce upon that ground, as an act done by himself in part performance of the contract.^ § 47^. In all cases in which possession, either as delivered by the vendor, or as assumed by the purchaser, is relied upon as an act of part performance, it must appear to be a notorious and exclusive possession of the land claimed, and to have been delivered or assumed in pursuance of the contract alleged, and so retained or continued. These several elements of a posses- sion which satisfies liie rules of equity in such cases will be briefly considered in detail. § 47s. First, it must be notorious. To allow a mere techni- cal possession, not open to the observation of the neighbourhood, and capable of being proved only by select and confidential witnesses, to be sufficient for obtaining a decree to enforce the contract, would manifestly afford an opportunity and an en- couragement to dishonest testimony. Thus, where the vendor, having at the time a tenant in possession, makes a verbal sale of the premises, it has been held that, the tenant remaining in possession, and merely attorning to the purchaser, there was no such open and notorious change of possession as would justify • 1 Kennedy, J., in Allen's Estate, 1 Watts & S. (Pa.) 383. 2 Earl of Aylesford's case, Stra. 783 ; Pyke v. Williams, 2 Vern. 455 ; Harris V. Knickerbacker, 5 Wend. (N. Y.).638 ; Pugh o. Good, 3. Watts & S. (Pa.) 56; Reed v. Reed, 12 Penn. (2 Jones,) 117; Moore v. Small, 19 Penn. (7 Harr.) 461 ; White v. Crew, 16 Georgia R. 416. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 459 a court of equity in enforcing a contract ; and that, at any ratCj the attornment must be formal, public, and explicit.^ § 474. Secondly, it must be exclusive. Where the 'pur- chaser moves in upon the premises and remains there in com- pany with the previous occupant, not as the ostensible and exclusive proprietor,^ or where the metes and bounds of the land alleged to be purchased are not fixed and recognized, and the purchaser occupies it in common with adjacent land of his own,^ it has been held that possession, as an act of part per- formance, was not sufficiently made out. . § 475. Thirdly, it must be a possession of the tract claimed. This has never been questioned, and it is obvious that it is ne- cessarily implied in the principles upon which the cases holding possession in any case sufficient have proceeded. Whether the whole of the estate bargained for must be occupied, in order to make a case of possession within the meaning of the rule, is a question requiring some remark. Where several lots of land were sold by distinct agreements. Sir William Grant held, at the Rolls, that part performance by taking possession of one of such lots could have no efficacy to relieve againet the opera- tion of the statute, as to any but that particular lot.* He leaves it to be inferred, apparently, that where several of the parcels are sold together, at one transaction, and for a gross price, it would be otherwise. And so it has been held in New York, in a case before the Vice-Chancellor.^ But the Supreme Court of Pennsylvania appear to have determined just the reverse, and to have even considered the fact that the contract for the 1 Brawdy v. Brawdy, 7 Barr, (Pa.) 157. And see Johnston v. Glancy, 4 Black. (Ind.) 94 ; Moore v. Small, 19 Penn. (7 Harr.) 461 ; Haslet v. Haslet, 6 Watts, (Pa.) 464 ; Frye v. Shepler, 7 Barr, (Pa.) 91. 2 Frye v. Shepler, 7 Barr, (Pa.) 91. 3 Haslet V. Haslet, 6 Watts, (Pa.) 464. See also Moore v. SmajJ, 19 Penn. • (7 Harr.) 461. , 4 Buckmaster v. Harrop, 7 Ves. 341. And see Sugden, Vendors and Pur- chasers, 147. s Smith V. Underdunk, 1 Sand. Ch. 579. 460 STATUTE OF FRAUDS. [cH. XIX. several parcels was an entire contract, and a gross price to be paid for the whole, a conclusive circumstance iagainst the suf- ficiency of taking or delivering possession of one parcel only. In the vigorous opinion of Mr. Justice Kennedy, speaking for the court, the whole doctrine of enforcing verbal contracts for land on the ground of possession merely, is ably criticized, and it is declared that the court know of no case where the point referred to was otherwise determined.' Possibly, and without implying any disrespect to that learned bench, it may be that its aversion, there expressed, to the established doctrine in re- gard to possession as amounting to part performance, inclined it to a more strict and narrow application of that doctrine thaii Other courts would be disposed to adopt. Possession of a tract of land must generally be, frorh the nature of the case, a pos- session of part only as representing the whole. Moreover, the reason upon which, as we have seen, it is admitted in any case as a ground for the specific execution of the contract at the suit of the purchaser is, that by entering he has made himself liable in trespass, a result which is in no wise dependent upon the extent (G4l STATUTE OF FRAUDS. [cH. XIX. in the mean time, has been considered insufficient for this purpose.^ § 4>84). But it does not follow that because an entry against the will, and without the knowledge of the vendor, is not to be taken as an act of part performance, therefore no entry is to be so taken which is not ^ by the terms of the contract, stipu- lated to be allowed. If it is in pursuance, that is, on the faith of the contract, and with the permission of the vendor, that is sufficient.^ § 485. Lastly, the possession relied upon must not only be taken under the contract, but' so retamed. Where a pur- chaser takes possession under the contract, and afterwards at- torns to the vendor as landlord, it has been held that he yields his equity, and his possession is referable to his new agree- ment.3 § 4i86. It may conveniently be observed at this point, that the efficacy of possession taken as part performance does not arise from its being an act of ownership ; although in that view it is evidence to show an existing^ contract, into which a court of equity will inquire, in order to enforce it and defeat the fraud of the vendor. If the purchaser under a parol con- tract omit to take possession, such acts as having the land assessed in his own name and paying taxes upon it,* or even cutting timber upon it, or making other transitory use of it, (and this latter, too, in a case of uncultivated timber land, such as is not ordinarily taken possession of in any other way,) ^ have been held insufficient, though clearly acts of ownership. 1 Jervis V. Smith, Hoflf. Cb. (N. T.) 470. 2 Harris v. Knickerbacker,' 5 Wend. (N. Y.) 638 ; Smith v. Underdunk, 1 Sand. Ch. (N. T.) 579. And see Gregory v. Mighell, 18 Ves. 328. 3 Bankin v. Simpson, 19 Penn. (7 Harr.) 471. i Christy v. Barnhart, 14 Penn. (2 Harr.) 260, (explaining Lee v. Lee, 9Barr, 117.) 5 Gangwer v. Fry, 17 Penn. (5 Harr.) 491. But see Borrett v. Gomeserra, Bunb. 94. . CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 4i65 § 487. It is always regarded as strongly confirmatory of the right of a plaintiff' seeking the specific execution of a verbal contract for an estate in land, that he has proceeded, upon the faith of the contract, and with the knowledge of the vendor, to expend money in improving the land.^ In cases of pur- chasers who were, before and at the time of the contract, tenants of the same land, as we have just seen, it is often conclusive of the nature and animus of their continued posses- sion ; thus serving to explain and define one act of part per- formance, to which it is itself a superadded and corroboratory act. The propriety of admitting this expenditure of money in improvements as a reason for enforcing the contract, is per- haps more clear upon the equitable view of preventing fraud, than is that of admitting the taking or delivery of possession. For in many cases such improvements are carried to that point that they are quite incapable of being comp'ensated in damages. And even where this is not so, it is a plain fraud for a vendor who has encouraged a purchaser to make them, to compel him to dispose of them afterwards, and lose the expected fruit of enterprize and industry, thus directly making a profit out of the deception which he has himself practised. § 488. In order to be admitted as an act of part perform- 1 Savage v. Foster, 9 Mod. E. 37 ; Wetmore v. White, 2«Caines, Cas. Err. 87; Adams v. Rockwell, 16 Wend. 285; Cummins v. Nutt, Wright, (Ohio,) 713; Casler v. Thompson, 3 Green, Ch. 59; Cummings v. Gill, 6 Ala. 562; Floyd V. Buckland, Freem. Ch. 268 ; 2 Eq. Cas. Ab. 44 ; Harrison v. Harrison, 1 Maryland, Ch. Dec. 331 ; Harder v. Harder, 2 Sand. Ch. 17 ; Moreland v. LeMasters, 4 Black. (Ind.) 383 ; Martin v. M'Cord, 5 Watts, (Pa.) 493^ Park- hurst u. Van Cortlandt, 14 Johns. (N. Y.) 15; Ridley v. McNairy, 2 Humph. (Tenn.) 1 74 ; Rowton v. Rowton, 1 Hen. & Mun. (Va.) 92 ; Surcome v. Pin- niger, 17 Eng. Law & Eq. 212; Syler v. Eckhart, 1 Binn. (Pa.) 378; Shepherd V. Bevin, 9 Gill, (Md.) 32 ; Byrd v. Odem, 9 Ala. R. 755 ; Brock v. Cook, 3 Port. (Ala.) 464 ; Toole v. Medlicott, 1 Ball & B. 393 ; Underbill v. Williams, 7 Black. (Ind.) 125; Wilton v. Harwood, 23 Maine, (10 Shep.) 133, 134; Wilkinson v. Wilkinson, 1 Dessaus. Ch. (S. C.) 201 ; Newton v. Swazey, 8 N. H. 13 ; Blakeney v. Ferguson, 3 Eng. (Ark.) 272 ; Conway v. Sherron, 2 Cra. (C. C.) 80 ; Farley v. Stokes, 1 Sel. Eq. Cas. (Pa.) 422. 4i66 STATUTE OF FRAUDS. [cH. XIX. ance, the improvements relied upon must be of a kind permsi- nently beneficial to the estate, and involving a sacrifice to the purchaser who has made them.i Thus, the cutting of a ditch through an adjoining estate, in order to supply the plaintiff's mill with water, though attended with expense to himself, has no effect to induce a decree for the specific execution of a ver- bal agreement by the owner of the adjoining estate to sell the ditch to the plaintiff; it is not beneficial to that estate, but the reverse.^ Again, as the same case illustrates, the improve- ments nmst be on the faith of the contract, and, of course, are not available to set up a subsequent contract.^ § 489. But although the improvements are required to be beneficial to the estate, a court of equity will not inquire whether the expenditures have been judiciously or injudiciously made ; for, apart from the many embarrassments which would attend the determination of such a question, it would be plainly inequitable to allow the vendor in such a case to defend upon the ground of the innocent indiscretion of the purchaser. To use the language of Lord Thurlow: " Whether the money has been well or ill laid out is indifferent; the fraud is the same. § 490. j[t must appear, however, that the loss of his im- provements would be a. sacrifice to the purchaser. If therefore he has gained mpre by the possession and use of the land, than he has lost by his improvements,^ or if he has been in fact fully compensated for the improvements,® they will not be available to him as a ground for specific execution. On the ' Hollis V. Edwards, 1 Vern. 159 ; Deane v. Izard, lb. ; Hamilton v. Jones, 2 Gill &'J. (Mil.) 127 ; Davenport v. Mason, 15 Mass. R. 92; Wolfe v. Frost, 4 Sand. Ch. (N. Y.) 72 ; Wack v. Sorber, 2 Whart. (Pa.) 387. 2 Hamilton «. Jones, ««/)ra. 8 Byrne v. Romaine, 2 Edw. Cli. (N. T.) 445 ; Farley v. Stokes, 1 Sel. Eq. Cas. (Pa.) 422. 4 Whitbread v. Broekburst, 1 Bro. C. C. 417. 6 Waek V. Sorber, 2 Whart. (Pa.) 387. 6 Eckert j>. Eckert, 3 Penn. R. 332. CH. XlX.] VERBAL CONTRACTS ENFORCED IN EQUITY, 467 other hand, the vendor will never be allowed to profit by the expenditures into which he has deceived the purchaser ; there- fore when the court finds itself compelled, for want of sufficient acts of part performance being shown, or from failure in the proof of the terms of the contract, to refuse to enforce it, they will decree compensation to be made by the vendor to the purchaser for the fair value of the improvements.^ § 491. From the language of some of the cases, it seems to be considered that the making of improvements is not to be taken as an act of part performance, unless it was stipu- lated in the agreement .itself that they should be so made; and it is said by Mr. Roberts to be hardly reconcilkble with the rule to call it an act of part performance, unless this is .the case, because of the rule that such an act must be done with a view to perform the agreement.^ But this doctrine does not appear, upon an inspection of the cases, to have been at all strictly followed, and perhaps it may be said to depend upon a somewhat narrow application of the rule referred to. There seems to be no reason why the making of the improvements should not stand upon the same ground as the dehvery or acceptance of possession ; and this we have seen need not be stipulated for in the agreement itself. They are both acts which it is not to be supposed would be done or suffered to be done, unless there was a change in the tenancy or ownership of the land. S 492. It should be remarked, in conclusion of this topic, that the decided inclination of the judicial mind appears to be 1 Lord Bengali v. Ross, 2 Eq. Cas. Ab. 46, pi. 12 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. Cas. (N. Y.) 273 ; Wack v. Sorber, supra; Harden v. Hays, 9 Barr, (Pa.) 151 ; Heft v. McGill, 3 lb. 256 ; Dunn v. Moore, 3 Ired. Eq. (N. C.) 364 ; Goodwin v. Lyon, 4 Port. (Ala.) 297. In Anthony j;. Leftwich, 3 Rand. (Va.) 255, the rule of compensation in such cases is instructively dis- cussed. In North Carolina, where the doctrine of part performance does not obtain, he is allowed in a court of equity an account for his improvements. Albea v. Griffin, 2 Dev. & Bat. Eq. 9 ; Baker v. Carson, 1 lb. 381. 2 Roberts on Frauds, p. 135. 468 STATUTE OF FRAUDS. [cH. XIX. against extending, beyond those limits to which it has been carried by clear authority, the doctrine of enforcing oral con- tracts in equity upon the ground of part performance. Lord Redesdale remarks : " The statute was made for the purpose of preventing perjuries and frauds ; and jiothing can be more manifest to any person who has been in the habit of practising in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been, that few instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing. Whereas, it is manifest -that the.decisions on the subject have opened a new door to fraud, and that, under pretence of part execution, if possession is had in any way whatsoever, means are frequently found to put a court of equity in such a situation that, without departing from its rules, it feels itself obHged to break through the statute. And I remember, it was mentioned in one case, in argument, as a common expression at the bar, that it had become a prac- tice to improve gentlemen out of their estates. It is, therefore, absolutely necessary for courts of equity to make a stand, and not carry the decisions farther." ^ § 493. But in all cases where the plaintiff seeks rehef upon the ground of his having in part performed the agreement, it is incumbent upon him not only to show his acts of part performance, but also to prove to the satisfaction of the court the terms of the agreement, before they will undertake to enforce it.^ 1 Lindsay v. Lynch, 2 Sch. & Lef. 4, 5, 7. See also Harnett v. Yeilding, lb. 549 i Forster v. Hale, 3 Ves. 712, 713, per Lord Alvanley ; O'Reilly v. Thomp- son, 2 Cox, 271 ; Parkhurst u.. Van Cortlandt, 1 Johns. Ch. (N. Y.) 284, 285 ; Phillips V. Thompson, lb. 149. * 2 Pilling V. Armitage, 12 Ves. 78 ; Parkhurst v. Van. Cortlandt, 1 Johns. Ch. Cas. (N. Y.) 273 ; S. C. 14 Johns. 15 ; Phillips v. Thompson, 1 Johns. Ch. Cas. 131 ; Sage v. McGuire, 4 Watts & S. (Pa.) 228 | Frye v. Shepler, 7 Barr, (Pa.) CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 469 § 494i. As to the degree of proof which will suffice in such cases, it is obviously quite impossible to lay down any general rules. But it may be remarked that mere contrariety in the proofs adduced will not prevent the courts from decreeing the execution of the agreement ; their principle is, to collect from the proofsj if they can, what the terms of the agreement really are.i § 495. In some of the earlier cases, this principle was ap- plied with extreme liberality. In an anonymous case reported by yiner, where a man entered and built upon certain land upon the faith of the defendant's having told him that his word was as good as his bond, and promised him a lease when he received his own from the landlord, but the terms of the lease to be given were not proved, it appears that Lord Chancellor Jefiries decreed a lease to the plaintiflF, notwithstanding the uncertainty in the terms ; for he considered that it was in the plaintiff's election, for what time he would hold the land, and he elected to hold during the defendant's term at the old rent.^ The proceeding of the court in this case appears to have been, as Judge Story remarks, " to frame a contract for the parties, ex cequo et hono, where it found none."^ 1 § 496. Again, it would seem to have been formerly quite 91 ; Greenlee o. Greenlee, 22 Penn. State R. 225 ; Bankin v. Simpson, 7 Harr. (Pa.) 471 ; Moore v. Small, lb. 461 ; Burns v. Sutherland, 7 Barr, (Pa.) 103 ; Hugua V. Walker, 2 Jones, (Pa.) 173; Charnley v. Hansbury, 1 Harr. (Pa.) 16 ; Shepherd v. Bevin, 9 Gill, (Md.) 32 ; Owings v. Baldwin, 1 Maryland, Ch. Dec. 120 ; Shepherd v. Shepherd, lb. 244 ; Beard v. Linthicum, lb. 345 ; Ches- apeake and Ohio Canal Co. v. Young, 3 Maryland K. 480 ; Wingate v. Dail, 2 Harr. & J. (Md.) 76 ; Kowton v. Eowton, 1 Hen. & Munf. (Va.) 91 ; Thom- son V. Scott, 1 McCord, Ch. (S. C.) 32 ; Church of the Advent v. Farrow, 7 Bich. Eq. (S. C.) 378 ; Groodwiu v. Lyon, 4 Port. (Ala.) 297 ; Kay v. Curd, 6B. Mon. (Ky.) 100; Newnan v. Carroll, 3 Yerg. (Tenn.) 18; Shirley u. Spencer, 4 Gilman, (111.) 583-601. 1 Mundy u. Jolliflfe, 5 Myl. & Cr. 177; Boardman v. Mostyn, 6 Ves. 467; Burns v. Sutherland, supra; Rhode's v. Rhodes, 3 Sandf. Ch. (N. Y.) 279. 2 5 Vin. Ab. 623, pi. 40. 3 Story, Eq. Jur. § 764. 40 470 STATUTE OF FRAUDS. [cH. XIX. an approved rule, where there was no proof or insufficient proof of the contract before the court, tp send the case to a Master to ascertain what the terms of the contract were. Lord Eldon mentions a case as having occurred before Lord Thur- low, where, " possession having been deUvered in pursuance of a parol agreement, and, a dispute arising upon the terms of the agreement, Lord Thurlow thought proper to send it to the Master, upon the ground of the possession being delivered, to inquire what the agreement was. The difficulty there was in ascertaining that. The Master decided as well as he could, and then the case came on before Lord Rosslyn,' upon farther directions, who certainly seemed to think Lord Thurlow had gone a great way, and either drove them to a compromise, or refused to go on with the decree upon the principle on which it was made."^ Lord Thurlow, nevertheless, adhered to the same course in the subsequent case of Allan v. Bower, where it appeared that there was an oral agreement by the defendant's testator . to give the plaintiff a lease of certain premises. His Lordship directed the Master, who had refused to admit parol evidence, to ascertain and report what the promise was, at what time it was made, and what interest the tenant was to acquire under it in the premises ; upon which order evidence was received, proving that the tenant was to hold during his life, and a lease was decreed to be executed accordingly.® And so Lord Redesdale, in a case where a written agreement for a lease was held imperfect, as not. showing the term for which it was to be granted, said that if there had been evidence of part performance he must have directed a farther inquiry, the bill not suggesting any specific term of lease, and the pleadings and evidence being both silent on that point.* 1 Lord Loughborough, afterwards created Earl of Rosslyn. 2 Per Lord ELdon, 6 Ves. 470. 3 Allan V. Bower, 8 Bro. C. C. 149. * Clinan v. Cooke, 1 Sch. & Lef. 22. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 471 § 497- Lord Eldon's remarks, just quoted, show a strong bias on his part against the freedom exercised in the cases referred to, in obtaining proof of the terms of the contract. And subsequent decisions show that the same view is gaining ground with the courts. Lord Chancellor Manners has very clearly indicated what may be considered at this day the pre- vailing doctrine. " Where there is contradictory evidence in a case that raises a doubt in the mind of the court; that is to say, where the case is fully proved by the party on whom the onus of proof lay, but that proof is shaken or rendered doubt- ful by the evidence on the other side, there the court will direct a reference or an ftsue to ascertain the fact ; but where there is no evidence whatever, would it not be introducing all the mischiefs intended to be guarded against by the rules of the court, in not allowing evidence to be gone into after pub- lication, and holding out an opportunity to a party to supply the defect by fabricated evidence, if I were to direct such an inquiry % I therefore do not think myself at liberty from the evidence in this case, to direct the reference or issue desired."^ § 498. The third and last of those classes of cases in which courts of equity enforce verbal agreements, notwithstanding the Statute of Frauds, is where the agreement, fully set forth in the bill, is confessed by the answer.^ The reason upon 1 Savage v. Carroll, 1 Ball & B. 265, 550, 551. See also Boardman v. Mostyn, 6 Vea. 470 ; Reynolds v. Waring, You. 346 ; Story, Eq. Jur. § 764 ; Sngden, Vendors and Purchasers, 150. 2 Attorney-General v. Day, 1 Ves. Sen. 221 ; Croyston v. Banes, 1 Eq. Cas. Atr. 19 ; S. C. Free. Ch. 208 ; Symondson v. Tweed, Free. Ch. 374 ; Lacon v. Melting, 3 Atk. 3 ; Cottington v. Fletcher, 2 lb. 155 ; Gunter v. Halsey, Am- bler, 586 ; Child v. Godolphin, 1 Dick. 39 ; Whitchurch v. Bevis, 2 Bro. C. C. 566, 567 ; Spurrier v. Fitzgerald, 6 Ves. 548, 555 ; Cooth v. Jackson, lb. 12; Attorney-General v. Sitwell, 1 Yo. & Coll. (Exoh.) 583 ; Harris v.. Knicker- backer, 5 Wend. (N. Y.) 638 ; Argenbright v. Campbell, 3 Hen. & Munf. (Va.) 144 ; Hollingshead v. McKenzie, 8 Georgia R. 457 ; Ellis v. Ellis, 1 Dev. Eq. (N. C.) 341 ; Switzer v. Skiles, 3 Gilm. (Dl.) 529 ; Dyer v. Martin, 4 Scam. (111.) 146 ; Woods V. Dille, 11 Ohio R. 455 ; McGowen v. West, 7 Missouri R. 569. 47^ STATUTE OF FRAUDS. [cH. XIX. which this rule is g-enerally said to rest is, that the statute is only intended to prevent fraud and perjury, the danger of which is wholly removed hy the defendant's admission. But, as we shall hereafter see, it is settled that the defendant, not- withstanding, such admission, may insist upon the statute and thus defeat any recovery upon the agreement ; a rule with which the reason just alluded to does not seem to be alto- gether consistent. For if the removing of all danger of per- jury by having the defendant admit the agreement, does in fact take the case out of the intent of the statute, his sub- sequent reliance upon the statute of course cannot avail him. And it may have been with this viev^that Lord Bathurst held that, though admitted by the^ defendant, a verbal agreement within the statute could not hie enforced, and that to do so would be to repeal the statute.^ The same difficulty opposes itself to what Mr. Justice Story has suggested as another reason which might perhaps be adduced in support of the general rule we are considering, namely, that after admission by the defendant, the agreement, though originally by parol, was now in part evidenced by writing under the signature of the party, which was a complete compliance with the terms of the statute.^ In a late case in Maryland, it was urgecrthat an answer filed by a defendant, admitting an agreement, and not setting up the statute, could be read against his creditors after- wards coming in to resist the decree for specific execution, as itself a memorandum ; but the Chancellor held that it could not, and strongly dissented from Judge Story's suggestion above referred to.^ Upon the whole, the soundest reason which can be assigned for this rule, impregnably settled as it is by authority, seems to be that the defendant, having admit- ted the agreement charged, if he does not insist upon the 1 Popham V. Eyre, Lofft, 808, 809. 2 Story, Eq. Jnr.,§ 755. s Winn V. Albert, 2 Maryland, Ch. Dec. 169. Affirmed on appeal, nom. Al- bert V. Winn, 5 Maryland R. 66. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 473 statute, is taken to renounce the benefit of it ; the maxim, quisque renuntiare potest juri pro se introducto, being appH- cable to such a case.^ § 499. Where the defendant, having appeared to the suit, makes default in filing his answer, and the bill -is taken pro confesso, it should seem, and has been held in New Hampshire, that it arnounted to an admission of the contract charged, so as to entitle the plaintiff to a decree.^ Where the defendant has once admitted the contract as charged, he cannot after- wards, when the plaintiff has amended his bill in a matter not going to the substance of the contract, retract his admission.* And the same rule seems to hold, where the plaintiff after- wards comes in for a decree, upon a bill amended by permis- sion so as to cover an agreement which the defendant in his answer had confessed.* And if the defendant, after having admitted the agreement, should die before a decree, upon a bill of revivor against the heir, a specific performance by him would be decreed ; for the principle goes throughout, and binds the representatijfe as well as the ancestor.* § 500. An important question, having a near relation to the point we are now considering, has received the attention of Mr. Baron Alderson, namely, whether a court of equity, upon a bill filed for that purpose, will first reform a written agree- ment for real estate, so as to embrace or exclude certain prop- erty, and then, enforce it as Reformed, the mistake being ad- mitted by the answer. In the case before him the answer did not admit the mistake, and the learned Baron thought it clear that he could not decree a performance, after reforming the agreement by parol evidence admitted for th* purpose. But • 1 Newland on Contracts, cap. 10, p. 201 ; 1 Fonbl. Eq. B. 1, cap. 3, § 8, note d ; Rondeau v. Wyatt, 2 H. Bl. 68 ; Spurrier v. Fitzgerald, 6 Ves. 548. 2 Newton v. Swazey, 8 N. H. 9. See James u. Rice, 23 Bng. Law &'Eq. 667. 3 Spurrier v. Fitzgerald, 6 Ves. 548. * Patterson v. Ware, 10 Ala. R. 444. 5 Attorney-General v. Day, 1 Ves. Sen. 221 ; Lacon v. Mertins, 3 Atk. 3. 40* 474* STATUTE OF FRAUDS. [cH. XIX. upon the hypothesis of the answer's admitting the mistake, he says : " The case might have fallen within the principle of those cases at law where there is a declaration on an agreement not [1] within the statute, and no issue taken upon the agree- ment by the ple'a ; because in such a 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. I should then have taken time to consider whether, according to the dicta of many venerable Judges, I should not have been authorized to reform an executory agreement for the conveyance of an estate, when it was admitted to have been the intention of both parties that a portion of the estate was not to pass."-' § 501. The general rule is undoubtedly clear, that in order to entitle the plaintiff to the benefit of the agreement admitted by the answer, it niust appear to be, in all its essential terms, the §ame with that charged in the bilU^ although an imma- terial variation would not be regarded, and although, in certain cases, a plaintiff may be allowed to amend his bill after answer, in order to avail himself of the agreement admitted by it, or at least may have his bill dismissed, without prejudice to his filing a new bill adapted to such admitted agreement.^ And it has been held by Sir William Grant, at the Rolls, that the rule denying to the plaintiff a decree for the execution of a different sort of agreement, an agreement of a different import or tend- ency from that laid, was not infripged by allowing the plaintiff, who alleged a written agreement, the benefit of the defendant's admission that such agreement was made though by parol ; remarking that the difference betw^n a written and a parol 1 Attorney-Geiieral v. Sitwell, 1 Yo. & Coll. (Exch.) 559. 2 Legal V. Miller, 2 Ves. Sen. 299 ; Legh v. Haverfield, 5 Ves. 452 ; Willis v. Evans, 2 Ball & Beat. 228 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638. 3 Lindsay v. Lynch, and Hams v. Knickerbacker, supra ; Willis v. Evans, 2 Ball & Beat. 228 ; Deniston v. Little, decided 1803 by Lord Redesdale, see note to Lindsay v. Lynch, supra. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 475 agreement consisted in the mode in which they were evidenced, an objection which did not at all depend on the Statute of Frauds."^ It may be a question whether proof of acts of part performance in the case, makes it fn exception to the general rule above referred to. In Mortimer v. Orchard, where the hill stated a certain agreement, the complainant's witness proved a different one, and the two defendants by their answer set up an agreement which differed from both. Lord Loughborough thought the bill should in strictness be dismissed, but, as there had been a part execution of some agreement between the par- ties, and there were two defendants who proved- the agreement set up by their answer, he decreed a specific performance of the agreement confessed by the answers, and required the plaintiff to pay the costs.^ His lordship, it would seem, did not come to that conclusion altogether without difficulty, and the doctrine of the case appears to conflict with the established ride in regard to part performance, that it must appear to be in pursuance of the contract upon which relief is to be granted. § 502. The authority of this case would seem to be some- what shaken by the decision of Lord Redesdale, in Lindsay v. Lynch.^ There, the plaintiff, having been previously in pos- session of certain premises, alleged a parol agreement by the lessor to give him a farther lease for three lives. The lessor, defendant by his answer admitted an agreement to give him a farther lease for one life, whereupon the plaintiff amended his bill, claiming still the lease for three lives, but praying, in the alternative, thiat if that was not decreed, he might have the lease for one life. The plaintiff showed payment of rent after the agreement made, as an act of part performance. Lord Redesdale said, that if there had been acts of considerable ex- penditure, he could do no more than was done in the case 1 Spurrier v. Fitzgerald, 6 Vea. 548. 2 Mortinfer v. Orchard, 2 Ves. 243. 3 Lindsay v. Lynch, 2 Sch. & Lef. 1. 476 STATUTE OF FRAUDS. [cH. XIX. before Lord Loughborough, just referred to. He then observed that as the payment of rent was an act which might be in part execution of a lease for one life, as well as of a lease for three, there was no ground for admitting parol evidence of the latter, the agreement charged in the bill ; and he refused, in view of the course the plaintiff had taken in pleading, to allow him to amend so as to obtain a decree for a lease for one life, but dismissed the bill without prejudice to his filing a new one for that purpose. Although Lord Loughborough's decision is not in terms questioned by Lord Redesdale, yet he seems to speak of it with some uncertainty as to its correctness ; and it will be observed that the payment of rent was admitted here to be an act in part execution of some agreement^ as in the case before Lord Loughborough. CH, . XX.] PLEADING. 477 CHAPTER XX. PLEADING. § 503. It seems to be of considerable practical importance that we should examine, in conclusion of this treatise, certain points of pleading which have presented themselves, some of them involving no little difficulty, in cases decided upon the Statute of Frauds. And in so doing, it will be convenient to inquire, first., how the declaration or bill should be framed, and, secondly, when and how the defence upon the statute may be taken. 504. We have seen that in cases where the plaintiflF ia allowed to recover for money paid, services rendered, etc., in pursuance of a verbal contract, upon which, as being within the statute, he cannot maintain an action directly for damages, he must claim upon the implied obligation of the defendant to give compensation for what he has received.^ On the other hand, where he brings an action upon the contract, of which a memorandum in writing has been duly executed, his count must of course be special, relying upon the contract itself.* § 505. But it is not necessary to state in the declaration, or, where the suit is in equity, in the bill, that the contract has been reduced to writing. For the statute has made no altera- tion in the rules of pleading, and where the plaintiflf declares, as he might at common law, upon the agreement generally, 1 Ante, § 124. . 2 Babeock v. Bryant, 12 Pick. (Mass.) 134 ; Quin v. Hanford, 1 Hill, (N. Y.) 82 ; Beers v. Culver, lb. 589 ; Elder v. Warfield, 7 Harr. & Johns. (Md.) 391 ; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257. 478 STATUTE OF FRAUDS. [cH. XX. without Stating whether it is in writing or not, it will be pre- sumed to be in writing, and if the making of the agreement is denied, he is simply required to produce the memorandum in evidence at the trial or hearing.^ And this presumption, of the existence of a memorandum such as the law requires, (extends throughout the case; so that if it does not affirma- tively appear that there is no memoranduhfi, the plaintiff will not be nonsuit for omitting to produce one,^ and after verdict the existence of it will be presumed.^ Of course, where the defendant pleads so as to involve an admission of the contract charged, as where, to an action upon a contract of guaranty, he pleads tender, it will be unnecessary for the plaintiff to pro- duce a writing.* It seems to be now quite settled that the plaintiff need not set out his memorandum in his replication, though an intimation was at one time made to the contrary.^- § 506. A distinction has been taken, in regard to the obli- gation to allege a writing, between the cases where the con- tract is declared on by the plaintiff and where it is pleaded 1 Spurrier v. Fitzgerald, 6 Ves. 548 ; Rist v. Hobson, 1 Sim. & Stu. 543 ; Cleaves v. Foss, 4 Greenl. (Me.) 1; .Clark v. Brown, 1 Root, (Conn.) 78; Seymonr v. Mitchel, 2 lb. 145 ; Miller v. Drake, 1 Gaines, (N. Y.) 46 ; Hilliard V. Austin, 17 Barb. (N. T.) 141 ; Harris v. Knickerbacker, 5 Wend. (N. T.) 638 ; Coles v. Bowne, 10 Paige Ch. (N. Y.) 526 ; Champlin v. Parish, 11 lb. 405; Cozine v. Graham, 2 lb. 177; Gibbs v. Nash, 4 Barb. (N. Y.) 449; Brown v. Barnes, 6 Ala. R. 694 ; Brown «. Adams, 1 Stew. (Ala.) 51 ; Perrine V. Leachman, 10 Ala. R. 140 ; Martin v. McFadin, 4 Litt. (Ky.) 240 ; Baker si. Jameson, 2 J. J. Marsh. (Ky.) 547 ; McDowell v. Delap, 2 A. K. Marsh. (Ky.) 33 ; Drace v. Wyat, 1 lb. 336 ; Carroway v. Anderson, 1 Humph. (Tenn.) 61 ; Townsend v. Sharp, 2 Over. (Tenn.) 192; Drayton v. Williams, 2 Doug. (Mich.) 31 ; Bean v. Valle, 2 Missouri R. 126. But where the memorandum of a pur- chase of merchandise is the bought note of a broker, the declaration must so allege. Rayner v. Linthorne, Ry. & Moo. 325. 2 Long V. Lewis, 16 Georgia R. 154. 8 Elting V. Vanderlyn, 4 Johns. (N. Y.) 237. 4 Middleton v. Brewer, Peake, 15. 5 Wakeman v. Sutton, 2 Adol. & Ell. 78 ; overruling Lowe v. Eldred, 1 Cro. & Mees. 239, and 3 Tyrw. 234. See also Lilly v. Hewitt, 11 Price, 494. CH. XX.] PLEADING. 479 by the defendant. In the Queen's Bench, four years after the enactment of the Statute of Frauds, where a contract of guaranty was set up in defence, and the plea did not allege it to be in writing, and the plaintiff demurred, the demurrer was allowed, on two grounds, one of which was that "although upon such an agreement the plaintiff need not set forth the agreement to be in writing, yet when the defendant pleads such an agreement in bar, he must plead it so as it may appear to the court that an action will lie upon it, for he shall not take away the plaintiff's present action and not give him another upon the agreement pleaded."^ It will be observed, however, that the plea being held bad also upon another ground, the case is not decisive of the point above quoted. And it seems the rule does not apply where the plea is of title, in the party pleading and as against the other party claiming adversely, in property for the sale of which the statute makes a writing necessary. Thus, where the plaintiff in replevin for growing corn pleaded a fi. fa. under which the sheriff seized , the corn and sold it to the plaintiff, who thus became possessed of the same, and the defendant contended that the plea was bad as not alleging that the sale was in writing, it is reported that the court were against him on that point, and observed that assignments of terms of years were commonly pleaded without a statement of any writing.^ § 507. Where the agreement has in fact not been reduced to writing, whether it so appear or not upon the bill, the plain- tiff in equity should specially allege all equitable circumstances existing in his case, such as part performance and the like, upon which he intends to rely to avoid the bar of the statute.^ According to the system of pleading which fornperly prevailed, I Case V. Barber, T. Kaym. 451. s Peacock v. Purvis, 2 Brod. & Bing. 362. 3 Small V. Owingg, 1 Md. Ch. Dec. 363 ; Meach v. Stone, 1 Chip. (Verm.) 189. 480 STATUTE OF FRAUDS. [cH. XX. it would have been sufficient for the plaintiff to allege the agreement, and then, if the defendant pleaded the statute, he might specially reply the equitable circumstances to meet that plea. Now that special repUcations in equity are practically abolished, and amendments to the bill after plea or answer have taken their place, the method above suggested appears to be uniformly pursued, though necessitating an informality in the plea.^ It does not appear to have been ever decided that acts done in part-performance of the agreement must be expressly alleged to have been so done ; but such is the com- mon and probably safer course.^ 8 508. Next as to the manner in which the defendant may take advantage of the Statute of Frauds, where an action for damages is instituted or a specific execution sought upon an oral agreement, or a written agreement with an oral variation, affected by its provisions. It is settled that he must by some regular pleading take advantage of it ; and that if this is not . done, the court will not itself interpose it.^ For a contract within the Statute of Frauds is not illegal; but only not capable of being enforced against the defendant without writing ; an immunity which he may waive if he sees fit. The several methods of relying upon the statute appear to be these : by demurrer, by plea of the general issue, by answer, and by special plea in bar. § 509. Where, upon the face of a bill or declaration upon 1 See post, § 516. Qucere, whether, since the form of pleading has become well settled in these cases, an amendment would be allowed to the bill, after plea or answer setting up the statute, for the introducing of equitable circum- stances ? 2 Meach v. Stone, supra. 3 Vaupell V. Woodward, 2 Sand. Ch. (N. Y.) 143 ; Harrison v. Harrison, 1 Md. Ch. Dec. 331 ; Thornton v. Vaughan, 2 Scam. (HI.) 218 ; Burke v. Haley, 2 Gilm. (HI.) 614 ; Talbot v. Bowen, 1 A. K. Marsh. (Ky.) 436 ; Trus- tees, etc. V. Wright, 12 Dl. R.432; Switzer v. Skiles, 3 Gilm. (111.) 529 ; Tarle- ton I). Vietes, 1 lb. 470. CH. XX.] PLEADING. 481 a contract within the statute, it appears to have been never reduced to writing, and nothing is alleged which, according to the principles of a court of equity, releases the case from the operation of the statute, it would seem that, by settled prin- ciples of pleading, it is enough for the defendant to demur. The early English reports appear to furnish no case whe^e such a demurrer was actually allowed. In Ash v. Abdy, before Lord Nottingham, a few years after the enactment of •the statute, the bill stated an oral agreement and the defend- ant demurred ; his lordship overruled the demurrer, upon the ground that it appeared that the agreement was entered into before the statute was passed.^ In Howard v. Okeover, before Lord Bathurst, a demurrer was put in, to a bill for specific execution of a contract within the statute, and it was then argued that it appeared by the bill that neither the de- fendant nor any person by him authorized had signed any agreement in writing, and that, in such a case, what would be good by plea might be urged by demurrer ; at the same time, it was admitted that such defence to a bill of that kind was usually insisted on by plea. • The demurrer was overruled on other grounds, however, and ho decision passed upon the point.^ Shortly afterwards, before Lord 'Eiur^ow, where an agreement was sought to be enforced, and the bill relied upon a memorandum in writing which did not satisfy the require- ments of the statute, and alleged also certain acts in part execu- tion of the agreement, which were insufficient to justify the decree, his lordship overruled the plea as double, and remarked 1 Ash V. Abdy, 3 Swanst. 664, decided 1678. In the case of Child v. Godol- phin, 1 Dick. 39, Lord Macclesfield is reported to have said that where a bill stated an agreement generally, a demurrer might be allowed ; but that if the agreement was stated to be in writing, the plea must be supported by ah answer denying any agreement. The former observation, if correctly reported in the- first instance, is not now law. See ante, § 505. " 2 Howard v. Okeover, 3 Swanst. 421, (n.) 41 48£ STATUTE OF FRAUDS. [cH. XX. that perhaps it would have been better to have ^demurred ; for though the course of the court had been to admit pleas of the statute, he did not see the reason for it, as it was a public statute.^ And again, where the bill made substantially the same case, and the defendant pleaded the statute, Lord Thur- low remarked plainly that therei ought to have been a demurrer instead of a plea, the bill stating a parol agreement and there- fore not a case under the Statute of Frauds ; the plea was, however, finally allowed.^ And in a case before the same learned Judge, in 1791, and, as it appears, for the first time, a demurrer was allowed to a bill showing an oral agreement within the statute and insufficient part execution by the plain- tiff.^ By this judgment, and that of the Master of the Rolls more recently, the propriety of demurring in such cases appears to be established in England ; * in our own country it has been generally conceded.® And it would seem that where 1 Whitbread v. Brockhurst, 1 Bro. C. C. 404. 2 Whitchurch v. Bevis, 2 Bro. C. C. 5§9. 3 Bedding v. Wilkes, 3 Bro. C. C. 400. * Field V. Hutchinson, 1 Beav. 599,' Lord Langdale, M. R. See also Lord Loughborough's remark in Eondeau v. Wyatt, 2 H. Bl. 68, that " If a parol agreement -were State^in a court of law and there was a demutrer, which would admit the agreement, yet still advantage might be taken of the statute." In a late case in the English Chancery, where the bill alleged the making of a verbal agreement for the pUrehase of" real estate, with certain circumstances which were not in equity sufficient to remove the objection of the statute, a demurrer on the ground of the statute was allowed. But the reasoning of Turner, L. J., in pronouncing judgment, does not seem to be correct. He says : ' It was said that the Statute of Frauds could not be made available as a de- fence by means of a demurrer, upon the ground that the Statute of Frauds does not destroy the remedy where the agreement is admitted, as it is said it must be by demurrer ; but the agreement which must according to the statute be admit- ted, must be one signed by the party to be charged ; if, therefore, the agreement alleged by the bill does not come within that description, the admission of it by the demurrer will be of no avail to the plaintiff." Wood v. Midgley, 27 Eng. La*r & Eq. 210. 5 Cozine v. Graham, 2 Paige, Ch. (N. T.) 182 ; Green v. Armstrong 1 Denio, (N. Y.) 552,553; Meach v. Stone,. 1 Chip! (Verm.) 188; Black «.' Black, 15 Georgia R. 445 ; Switzer v. Skiles, 8 Gilm. (HI.) 529. CH. XX.] PLEADING. 483 the defendant might thus demur, a plea of the statute must now be held irregular and be overruled ; for it would not go to set up any matter not appearing upon the face of the bill or declaration ; not being strictly a plea of the statute itself, but of the fact that the agreement was not put in writing, to which fact the court would apply its legal consequences.^ § 510. The apparent reluctance of the English courts to allow defence upon the statute to be taken by demurrer would seem to have grown out of the doctrine, which at one time received some countenance, that if the defendant admitted the fact of the agreement as charged, (which is the effect of a demurrer to the bill or declaration,) the agreement must be enforced, notwithstanding the statute was insisted upon in bar of the relief. This doctrine no longer prevails, the defend- ant's reliance upon the statute, as is now well settled, depriving die plaintiff of the benefit of the admission.^ In the case of a demurrer to a bill or declaration, there is, it is true, no sep- arate and express reliance upon the Statute of Frauds ; but the assertion of all legal objections to the plaintiff's recovering upon the case shown is itaplied in the very nature of a demur- rer. § 511. In the next place, a defendant may insist upon the benefit of the statute by plea of the general issue, or in equity by answer simply, denying the fact of the agreement which the plaintiff charges to have been made. This puts the plain- tiff to proof of the agreement at the trial or hearing, and he then must produce a writing.® Where, however, tjje bill, in 1 See Lord Thurlow's remarks in Whitchurch v. Bevis, 2 Bro. C. C. 559 ; Green v. Armstrong, 1 Denio, (N. Y.) 552 ; Black v. Black, 15 Georgia B.. 445. s Post, § 515. 3 Buttemere v. Hayes, 5 Mees. & Wels. 456 ; Johnson v. Dodgson, 2 lb. 653 ; Eastwood «.T£enyon, 11 Adol. & Ell. 438; Leaf v. Tuton, 10 Mees. & Wels. 393 ; Reade v. Lamb, 6 Wels. Hurl. & Gor. 130 ; Cozine ,v. Graham, 2 Paige, Ch. (N. T.) 181 ; Ontario Bank v, Koot, 8 lb. 478 ; Small v. Owings, 1 Md. Ch. Dec. 363; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 174; Kay v. Curd, 484 STATUTE OF FRAUDS. [CH. XX. addition to the allegation in general terms that the agreement was made, alleges such acts done in part execution of it, or other equitable circumstances, as would justify the court in enforcing it, the defendant cannot by this method avail himself of his defence upon the statute, but must directly traverse the allegation of equitable circumstances, at the same time that he pleads, or by answer insists upon, the statute as preventing the plaintiflF's recovery on the mere verbal agreement.' And this brings us to the most important class of cases upon the sub- ject of the present chapter. § 512. A defendant may, by special plea or by answer, expressly interpose the statute' in bar of the plaintiflF's claim. Under this head, several questions arise ; first, when the statute may be specially pleaded or; insisted upon; secondly, the proper form of the plea or answer in order to present the defence upon the statute ; thirdly, the extent of the defence thus presented. § 513. We have already seen that it is open to the .de- fendant, if not his only proper course, to demur where the plaintiff expressly states that the a^eement rests in parol. Where he does not by his allegations disclose whether it is in writing or not, the defendant may deny that it is in writing and insist upon the statute by his plea or answer. § 514. And in equity, although, as the general averment in the bill of an agreement may be understood to mean an agree- ment in writing, the plea of the statute has rather the appear- ance of ap answer, it has always been allowed in that form. But if the bill states an agreement in writing and seeks nothing but an execution of that agreement, a plea that there 6 B. Mon. (Ky.) 100 ; Fowler v. Lewis, 8 A. K. Marsh. (Ky.) 443. If the answer deny even a parol agreement, the bar is of course complete, and the plaintiff cannot go into proof of his parol agreement. Askew v. Poyas, 2 Dessaus. Ch. (S. C.) 145; Cooth v. Jackson, 6 Ves. 12; Allen v. Chambers, 4 Ired. Eq. (N. C.) 125 ; Dunn v. Moore, 3 Ired. Eq. (N. C.) 364. 1 Post, § 518. CH. XX.] PLEADING. 485 is no agreement in writing has been considered improper, being no more than so much of an answer.^ § 515. It was formerly held that if the defendant, byJiis answer in chancery, admitted the fact of the agreement,^e could not avail himself of the benefit of the statute. Lord Macclesfield so decided,^ and Lord Hardwicke, if he did not actually determine the point,^ clearly appears to have been of the same opinion.* But by the unbroken course of more modern decisions,' it is now settled that although the defend- ant admit the agreement, it cannot be enforced without the production of a written memorandum, if he insist upon the bar of the statute.^ As was said by Sir William Grant, " it is immaterial what admissions are made by a defendant who insists upon the benefit of the statute, for he throws it upon the plaintiff to show a complete written agreement, and it can no more be thrown upon the ' defendant to supply defects in the agreement than to supply the want of an agreement."^ The American courts have also fully accepted this doctrine.^ 1 Per Lord Eldon in Morison v. Tumour, 18 Ves. 182. And see Story, Eq. Jur. § 762, note. a Child V. Godolphin, 1 Dick. 39 ; S. C. cited 2 Bro. C. C. 566 ; Child v. Comber, 3 Swanst. 423, note. ' Cottington v. Fletcher, 2 Atk. 155. It is to this case that Lord Loughbo- rough seems to refer when he says, (Moore v. Edwards, 4 Ves. 24,) " There is a case in Atkyns that misleads people where Lord Hardwicke is stated to have overruled the defence upon the statute merely on the ground that the agreement was admitted. I had occasion to look into that and it is a complete misstate- ment. It appears' by Lord Hardwicke's own notes that it was upon the agree- ment having been in part executed that he determined the case." * See his dictum in Lacou v. Mertins, 3 Atk. 3. 5 Eyre v, Ivison and Stewart v. Careless, cited 2 Bro. C. C. 565, 564 ; Walters v. Morgan, 2 Cox, 369 ; Whitbread v. Brockhurst, 1 Bro. C. C. 416 ; Whitchurch v. Bevis, 2 lb. 559, 568, 569 ; Eondeau v. Wyatt, 2 H. Bl. 68 ; Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Ves. 17, 37; Howe v. Teed, 15 "Ves. 375 ; Blagden v. Bradbear, 12 Ves. 466, 471 ; Kine v. Balfe, 2 Ball & Beat. 343. , * Blagden v. Bradbear, supra. 1 Thompson v. Tod, Pet. C. C. 388 ; Steams v. Hubbard, 8 Greenl. (Me.) 822 ; Arganbright v. Campbell, 3 Hen. & Munf. (Va.) 144 ; Winn v. Albert, 2 Md. 41* 486 STATUTE OF FRAUDS. [cH. XX. It is hardly necessary to say that the defendant is not debarred from thus insisting upon the statute, by the bill's alleging that tl^,greement has been in part performed ; for the part per- fomance can have no other efiect than to let in the plaintiff to prove the contract aliunde where it is not confessed.^ § 516. According to a case before Lord Thurlow, it would seem to have been considered by him that where a bill in equity charges acts of part performance or other equitable cir- stances to avoid the bar of the statute, it is impossible for the defendant to plead the statute in bar ; for in that case the plea averring, first, that there was no contract in writing, and secondly, that there had been no acts done in part performance, was overruled as double.^ The bill, in fact, seems 'to have asserted two grounds of relief, a written agreement and acts done in part performance, thus making a double case, both branches of which the defendant sought to meet in his plea. It is remarked, however, by a much esteemed writer, that it may be questionable whether, at this advanced era of equity pleading, such an objection should be suffered to prevail, as this mode of pleading, though undoubtedly loose and improper, technically speaking, had been, for a period long preceding, acknowledged and tolerated.^ ■0a. Dec. 169; S. C. nom. Albert v. Winn, 5 Md. R. 66; Hollingshead v. Mc- Kenzie, 8 Geo. K. 457 ; Barnes v. Teague, 1 Jones, Eq. (N. C.) 277 ; Thompson V. Jamesson, 1 Craneh, C. C. 295. 1 Thompson v. Tod, Peters, C. C. 380. 2 Whitbread v. Brockhurst, 1 Bro. C. C. 404. 3 Beames' Elements of Pleas in Equity, 1 74. Such, also, would seem to be the inclination of Lord Redesdale's mind, from a comparison of the several passages of his work on Pleading, (Mitf. PI. 240,243, 266, 26 7,) .bearing upon this question. In his second edition he states the settled rule to be that " if any matter is charged in the bill, which may avoid the bar created by thfe statute, that matter must be denied by way of averment in the plea, and must be denied particularly and precisely by way of answer to support the plea." (pp. 212-214.) In his last edition, he states this as Vhat had been the rule, deferring, apparently with some reluctance, to Lord Thurlow's decision in Whitbread v. Brockhurst. See anie, § 507, as to this difficulty in regard to the manner of pleading having grown out of the disuse of special replications. CH. XX.] PLEADING. 487 § 516 a. Whether the rule that a defendant may insist upon the statute, though admitting the agreement charged, appHes equally in cases of trusts, is a question which has been agitated to some extent, and is of manifest importance. Lord • Redesdale speaks of it as a question " upon which it may be very difficult to make a satisfactory distinction." ^ The admis- sion of the trust by the defendant's answer is susceptible, it is said, of being considered as a declaration of trust in writing.^ But at the same time it is admitted that to the same extent, an admission of an agreement must, upon the same principle, be considered as a memorandum of the agreement, and that it is difficult to see why the defendant should not be allowed to insist upon the statute, notwithstanding such admission, in one ciise as well as in the other.* Indeed, it may well be said, that whether the admission in either case is or is not properly to be taken as a manifestation of the trust or a memorandum of the agreement, within the meaning of the statute, must depend upon the question whether the defendant is allowed nevertheless to insist upon the statute. If he is, it can hardly be that his admission amounts to the required manifestation or memorandum, seeing that it is in his power to nullify the whole effect of it in the same pleading.* § 517. We have seen at an earlier page that a man might be convicted of perjury for falsely swearing to a contract within the Statute of Frauds, on the ground that the testimony was not immaterial when in fact it proved the promise ; though it might have been incompetent, if objected to in season.® It has been held, however, by Chief Justice Abbott, at nisi prius, that where, in an answer in chancery to a bill filed against the defendant for a specific performance of an agree- ment relating to the purchase of land, the defendants denied 1 Mitf. Eq. PI. 268. a Ibid. ; Story, Eq. PI. § 766. 3 ibid. 4 Ante, § 498. s Ante, § 135. 488 STATtTTE OF FRAUDS. [CH. XX. having entered into any such agreement, and relied upon the Statute of Frauds, they were not guilty of perjury upon its being proved that they had entered into such an agreement verbally. The Chief Justice said : " The statute for the wisest reasons declares that agreements of this description shall not be enforced unless they are reduced into writing. These defendants, therefore, having insisted upon the statute in their answer, the question is whether under such circum- stances, the denial of an agreement which by the statute is not binding upon the parties is material. I am of opinion that it was utterly immaterial. It is necessary that the matter sworn to and said to be false should be material and relevant to the matter in issue. The matter here sworn to is in my judgment immaterial and irrelevant, and the defendants must be acquitted." ^ In this case, it will be observed, the testimony given by the defendants did not prove the contract, all parol proof of it having been barred by their reliance upon- the statute ; whereas in the case before referred to, that bar not having been interposed, the testimony was competent and material, and did prove the contract. Lord Mansfield relates a case, which he speaks of as remarkab^p, where the defendant bought an estate for the plaintiff; there was no writing nor was any part of the money paid by the plaintiff; the defend- ant articled in his own name and refused to convey, and by his answer denied any trust ; parol evidence was rejected and the bill was dismissed ; the defendant was afterwards in- dicted for perjury, tried and convicted upon evidence of the plaintiff confirmed by circumstances and the defendant's dec- larations ; the plaintiff then petitioned for a supplemental bill ' in the nature of a bill of review, stating this conviction, but the bill was dismissed because the conviction was not evidence.^ 1 Kex V. Dunston, Ky. &M00. 109. 2 Bartlett v. PickersgUl, Trin. T. 32 & 33 Geo. 11. cited in Abrahams 11. Bunn, 4 Burr. 2255, and 4 East, 577, innotis. CH. XX.] PLEADING. 489 It would appear from his lordship's account of the case that the Statute of Frauds was insisted upon hy the defendant, as upon no other ground could parol evidence of the contract have been rejected. If so, it conflicts with the decision of Chief Justice Abbott and is overruled by it so far as the pro- priety of the conviction for perjury is concerned ; but it seems it may stand upon the general rule that when the defendant does not choose to admit the agreement and thereby waive the benefit of the statute, the truth of his denial cannot be inquired into by means of parol evidence. § 518. The next question is upon the form or ingredients of a proper plea or answer insisting upon the statute.^ In equity the defendant's plea of the statute must contain nega- tive averments to the effect that there was no writing executed as required by the statute.® And when the bill charges any such equitable circumstances as might avoid the bar of the statute, they must be traversed generally by way of averment in the plea, and particularly and precisely by way of answer to support the plea.^ So also, where the bill, though not stating any such equitable circumstances, alleges the agreement to ' have been in writing, and charges facts in evidence thereof, ' For form of plea of the statute to bill for specific performance of a parol agreement, accompanied by an answer to the matters stated in the bill tending to show part performance, see Whitchurch v. Bevis, 2 Bro. C. C. 659 ; 2 Van Heythuysep's Eq. Draft. 107. For form of answer insisting on the same benefit of the statute as if it had been pleaded, see Curtis, Eq. Prec. 197, 198. 2 Mitf. Eq. PI. 265 ; Welf. Eq. PI. 826 ; Stewart v. Careless, cited 2 Bro. C. C. 565 ; Dick. 42 ; Moore v. Edwards, 4 Ves. 23 ; Bowers v. Cator, lb. 91 ; Evans v. Harris, 2 Ves. & Bea. 364 ; Mussell v. Cooke, Prec. Ch. 533 ; Bean v. Valle, 2 Mo. R. 126. 3 Taylor v. Beech, 1 Ves. Sen. 297; Bowers v. Cator, 4 Ves. 91 ; Rowe v. Teed, 15 lb. 378 ; Evans v. Harris, 2 Ves. & Bea. 364 ; Cooth v. Jackson, 6 Ves. 12 ; Hall v. Hall, 1 Gill, (Md.) 383 ; Cozine v. Graham, 2 f aige, Ch. (N. T.) 177; Champlin v. Parish, 11 Paige, Ch. (N. Y.) 405; Harris v. Knick- erbacker, 5 Wend. (N. Y.) 638 ; Thompson v. Tod, Pet. C. C. 388 ; Chambers V. Massey,' 7 Ired. Eq. (N. C.) 286 ; Meach v. Stone, 1 Chip. (Verm.) 188 ; Miller V. Co'tten, 5 Geo. R. 341 ; Tarleton i!. Vietes, 1 Gilm. (111.) 470. But see ante, § 516. 490 STATUTE OF FRAUDS. [cH. XX. negative averments must be put in by the defendant against these allegations.^ At law, the earlier cases leave it doubtful whether the correct practice was to couple the plea of the Statute with a denial that the contract sued upon was reduced to writing according to its requirements. In Lilley v. Hewitt, decided in the Exchequer in 1822, the action was upon a guaranty, and the plea averring that there was no agreement or note or memorandum stating the consideration, in writing signed by the defendant, was held bad on special demurrer. Mr. Baron Wood, with whom the rest of the court appear to have concurred, said the plea appeared to him to be altogether new ; that he had never before met with, nor did he ever hear of, such pleas as a bar to an action of that nature, and he condemned them in the strongest language, as leading to great prolixity and confusion in pleading.^ But in Maggs v. Ames, a few years later, the Court of Common Pleas held a similar plea to be good; without any allusion made to Lilley v. Hewitt by the court or in argument.^ Again, Lord Tenter- den, in the House of Lords, where a similar plea was presented, said he inclined to think it bad ; but he did not find it neces- sary to pass upon the point.* In 1833 the New Rules were passed, by which, among other things, it is ordered that the general issue shall operate only as a denial in fact of the ex- press contract or promise alleged, or of the matters of fact from which the contract or promise alleged is implied by law.^ It was soon settled that under the general issue as thus re- stricted, the defence of want of written memorandum might still be taken,® and thereby the case of Maggs v. Ames is ' Evans v. Harris, 2 Ves. & Bea. 364; and see Jones v. Davis, 16 "Ves. 262. 2 Lilley v. Hewitt, 11 Price, 494. 3 Magg»u. Ames, 4 Bing. 470. The form there sustained is inserted by Mr. Chitty in his volume of Precedents. 2 Chit. PI. 909. * Lysaght v. Walker, 5 Bligh, N. E. 1. 5 Hil. T. 4 Will. IV. « Johnson v. Dodgson, 2 Mees. & Wels. 653 ; Buttemere v. Hayes, 5 Mees. & Wels. 456 ; Eastwood v. Kenyon, 11 Adol. & Ell. 438. CH. XX.] PLEADING. 491 considered to be overruled. Later cases have established that a plea that -the alleged agreement was not reduced to writing, etc., is bad on demurrer, as amounting to an argumentative denial of the contract or of the facts from which it is implied by law, within the New Rules.^ § 519. The language of the plea or answer in setting up the statute must be clear and explicit to that end. Where a de- fendant by his answer formally alleged that no formal note of the agreement charged was made, and denied that any binding agreement ever existed, but did not expressly claim the benefit of the Statute of Frauds, he was held to be not entitled to the benefit of it at the hearing.' So with an allegation in the answer, " that the contract is void in law and that the defend- ant is not bound to perform the same."* And where the answer to a bill for the specific performance of a contract for the sale of land, set up that the writing produced was signed by the defendant for another purpose and not to acknowledge the agreement, and concluded with submitting to the court whether it were " such an agreement as was required by law and equity to compel the defendant to make the sale and convey- ance tlaimed," etc., the Supreme Court of the United States doubted whether it was a sufficient setting up of the statute, though they did not find it necessary to determine the point.* § 520. Next, as to the extent of the protection aflforded the defendant by his plea or answer setting up the statute. This presents the inquiry, whether he is thereby protected from discovery as to the fact of the making of the agreement ; and 1 Leaf V. Tuton, 10 Mees. & Wels. 393 ; Reade v. Lambj 6 Wels. Hurl. & Gord. 130. a Skinner v. McDouall, 2 DS^Sex & S. 265. 3 VaupeU V. Woodward, 2 Sandf. Ch. (N. Y.) 143. See also Rhodes v. Rhodes, 3 lb. 283. 4 Barry v. Coombe, 1 Pet. (S. C.) 640. See farther on this subject, Small V. O wings, 1 Md. Ch. Dec. 363; Harrison v. Harrison, lb. 331; Edelin w. Clarkson, 3 B. Mon, (Ky.) 31. 492 STATUTE OF FRAUDS. [cH. XX. it is a, question the most difficult in itself, and the most embar- rassed by conflicting decisions and dicta, of any which have so far arisen upon the subject of pleading under the Statute of Frauds. § 531, The position that the defendant cannot plead the statute in bar of the discovery, is principally rested upon the rule of equity, that every defendant is bound to confess or deny all facts which, if confessed, would give the plaintiff a claim or title to the relief prayed, and that, as equity would decree a parol agreement if confessed, the, defendant must confess or deny it, " But in applying this rule," says an emi- nent writer, with a force and discrimination displayed by none other upon this vexed question, "it is previously material to ascertain whether the Statute of Frauds has not in such a case relieved the defendant from this general obligation. The prevention of fraud and perjury is the declared object of the statute; and the decreeing of a parol agreement when con- fessed by the defendant, and the statute not insisted on, is evidently consistent with such object ; nam quisque renuntiare potest juri pro se mtroducto. But if the defendant be bound to confess or deny the parol agreement, his answer must be either liable to contradiction or not liable to contradiction. If the defendant's answer be liable to .contradiction by evidence aliunde, the evil arising from contradictory evidence, which the statute proposed to guard against, would necessarily result. If the defendant's answer be not liable to contradiction by evi- dence aliunde, the rule would furnish a temptation to perjury, by giving the defendant a certaiin interest in denying the agreement ; since if he confessed it, he would be bound to perform it. If the defendant be bound to confess or deny the parol agreement insisted on by the jiaintiff, one of the above consequences would necessarily ensue ; which of the two is likely to prove the most mischievous, were, perhaps, difficult to decide J for though the perjury which may take place if con- tradictory evidence were allowed, is an evil of considerable CH. XX.] PLEADING. 4-93 size, yet the defendant being liable to be contradicted, might operate as a check on his falsely denying that which was truly alleged." ^ § 522. And so Lord Thurlow, upon one of several occa- sions on which a case presenting this question was argued before him, remarked that the court had laid down two excep- tions, by which, if they were to be sustained, it amounted to the same thing as if the statute had made the exception of the two cases, that is, where the agreement is confessed by the answer, or where there is a part performance ; that in the latter case the defendant must answer to the agreement as well as to the part performance ; that as to the former, it was a clear excep- tion from the statute, that the danger of fraud and perjury was avoided, where the defendant admitted the agreement; that if the party might or might not take advantage of the statute by insisting or not insisting upon it, there was no foun- dation for the exception, but if the exception was founded, it made it like any other equitable case. " But," he asks, "what will become of the statute ■? The agreement vdll not be sus- tained, unless the defendant confesses the agreement by his answer ; you shall not prove it aliunde." Nevertheless, he comes to the conclusion that even if the bill stated only the agreement, without alleging part performance, a pure plea of the statute would not suffice, but the defendant must answer to the agreement.^ § 52S. Again, it is obvious, upon a careful examination of the cases, that the doctrine that the defendant could not plead the statute in bar of the discovery as to the fact of the agree- ment, is closely connected with the doctrine, which, as we have seen, is no longer maintained, that upon a confession of the agree- 1 Fonbl. Eq. Book I. Chap. III. § 8, note d. 2 Whitchurch v. Bevis, 2 Bro. C. C. 666, 567. Such seems to be the conclu- sion of his lordship, and is the only one which makes the report of the case (which is quite defective and confused) consistent with itself. See Mr. Belf s note to page 567 of the report. 42 4>^4f STATUTE OF FRAUDS. LCH. XX. ment by answer the court will enforce it, although the defend- ant insist upon the benefit of the statute. Thus, Lord Thur- low says, in the case just referred to, " Where a court of equity said that if a parol agreement came out, there should be a specific performance, they said it was matter of honesty to carry it into execution. If I say that upon a parol agreement ap- pearing it shall be performed, I must say I shall compel the discovery whether there -was a parol agreement or not,"^ for, as he adds in another place, " the discovery is only an incident to the natural justice of performing the unwritten agreement."^ And so Lord Macclesfield said in an early case : " The^defend- ant ought by answer to deny the agreement, ybr if she confessed the agreement the court would decree a performance, notwith- standing the statute, for that such confession would not be looked upon as perjury, or intended to be prevented by the statute."' It is thus apparent that the doctrine against allow- ing the statute to be pleaded in bar of the discovery, has been, by the course of later and sounder decisions, deprived of its chief foundation in principle ; if indeed it has not become en- tirely nugatory. 8 524. Before examining the cases bearing upon this ques- tion, however, one more quotation may be pardoned, in order that the objections in reason to compelling a discovery may be fully illustrated. In a case in the highest court of judicature in Vir- ginia, Mr. Justice Tucker says : " I am of opinion that with respect to all promises, agreements, and contracts, within the purview of the statute, if not reduced to writing, and signed pursuant to the statute, and if nothing be done in performance of them, whereby the actual state of the parties, or one of them, is materially afi'ected, they ought to be considered as imperfect and incomplete, so as to be incapable of supporting a 1 Ibid. 560. 2 Ibid. 561. 3 Child V. Godolphin, 1 Dick. 39. CH. XX.J PLEADING. 495 suit either at law or in equity ; consequently, that wherever a defendant to a bill, for the specific performance of a parol" agreement, pleads and relies upon the statute, he is not com- pellable to answer as to the agreement, and confess or deny it, but may protect himself from such answer by his plea ; and where offered and insisted on, it ought to be allowed ; for by compelling a defendant to answer after he has claimed the protection of the statute by his plea, the inducement to perjury, which it is the object of the statute to prevent, will be increased in tenfold proportion."^ § 5%5. The first case in which this question appears to have been raised was that of Child v. Godolphin, decided by Lord Macclesfield, in 17^, where it was held that the defendant ought by answer to deny the agreement, and a plea of the statute, not denying the parol agreement, was ordered to stand for an answer.^ § 5'^Q. In Cottington v. Fletcher, ly^'O, the same question arose upon a trust, upon which the plaintiff" alleged that the defendant had taken a certain advowson, and the defendant pleaded the Statute of Frauds in bar of the discovery, but by his answer admitted that the advowson was assigned to him for the purposes charged by the bill. Lord Hardwicke said that " undoubtedly if the plea stood by itself it might have been a su^cient plea ; but, as coupled with an answer admit- ting the facts, it was overruled.^ § 527. Again, in Taylor v. Beech, 174'9, a case of agree- ment for securing a wife's independent property at her mar- riage, the defendant denied having entered into any written agreement, and pleaded the statute in bar of any discovery as 1 Argenbright v. Campbell, 3 Hen. & Munf. 161, 162. • 2 Child V. Godolphin, 1 Dick. 39. But see the case of HoUis v. Whiteing, ■where Lord Keeper North said, as early as 1682, that if a plaintiff laid in his bill that it was part of the agreement that it should be put in writing, il would possibly require an answer. 1 Vern. 151. 3 Cottington v. Fletcher, 2 Atk. 155. 496 STATUTE OF FRAUDS. [cH. XX. to the parol agreement. Lord Hardwicke overruled the plea because of the equitable circumstances alleged, although, as he said, "the Statute of Frauds was a protection against the defendant's making a discovery of a parol agreement, and might be pleaded as well to the discovery as relief." ' 8 528. The same question was argued very fully before the House of Lords, in the case of Whaley v. Bagnel, in 1765. The plaintiff's bill was for a specific execution of an oral agree- ment for the sale of land, and the defendant pleaded the Statute of Frauds in bar both of the discovery aiid relief. The plea hav- ing been allowed by the Lord Chancellor of Ireland, an appeal was taken to the House of Lords and was there dismissed.^ I 529. The case of Whitchurch v. •Bevis, before Lord Thurlow, was first heard in 1786, and after several rehearings and full arguments, was finally determined three years later. The bill was for a specific performance of an agreement to sell a house for an annuity, and stated certain facts in the way of part performance, the agreement not having been reduced to writing ; the defendant pleaded the Statute of Frauds, both as to the discovery and relief, but did not aver in his plea that there was no parol agreement. Lord Thurlow, after the first hearing upon the plea, ordered the cause to stand over that it might be argued upon the form of the plea itself, remarking that if the rule was right that, upon an agreement^ppearing by the answer, though not in writing, it should be enforced, notwithstanding the defendant insisted upon the statute, he saw no reason why there should not be a discovery, for the discovery was only an incident to the natural justice of per- forming the unvvritten agreement.* At a subsequent hearing, « his lordship overruled the plea, and ordered it to stand for an 1 Taylor v. Beech, 1 Ves. Sen. 297. 2 Whaley v. Bagnel, 1 Bro. P. C. 345, Tomlins's ed. The report furnishes no opinions in the case ; only a brief note of judgment at the end of the argu- ments. 3 Whitchurch v. Bevis, 2 Bro. C. C. 561. CH. XX.] PLEADING. 497 answer, with liberty to except and to reserve the benefit of the plea to the hearing. After stating the view upon which he proceeded, and which has already been referred to,^ he says, " I am aware that except the case determined by Lord Mac- clesfield, there is no other;® the opinion I give is, that if nothing had been stated in the bill but a parol agreement, if the defendant pleads he must support his plea by an answer denying the parol agreement, the only efiect of the statute being that it shall not be proved aliunde. If he answers and says there was no parol agreement, I think that no evidence that can be given will sustain the suit. If this doctrine be not maintainable the judgment I am giving is wrong."* Finally, in delivering judgment upon the whole case, he asserts the same view ; but, an answer having been filed, in which the agreement charged was confessed, the plea of the statute as to the relief was allowed.* § 530. A few years later, in the case of Moore v. Edwards, Lord Loughborough seems to have taken the rule as settled, according to the view expressed by Lord Thurlow. Upon a bill for specific performance of a verbal agreement to make a lease, the defendant pleaded the statute and made answer, denying that the acts alleged were done in part performance, as was charged in the bill. Lord Loughborough held the answer to be argumentative, and ordered the plea to stand for answer with liberty to except, benefit to be saved at the hear- ing ; and on the defendants' moving that the words, " with liberty to except," be struck out, or the following added, " ex- cept as to such part of the said plea, which insists upon the Statute of Frauds and Perjuries, in bar to the discovery of the agreement therein mentioned," his lordship said the order was 1 Ante, § 522. 2 Child V. Godolphin, 1 Dick. 39. His lordship's attention does not seem to have been called to the various dicta before referred to in the text. 3 2 Bro. C. C. 566, 567. 4 2 Bro. C. C. 567-669. 42* 498 STATUTE OF FRAUDS. [cH. XX. right, and added, " saving the henefit of the plea to the hear- ing gives you a right to insist upon the Statute of Frauds as a defence to the suit, but it does not exempt you from the dis- covery. § 531. But in the latest English case, bearing upon this question. Lord Eldon puts the case of a defendant answering as to the acts of part performance, when alleged, and insisting that he was not bound to answer whether there was a parol agreement or not, as raising a difficulty which he had never been able to get over ; and this certainly goes to show that he did not regard it as settled that the statute could not be pleaded in bar of discovery.^ § 582. Upon the whole, it would seem to be by no means clear but that the present English doctrine, whatever earlier decisions may go to establish, is against allowing the bar to the discovery. Lord Redesdale, than whom there is no higher authority upon questions of equity, comes to the conclusion, in the last edition of his treatise on Equity Pleadings, that " it may now be doubtful whether a plea 6f the statute ought in any case, except perhaps the case of a trust,^ to extend to any discovery sought by the bill."* Other text writers, however, appear to entertain a contrary opinion.^ § 5S3. In our own country, the weight of judicial authority may be said to be in favour of allowing the bar to the dis- covery, the courts both of Vermont® and Virginia^ having adopted that position as agreeable to the soundest principles and the most approved precedents. It must be observed, how- ever, that the learned Chancellor of New York does not appear 1 Moore v. Edwards, 4 Ves. 23. 2 Rowe V. Teed, 15 Ves. 372. 3 Post, § 534. * Mitf. PI. (6 Amer. from 5th Lend, ed.) 309-312. 5 Cooper, Eq. PL 256 ; Story, Eq. PI. § 763. 6 Meach v. Stone, 1 Chip. 186-188. T Argenbright v. Campbell, 3 Hen. & Mun. 144. CH. XX.] PLEADING. 499 to coincide in this view, when he lays it down that if the bill states an agreement generally, which will be presumed a legal contract until the contrary appears, the defendant " must either plead the fact that it was not in writing, or insist upon that defence in his answer."^ § 534>. The same reasoning upon which it is maintained that a defendant may insist upon the statute in bar of the dis- covery as to the fact of the agreement^ seems to apply where the bill seeks to enforce a trust resting in parol. If he may, as we have seen it is the better opinion that he may, insist upon the statute in bar of the execution of the trust, it is nugatory to force him to discover as to its existence. There appears to be no case in which the question has been distinctly under consideration. The cases where a discovery has been required as to trusts alleged to be imperfectly declared, or illegal or fraudulent, are not applicable ; as there the answer is made evidence not to set lip the trust, but to defeanthe defendant's apparent title, and to found a decree for a resulting trust to the heir.^ 1 Cozine v. Graham, 2 Paige, Ch. 177. 8 Ante, § 103. APPENDIX. STATUTE 29 CAR. U. Cap. 3. Sections 1, 2, 3, 4, 7, 8, 9, 17. Section 1. All leases, estates, interests of freehold or terAs 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 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 not- withstanding. Sec. 2. Except, nevertheless, 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 to two third parts at the least of the full improved value of the thing demised. Sec. 3. 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 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 thereunto lawfully authorized by writing, or by act and operation of law. Sec. 4. 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 any special promise to answer for the debt, default, or miscarriages of another person ; 3, or to charge any person upon any agreement made upon consideration of marriage ; 4, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; 5, or S02 APPENDIX. upon any agreement that is not to be performed within the space of one year from the making thereof; 6, 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 by some person thereunto by him lawfully authorized. Sec. 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 -transferred or extinguished by an act or .operation of law, then, and in every such case, such ^f ust or coufidence shall be of the like force and effect as the same would have been if this statute had not been made ; any thing hereinbefore 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 samey or by such last will or devise, or else shall likewise be utterly void and of none effect. Sec. 17. No contract for the sale of any goods, wares, and merchant dises for the price of £10 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 bar- gain, or in part 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. STATUTE 9 GEO. IV. Cap. U. Sections 5, 6, 7. Sec. 5. No action shall be maintained whereby to charge any person upon any promise made, after full age to pay any debt contracted during infancy, 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 therewith.^ 1 As to the memorandum required by this, section, see Harris v. Wall, 1 Exch. 122 ; Hunt ». Massey, 5 Barn. & Add. 902 ; Hartley v. Wharton, 11 Adol. & BU. 934 ; Hyde v. Johnson, 2 Bing. N. B. 776. APPENDIX. 508 Sec. 6. No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the chai-acter, 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 representa- tion or assurance be made in writing, signed by the party to be charged therewith.* « Sec. 7. And whereas by an act passed in England in the twenty-ninth year of the reign of King Charles the Second, intituled " An Act for the Prevention of Frauds and Perjuries," it is among other things enacted that from and after the 24th day of June, IGWT, no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds ster- ling or u|yvards, 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 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 authoi'ized ; And whereas a similar enact- ment is contained in an act passed in Ireland in the seventh year of the reign of King William the Third ; And whereas it has been held that the said recited enactments do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mis- chief thereby intended to be remedied ; and it is expedient to extend the said enactments to such executory contracts ; Be it enacted, that the said enactments 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 lo 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. ALABAMA. Code, 1852. Sections 1320,1321, 1551, 1552, 1553, 2198. Sec. 1320. No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or ex- 1 See ffn(e in the text, § 181. 2 See Swann v. Phillips, 8 Adol. & Ell. 457 ; Tnmley v. Macgregor, 6 Man. & G. 46 ; DevauK v. Steinkeller, 6 Bing. N. R. 84 ; Haslock v. Fergussoii, 7 Adol. & Ell. 504 , APPENDIX. tinguished by operation of, law, can be created unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing. Skc. 1321. No such trust, whether implied by law,, or created or declared by the parties, can defeat the title of creditors or purchasers for a valuable consideration without notice. Sec. 1551. In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing th^ consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully 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 damages out of his own estate. 3. Every special promise to answer for the debt, default, or miscar- riage of another. 4. Every agreement, promise, or undertaking, made upon considera- tion of marriage, except mutual promises to marry. 5. Every contract for the sale of goods, chattels, or things in action, for a price exceeding two hundred dollars, unless the buyer accepts and receives part of such goods and chattels, or the evidences, or some of them, or such things in action ; or unless the buyer at the time pay some part of the purchase-money. 6. Every contract for the sale of lands, tenements, or hereditaments, 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 into possession of the land by the seller. Sec. 1552. When goods, or things in action, are sold, or lands, tene- ments, or hereditaments, sold or leased at public auction, and the auc- tioneer, his clerk or agept, makes a memorandum of the property, and price thereof at which it is sold or leased, the terms of sale, the name of the purchase):, or lessee, and the name of the perspn on whose account the sale or lease is made, such memorandum is a note of the contract within the meaning of the prgceding section. Sec. 1553. No action can be maintained to charge any person, by reason of any representation or assurance made, concerning the charac- ter, conduct, ability, trade, or dealings of any other person, when such action is brought by the person to whom such representation or assur- ance was made, unless the same is in writing, signed by the party sought to be charged. Sec. 2198. A seal is not necessary to convey the legal title to land, APPENDIX. 505 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 instrument. ARKANSAS. Englmh's Digest. Chapter 73. Sections 1, 2, 10, 11, 12, 13. Sec. 1. No action shall be brought, first, to charge any executor or administrator, upon any special promise, to answer for any debt or dam- age out of his own estate ; second, to charge any person upon any special promise to answer for the debt, default, or miscarriage, of another ; third, to 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 concerning them ; fifth, to charge any person upon any lease of lands, tenements, or hereditaments, for a longer term 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 thewof shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized. Sec' 2. No contract for the sale of goods, wares, and merchandise, for the price of thirty dollars, or upwards, 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 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. 10. All leases, estates, interests 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 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, 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 year. Seg. 11. No leases, estates, or interests, either of freehold or of terms of years, in, to, or out of any messuages, lands or tenements, except 43 506 APPENDIX. leases or a term not exceeding one year, shall at any time hereafter' be assigned, granted or surrendered unless it be by deed or notice in wrifc- ing signed by the party so assigning, granting, or surrendering the same, or by their agents lawfully authorized by writing, or by operation of law. Sec. 12. All declarations or creations of trusts or confidences of any lanifs or tenements shall be manifested and proven by some writing signed by the iiarty who is or shall be by law enabled to declare such ■ trusts, or by his last will ill wijjting, or else they shall be void ; and all grants or assignments of any trusts or confidences shall be in writing signed by the party granting or assigning the same, or by his or her last will in writing, or else they shall be void. Sec. 13. When any conveyance shall be made of any lands or tene- ments, by which a trust or confidence may arise or result by implication of law, such trust or confidence shaU not be affected by any thing contained in this act. CALIFOKNIA. ^Act passed Aprii. 19, 1850. Chapter 47. Sections 6, 7, 8, 9, 10, 12, 13, 14, 19, 21, 25. 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 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 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 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 expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. Sec. 9. Every instrument required to be subscribed by any person, under the last preceding section, may be subscribed by the agent of such party, lawfully authorized. APPENDIX. 507 Sec. 10. Nothing contained in this chapter 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. 12. 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 charged there- with : 1. Every' agreement that by the terms is not to be performed within one year from the making thereof. 2. Every special promise to answer for the debt, default, or miscarriage of another. 3. Every agree- ment, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. Sec. 13. Every contract for the sale of any goods, chattels, or things in action, for the price of two hundred dollars or over, shall be void, unless, 1st, a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith ; or, 2d, unless the buyer shall accept and 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. Sec. 14. "Whenever any goods shall be sold at auction, and the auc- tioneer 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 whoife 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. 19. Every instrument required by any of the provisions of this chapter to be subscribed by any party, may be subscribed by the lawful agent of such party. Sec. 21. Every grant or assignment of any existing trust in land, goods, or things in action, unless the same shall be in writing, subscribed by the person making the same, or by his agent lawfully authorized, shall be void. Sec. 25. The term " lands," as used in this act, .shall be constru^ 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, present and future, vested and contingent, in lands, as above defined. 508 APPENDIX. CONNECTICUT. Revised Statutes, 1849. Title 29. Chapter 1. Sections 8, 14. Sec. 8. All grants, bargains, and mortgages of laud, shall be in writ- ing, subscribed by the grantor, with his own hand, or with his mark with his name thereunto annexed, and also attested by two witnesses, with their own hands, or with their marks with their names thereunto annexed ; or the name of the grantor shall be subscribed to such grant, hy his law- ful attorney, authorized by a written power for that special purpose, duly executed and acknowledged in the manner herein prescribed in the case of deeds ; and such subscribing of the name of the grantor shall be attested by two witnesses. Sec. 14. No lease of any houses or lands, for life, or any term of years, exceeding one year, shall be accounted good and eflfectual in law, to hold such houses and lands against any other person or persons whatso- ever but the lessor or lessors, and their heirs, unless such lease shall be in writing, subscribed by the lessor, attested by two subscribing wit- nesses, acknowledged before some authority empowered to take the acknowledgment of deeds of land, and recorded at length in the records m the town where such estate lies. Title 19. Sections l, 2. Sec. 1. No suit in law or equity shall be brought or maintained upon any contract or agreement, whereby to charge any executor or adminis- trator, 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 pharge any person upon any agreement made upon consideration of raar- ria/pb; or upon any contract for the sale of lands, tenements, or heredita- ments, 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 contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be made in writ- ing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized. Sec. 2. No contract for the sale of any goods, wares, or merchandise, for the price of thirty-five 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 iu earnest to bind the bargain, or in APPENDIX. 509 part payment, or unless some note or memorandum, in writing, of the said bargain, shall be made and signed by the parties to be charged by such contract, or by tlieir agents, thereUnto lawfully authorized. DELAWARE. Revised Code, 1852. Chapter 68. Sections 5, 6, 7. Sec. 5. All promises and assumptions, whereby any person shall un- dertake to answer or pay for the default, debt, or miscarriage of another, any sum under five dollars, being proved by the oath or af- firmation of the persons to whom such promise and assumption shall be made, ai'e good and available in law to charge the party making such promise or assumption. Sec. 6. No action shall be brought, whereby to charge any executor or administrator, upon auy special promise to answer damages out of his own estate, or whereby to charge any defendant, 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 dollars, unless such promise and assumption 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. * Sbc. 7. No action shall be brought whereby 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, 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 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. Section 3. Sec. 3. No demise, except it be by deed, shall be effectual for a longer term than one year. 43* 510 APPENDIX. FLORIDA. Thompson's Digest, 1847. Second Division. Tit. 1. Cap. 1. Sections 1, 2, 3. 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 mes- suages, lands, tenements, or hereditainents, 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, transfer- ring, or releasing such estate, interest, or term of years, or by his, her, or their agent thereunto lawfully authorized, unless by last will and testa- ment, 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 hereditaments, shall be assigned or sur- rendered, 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 operation of law. ;_ Sec. 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 : Provi- ded, always, that where any conveyance 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 trans- ferred or extinguished by the act or operation of law, then, and in every such ca^e, 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, any thing herein contained to the contrary thereof in any wise notwithstanding. Sec. 3. All grants, conveyances, or assignments of trust or confidence of, or in, any 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 thereunto lawfully authorized, or by last will and testament duly made and executed, or else the same shall be void and of none effect. APPENDIX. 511 Skconj Division. Tit. 4. Cap. 8. Sections 1, 2. Sec. 1. No action shall be brought whereby to charge any executor 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 any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or of any uncertain interest in, or concerning them, or for any lease thereof for a longer term than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement or promise 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 by some other person by him thereunto lawfully authorized. Sec. 2. 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 payment, 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. In this State all the sections of the English Statute considered in this work are in force. See the various titles ; also T. R. Cobb's New Dig. Appendix IH. ILLINOIS. Revised Statutes, 1845. Chapter 44. Sections 1, 4. Sec. 1. 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 promise to answer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made upon consid- eration of marriage, or upon any contract for the sale of lapds, tene- ments, or hereditaments, or any interest in or concerning tiiem, for a 512 APPENDTX. longer term th'an one year ; or upon any agreement that is not to be per- formed within the space of one year from the making thereof^ unless the promise or agreement upoii 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 thereunto by him lawfully authorized. . Sec. 4. 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 trusts or trusts created by construction, implication, or operation of law, need not be in writing, and the same may be proved by parol. INDIANA. Rbvibed Stattttes, 1852. Chapter 42. Sections 1, 2, 3, 4, 5, 6, 7. Sec. 1. No action shall be brought in any of the following cases : — First. To charge an executor or administrator upon any special prom- ise, to answer damages out of his own estate ; or Second. To charge any person upon any special promise, to answer for the debt, default, or miscarriage of another; or Third. To clirarge 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 agreement that is not to be performed within one year from the making thereof; unless the promise, contract, or agree- ment, 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 by some person thereunto by him lawfully authorized ; ex- cepting, however, leases not exceeding the term of three years. Sec. 2. The consideration of any such promise, contract or agree- ment, need not be set forth in such writing, but may be proved. Sec. 3. Every conveyance 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. 4. Nothing contained in any law of this State shall be construed to prevent any trust from arising or being extinguished by implication of law. Sec. 5. Nothing contained in any statute of this State shall be con- APPENDIX. 518 strued to abridge the powers of courts to compel the specific performance of agreements in cases of part performance of such agreements. Sec. 6. No action shall be maintained, to charge any person by reason of any representation made concerning the character, conduct, 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 %thorized. Sec. 7. 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. IOWA. Code, 1851. Sections 1205, 2409, 2410, 2411, 2412. ' • Sec. 1205. Declarations or creations of trusts or powers in relation to real estate must be executed in the same manner as deeds of con- veyance, but this provision does not apply to trusts resulting from opera- tion or construction of law. Sec. 2409. Except when otherwise specially provided, no evidence of any 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. 2410. Such contracts embrace : — First. 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 ; Second. Those made in consideration of marriage, but not including promises to marry ; Third. 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 ; Fourth. Those for the creation or transfer of any interest in lands ex- cept leases for a term not exceeding one year ; Fifth. Those that are not to be performed within one year from the making thereof. Sec. 2411. The provision of the first subdivision of the preceding section does not apply when the article of personal property sold is not at the time of the contract owned by the vendor and ready for delivery. 514 APPENDIX. but labor, skilf, or money are necessarily 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 law heretofore in force w(flld have taken a case out of the Statute of Frauds. • Sec. 2412. 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 en- forced or damages to be recovered for the breach thereof against some person other than him who made it. KENTUCKY. Revised Statutes, 1852. Chapter 24. Section 3. Sec. 3. 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 ; and no gift of a slave shall be valid uhless by deed or will, or unless actual possession shall have come to and remained with the donee, or some per- son claiming under him. Chapter 22. Sections 1, 2. ■ Sec. 1. No action shall be brought to charge any person, First. For a representation or assurance concerning the character, con- duct, credit, ability, trade, 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 infancy, or a ratification of a contract or promise made during infancy ; nor Thirdly. Upon a promise as personal representative to answer any debt or damage 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 a longer term than one year ; nor APPENDIX. 515 Seventhly. Upon any agreement which is "not to be performed within one year from the making thereof; unless the promise, contract, agree- ment, representation, assurance, or ratification, or some memorandum or note thereof, be in writing, and signed at the close thereof by the party to be charged therewith, or by his authorized agent. But the considera- tion need not be expressed in the writing ; it may be proved when necessary, or disproved by parol or other evidence. Sec. 2. A seal or scroll shall in no case be necessary to give effect to a deed or other writing, but a signature without seal shall have the same eflScacy for every purpose, as if a seal were affixed thereto ; and all writings so executed shall stand upon the same footing with sealed writ- ings, having the same force and effect, and upon which the same actions may be founded. But this section shall not apply to an assignment by indorsement on a bond, note, or bill. • MAINE. Revised Statutes, 1840. Chapter 91. Sections 30, 31. Sec. 30. No estate or interest in lands, unless created by some writing, and signed by the grantor or his attorney, shall have any greater force or effect, than an estate or lease at will ; and no estate or interest in lands shall be granted, assigned or surrendered, unless by some writ- ing signed as aforesaid, or by operation of law. , Sec. 31. All trusts concerning lands, excepting those which arise or result by implication of law, must be created and manifested by some writing, signed by the party creating and declaring it, or by his attorney. Chapter 136. Sections 1, 2, 3, 4. Sec. 1. No action shall be brought and maintained in any of the fol- lowing cases : — First. To charge an executor or administrator, upon any special promise to answer damages out of his own estate. Secondly. To charge any person, upon any special promise, to an- swer for the debt, default, or misdoings of another. Thirdly. To charge any person, upon an agreement made in con- sideration of marriage. Fourthly. Upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them. 516 APPENDIX. Fifthly. Upon any agreement 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 memorandum, or note thereof, shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto lawfully authorized. Sec. 2. The consideration of any 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. Sec. 3. No action shall be brought and maintained, to charge any person upon, or by reason of, any representation or assurance, made concerning the character, conduct, credit, ability, trade, or dealings of any other person, unless such representation or assurance shall be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. Sec. 4. No contract for the sale of any goods, wares, or merchan- dise, for the price of thirty dollars or more, shall be allowed to be good, unless the purchaser 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 some note or memorandum, in writing, of the said bargain 'be made and signed by the party to be charged by such con- tract, or by his agent, thereunto by him lawfully authorized. MARYLAND. In this State all the sections of the English statute considered in this work are in force. See the various titles; also, Kilty's Report of Eng- lish Statutes, p. 242. MASSACHUSETTS. Revised Statutes, 1836. Chapter 59. Sections 29, 30. Seg. 29. All estates or interests in lands, created or conveyed with- out any instrument in writing, signed by the grantor or by his attorney, shall have the force and effect of estates at will only ; and no estate or interest in lands shall be assigned, granted, or surrendered, unless by a writing signed as aforesaid, or by the operation of law. APPENDIX. 517 Sec. 30. 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 attorney. Chapter 74. Sections 1, 2, 3, 4. Sec. 1. No action shall be brought in any of the following cases, that is to say : First. To charge an executor or administrator, upon any special promise to answer damages out of his own estate ; or Secondly. To charge any person, upon any special promise, to an- swer for the debt, default, or misdoings of another ; or Thirdly. To charge any person, upon an agreement made upon con- sideration of marriage; or Fourthly, Upon any contract for the sale of lands, tenements, or here- ditaments, or of any interest in or concerning them ; or Fifthly. Upon any agreement 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 memorandum or note thereof, shall be in writing, and signed^ by the party to, be charged therewith, or by some person thereunto by him lawfully authorized. Sec. 2. The consideration of any 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. Sec. 3. No action shall be brought to charge any person, upon or by reason of any representation or assurance, made concerning the charac- ter, conduct, credit, ability, trade, or dealings 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. 4. No contract for the sale of any goods, wares or merchan- dise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser shall accept and receive part of the goods so sold, or shall 1 In Rerised Statutes, chapter 2, section 6, clause 19, it is provided that, in the construction of all statutes, " the words ' written ' and ' in writing' may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters ; provided, however, that in all cases, where the written signature of any person is required by law, it shall always be the proper handwriting of such, person, or, in case he is unable to write, his proper mark. 44 518 APPENDIX. - 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. MICHIGAN. Revised Statutes, 1846. Title 19. Chapter 80. Sections 6, 7, 8, 9, lo! 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 concerning lands, or in any manner relating thereto, shall hereafter be created, granted, as- signed, surrendered, or declared, unless by act or operation of law, or by a deed or"conveyance in writing, subscribed by the party creating, grant- ing, 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 lawfully authorized by writing. Sec. 9. The consideration of any contract or agreement, required 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. 10. 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" of such agree- ments. Title 19. Chapter 81. Sections 2, 3, 4, 5, 6. Sec. 2. In the following cases specified in this section, every agree- ment, contract, and promise shall be void, unless such . agreement, con- tract, or promise, or some note or memorandum thereof be in writing, APPENDIX. 519 and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say : 1. Every agreement that, by its terms, is not to be performed in one year from the making thereof. 2. Every special promise to answer for the deljt, default, or misdoings of anotlier person. 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. 4. Every special promise made by an executor or administrator, to answer damages out of his own estate. Sec. 3. No contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars or more, shall be valid, unless the pur- chaser shall accept and receive part of the goods sold, or shall give some- thing 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. 4. Whenever any goods shall be sold at auction, and the auc- tioneer 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 memorandum of the contract of sale, within the meaning of the last section. Sec. 5. No action shall be brought to charge any person, upon or by reason of any favourable representation or assurance, made concerning the character, conduct, credit, ability, trade, or dealings 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 promise, 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. MISSISSIPPI. Hutchinson's Codb. Chapter 47. Art. 1. Section 1. Sec. 1. No action shall be broqght whereby to charge any executor or administrator, upon any special promise, to answer any debt or damage, out of his own estate ; or whereby to charge the defendant upon any special 520 APPENDIX. 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 for the sale of lands, tenements, and he- reditaments, or the making any lease thereof for a longer term than one year, or upon any agreement that is not to he 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 there- with, or some other person by him or her thereunto lawfully authorized. MISSOURI. Eevised Statutes, 1845. Chaptek 68. Sections 1, 2, 3, 4, 5, 6, 7. Sec. 1. All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any messuages, lands, tene- ments, 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 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 force. Sec. 2. No leases, estates, interests, either of freehold or of terms of years, 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 writing, or by operation of Jaw. Sec. 3. 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, or shall be, by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning the same, or by his or her last will in writing, or else they shall be void. Sec. 4. Where any conveyance shall be made of any lands, tenements, or hereditaments, by which a ttust 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. 5. No action shall be brought to charge any executor or adminis- trator upon any special promise to answer for any debt or damages out APPENDIX. 521 of his own estate, or to charge any 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 mar- riage, or upon any contract for the sale of lands, tenements, or heredita- ments, or any interest in, or concerning them, or any lease thereof for a longer time than one year, or upon any agreement that is not to be per- formed within one year 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 charged there- with, or some other person by him thereto lawfully authorized. Sec. 6. No contract for the sale of goods, wares, and merchandise, for the price of thirty dollars, 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 pay- ment, or unless some note or memorandum in writing be made,'and signed by the parties to be charged with such contract, or their agents lawfully authorized. . Sec. 7. 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 any other person, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. NEW HAMPSHIRE. Revised Statutes, 1842. Chapter 130. Sections 12, 13. Sec. 12. Every estate or interest in lands, created or conveyed with- out an instrument in writing sigaed.by the grantor or his attorney, shall be deemed an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered except by writing signed as afore- said, or by operation of law. Sec. 13i No trust concerning lands, except such as may arise or result by implication of law, shall be created or declared, unless by an instru- ment signed by the party creating the same, or by his attorney. Chapter 180. Sections 7, 8, 9. Sec. 7. No action shall be maintained upon any contract for the sale of lands, unless the agreement upon which such action shall be brought, 44. 522 APPENDIX. or some memorandum thereof, is in writing and signed by the parties to be charged therewith, or by some other person thereunto lawfully authorized by writing. Sec. 8. No action shall be brought in the following cases : First. To charge any executor or administrator upon any special promise to answer damages out of his own estate ; Second. To charge any person upon any special promise to answer for the debt, default, or miscarriage of another person ; Third. To charge any person upon an agreement made upon consid- eration of marriage ; Fourth. To charge any person upon any agreement 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 by the party to be charged therewith, or by some petf-son thereunto by him lawfully authorized. Sbc. 9. No action shall be brought upon any contract for the sal? of any goods, wares or merchandise for th^ price of thirty-three dollars or upwards, and no such contract shall be valid unless the buyer shall accept part of the property 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 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. NEW JERSEY. Revised Statutes, 1847. Title 17. Chapter 1. Sections 9, 10; part op 11, 12, 13, 14, 15. Sec. 9. All leases, estates, interests of freehold or terms of years, or any uncertain interests of, in, to, or out of any messuages, lands, tene- ments or hereditaments, made or created, or hereafter to be made or created, by livery and §eiain 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 any other or greater force or effect, any consideration for making 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, whereupon the rent reserved to the landlord, during such term, shall APPENDIX. 52S amount to two third parts, at the least, of the full improved value of the thing demised. Sec. 10. No leases, estates or interests, or term or terms of year or years, 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 his, her, or their agent or agents, thereunto lawfully authorized by writing, or by act and operation of law. Sec. 11. 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 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 ; Sec. 12. Provided always, that where any conveyance hath been, or shall be made of any lands, tenements or hereditaments, by which a trust or confidence shall or may arise or result by construction or impU- cation of law, or .be transferred or extinguished by act or operation of law, then and in every such case, such trust and confidence shall be of the like force and effect as the same would have been if this act had not been made. Sec. 13. 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 his or her last will in writing, or else shall likewise be utterly void and of no^ffect. Sec. 14. No action shall be brought, whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or whereby to charge the defendant, upon any special prom- ise, to answer for the debt, default or miscarriages 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 hereditar ments, 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 or her lawfully authorized. Sec. 15. No contract for the sale of any goods, wares or merchandise, for the price of thirty dollars 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 payment, or that some note or memorandum in writing of the said 524f APPENDIX. bargain be made and signed by the parties, to be charged by such con- tract, or their agents thereunto lawfully authorized. NEW YORK. Eevisbd Statutes, 1830. Part II. Chapter 8. Title 1. Sections 6, 7, 8, 9, 10. 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 concerning lands, or in any manner relating thereto, shall hereafter be 'created, granted, as- signed, surrendered or declared, unless by act or operation 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. 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 ; nor to prevent, after a fine shall have been levied, the execution of a deed or other instrument, in writing, declaring the uses of such fine. 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, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. Sec. 9. Every instrument required to be subscribed by any party, under the last preceding section, may be subscribed l^y the agent of such party ^awfully authorized. Sec. 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. Sections 2, 3, 4. Sec. 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 year from the making thereof; APPENDIX. 525 2. Every special promise to answer for the debt, default, or miscarriage of another person ; 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. Sec. 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 writing, 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. Sec. 4. Whenever goods shall be sold at public auction,, and the auc- tioneer shall, at the time of sale, enter in a sale-book, a memorandum specifying the nature and price of the property sold, the terras 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. NORTH CAROLINA. Revised Statutes. Vol. I. Chapter 50. Sections 8, 10. Sec. 8. All contra^ to sell or copvey any lands, tenements, or here- ditaments, or any interest in or concerning them, or any slave or slaves, shall be void and of no effect, unless such contract, or some memorandum or note thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person, by him thereto lawfully authorized, except nevertheless contracts for leases not exceeding in duration the term of three years. Sec. 10. No action shall be brought, whereby to charge any executor or administrator, upon a special promise, to answer damages out of his own estate, or to charge the defendant upon any special promise to answer the debt, default or miscarriage of another person, unless the 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 some other person thereunto by him lawfully authorized. 526 APPENDIX. OHIO. Revised Statutes. Swan's Ed. 1854. Chapter 49. Sections 4, 5. Sec. 4. No leases, estates or interests, either of freehold or terms for years, or any uncertain interest of, in, or out of lands, tenements or here- ditaments, 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 grant- ing the same, or their agents tliereunto lawfully authorized, by writing, or by act and operation of law. Sec. 5. 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 executor or administrator upon any special promise, to answer damages out of his own estate ; cr to charge any person upon any agreement made in 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, thereunto by him or her lawfully authorized. Note. — By an act which took effect October 1, 1795, (Chase, 190,) the common law of England, all statutes and acl||of parliament made in aid of the common law, prior to the fourth year of the reign of King James I., and which were of a general nature, not local to that kingdom, were declared to be the rule of decision, and considered as of full force until repealed, &c., or disapproved of by Congress. See Chase, 218, 238, 293, 484, 512. A like statutfe was passed February 14, 1805, and which took effect June 1, 1805, (Chase, 512,) and was repealed January 2, 1806, (Chasie, 528.) See Lindsley v. Coates, 1 Hammond, 115. PENNSYLVANIA. Dunlop's Laws. Cap. 59. An '^ Act for the Prevention of Frauds and Perjuries." Sec. 1. All leases, estates, interests of freehold, or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements APPENDIX. 5S7 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 ha,ve 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, or any former law or usage to the contrary, notwithstanding ; except, nevertheless, all leases not . exceeding the term of three years froni the making thereof. And, moreover, that 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 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 lawfully authorized by writing, or by act and operation of law. RHODE ISLAND. Revised Statutes, 1844. Sec. 1. Of " An Act to prevent Frauds and Perjuries." No action shall be brought whereby to charge any executor or administrator upon his special promise to answer any debt or damage out of his own estate, or whereby to charge the defendant upon his 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 for the sale of lands, tenements or hereditaments, or the mating of any lease thereof for a longer time 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 notg or memorandum thereof shall be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized. (Page 222 of Rev. Stat.) Sections 1, 2, Of an " Act regulating Conveyances of Real Estate." Sec. 1. No estate of inheritance or freehold, or for a term exceeding 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 acknowledged before a senator, judge, justice of the peace, notary pubHc or town clerk, by the party or parties who shall have sealed or delivered it, and recorded or lodged to be re- corded in the office of " town clerk of the town where the said lands or tenements do lie. S2S APPENDIX. Sec. 2. 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 always, that the same between the parties and their heirs shall be valid and binding. (Page 257 of Kev. Stat.) SOUTH CAROLINA. In this State all the sections of the English Statute considered in this work are in force. See the various titles ; also Brevard's Dig. Vol. I. Tit. 84. TENNESSEE. Scott's Ed. of Laws, Vol. L Chapter 25. Section 1. No action shall be brought whereby to charge any executor or admin- istrator upon any 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 contract for the sale of lands, tenements or heredi- taments, 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 thereunto lawfully authorized. TEXAS. Act of January 18, 1840. Sec. 1. No action shall be brought whereby to charge any executor or administrator, upon any special promise to answer any debt or damage out of his own estate, or whereby to charge the defendant, upon any APPENDIX, 5S9 special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made in considera- tion of marriage, or upon any contract for the sale of lands, slaves, tene- ments, or hereditaments, or the making of 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 memoran- dum thereof shall be in writing, and signed by the party to be charged therewith, or some person by him thereunto lawfully authorized. VERMONT. Revised Statutes, 1839. ' Title 14. Chapter 60. Sections 21, 22, 23, 24. Sec. 21. All estates or interests in lands, created or conveyed without any instrument in writing, signed by the grantor or his attorney, shall have the force and effect of estates at will only ; and no estate or interest in lands shall be assigned, granted, or surrendered, unless by a writing signed as aforesaid, or by the operation of law. Sec. 22. No trust concerning lands, except such as may arise or result by implication of law, shall be created or declared, unless by an instru- ment in writing, signed by the party creating or declaring the same, or by his attorney. Sec. 23. The assignment of any lease of lands, if the lease is for a longer term than one year, shall be by 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. Sec. 24. No deed or other conveyance of any lands, or of any estate or interest therein, made by virtue of a power of attorney, shall be of any effect, or admissible in evidence, unless such power of attorney shall have been signed, sealed, and acknowledged and recorded in the office where such deed shall have been recorded. Title 15. Chapter 61. Sections 1, 2, 3. Sec. 1. No action, in law or equity, shall be brought in any of the following cases, that is to say : First. To charge an executor or administrator, upon any special promise to answer damages, out of his own estate ; or 45 530 APPENDIX. Second. To charge any person, upon any special promise to answer for the debt, default, or misdoings of another ; or Third. To charge any person, upon any agreement made upon con- sideration of marriage ; or Fourth. Upon any contract for the sale of lands, tenements, or heredit- aments, or of any interest in or concerning them ; or Fifth. Upon any agreement, 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 memorandum or note thereof, shall be in writ- ing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized ; and if the contract or agreement relate to the sale of real estate, or any interest therein, such authority shall be conferred by writing. Sec. 2. No contract for the sale of any goods, wares, or merchandise, for the price of forty dollars, or more, shall be good or valid, unless the purchaser shall accept and receive 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 there- unto by him lawfully authorized. Sec. 3. 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 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. VIRGINIA. Code, (by Patton and Robinsos,) 1849. Chaptek 143. Sections 1, 2. Sec. 1. No action shall be brought in any of the following cases : — First. To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or deal- ings 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 ratification after full age of a promise or simple contract made during infancy ; or, APPENDIX. 581 Thirdly. To charge a personal representative upon a promise to answer any debt or damages out of his own estate; of, 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 marriage ; or, Sixthly. Upon any contract for the sale of real estate, or" the lease thereof for more than a year ; or, Seventhly. Upon any agreement that is not to be performed within a year; 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 thereby, or his agent. But the con- sideration need not be set forth or expressed in the writing ; it may be proved (where a consideration is necessary) by other evidence. Sec. 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. WISCONSIN. Revised Statutes, 1849. Title 20. Chapter 75. Sections 6, 7, 8, 9, 10. 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 concerning lands, or in any manner relating thereto, shall hereafter be created, granted, . as- signed, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, grant- ing, 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 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, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. • • Sec. 9. Every instrument required to be subscribed by any party, under the last preceding section, may be subscribed by the agent of such party, lawfully authorized. 582 APPENDIX. Sec. 10. Nothing in this chapter contained shall be construed to abridge the powers of courts of equity, to compel the specific perform- ance of agreements in cases of part performance of such agreements. Title 20. Chapter 76. Sections 2, 3, 4, 8. Sec. 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 charged there- with : 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 mis- carriage of another person. Third. Every agreement, promise, or undertaking, made upon consid- eration of marriage, except mutual promises to marry. Sec. 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. 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 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 pur- chase moneyi Sec. 4. 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 memorandum shall be deemed a note of the contract of sale within the meaning of the last section. Sec. 8. Every inftrument required by any of the provisions of this title to be subscribed by any party, may be subscribed by the lawful agent of such party. INDEX. [References are to the Sections. A. ACCEPTANCE, of bill of exchange, verbal, 172, 174. See Guaranties. ACCEPTANCE AND RECEIPT, of goods, etc., bargained for, 315-340. See Goods, etc., Sales of. ACCOUNT STATED, a good memorandum of agreement, 347. ACT OF LAW, estates by, 77. See Surrenders. ADMINISTRATORS. See Executors. ■ ADMISSION, of verbal contract in defendant's answer, ground for enforcing it, 489-502. must be of the agreement charged, 501, 502. of mistake, qu., if ground for enforcing on bill to reform and enforce, 500. AGENCY, cases of guaranty confounded with, 206-209, 211. See Guaranties. AGENT, in cases of conveyances, 10-17. who may be, 14. how appointed, 10-16. 45* 534) iNDtx. AGENT — continued. in cases of contracts, 364, 367-370 a. whomay be,*367-369.. ' • how appointed, 370-370 a. signature by, 364. AGREEMENT,., force of the word, 387. ALTERATION, of memorandum after signature, '361. of written agreement by subsequent parol stipulation, 409 6-428. See Parol Evidence, Cancellation, etc. ALTERNATIVE. See Contracts. ANSWER IN CHANCERY, of trustee, sufficient declaration of trust, 100-103. See Pleading. ASSIGNMENT OF DOWER. See Act of Law. ASSIGNMENTS, verbal, of leases within the statute, necessarily invahd, 41. See Act of Law, Surrenders, Mortgages. ATTORNEY, ' oral guaranty of client's debt by, enforced, 138. AUCTION SALES, of land, covered by the statute, 264. of goods, etc. covered by the statute, 293. AUCTIONEER, his entry a good memorandum, 347. as agent for signing memorandum, 369. his clerk, 369. B. BAIL, verbal promise to beeome, for third person, 176. BARGAIN, force of the word, 389. BILL OF PARCELS, a sufficient memorandum of agreement, 347. BLANK, signature in, 360. BOND, verbal promise to give bail, for third person, 176. BOUNDARIES, verbal settlement of disputed, 75, 269. INDEX. 535 BROKER, his entry, a sufficient memorandum, 347. bouglit and sold notes, 347. as agent for signing the memorandum, 369. his clerk, 369. C. CANCELLATION, Etc., of title deeds, does not devest corporeal estate, 59. secus with incorporeal estate, 59. unrecorded, effect of, 60, 61. not necessary to validity of surrender, 43. See Surrenders. CARRIER, acceptance and receipt of goods by, 327. CHEATS, mere, not within the statute, 184. See Guaranties. CLERKS, of auctioneers or brokers, as agents for signing the memorandum, 369. COMMISSION MERCHANT, as agent for signing the memorandum, 369. CONFLICT OF LAWS, 136. CONSIDERATION, of contract executed on one side, recoverable, 117, 124-127. See Contracts. in cases of guaranty. See Guaranties. statement of, in memorandum of agreement, 387-408. See Memorandum. in declaration of trust, 12. in case of marriage settlements, 216. See Marriage, Agreements in consideration of. CONTRACTS, verbal, how far valid, statute does not make them illegal, but simply prescribes rule of evidence, 115. admissible in defence in equity, 129, 130. not so at law, 122, 122 a, 126, 131-134, 435. not available in any form of action as contracts, 131-134. may be used in justification as licenses, 133. valid as to third parties, 135. perjury by falsely swearing to them, 135. conflict of laws, 136. 586 INDEX. COl!iTB,ACTS— continued. Statute of Limitations, 137. enforced against attorneys by summary jurisdiction of courts, 138. after execution on both sides, 116. after execution on one side, 117-130. consideration may be recovered, 117. money paid may be recovered back, 118. value of services rendered may be recovered, 118. value of improvements put on land may be recovered, 119-120. possession of land must first be surrendered, 121. party in fault cannot recover, 122, 123. recovery must be on the implied promise, 124. special promise admissible in evidence for some purposes, 124-127 in part within the statute, no recovery on the valid part if inseparable from the other, 140-144. unless the invalid part has been executed, 150. nor, though the stipulations are separable, if the action be upon the whole contract, 145-152. in the alternative, one branch being within the statute and the other not, 152. See Marriage, Agreements in consideration of. Guaranties. Year, Agreements not to he performed in a. Land, Contracts for. Goods, etc., Sales of. Memorandum. Equity. Part Perform- ance. Fraud. Admission. CONVEYANCES. See Boundaries. Cancellation, etc. Dower. Ex- changes. Judicial Sales. Mortgages. Partitions. CREDIT, of a third party, representations in regard to, 181-185. to whom given, cases of guaranty, 197-200. to be given, gu., if it must appear in memorandum of sale, 382, 383. CROPS, Etc., contract for, 235-257. See Land, Contracts for. D. DAMAGES, measure of, in action on implied promise to pay for land, etc., 125. agreements to release, in case of land taken, 270. See Contracts. INDEX. 587 DATE, of bargain for goods, 339. DEBT, of another, within the statute, definition of, 155. See Guaranties, DECLAEATION OF TRUST. See Trust. DEED, whether lease for years must be by, 6, 7. conveyance of freehold must be by, 6. not necessary for assigning, granting, or surrendering existing terms, 8. effect of cancelling, altering, or redelivering, 59-61. mortgage in equity from deposit of, 62-64. where required at common law, required still, 42. See Seal. DEFAULT, of another, within the statute, definition of, 155, 195. See Guaranties. DEFENCE, upon a verbal contract within the statute, not allowed at law, 1 22, 122 a, 126, 131-134, 435. allowed in equity, 129, 130. See Contracts. DELIVERY. See Acceptance and Receipt. DEPOSITION, of trustee, good declaration of trust, 100. DISCHARGE, from oral contract, not good consideration, 134. oral, of written contract, 429-436. See Parol Mvidenee. of mortgage, 267. DISCOVERY, whether statute may be pleaded in bar of, 520-534. DOWER, assignment of. (See Act of Law.) contract to release, etc., requires writing, 230. E. EARNEST, 341-343. See Goods, etc., Sales of. EASEMENT, contract for, requires writing, 232. ENTIRE CONTRACT. See Contracts. 588 INDEX. EQUITABLE ESTATES, contract for, must be in writing, 226, 229. EQUITY, See Admission. Contracts. Fraud. Part Performance. Pleading. EQUITY OF REDEMPTION, agreement to extend time of, 267. contract for, must be in writing, 226-229. EXCHANGES, verbal, of land, 76. See Part Performance. EXECUTED CONTRACTS, binding upon the parties, 116. executed on one side, 117-130. See Contracts. EXECUTORS, special promises by, to answer damages out of their own estate, 153, 186. statute applies to executors' promises made at any time after tes- tator's death, 153. to administrators' only after their appointment, 153. not to submission to arbitration of claim against estate, 180. promise good without writing, if estate-aischarged, 193, n. See Guaranties. F. FACTOR, guaranty of, not within the statute, 201, n., 213. See Guaranties. FIXTURES, contract for, does not require writing, 234, 236. FRAUD, court of equity will relieve against, notwithstanding the statute, 437, 438. such fraud must be more than mere breach of contract, 439, 440. verbal promise to make defeasance, on faith of which absolute con- veyance pi'ocured, enforced, 441. so with promise to convey to others, on faith of which absolute devise made, 442. mere promise to observe agreement if not put in writing, not en- forced, 442. cases of fraud, when contract enforced, 443-445. INDEX. 539 FRAUD — continued. not enough that bill alleges that it was part of the agreement that it should be put in writing, 446. See Part Performance. trusts resulting from, 94-96. FREEHOLD ESTATES. See Deed. FRUCTUS INDUSTRIALES, contract for, 235-257. See Land, Contracts for. G. GIFT, of mortgage, not good by parol, 66. GOODS, Etc., SALES OF, nature of the transaction within the statute, 293, 294. ' no exception as to parties, 293. auction sales, 293. sheriffs, 293. order for goods, 293. stipulation for return of article, 293. mortgage, 294. • contract to procure and deliver goods, 310. subject-matter, 296-309. stock or shares, 296, 297. promissory notes, 297. patent rights, 297. as to the condition of the goods, etc., 300-308 a. immaterial that they are not fit for immediate delivery, 300-303. distinction between goods on hand, and to be made to order, 304-306. immaterial that goods, etc., are not manufactured, if con- tract is essentially one of sale, 307, 308. goods suited to particular market or use, 308. Lord Tenterden's Act, 309. price, 311-314. defendant must prove price to exceed statutory sum, 311. charge for delivery, if not special, included, 311. when uncertain at time of bargain mad^ 311, 312. when none stipulated, 311, 312. when each item of lot is less than statutory sum, 314. acceptance and receipt, 315-340. 540 INDEX. GODDS, Etc. — continued. distinction between delivery and acceptance, 316. none till after delivery, 317. none while seller's lien remains, 317, 322, 323; 336. none while buyer's right to return for deficiency in quantity or quality remains, 327-333. may be, though seller's right to stop in transitu remain, 332. of ponderous or inaccessible articles, 318, 319. language of parties admissible as of the res ffestm to explain acceptance, 320.' what evidence of, is sufficient to go to the jury, 321. must be with that intent, 326. need not itself indicate the terms of the contract, 326 a. must be as owner, 321. buyer's dealing with goods as his own, 322, 328. seller's measuring out and setting apart with buyer's consent, 324, 325. distinction between acceptance to bind the bargain, and aceept- ance of the goods as satisfactory, 328, 330, 331. may be by the buyer's agent, 327. agent cannot be the seller, 327. by a carrier, 327. • must be of part of the goods sold, 334. acceptance of sample, 334. acceptance of one of a lot of articles, 335, 336. time of acceptance, 337-340. may be subsequent to the making of bargain, 337. not after action brought, 338. when once made, irrevocable, 339. what is the date of bargain, 339. earnest and part payment, 341-343. effect of, same as at common law, 344. must be something of value, 344. must be actually paid, 344. what amounts to part payment, 342, 342 a. time of, 343. GRASS, Etc., contract for, 235-257. . See Zand, Contracts for. GUARANTIES, executors' and administrators' promises, 153. what are " debts, defaults or miscarriages," 155-162. INDEX. 541 GUARANTIE ^—continued. torts of third party included, 155, third party's liabiUty must be clear, ascertained, and enforce- able, 156, 157. if liability contingent, statute does not apply, 196. implied liabilities included, 158-161. need not be already incurred, 162. special promise of the guarantor, 163-191. means express promise, 163. ■where there is a preexisting obligation to pay, statute does not apply, 164 nor where promise is indirectly to pay his own debt, 1 65- 172. guaranty of note on passing it, 165. promise to pay third party amount due him from promisor's creditor, 166-172. verbal acceptance of bill of exchange, having funds, 172. promise to indorse third party's note, etc. 174, 183. to accept his draft for accommodation, 174. to furnish him funds to pay, 175. to execute bail bond for him, 176. to give opportunity of attaching his property, 177. by receipter of attached property, to return it on demand, 177. to procure guaranty to be signed, 177. to sell goods to be applied in payment, 178. to pay third person's debt, if found to be due, 178. to pay part of debt, in satisfaction of the whole, 179. to indemnify against third person's neglect of duty, 158- 161. promisor's debiting himself with amount owing by another, 178. promise on new and distinct consideration, 168, 172, 200-213. trilateral liabilityj 175. promise must be to pay out of guarantor's own estate, 186-187. if to apply debtor's own funds, good without writing, 187. or if promisor holds funds to be so applied, 187. though coupled with guaranty that they shall suffice, 187. promise to the debtor, good without writing, 188. must be on sufficient consideration, 189-191. what consideration is sufficient, 189. forbearance by creditor, 190. 46 S4f2 INDEX. GUARANTIES— continued. same consideration, supporting both original promise and guaranty, 191. representations as to credit or solvency of third person, 181-185. Lord Tenterden's Act, 181. as to resideifce, character, family connections, etc., 184. coupled with guaranty of debt, 185. mere cheats, 184. the special promise and principal liability must concur, 193-199. if original debt extinguished statute does not apply, 193. but it may apply, though not extinguished, 194 and note. See infra. if extinguished pending guaranty, guaranty is discharged, 196. third party becoming liable by happening of contingency in the interim, statute does not take effect, 155, 196. if any credit given to original debtor, statute applies, 197. not if both credited jointly, 197. how to determine to whom credit given, 198-200. the special promise must be collateral to the principal liability, 200- 213. promise in consideration of sui-render of lien or security, 201. such lien must enure to the promisor, 203-205. promise in consideration of releasing goods as a fund for pay- ment, 206-209, 211. purchase of debt, 210. • guaranty of factor del credere, 201, n., 213. statute embraces only what is essentially and distinctively , a guaranty, 212. IMPLIED OBLIGATION, of third party, promise to answer for, 158-161. See Guaranties. IMPLIED PROMISE, not within the statute, 124-163. See Guaranties. action upon, in case of land conveyed, 124. IMPROVEMENTS, on land orally purchased, compensation for, 119, 120i as ground for specific performance, 487-492. See Part Performance, qu., if contract for, requires writing, 233. INDEX. 543 INCORPOREAL ESTATES, conveyance of, not affected by statute, 2. trust in, requires written proof, 5. contracts for, require memorandum, 5, 230. INDEMNITY, PROMISE OF. See Implied Obligation. INDORSE, verbal promise to, for another, 174, 183.^ See Guaranties. INTEREST, • to be paid, need not appear in the memorandum, 382. JUDICIAL SALES, of land, 78, 264, 265. " L. LAND, CONTRACTS FOR, provision in regard to, how far supplied by the sections concerning conveyances, 226. 1. Subject-matter, what is an interest in land, 228-262. same as in cases of conveyances and trusts, 228. " uncertain interest," 228. equitable estates, 229. interest in contract for land, 229. equity of redemption, 229. dower, 230. incorporeal estates, 230. short leases, 230. possession of land, 231. easements, 232. improvements on the land, gu. 233. fixtures not included, 234, 236. trees, crops, grass, fruit, etc. 235, 257. mere chattels when severed from the land, 236. title to them wiile growing cannot be orally proved, 237. but they may be orally contracted for as chattels in pros- pect of severance, 237, 255. examination of the cases, 238-244. . immaterial that purchaser has liberty to enter and gather, 245, 255. what is their state of growth, 246. 3U INDEX. LAND, CONTEACTS FO'R—eontimed. trees, crops, grass, fruit, &c. immaterial that they derive nourishment from the soil in the meantime, 247. whether sale is by the tract of land or quantity of product, 249. if benefit o^knd is part of thing purchased, statute applies, 248, 249* ^ rule that fructus industriales are not and prima vestura is within the statute, examined, 250-257. shares in incorporated companies, 258. land held by partnership treated as stock in trade, 259. even though partnership formed for express purpose of dealing in land, 260. but statute applies to agreement to form such partnership, 262. between what parties the rule holds, 261. 2 . Nature of the transaction, contract or sale, means contract /or sale, 263. contract to buy land, 263. to devise land, 263. to buy land of third party, 263. to make written contract, 266. to revive defunct written contract, 267. allowing or discharging written contract by parol, 267. to execute mortgage, 267. to execute defeasance, 267. to convert mortgage into conditional sale, 267. to foreclose mortgage, 267. to revive defunct mortgage, 267. to extend mortgage to other liabilities, 267. to extend time of redemption, 267. to release or discharge mortgage, 267. to break down adverse title, 268. to release covenant of warranty, 268. verbal guaranty of title, 268. to pay expense of searching title, 268. settling disputed boundaries, 269. restricting manner of using land, 269. releasing land damages, 270. as to payment of taxes, 269. to pay price of land previously conveyed, 270. INDEX. 54<5 LAND, CONTRACTS FOEr-confonwerf. in consideration of other land, etc. 271. auction sales, 264. sheriffs sales, 264. judicial sales, 264, 265. LEASES^ statute not confined to leases upon a rent, 18. what amounts to a lease within the statute, 20-29. license which requires a writing, 21-24, 28, 29. which does not require a writing, 26, 27. verbal, not irrevocable after execution, if it amount to a lease, 30. when enforced in equity, 31. See Part Performance. statute does not make verbal leases void, except as to duration, 38, 39. LEASES EXCEPTED BY THE SECOND SECTION, for more than statute number of years, 33-40. duration of lease estimated from date of agreement, 33. day of date included, 36. if term end within the statute period, though to commence infuturo, it is good without writing, 33. sems in New York, 34. from year to year, how far valid without writing, 35. not derivable from the second section of the statute, 38. verbal leases converted into, after entry and rent paid, 38. no action upon verbal contracts for, 37, 230. semis in New York, 37. LETTERS, suflGleient writing for lease, 350, n. for memorandum of contract, 346, 350. for declaration of trust, 98, 99, 111. LICENSE. oral contract available as, in action of trespass, 133. amounting to lease, 27-31. See Leases. LIEN, release of, as consideration of guaranty, 201-205. See Guaranties. LIMITATIONS, statute of, 137. LIVERY OF SEISIN, degeneration of ceremony previous to statute, 1. but nevertheless a legal method of conveyance, 1. 46* 54>6 INDEX. M. MABEIAGE, AGREEMENTS IN CONSIDERATION OF. statute embraces marriage settlements, 21&. not mutual promises to marry, 215. , not a promise conditional on another marriage being celebrated, 220. applies, though promisor dissatisfied with the match, if his promise not so conditional, 220. marriage, as the consideration of the promise, 216. as the acceptance of it, 216 a, 218. must have been celebrated in reliance upon it, 217. agreement must be performed in reasonable time, 221. absolute in its terms, 219. qu. if revocable before marriage, 216 a, 218. form of, 222. See Memorandum. manner of execution of, 222. See Memorandum. contents of, 222. See Memorandum. parol evidence in connection with, 222. See Parol Evidence. effect of part performance of, 222. marriage alone is not part performance, 222. . See Part Performance. post-nuptial settlement in pursuance of ante-nuptial verbal prom- ise, not good against intervening creditors, 223. good between the parties, 224. • MEMORANDUM. formal agreement not required, 345. must import a contract, 346, may be by a letter, 346, 350, receipt for purchase-money, 347. bill of parcels, 347. account stated, 347. sheriff's return, 347. auctioneer's entry, 347. broker's entry, 347. bought and sold notes, 347. material with which and on which it may be written, 348. INDEX. 547 MEMORANDUM— con«»wMerf. time when it may be written, 348 a. in cases of auctioneers or other agents, 349. need not be comprised in one paper, 350. correspondence by letter, 350. instrument signed recognizing previous one not signed, 350. connection between the several papers cannot be shown by parol, 350. certainty with which they must refer to each other, 350-353. need not have been intended as memorandum, 354. nor addressed to the promisee, 354. signature is indispensable though instrument all written in party's own hand, 355, by mark sufficient, 355 h. may be printed or sjamped, 356. place of signature immaterial, 357. must be so inserted as to authenticate the instrument, 357, 358. must be intended as final signature, 357. as witness, 359. in blank, 360. may cover subsequent alterations, 361. qu. iS name of party must be signed, 362. not sufficient to insert minute of contract in plaintiflPs book at defendant's request, 363. by agent, 364. by party to be charged sufficient, 365, 366. sealing not necessary, 355. qu. if sufficient without signing, 355, 355 J. ayent for signing, 367-370 a. who may be, 367-369. must be thereto lawfully authorized, 370. need not be appointed by writing, 370 a. subsequent ratification sufficient, 370 a, contents of the memorandum, general rule, 371. names of both parties, 372, 373. plaintiff's name must appear as promisee, 374, 375. price stipulated, 376-381 a. credit to be given, 382, 383. interest to be paid, 382. time and place of delivery of goods, 384. 548 INDEX. MEMORANDUM— con