f %I0 us I in Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY ' KK SIO.BMiS'to"*"™"^'-"'™^ 'limmmmZfSlllS!!:''^'^" o' the St 18 j 1 A/ The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018824627 STATUTE OF FRAUDS. A TREATISE OK THE CONSTRnCTION OP THE STATUTE OF FRAUDS, AS IN FORCE IN ENGLAND AND THE UNITED STATES, AN APPENDIX, CONTAINING THE EXISTING ENGLISH AND AMERICAN STATUTES. THIRD EDITION, CAKEEULLT KEVISED, WITH EXTENSIVE ADDITIOJTS. By CAUSTEN ^EOWNE, Esq., COUSSELLOK AT LAW. BOSTON: LITTLE, BROWN, AND COMPANY, 1870. ^/i^^-Zf Entered according to Act of CongrCBS, in the year 1870, by CAVSTZN BBOWBE, In the Otfice of the Librarian of Congress, at Washington. V. \ it- -m^ u • . ..V - i * ^ ,r >'^; ;vV oambbioge: press op john wilson and son. PREFACE TO THIS EDITION. The last edition of this work was prepared and published in 1863. Since that time over two hundred new cases have been decided, and have been introduced into the present edition. The whole text has been carefully revised by the author, and many new sections added, containing special discussions of some of the more difficult points arising under the Statute of Frauds. The author hopes and believes that he has thus ma- terially increased the value of the work. At the same time, by condensing the text where it was possible, and by typo- graphical changes, increase in the size of the volume has been avoided. PREFACE TO THE SECOND EDITION. In this edition, the cases which have been made public in the last five years have been introduced, and the whole work carefully revised. Several passages from the first edition have been rewritten, and occasional additions made, with a view to greater clearhess ; but the author has not found it necessary to change any material statement of law. On the other hand, it is proper to say, in more than one instance, conclusions, which were at the time of the publication of the first edition, against the apparent weight of judicial opinion, have been vin- dicated by later cases. PREFACE. It can scarcely be necessary to offer any apology for the ap- pearance 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 modifications 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 labors to say that they have been unable to give to it so full and thorough a treatment as its importance has come to de- mand ; 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 judi- ciousness of its commentary, its critical analysis of cases, and its lucid and elegant style. Such has been the profusion of decisions since he wrote, however, that it cannot now supply the practical need of the profession. Vlll PREFACE. That the present work is altogether such as to supply this need, the author is far from confident. The professional reader will be well able to appreciate the difficulties which have op- posed themselves to the execution of such a task, arising not only from the confused state of the law itself but from the diversity of the titles to be discussed. In regard to both these points, the method pursued 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 solemnities in cases of wills ; 4. New liabilities imposed in respect of real estate held in trust ; 5. The disposition of estates pur autre 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 writ- ten evidence, and thus are perhaps susceptible of being treated in succession without actual incongruity. But for two reasons ,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 accessible shape all that it would have been ap- propriate 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 out- PREFACE. ix side 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 tertium quid in law, the establisliment of a distinction between the two kinds of transactions, those effected by writing and those effected verbally, both of which the common law comprehended within the single term parol. The result has been, therefore, to confine the work to the first two of the general topics to which, as above analyzed, the statute relates ; and of these, it has been found imavoidable to give decided prominence to the topic of contracts, as in itself possessing superior practical importance, and as being most perplexed by contradictory decisions. As to the method pursued in the consideration of adjudged 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 decisions, this could not be done without leaving the topic confused, the author has thought best to avoid being superficial 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 conclu- sions at variance 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 researches of the more accomplished reader. His examination 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 discover errors in his conclu- X PBEFAOE. siona, he believes it will be found that the diflSculties 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 testi- fied his respect by endeavoring to render it this service. Boston, June, 1857. INTEODUCTIOIsr. The title of the statute which forms 'the subject of this work states it to be " An Act for Prevention of Frauds and Per- juries." In' the recital, however, its object is expressed some- what differently, as the " prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury." The latter phraseology is clearly the more accurate; for the statute does not aim di- rectly to suppress fraud and perjury by imposing any new punishment in cases where they are proved to have been com- mitted, but makes provision for excluding in certain cases such modes of proof as experience had shown to be peculiarly liable to corruption. And again, it would be a narrow view of the statute, at least as interpreted 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 wit- nesses 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 entirely unavailing to withdraw a case from its reach. Indeed the real object and scope of the statute would seem to extend far beyond all questions of the integrity of witnesses, and to comprehend the exclusion of merely oral testimony in certain XU INTRODUCTION. classes of transactions, as at best of an uncertain and decep- tive 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 perjury 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 average of large experience since the statute was enacted, the requisition of written testi- mony 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 enlightened judges and jurists have at all times borne emphatic testimony.*- Nevertheless it cannot be said to have been judicially admin- istered with a firm hand and in a consistent spirit. Within a few years after its enactment, and before the generation of its framers had passed away, we find the courts admitting excep- tions 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 interpretation 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 administration. It must, however, be admitted that much of the difficulty which has been found to attend the exposition of the statute is due to the style in which it is framed. The professional reader who carefully examines it from beginning to end will find such obscurity of arrangement and such inexact and inconsistent phraseology, as to conclude that safe and rational rules for its construction can hardly be rested upon jts literal expressions, INTRODUCTION. xiii 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 per- haps given rise to more discussion than any other which has ever passed upon the statute, that of Wain v. Warlters, where it was determiTied that the written memorandum required by the fourth section must show the consideration of the agree- ment, Lord EUenborough 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 to have been drawn by Lord Hale, " one of the greatest judges who ever sate in "Westminster Hall, who was as competent to ex- press as he was able to conceive the provisions best calculated for carrying into effect the purposes of that law."^ Lord Chief Baron Gilbert says that the statute was prepared by Lord Hale and Sir Lionel Jenkins.^ But Lord Mansfield considered it scarcely probable that it was drawn by Lord Hale, as " it was not passed till after his death 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 Notting- ham, 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 Lords' House though it afterwards received some additions and improvements from the judges and civilians." * It would seem, therefore, that after its original proposition in Parlia- ment by Lord Nottingham, Lord Hale and Sir Lionel Jenkins ' 5 East, 16. See this Treatise, § 392. = Gilb. Eq. 171. ' 1 Burr. 418. ■* 3 Swanst. 664. XIV INTRODUCTION. had it under consideration and I'evision, and that it was finally passed, as it was left by them, in an informal shape. Lord Hale was not then aliye, and the statute itself affords strong internal evidence, as for instance in its want of compactness and in the use of different words in different places to express the same subject-matter, that it was never regularly engrossed with a view to its enactment. INDEX TO CASES CITED. A. Abbott V. Draper V. Gil(iirist Page 119, 120, 448 315, 317 Abeel v. Kadcliffe 359, 391, 402 Abrahall (Baxter d.) v Browne 11 Abrahams v. Bunn 492 Acebal v. Levy 339, 396 Acker v. Campbell 299 Ackerman t). Fisher 460, 470 Acraman, ex parte 282 Adams v. Adams 279 V. Anderson 174 V. Bean 420 V. Damsey 152 V. McMUlan 359, 387, 388 V. Patrick 484 V. Rockwell 469 V. Townsend 448 Adcock V. Fleming 165 Addison v. Hack 31 Adkinson v. Barfield 199 Adlington v. Cann 78, 96, 98, 99 Agate V. Gignoux 235 Agraman v. Morrice 323 Aiken u. Duren 154 Aitkin v. Young 465 Albea v. Griffin 444, 471 Albert v. Winn 229, 477, 489 Aldenburgh v. Peaple 46 Alderman v. Chester 277 Aldrich v. Ames 151, 180 V. Jewell 190 Alexander v. Comber 299 V. Ghiselin 140, 142 V. Mury 72 V. Tams 83 Alger V. Scoville 148, 151, 180, 198, 200, 210 Allaire v. Ouland 152 AUan V. Bower 402, 460, 453, 475 Allen V. Addington 170 V. Aguirre 306 Page Allen 0. Bennet 299, 359, 361, 381, 392, 393, 394 V. Booker 116, 448 V. Chambers 444, 487 V. Devlin 35, 47 V. Jaquish 9, 10, 41, 47 V. Jarvis 313 V. Knight 60 V. Pryor 153, 165 c. Scarf 190 V. Thompson 195 Allen's Estate 444, 457, 464 Ailing V. Munson 169 Allnut V. Ashenden 417 AUshouse v. Ramsay 186 AUsopp V. Patten 457 Alna V. Pltmimer 388 Ambrose v. Ambrose 84, 90 Amburger v. Marvin 285, 484 Ameriscoggin Bridge v. Bragg 30, 31 Anders (Den d.) v. Anders 66 Anderson v. Chick 387, 457 V. Davis 186 V. Harold 369 V. Hayman 190 V. Scott 323, 334 V. Simpson 460, 465 Andover (Trustees, etc. of) v. FUnt 154 Andre v. Bodman 186 Andrews v. Jones 115, 227 V Smith 179 Anstey v. Harden 169, 205 Anthony v. Leftwych 444, 471 Antonio v. Clissey 188 Arbuckle v. Hawkes 188 Archer v. Baynea 391 Argenbright v. Campbell 228, 368, 476, 489, 498. 602 Armiger v. Clark 382 Arms V. Ashley 101, 109 XVI INDEX TO CASES CITED. Armstrong v. Flora K. Kattenhorn 449, V. Vromah Arnold V. Cord V. Stedman Artcher v. Zeh 276, 282, Artz V. Grove Ash V. Abdy «• Uaggy. Ashcroft V. Morrin Ashford v. Robinson Askew V. Poyas Astey V. Emery 317, Attaquin v. Fish Attorney Gcn'l v. Day 71, V. Sitwell Afwater v. Hough Atwood V. Cobb 397, ». Lucas Auter V. Miller Aveline v. Whisson Aylesford's (Earl of) case Ayliffe v. Tracy Aymar v. Bill B. Page 186 450, 465 270 439, 442 198 354, 365 476 486 468, 471 397 156, 408 487 338, 339 448 269, 476, 478 476, 478 311, 317 401, 402 338, 346 482 11 443, 462 222, 368 62,63 Babcock v. Bryant ■ V. Wyman 481 442 Badlam v. Tucker 325 Bailey v. Delaplaine 55 V. Freeman 420 V. Ogden 326, 328, 334, 369, 383, 394 V. Sweeting 392 Bainbridge v. Wade 407, 418 Baines v. Jevons 330 Baker v. Baker 71 V. Carson 471 V. Cornwall 409 V. Cuyler 335 V. Jameson 130, 482 V. Vining 81, 84, 85, 86 Baldey v. Parker 320, 323 Baldwin v. Williams 304 Ball V. Dunsterville 14 Ballard v. Bond 116 Ballingall v. Bradley 391 Balmam v. Shore 264 Bampton ». Paulin 203 Bank of Lansingburghi). Crary 240, 260 Bank of Muskingum v. Carpenter 61 Bank of U. S. v- Carrington 76, 86 Barber «. Bucklin V. Fox Page 156 181, 190 Barickman v. Kuykendall 116, 119, 368, S95 Barker ». Bucklin , _ ,180, 210 Barkhamstead v. Farmington ' 63 Barlow v. Wainwright 38 Barnes v. Perrine 239 V. Teague 489 V. Wise 121, 122 Barnet v. Dogherty 88 Barney v. Brown 338 V. Patterson 71, 863 Barrel v. Joy 90, 91, 92, 101 Barrett v. Thorndike 57 Barringer v. Warden 157 Barrow v. Greenough 91, 101 Barry v. Coombe 368, 368, 373, 879, 391, 402, 495 V. Law 169, 369, 379 Barstow v. Gray 381 Bartlett «. Pickersgill 83, 87, 89, 492 V. AVheeler 284, 291, 295. Basford v. Pearson 15, 115, 116 Bash V. Bash 232 Bass V. Walsh 338 Bassler v. Niesly 461 Bateraan v. Phillips 398, 402 Bates V. Moore 290 V. Starr 191 V. Terrell 119 Batson v. King 154 Battersbee ». Farrington 227 Batturs v. Sellers 363, 387 Baumann v. James 402 Bawdes v. Amhurst 368, 441, 442 Baxter d. Abrahall v. Browne 11 Baylis v. Lundy 325, 835, 345 Beal V. Browne 132 Beale v. Saunders 38 Beaman v. Buck 444 V. Russell 151 Bean v. Valle 399, 408, 482, 498 Beard v. Linthicum 452, 473 Beaumont v. Brengeri 324, 330 Beck d. Fry v. Phillips 9 Bedinger v. Whittemore 119 Beers v. Crowell 306 V. Culver 48l Bees V. Williams 62 Belding v. Manly 63 Bell V. Andrews 231 V. Hewitt's Ex'ors 276 V. Howard 484, 435 V. Morse 63 Bell V. Phyn 264 INDEX TO CASES CITED. XVll Bellamy v. Burrow V. Ragsdale' Bellasis v. Compton Bendow o. Townsend Benedict v. Beebee V. Benedict V. Lynch V. Sherrall Benford ». Schell Bennett v. Hull V. Matson V. Pratt V. Scutt Benson v. Hippius V. Walker Bent V. Cobb Bentall v. Burn Benton v. Pratt Bicknell v. Bicknell Biddell v. Leeder Biggs e. Whisking Bill V. Bament Billingsby v. Dempenwolf Billington v. Welch Birch V. Earl of Liverpool V. Wright Bird V. Blosse . V. Boulter V. Gammon V. Higginson V. Muhlinbrink Bishop V. Bishop V. Doty V. Little V. Talbot Page 92 117 78 81 238 30 382 414 825 808 282 419 29 419 157 385 326 170 61 137 347 323, 334, 865 193 460 282 35 860 299, 384, 384, 888 186 27 317 260 22 272 314, Black V. Black Blacknall «. Parish Blagden ». Bradbear 269, 387, Blair v. Bass V. Smith V. Snodgrass Blake v. Blake V. Cole V. Paulin Blakeney v. Ferguson Blanding v. Sargent Blanton v. Knox Bleakly v. Smith Blenkinsop v. Clayton Bligh V. Brent Bliss V. Thompson Blodgett V. Lowell Blood V. Goodrich V. Hardy Blore V. Sutton 267, 486, 487 376 895, 489 86 69 359 102 277 191 469 278 290 372 330, 354 262 272 193 425 390 388 329, Page Blow V. Maynard 227 Bluck V. Gompertz 374, 377 Blunt V. Boyd 158 Boardman v. Mostyn 460, 473, 475 V. Spooner 322, 325, 359, 383, 388, 402 Boehm v. Campbell 406, 419 Bohannon v. Pace 132 Bolton V. Bishop of Carlisle 42, 56 (Lord) V. Tomlin 35, 114 Booker v. Tally 188 Boring v. Lemmon 71 Borrett v. Gomesserra 469 Borrowscale v. Bosworth 345 Borst V. Corey 228 Boson V. Statham 98 Bostwick V. Leach 239, 269, 273 Botsford V. Burr 81, 83, 85 Botting V. Martin 21, 43 Boult (Whiteacre d.) v. Symonds 22 Boulter v. Arnott 834 Bourland v. County of Peoria 363 Boutwell V. O'Keefe 448 Bovey's case 227 Bowen v. Morris 383 Bower v. Bell 115 Bowers v. Cator 493 V. Oyster 61 Bowlby V. Bell Bowles V. Woodson Bowman v. Cann Box V. Stanford Boyce v. McCulloch V. Owens Boyd V. Graves V. McLean V. Stone 367 309, 318 443, 444 436 198 68,69 86 124, 267, 271 Boydell v. Drummond 285, 286, 287, 288, 360 Boykin v. Doplonde 190 Boykins v. Smith 269, 387 Boynton v. Veazie 324, 326 Bozon V. Williams 60 Brabin v. Hyde 866 Bracegirdle v. Heald 133, 282, 288, 297 Brackett v. Evans 115, 273 Bradish v. Schenck 22 Bradley v. Blodgett 274 V. Holdsworth 263, 302 V. Richardson V. Wheeler Brady v. Sackrider Brand v. Brand Brawdy v. Brawdy Bray v. Freeman Breed v. Hillhouse 212 322 190 355 463 147 182 XVIU INDEX TO CASES CITED. Brennan v. Bolton 460, 467 Brent «. Green 270, 386, 387, 388 Bresler v. Pendell 190 Brettel v. "Williams 869 Brewer v. Brewer 460 Brewster v. Silence 420, 422 Bricker v. Hughes 260 Bridges v. Purcell 29 Briggs V. Evans 191 Bright V. Bright 461 Briles v. Pace 40, 70 Brinley v. Spring 326 Brizick v. Manners 69 Broadwell v. Getman 291, 294 Brock V. Cook 469 Brodie v. St. Paul 360, 448 Bromley (Davison d.) v. Stan- ley V. Jefferies Bronson v. Wiman Brooks V. Dent V. Haigh Brothers v. Porter Brown v. Adams V. Barnes V. Bellows V. Curtis V. Galley V. Hazen V. Stuart V. Woodworth Bruce V. Hastings Brush V. Carpenter Bryan v. Hunt V. Jaraieson V. Whistler 47, 48 396 308, 310, 312 409 417 80, 81, 82 151, 482 208, 482 397 165, 188 29 180 167 29 267 161 426 272 27 260 Bryant v. Crosby Buck V. Pickwell 130, 260, 261, 368, 395, 400 V. Pike 82, 83 V. Swazey 81, 82, 83, 84 V. Warren 81 Buckhouse v. Crosby 435 Buckly V. Beardslee 409 Buckmasteru. Harrop 366, 384, 887, 449, 460, 453, 457, 459, 464" Buckmyr, or Birkmire, or Bour- quemire v. Darnall 146, 189, 190 Buckner v. Rics 301 Bull V. Griswold 260 BuUard v. Walker 388 Bunnell v. Taintor 267 Burdett v. Clay 68 Burgess (Doe d.) v. Bank of Cleveland 61 Burke v. Haley 484 Page Burlineame v. Burlingame 117, 123, 274 277 473 87 476, 489 326 190 168, 199, 388 321, 323, 329, 339, 345 460 186, 417 Butler (Jackson d.) v. Gardner 42 " ■ 162 52, 122, 236, 487, 494 116 162 314 250, 334, 482 469 470 Burney v. Ball Burns v. Sutherland Burrow v. Greenough Burt V. Wilson Burton v. Curyea Bushee v. Allen Bushell V. Beavan — V. Wheeler Butcher v. Stapely V. Steuart • V. Prentiss Buttemere v. Hayes Butter V. Lee V. Prentiss Buxton V. Bedall Byassee v. Keese Byrd ». Odem Byrne v. Romaine Caballero v. Slater 414, Cabot V. Haskins 290, 291, Cabot Bank v. Morton Cahill V. Bigelow 132, Cailleux b. Hall Cain V. McGuire^ Calhoun v. Hays Calkins v. Lockwood Calvin V. Williams Camden ». Batterburg Cameron v. Clark t>. Ward Campbell v. Campbell V. Findley V. Taul Caperton v. Gray Cardell v. McNiel Carey v. Callan Carmack v. Masterson Carman v. Susick Carpenter v. Clark V. Wall Carr, ex parte Carrington v. Anderson V. Boots 114, 130, Carroll v. Cox Carroway v. Anderson Carter v. Harlan V. Palmer V. Toussaint Carver v. Laine 419, 420 295, 372 174 163, 190 157 246 68 326 303 36 179 442 88 157, 409 268 190, 389 166 84 130, 402 299 330 155 171 385, 387 133, 256 466, 468 69,482 29 88, 104 323, 331 346 INDEX TO CASES CITED. XIX Carville o. Crane Case 0. Barber Casler v. Thompson Cason V. Cheely Cassell V. Collins Castle V. Sworder Page 150, 163 206, 483 469 314 239 345 Castling V. Aubert 145, 195, 197, 205 Caston V. Moss 208 Castro V. lilies 272 Catlett V. Bacon 131, 460 Catlin V. Jackson 72 Caton V. Caton 444, 454, 455, 462 Cecil Bank v. Snively 81 Chamberlain v. Agar 440 Chamberlaine ». Chamberlaine 87, 440 Chambers v. Massey 493 V. Robbins 154 Chamblis v. Smith 88, 468 Champion v. Plmnmer 379, 381, 393, 394 V. Short 347 Champlin ». Parish 381, 482, 493 Chandler v. Davidson 210 Chanter o. Dickinson 306 Chapin c. Lapham 146, 148 V. Merrill 148, 150 0. Potter 351, 357 Chaplin «. Rogers 329, 330 Chapman v. Bluck 359 V. Gray 84 V. Partridge 363 V. Ross 162 Chappel V. Marvin 325 Charnley v. Hansbury 473 Chase V. Day 190, 193 V. Lowell 363, 396 Chater v. Beckett 139, 184, 197, 206 Cherry v. Hemming 11, 290, 293, 370 V. Long 401 Chesapeake and Ohio Canal Co. V. Young 462, 473 Chesley ». Frost 67 Chichester v. Vass 225 ChUd V. Comber 383, 489 V. Godolphin 476, 486, 489, 497, 498, 500 Chiles V. Woodson 76, 268 Chimney v. Blackbume 62 Ohristie V. Simpson 387, 388 Christy y. Bamhart 465, 469 Church V. Brown 414 (Jackson d.) v. Brownson 53 Pag« Church V. Sterling 80, 453 Church of the Advent w. Farrow 402, 444, 467, 473 Clabaugh «. Byerly 271 Claflin V. Carpenter 29, 249, 254, 257, 259 Clagett V. Kilbourne 264 Clancy v. Crane 267 I'. Piggott 407, 418 Clapp V. Shephard 304 Clark V. Beach 63 V. Brown 482 V. Bumham 304 V. Duffey 301 V. Graham 70 V. Hall 200 V. Pendleton 220, 277, 280, 281 V. Schultz 239 V. Terry 123 V. Tucker 838, 368 Clarke v. Fuller 402 Clary v. Marshall 127 Clason V. Bailey 365, 381, 383 Clay V. Yates 315 Clayton v. Andrews 299, 307 V. Blakey 36, 37 Cleaves c. Foss 387, 482 Clement v. Durgin 29, 31, 274 Clerk V. Wright 395, 455 Click V. McAfee 186 Clinan v. Cooke 359, 389, 402, 424, 444, 457, 458, 461, 475 Cloninger v. Summit 87 Clute II. Carr 31 Clymer v. De Young 179, 214 Coats V. Chaplin 339 Cobb V. Hall 119 Cobbold V. Caston 317 Cocker v. Cowper 26 Cocking B.Ward 122 Cody V. Quarterman 34 Coe V. Duffield 419 V. Turner 57 Coffin V. Lunt 32, 33, 37 Colburn v. Dawson 419 Colden (Jackson d.) o.Brownell 22 Coldham v. Showier 420 Cole V. Dyer 407, 418 V. Potts 460, 457, 465 V. White 468 Coleman v. Bailey 389 V. Carrigues 888 V. Gibson 345 V. Packard 236 V. Upcot 382 XX INDEX TO CASES CITED. Page Coles V. Bowne 381, 482 V. Trecotbick 359, 375, 387, 388, 389, 457 Collier v. Coates 119 Collins V. Tilton 442 Collins Co. V. Marcy 29 Colt V. Netterville 302 ^- V. Boot 180 Combs V. Bateman 366 Comes V. Lamson 120, 123, 128, 131 Coming, ex parte 60 Commercial M. M. Ins. Co. v. Union M. Ins. Co. 152 Commonwealth v. Dudley 68 V. Ray 371 Compton V. Martin 290 Conant v. Little 71 Cone i>. Tracy 115 Conkey v. Hopkins 161 Conner v. Lewis 83 Connerat v. Goldsmith 146 Connolly v. Kettlewell 190, 192 Connor v. Williams 214 Consoc. Pres. Soc. of Green's Farms v. Staples 179 Conway v. Sherron 469 Cooch V. Goodman 10, 11 Cook V. Steams 28, 30 Cooke V. Toombs 135, 367 Cookes V. Mascall 441 Coombe's case 16 Coombes v. Bristol and Exeter E.R. Co. • 322, 339 Cooper V. Chambers 186, 208 V. Dedrick 423 V. Elston 299 V. Smith 391 Cooth V. Jackson 397, 460, 455, 476, 487, 489, 493 Cope V. Williams 118 Copeland v. Watts 65 Corbett v. Cochrane 187 Corbin v. Jackson 65 V. McChesney 179 Cork V. Baker 220 Corkins v. Collins 198 Cottington v. Fletcher 476, 489, 499 Couch V. Meeker 131, 143 Coughlin V. Knowles 119 Coupland v. Maynard 47 Courtail (Doe d.) ». Thomas 10, 42 Cousins V. Wall 442 Couturier v. Hastie 211 Cox V. Bailey 318 V. Peele 271 Page Coyle V. Davis 442 Cozine V. Graham 482, 486, 487, 493, 602 Crabb (Jackson d.) v. Bull 127 Crafts V. Beale 182 Craig V. Van Pelt 115 Crane v. Bullock 184 V. Gough 115 Crawford v. Morrell 140 Crawshay v. Maule 264 Creel v. BeD 208 Creswell v. Wood 149 Cripps V. HartnoU 149 V. Jee 103 Crocker v. Higgins 439 Crook V. Brooimg 91 Crookshank v. Burrell 308, 317 Crop V. Norton 81, 82 Crosby v. Bronson^ 63 Crosby ». Wadsworth 20, 248 Cross V. Richardson 198, 209 Croswell V. Crane 34, 276 Croyston v. Banes 476 CruU V. Dodson 302 Cuff B. Penn 426 Cumming v. Roebuck 364 Cummings v. Arnold 425, 431, 436 V. Dennett 313 V. Gill 469 Cummins v. Nutt 68, 469 Cunlyffe v. Harrison 346 Curie V. Eddy 272 Curling v. Flight 263 Curnutt V. Roberts 119 Currier v. Barker 38 Curtis V. Blair 16, 389 V. Brown 186, 190, 198 (Jackson d.) v. Bronson 63 V. Pugh 335, 346 V. Sage 290 Cusack B. Robinson 346 Gushing v. Breed 325 Cutler B. Haven 63 V. Hinton 190, 192 V. Pope 259 D. D'Aguilar v. Drinkwater 223 Dale V. Hamilton 81, 84, 88, 89, 266, 462 Dall V. Brown 67 Damon ». Osborne 549 Dana v. Hancock 425 Danforth b. Laney 425, 460, 466 V. Walker 338, 346 INDEX TO CASES CITED. XXI Darlington v. McCunn Davenport v. Gentry V. Mason Page 190 117 470 Davidson v. Graves 228 Davis V. Farr 131 V. Eastman 346 V. Moore 349, 448, 463 V. Parish 272 V. Robertson 363 V. Shields 371, 386, 400, 401 I'. Thomson 37 V. Tingle 70 V. Townsend 29, 68, 69, 460 Davison d. Bromley v. Stanley 47, 48 Dawes v. Peck 338 Dawson v. Ellis 127 Day V. Elmore 423 V. Roth 91 Dean v. Dean 87 Deane v. Izard 460, 470 Dearborn u. Parks 115,157 De Biel v. Thompson 359, 439, 456 Decker v. Shaffer 157 Deg V. Deg 85, 92 Delano V. Montague 36, 235, 275 De Medina v. Poison 38, 39 Den d. Anders v. Anders 66 Gwyn V. Wellborn 41 Mayberry U.Johnson 8, 9, 41 Woodhull V. Longstreet 66, 67 Deniston v. Little 479 De Peyster v. Gould 82 Desloge v. Pearce 29 Devaux v. Steinkeller 505 Devenish v. Baines 87 Devlin Vi Woodgate 155 Dexter v. Blanchard 146 Dick V. Maury 63 Dickenson v. Adams 456 Dickerson v. Lilwal 363 Dickinson v. Dickinson 300 Dilts V. Parke 180 Dintrel v. Gundelfinger 493 Dixon V. Bromfield 889 V. Praser 192 V. Olmius 440 Doak V. Brubaker 331 Dobell V. Hutchinson 368, 392 Dobson V. Collis 282 Dock V. Hart 137, 142 Dodd V. Acklom 50, 53 Dodge V. Dodge 57 V. Van Lear 359 Page Dodsley ». Varley 324 Doe d. Burgess v. Bank of Cleve- land 61 Courtail v. Thomas 10, 42 Gray v. Stanion 49, 60 Johnstone v. Huddlestone 63 Murray v. Bridges 49 Murrell v. Mihvard 46 Rawlings v. Walker 60 Richman v. Baldwin ■ 66 Rigge V. Bell 38 Smyth V. Smyth 272 Whitney u. Cochran 123 Dogget V. Patterson 273 Doidge V. Bowers 37 Doniudson v. Smith 36 « W^aters 119 Donellan v. Read 22, 48, 49, 116, 289, 291, 293, 294, 295 Donovan v. Wilson 308 Doolittle V. Naylor 195 Dorman v. Bigelow 409, 420 Dorsey v. Clark 84, 86 Doty V. Wilder 388 Dougan v. Bloeher 468 Douglas V. Jones 147 V. Howland 420 V. Vincent 224, 441 Douglass V. Spears 381 Dow V. Wortheu 366 Dowdle V. Camp 119 Dowell V. Dew 466 Dowling (Morgan d.) ». Bissell 9 Downey v. Hotchkiss 448 V. Hinchman 146 Downs V. Ross 308 Doyle V. Dixon 277, 282, 283 V. White 188 Drace V. Wyat 482 Drake v. Plewillen 146 ». Newton 36 Drakely v. Deforest 179 Draper v. Pattina 365 V. Snow 420 • Draughan ». Bunting 151,186 Drayton v. Williams 482 Drummond v. Burrell 284, 286 Drury v. Conner 460 Drybutter v. Bartholomew 262 Dubois V. Kelly 29 Dudley v. Caldwell 63 Duean v. Gittings 221, 222, 469, 460 Duinneen v. Rich 29 Duke V. Harper 36 Duncan v. Blair 137, 140, 272 — '■ — V. Sylvester 66, 67 xxu INDEX TO CASES CITED. Duncuft V. Albrecht Dundas v. Dutens Dunlap V. Thorne Dunn V. Moore V. Thorpe V. West Dunne v. Ferguson Durham v. Manrow Durrell v. Evans Duvall V. Peach Dwinel v. Veazie D'Wolfw.Kabaud Dyer v. Gibson V. Graves 116 V. Martin V. Sandford Dykers v. Townsend E. 263, 302 226, 454 199 444, 471, 487 220 151 255 154 368, 374, 390 272 82 166, 184 155 ,137,142,274 476 27 390 Earl (Farmer d.) v. Kogers 9, 40 Eastwood V. Kenyon 180, 487, 494 Eaton V. Jaques 62 V. Whitaker 448, 460 Ebert v. Wood 68, 461 Eckert v. Eckert 449, 450, 467, 471 Edan v. Dudfield 328, 329, 334 Eddy V. Roberts 147, 186 Edelen v. Gough 409 Edelin v. Clarkson 121, 495 Edge V. Strafford 36, 235 Edgerton v. Hodge 354 Edwards v. Grand Trunk R.R. 311 V. Jevons 418 V. Kelly 201, 202, 204 Egerton v. Matthews 381, 399, 408 Eichelberger v. McCauley 313 Elder v. Warfield 154, 188, 190, 481 Elfe V. Gadsden 363, 400 Ellet V. Paxson 123, 231, 232 Ellicott V. Turner 123, 277, 290 Elliot V. Giese 184, 409 Elliott V. Armstrong 85; 86 V. Brown 265 V. Thomas 334, 335, 347 Ellis V. Ellis 444, 476 V. Deadman 863, 368, 395, 400 V. Paige 33, 37 V. Smith 10 Ellison V. Brigham 308, 309 V. Daniels 63 V. Jackson 409 Elmore v. Kingsc.ote S95 V. Stone 332, 333 Elting V. Vanderlyn 182, 482 ElweU V. Shaw 16 Elwood V. Monk Ely V. Ormsby Embury ». Conner Emerson v. Slater Emery v. Smith Emmerson v. Heelis Emmet v. Dewhirst Emmott V. Keams Endicott v. Perry Page 160 334, 355 274 211, 481 295 241, 387 169, 480 418 387 Ennis V. Walker 72, 384, 887 Enos V. Hunter 84, 86 Entz V. Mills 388 Erben v. Lorillard 123 Erskine v. Plummer 28, 250, 259 Erwin (Jackson d.) v. Moore 83, 90 Evans v. Ashley 72, 374 V. Bicknell 170 V. Duncan 134, 212 V. Hardeman 273 V. Harris 489, 490, 493, 500, 501 V. Merrik 63 V. Prothero 368, 368 V. Roberts 234, 241, 244 Evoy V. Tewksbnry 409 Ewing V. Arthur 63 V. Osbaldestone 118 V. Tees 231 Ewins V. Calhoun 170 Eyre v. Dunsford 170 V. Ej;re 444, 473 V. Ivison 489 Ezmay v. Gorton 382, 477 Fairbrother ». Shaw 457 Fall River Whaling Co. v. Bor- den 266 Falmouth (Earl of) v. Thomas 123 , 238, 258 Farebrother v. Simmons 383, 384 Farina v. Home 325 Parish v. Wilson 181 Farley v. Cleveland 159 V. Stokes 38, 469, 470 Farmer d. Earl v. Rogers 9, 40 Famam v. Davis 117 Farrar v. Farrar 67, 58 Faringer v. Ramsay 85, 86 Farris v. Martin 869 Farwell v. Lowther 398, 395 V. Mather 402 Faulks V. Burns 57 Fay e. Bell 198 Felthouse v. Bindley 359 Fenly v. Stewart 381 INDEX TO CASES CITED. XXUl Fentiman v. Smith Fenton v. Emblera Fenwick v. Floyd Fereday v. Wightwick Ferguson o. Staver Fessenden v. Mussey Feusar v. Sneath Field p. Hutchinson (in re) — V. Runk Files V. McLeod Finch 0. Finch Findley v. Wilson Finney v. Apgar - V. Finney Pago 27 276 71, 363 264 402 401 444 486 871 349 154 84, 128, 464 117 311 235 First Baptist Church of Ithaca V. Bigelow 363, 388, 401 Fischli V. Dumaresly 88 Fish r. Hutchinson 184,190 V. Thomas 198 Fisher v. Fields 102, 109 Fiske V. McGregory 180 Fitch V. Seymour 274 Fitzgerald v. Dressier 195, 210 Fitzmaurice v. Bayley 392, 402 Fitzsimmons ». Allen 460 Fleming v. Gilbert 436 V. Ramsey 273 Flerara v. Whitmore 180 Flight V. BoUand 382 Floyd V. Buckland 469 V. Harrison 209 Folmer v. Dale 460 Foot V. New Haven & North- ampton Co. 29 Forbes v. Hamilton 289 Force v. Dutcher 402, 473, 484 Ford V. Finney 214, 273, 444 Forquet v. Moore 46, 258 Forster v. Hale 78, 90, 91, 98, 98, 100, 264, 265, 359, 478 Forsyth v. Clark 82 Forth V. Stanton 181, 199 Foster V. Browning 31 V. Charles 170 V. Trustees of the Athe- naeum 88, 85 Fowle V. Freeman 368, 881 Fowler v. Lewis 487 Foxcroft V. Lester 436 Frame v. Dawson 449, 450, 463, 457, 467 Franklin «. Long 825 Frary v. Sterling 284, 290 Fraser v. Child 274, 442 Frazer v. Ford 881 Frear v. Hardenburgh 288, 239 Freeman v. Freeman Freeport v. Bartol French v. French V. Owen V. Thompson Frioker v. Thonilinson Pajfe 77 859, 448 169 29 195 352, 365 466 Frieze v. Glenn Frost V. Hill 888 Frostburg Mining Co. v. N. E. Glass Co. 342 Fry (Beck d.) v. Phillips 9 Frye v. Shepler 450, 463, 473 Fugate V. Hansford 868, 897 FuUam V. Adams 218, 218, 219 Fuller V. County Commissioners of Plymouth 69, 274 Fulmerston v. Steward 49 Fulton V. Moore 270 Furbish v. Goodnow 217 Furnivall v. Grove 53 Fyson v. Kitton 392 G. Gadsden v. Lance 306 Galbreath «. Galbreath 67, 68 Gale V. Mixon 359 Gale V. Nixon 383 Gallagher v. Brunei 163, 174, 177 Gallop V. Newman 825 Gangwer v. Fry 457, 469 Garbutt V. Watson 310, 812 Gardiner v. Hopkins 195 Gardner v. Gardner 10, 14, 19 V. Grout 346 V. Howland 825 V. Joy 813 V. Rowe 90 Gardner Bank v. Wheatou 85 Gardon, ex parte 406 Garrett v. Garrett 182 V. Malone 274 Gascoigne v. Thwing 84 Gates V. McKee 419 Gaunt V. Hill 391 Geary v. Physic 366 Gee V. Gee 81 German v. Body 385 V. Gabbald 77 V. Machin 459 Getman v. Getman 88 Gibbons v. McCasland 134 Gibbs V. Nash 482 V. Blanchard 191 Gibson v. Foote 83 V. Holland 368 V. Wilcoxen 116 XXIT INDEX TO CASES CITED, Gilbert v. Bulkley ■ V. Sykes Page 67, 236 277 Gilchrist v. McGee 69 Gilday v. Watson 460 Gill V. Bicknell 363, 367, 387, 388 Gillespie v. Battle 119, 121 Gillett V. Campbell 63 — f V. Maynard 118 Gillighan v. Boardman 184, 408 Gilman v. Hill 320, 332, 855 V. Kibler 409 Gilmore v. Wilbur 257 Giraud v. Richmond 284 Givens v. Calder 455, 457, 468, 487 Gleason v. Briggs 186 V. Drew 301 Glengall (Earl of) v. Barnard 367, 389, 455 Glenn v. Rogers 125 Goddard v. Mockbee 179 Gold V. Phillips 161 Goldshede v. Swan 417 Goman v. Salisbury 434 Gooch V. Holmes Goodhue V. Barnwell Goodman ». Chase V. Griffiths 66, 68, 452 186 392, 395 Goodrich v. Nichols 131, 143 Goodright d. Nichols v. Mark 48 Goodspeed v. Fuller 162 Goodtitle d. Estwick v. Way 9 Goodwin v. Gilbert 122, 163 V. Lyon 471, 473 Goom V. Aflfalo 364 Gordon v. Siras 387 Gore V. Wright 116 Gorham v. Roberts 344 Goring V. Goring 181 Gosbell V. Archer 376, 888, 390 Gosden v. Tucker 469 Goss V. Lord Nugent 424, 426, 428, 435 Gothard v. Elynn 61 Goucher v. Martin 468 Gough (Jackson d.) v. Wood 6 Gould V, Moring 420 Grafton Bank v. Woodward 426 Graham v. Fretwell 379 V. Musson 379, 389 Grant v. Craigmiles 462 V. Fletcher 364 V. Levan 367 V. Naylor 393 V. Shaw 162, 217 Gratz V. Gratz 19, 72, 456, 468 Graves v. Dugan 83 V. Graves 273 Gray v. Gray «.Hm V. Jenks V. Palmer V. Payne Page 116 117, 122 63 266 336 (Doe d.) V. Stanion 49, 60 Grayson v. Atkinson 369 Greaves's case 134 Green v. Armstrong 260, 486, 487 V. Creswell 149, 152 V. Green 119 V. Hart 62 V. Merriam 324, 332 — : V. Vardiman 239, 274 Greene v. Cramer 221, 222, 389 Greenlee v. Greenlee 444, 465, 473 Greenswalt v. Homer 460 Greer v. Greer 116 V. Mighell 466, 468 Gregory v. Logan 409 Gregson v. Ruck 364 Greider's Appeal 41, 45 Griffin v. Coffey 235, 272 V. Derby 147 Griffith V. Frederick Co. Bank 151 — I V. Young 122 Grimman v. Legge 63 Groves v. Buck 308 Gryle v. Gryle 369 Gull V. Lindsay 186, 197 Gully V. Grubs 123, 290 Gunter v. Halsey 444, 463, 476 Gwaltney v. Wheeler 267, 273 H. Hackleman v. Miller 166 Haigh V. Brooks 417 Haines v. Haines 467 Hales V. Van Berchem 466 Hall V. Chaffee 29, 31 Hall V. Farmer 420 V. Hall 236, 450, 493 V. Soule 132, 402 V. Wood 190 Halleck v. Guy 270 Hallen v. Runder 239 Halsa V. Halsa 408 Ham V. Goodrich 123, 124, 461 Hamar «. Alexander 176, 177 Hambell «. Hamilton 117,122 Hamerton v. Stead 49 Hamilton v. Jones 444, 460, 470 i: Terry 272 Hammersly v. De Biel 228, 465 Hampton v. Spencer _ 94 Hanfbrd !). Higgins ' 190 INDEX TO CASES CITED. XXV Hanson v. Armitage V. Barnes Happe V. Stout Harden v. Hays Harder v. Harder Hardesty v. Jones Hare v. Celey Hargrave v. King Hargraves t>. Parsons Hargroves v. Cooke Harker v. Birkbeck Harman v. Anderson V. Reeve Harnett v. Yielding Harper v. Miller Harrell v. Miller Harrington v. Rich Harris v. Crenshaw V. Howell V. Huntbach Page 839 363 423 118, 471 83, 268, 469 180, 290, 456 22 87 180 184, 409 8 325 319, 347 402, 473 482 260 154, 181, 186, 187, 188, 208 460 87 146 V. Knickerbacker 453, 462, 468, 476, 478, 479, 482, 493 V. Porter 282 V. Wall 504 Harrison v. Cage 220 V. Harrison 469, 484, 495 V. Sawtel 148, 150, 152 Hart V. McClelland 467, 483 V. Mills 347 V. Sattley 338, 342 V. Tallmadge 170 V. Woods 387, 388 Hartley v. Wharton 504 Harvey v. Butchers', &c. Asso- ciation ■ V. Grabham Haslet V. Haslet Haslock V. Ferguson Hatch V. D wight Hatcher v. Robertson Hatton V. Gray Haugh V. Blythe Haughabaugh v. Honald Hawes v. Armstrong V. Forster 328 427, 429 463 175, 177, 505 63 220 381, 382 290 65,68 407, 414, 419 363, 364 Hawkins v. Chase 363, 372, 373, 374, 389 V. Holmes ■ V. King Hawley v. Moody Hayoraft v. Creasy Haydon v. Christopher Hays V. Richardson Hazard v. Day Hazen v. Bearden Hazletou v. Putnam 368, 455 460 117, 119 170 157 30 365, 391 193 30 Head v. Baldrey Heft V. McGill Helm V. Logan Henderson v. Barnewall V. Hays V. Herrod V. Hooke V. Hudson V. Johnson Herrin v. Butters Hertle v. McDonald Hess V. Fox Hesseltine v. Seavey V. Siggers Hetfield v. Dow Heth V. Wooldredge Hewlins v. Shippam Heyman v, Neale Hibbard v. Whitney Hicks V. Hankin Hiddon v. Jordan Higdon V. Thomas Higgins V. Chessman V. Senior Hight V. Ripley Hill V. Hooper 122, 123, V. Jaraieson V. Johnston V. Raymond Hilliard v. Austin Hills V. Elliot Hilton V. Dinsmore V. Giraud Hinde v. Whitehouse 298, Hindman v. Langfort Hinkley v. Southgate Hitchcock V. Lukens Hoadley v. McLaine Hoby V. Roebuck Hockley v. Bantock Hodges V. Green v. Hall V. Harris V. Howard Hodgkins v. Bond Hodgson V. Le Bret Hoffman v. Ackley Hoge V. Hoge Hogg V. Wilkins Holbrook v. Armstrong V. Tirrell Holland v. Hoyt 19, HoUida v. Shoop Holliday v. Marshall Hollingshead v. McKenzie Page 131, 143 471 274 888 448 63 85 140, 142 409 286 83 142, 267 51 202 191, 193 274 26 364 116 363 442 372 325 380 315 282, 283, 284 278 875 ISO 482 79 179, 208 263 346, 864, 387 195 280, 286 179 319, 396 22, 238 59 116 147 325 402, 442 377 834, 847 132 87,88 88, 235 290, 293 67 115, 390 83,84 10 476, 489 XXVI INDEX TO CASES CITED. HoUins ». Morris Hollis V. Edwards V. Pool ». Whiteing Page i22 460, 470 HoUoway v. Hampton 443, 498 284, 287, 290 Holman v. Bank of Norfolk 397 Holmes v. Hoskins 323, 331 V. Knights 151 V. Mackerel 372 V. Trout 57 Hood V. Barrington 380 Hooper, ex parte 59, 60 Hoover v. Morris 154 Horsey v. Graham 402 Home, ex parte 263 V. Wingfield 433 Horsfall v. Kay 239 Horton v. McCarty 367 Houghtaling v. Ball 308, 329 V. Houghtaling 30 Houghton V. Houghton 277 V. Morton 91 Houlditch V. Milne 199 Houser v. Lamont 132, 476 Houston V. Matthews Howard v. Bergen V. Coshow V. Borden V. Easton V. Okeover V. Sexton Howe V. Dewing V. O'MaUey V. Palmer 277 180 322, 338 236, 238 359, 485 132 368 274 333, 338, 339 61 164 80 Huntington v. Smith V. Wellington Howe's case Howes V. Martin Hoxie V. Carr Hubert v. Moreau 368 V. Trehorne (or Turner) 369, 372, 373, 389 Huddleston v. Briscoe 359, 381 Hudson V. Weir 306 HuffD.McCauley 250 Huffman v. Ackley 484 Hughes V. Moore 235 Hugus V. Walker 473 Humble v. Mitchell 263, 302 Hunt V. Coe 448 V. Hecht 329, 339, 342 V. Massey 504 V. Maynard 63, 272 — ' V. Roberts 442 Hunter v. Giddings 380 «. Seton 382 Huntington v. Harvey 154, 190 V. Knox 380 Page 63 156, 177, 273 Huntress v. Patten 184 Hutchins ». Lee 78, 103 Hutchinson v. Hutchinson 277 V. TindaU 92, 93, 95 Hutton V. Padgett 409 V. Williams 270, 387 Huxley v. Brown 402 Hyde v. Cooper 457 V. Johnson 504 Ide V. Stanton 299, 310, 359, 395 Ingram v. Dowdle 269 Inhabitants of Alna v. Plummer 387, 389 Inman v. Stamp 467 Ireland ». Kittle 64 Irvin V. Thompson 15 Irvine v. Stone 136, 141 Ithel V. Potter 368 Ives V. Armstrong 402 V. Gilbert 122 B. Hazard 383, 395 Izard V. Izard 227 V. Middleton 276 Jack V. McKee 232, 274 V. Morrison 190 Jackman v. Kingland 80, 86 Jackson v. Bradt 64 V. Bull 72 V. Covert 308 V. Cutright 457 V. Harder 64 V. Jackson 265 V. Lowe 359, 392 V. Pierce 448 V. Rayner 160, 179 V. Stembergh 88 V. Titus 377 V. Van Dusen 371 ». Vosbrugh 65, 66 V. Watts 353 V. Willard 62 d. Butler v. Gardner 42 d. Church v. Brownson 53 d. Golden v. Brownell 22 d. Crabb v. BuU 127 d. Curtis V. Bronson 63 d. Erwin v. Moore 83, 90 d. Gough V. Wood 6 INDEX TO OASES CITED. xxvu Pago Jackson d. Gould v. Gould 57 d. Livingston v. Bateman 83 d. Lloyd V. Titus 16 d. Neuis v. Dyeling 68 d. Seelye v. Morse 80 Jacob V. ICirk 369, 865, 393 V. Smith 127 Jacobs V. Peterboro' & Shirley- Railroad Co. 444 James v. Patten 372 V. Rice 477 ■ V. WilUams 407, 418 Jaques v. Hall 91, 98 Jai-main v. Algar 167 Jarvis v. Smith 468 Jarrett v. Johnson 126 Jeakes v. White 273 Jeffreys v. Small 265 Jenison v. Graves 86 Jenkins v. Eldridge 82, 83, 86, 87, 88, 98, 104, 109, 439 V. Hogg 269, 387 V. Reynolds 407, 408, 413 Jenness v. Mount Hope Co. 392 Jepherson v. Hunt 147, 210 Jervis ». Smith 450, 468 Jewett V. Warren 327 Johnson v. Brook 367 V. Dodge 389 V. Dodgson 362, 374, 487, 494 V. Gilbert 155 V. Hanson 119, 448 V. Hart 63 V. Hubbell 268 V. McGruder 389 V. Mubrey 388 V. Neil 71 V. Noon an 147 V. Ronald 397 V. Smith 326, 334 V. Somers 18 V. Trinity Ch. Soc. 363 V. Watson 290 V. Wilson 64 Johnston v. Glancy 457, 463, 465, 468 V. Johnston 461 Johnstone v. Huddlestone 46 (Doe d.) V. Huddlestone 53 Jolley V. Walker 169 Jones V. Ballard 157 V. Brewer 71 V. Cooper 153, 191 V. Davis 493 1— V. Flint 249, 250, 261, 256 V. Jones 442 Jones V. McDougall 442 I!. Palmer 155, 409 V. Pease 460, 464 V. Peterman 38, 453, 456, 461, 466 V. Shorter 151 II. Slubey 94, 95 Jordan v. Norton 339, 344 V. Sawkins 425 Justice V. Land 381 Kay V. Curd 396, 402, 473, 487 Keate v. Temple 193 Keath v. Fatten 116 Keeler v. Tatnell 116, 235 Kelley v. Stanbury 235, 460 V. Webster 122, 448 Kelly V. Johnson 100 V. Terrell 297 Kelseyv. Hibbs 149,218 Kemble v. Dresser 117 Kennaway v. Treleavan 415 Kennett v. Milbank 362 Kensington, ex parte 59 Kent V. Huskinson 335 < V. Kent 282 Kenworthy v. Scofield 387 Kerr v. Shaw 236, 409 Keyes v. Wood 63 Keys V. Williams 59 Keyson v. Dist. No. 8 in Sinapee 239 Kidder v. Barr 457 V. Hunt 116, 122, 125, 130, 448 Kimball v. Comstock 173, 174 V. Morton 78 Kinard v. Hiers 438 Kine v. Balfe 465, 489 King V. Brown 117, 122, 123, 124 V. Despard 198, 208 V. Hanna 121, 268, 276 V. Welcome 128 V. Wilson 208 Kingsley v. Balcome 150, 209, 210 V. Cousins 134 V. Holbrook 261 Kinloch v. Brown 192 V. Savage 368, 395 Kip V. Norton 69 Kirk V. Webb 85, 92 Kirkham ». Marter 145, 147 Kisler v. Kisler 84, 88 Klinitz V. Surrey 346 Knight V. Crockford 372, 373, 374 Kratz V. Stocke 132 XXVlll INDEX TO OASES CITED. Kurtz V. Cummings Kyle V. Roberts Page 231, 232 383 Lackington v. Atherton 325 Lacon v. Mertins 449, 456, 460, 476, 489 Laing v. Lee 179, 409 Lake v. Craddock 265 V. Doud 61 V. Lake 85 Lamar v. McNamee 53 Lamb v. Crafts 137, 311 Lammott v. Gist 62 Lampson v. Hobart 198, 209 Lane v. Burghart 186 V. Dighton 84 , ex parte 186 V. Shackford 70, 119, 292, 448, 458 Langfort v. Tyler 354 Langston, ex parte 59 Lansingburgh (Bank of) v. Crary 240, 260 Lapham ». Whipple 282, 284, 294 Larkins v. Rhodes 81, 86 Larson v. Wyman 183, 190, 192 Lassence v. Tierney 454 Lathrop v. Hoyt 83 Laurence v. Chase 271 Lavender v. Blackstone 227 Lawrence o. Blow 227 V. Dole 436 V. Taylor 389 V. Woods 284 Lawrenson v. Butler 882 Laythoarp v. Bryant 381, 394 . Lea V. Barber 135 Leafw. Tuton 487,494 Leak v. Morrice 443, 457 Leaper v. Latton 134 Lear v. Chouteau 484 Leavett v. Pratt 272 Lecat V. Tavel 409, 420, 421 Lechmere v. Fletcher 362 Ledford v. Terrell 271 Lee V. Fontaine 179 — — • V. Griffin 315 V. Lee • 469 V. Risdon 240 Lees B. Nuttall 88, 104 V. Whitcomb 416 Le Fevre ». Le Fevre 31 Legal V. Miller 478 Legg V. Strudwick 35 Legh V. Haverfield 478 Leinau v. Smart Leland v. Crayon Leman v. Whitley Lemayne v. Stanley Lench v . Lench Leonard v. Davis V. Mason 273 190, 192 88, 104 10, 369, 372 85 326 162 V. Vredenburgh 183, 208, 409, 421 Lerned v. Johns 380 V. Wannemacher 359, 363, 371, 431 Leroux v. Brown 133 Lester v. Foxcrofl 440 Letcher v. Cosby 126, 467 Leven v. Smith 323 Levy V. Merrill 408 Lewis V. Payn 57 V. Starke 63 Lexington (Lord) v. Clark 138 Life Ins. & Tr. Co. v. Cole 306 Lillys. Hewitt 482,494 Lillywhite v. Devereux • 328, 329 Lincoln v. Wright 466 Lindsay v. Lynch 402, 460, 473, 478, 479 — : V. Springer 68 Lindsley v. Coates 70, 533 Linscott V. Mclntire 115, 267, 282, 286 Lippincott v. Ashfield 180 Lisk V. Sherman 124 Little V. Martin 123 Littlejohn, ex parte 137 Littler v. Holland 431 Livermore «. Aldrich 81, 85 Livingston (Jackson d.) v. Bate- man 83 Lloyd (JacksoQ d.) v. Titus 16 V. Spillet 79 V. Wright 339 Lockey v. Lockey 461 Loekwood v. Barnes 116, 118, 119, 280, 291, 294 Logan V. Anderson 53 ' V. Barr 46 V. Mesurier 349 Long V. Lewis 482 Loomis V. Newhall 140, 147, 179, 184 V. Smith 192 Lord Gray's case 84 Low V. Treadwell 425 Lowe V. Eldred 482 Lower v. Winters 236,- 238, 284 Lowry v. Mehaffy 883 Lucas V. Dorrien 326 INDEX TO CASES CITED. XXIX Pago Lucas V. Mitchell 127 V. Payne 179 Luckett V. Williamson 450, 489 Lucy V. Bundy 121 Luders v. Anstey 222 Luey V. Bundy 116 Luqueer v. Prosser 420 Lyde v. Barnard 171, 172 Lyon V. Lamb 407 V. King 277, 278 V. Reed 41, 47, 48, 49, 51 Lysaght v. Walker 418, 494 Lysle V. Williams 36 M. Maberley v. Sheppard 323, 330 Maclean v. Dunn - 390 Macorney v. Stanley 182 Macrory v. Scott 154, 197 Madigan v. Walsh 132, 235 Magennis v. McCoUough 42 Maggs V. Ames 494 Mahana v. Blunt 465, 487 Main v. Melbourn 456 Malaun v. Ammon 231, 232 Malin V. ISIalin 84 Malins v. Brown 63, 272, 469 Mallet V. Bateman 153, 163, 187 V. Halfpenny 442, 448 Mallory v. Gillett 198 V. Stodder 57. 59 Mann v. Blanchard 174 Manning v. Jones 142 Manrow v. Durham 420 Mapes V. Stanley 181 Marble v. Marble 235 Marcus v. Barnard 381 Marcy v. Crawford 152 V. Marcy 67 Marion v. Faxon 168 Marquand v. Hipper 419 Marsh v. Ferguson 250, 330 V. Hyde 351 Marshall v. Fiske 58 V. Lynn 398, 427, 428 Martin ». Black 182 V. England 167 V. Farris 369 V. Martin 442 V. McCord 469 V. McFadin 482 V. Mitchell 381, 383 (d. Weston) v. Mowlin 62,63 Marvin v. Wallace 333 Massey v: Holland 116 Mather v. Perry 169 Page Mathews v. Sawell 54 Matson v. Wharam 153, 189, 191 Matthews v. Wallwyn 62 Mattice v. Allen 355 Mattison v. Westcott 313 Maule V. Bucknell 213, 218 Mavor v. Pyne 287 Mawbrey u. Cunningham 159 Maxwell v. Brown 339 V. Haynes 167 V. Montacute 438 Maxwell's case 439 May V. Baskin 69 Mayberry (Den d.) v. Johnson 8, 9, 41 Maydwell v. Carroll 70 Mayfield v. Wadsley 137, 257, 258 McBurney v. Wellman 439 McCaffil V. Radcliffe 188 McCampbell v. McCampbell 118 McClean v. NicoUs 392, 401 McClure v. McClure 464 McComb V. Wright 387 McConnell v. Brillhart 373 V. Hodson 63 McCray v. Madden 204 McCrea v. Purmort 381 McCubbin v. Cromwell 90, 91, 94, 95 McCue V. Smith 115 McCuUough V. Cowher 87, 88 McDermot v. Butler 63 McDonald v. Longbottom 360 McDowell V. Chambers 365 V. Delap 482 V. O^er 123, 231, 232 V. Simpson 19, 36 McElderry v. Shipley 80 McFarland v. Hall 460 McFarson's Appeal 395, 400 McGowan v. McGowan 81, 82 McGowen v. West 121, 476 McKee v. Phillips 467, 460 McKeenan v. Thissel 179 McKenzie v. Farrell 423 V. Jackson 179 McKellip V. Mcllhenny 29, 31 McKinney v. Quilter 182 V. Reader 44, 53, 55 McKnight v. Dunlop 349 McLain v. Whiting 175 V. School Directors 472 McLaren v. Hutchinson 179, 214 McLees v. Hale 277 M'Millen v. Terrell 373 McMullen v. Riley 137 MoMurray v. Spicer 402 XXX INDEX TO CASES CITED. McNew ». Toby 118 McVay v. Bloodgood 63 McWhorter v. McMahan 381, 889 Meach v. Stone 444, 483, 484, 486, 493, 502 Mead v. Case V. Keyes «. York Meadows v. Meadows Mease v. Wagner Mechelen v. Wallace Medbury v. Watson Meech v. Smith Mellow V. May Meranville v. Silverthorne Mercein v. Andrus Meredith v. Meigh V. Naish Merrill v. Enelisby Mersereau ». Lewis Mestaer v. Gillespie Metcalf V. Putnam Mews V. Carr Mialhi v. Lassabe Middleton v. Brewer Miles V. Roberts Miller v. Baker V. Blackburne V. Cook V. Gotten — V. Drake V. Irvine V. Pearce ^— — V. Pelletier V. Power V. Roberts 315 186 272 388, 402 146 136, 268 173 208 49 237 199 342, 345, 346 120, 448 147 180 440 274 366, 367 457 482 431 240, 249, 269 442 423 89, 493 482 408, 412 87 382 461 273, 290 ■ V. The Auburn & Syra- cuse Railroad Co. 30 V. Tobie V. Upton Mills V. Gore V. Hunt 118, 119, 469 482 304 347 380 182, 406 238 309, 311, 313 382 359, 460, 460 Minard v. Mead Minet, ex parte Mitchell V. Bush Mixer v. Howath Mizel V. Burnett Moale V. Buchanan Mobile M. D. & M. Ins. Co. v. McMillan 138, 152 MoUett V. Brayne 43, 53 Moutacute v. Maxwell 86, 228, 359, 367, 402, 438, 464, 456 Montague v. Gamett 123, 124 Montgomery v. Reilly 226 Moorcroft v. Dowding 102 Moore v. Beasely 115 Moore v. Edwards 489, 493, 601 V. Fox 285 V. Hart 368 V. Moore 442 V. Small 232, 444, 450, 462, 463, 473 1>. Tisdale 126 Morehead v. Watkyns 36, 38, 39 Moreland v. Le Masters 469 Morgan v. Bitzenberger 116 (d. Dowling) v. Bissel 9 Morin V. Martz 180, 381, 469 Morley v. Boothby 407, 413 Morphett v. Jones 444, 450, 453, 465 Morris v. Harris 460 V. Nixon 104 V. Stacy 416 Morrison v. Chadwick 63 ^ V. Tournour 370, 372, 488 Morse v. Copeland 436 Mortimer v. Orchard 479 Mortlock V. BuUer 389 Morton v. Dean 359, 387, 400 V. Tewart 91 V. Tibbett 341, 342 Mosely v. Taylor 186 Moses V. Norton 191 Mott V. Hurd 274 Moulton V. Faught 29 Movan v. Hays 91 Mowbray v. Cunningham 153 Mt. Olivet Cemetery Co. v. Sher- bert 167 Muckleston v. Brown 78, 96 Muggleton v. Burnett 387 Mumford v. Whitney 29 MundorfiF v. Kilbourne 268 Mundy v. Joliffe 460, 473 Murphy v. Hubert 77, 80 Murray (Doe d.) v. Bridges 46 V. Jayne 460 Murrell (Doe d.) v. Milward 48 Mushat V. Brevard 114 Musick V. Musick 208 Muskingum (Bank of) v. Car- penter 61 Mussell V. Cooke 302, 493 Mussey v. Holt 67, 68 Myers v. Byerly 467 V. Morse 208 V. Perigal 263 N. Nab V. Nab Nason v. Grant 78,94 67 INDEX TO CASES CITED. XXXI Page Natchez v. Vandervelde 65, 273 National Fire Ins. Co. v. Loomis 382 Neal V. Cox 368 Neelson c. Sanborne 409, 418 Neil V. Chevea 431 NelUs (Jackson d.) v. Dysling 68 Nelson v. Boynton 183, 198, 210 V. Dubois 365 V. Forgey 122 V. Hardy 179 V. ■VYorrall 442 Nettleton v. Sykes . 249 Neufville v. Stuart 401 Newberry v. Armstrong 416 Newcomb v. Clark 381 Newell V. Ingrabam 190 V. NeweU 70, 394, 448 V. Radford 396 Newman v. Morris 299 Newnan ». Carroll " 473 Newton v. Preston 86 V. Swazey 469, 477 Nichol V. Ridley 363 NichoUe v. Plume 339, 345 Nichols V. Johnson 359, 393, 394, 402 V. Lytle 69 V. Nichols 126 (Goodright d.) o. Mark 48 Nickells v. Atherstone 46, 52 Noble V. Ward 425, 427, 436 Nones v. Homer 123, 297 Norman v. Phillips 329, 339, 346 Norris v. Morrill 38 V. Wilkinson 59 North V. Forest 131, 303, 450 V. Robinson 180 Northern v. State 309 Norton v. Huxley 173 V. Preston 448 V. Webb 236 Noyes v. Chapin 70 V. Humphreys 140, 190, 192, 209 Nunn V. Fabian 466 Nutting B. Dickinson 115 o. O'Donnell v. Leman ■ V. Smith 359 162 Ogilvie V. Foljambe 372 OTIara v. O'Neil 91 O'Herlihy «. Hedges 448, 457 Old Colony R.R. v. Evans 383 Oldham v. Litchford 87 Olmstead v. Greenly 195 Page Olmstead v. Niles 250 O'Neil V. Mining Co. 311 Ontario Bank v. Root 487 O'Reilly v. Thompson 450, 456, 473 Ormond (Lord) v. Anderson 383 Osborn v. Phelps 394, 450 Osborne v. Endicott 484 Otis V. Haseltine 420 Ott V. Garland 119 Cutwater v. Dodge 338, 339 Owen V. Davies 466 V. Thomas 359 Owings V. Baldwin 450, 460, 473 P. Pace V. Marsh 416 Packard v. Richardson 376, 408 Packer v. Willson 419 Page V. Monks 142 V. Page 80, 85, 86 V. Pierce 63 Pain V. Smith 69 Palmer v. Scott 383 Parke v. Leewright 457 Parker v. Baker 63, 272 V. Bodley 76, 395, 400 V. Mclver 363 V. Schenck 315 V. Smith 373, 450, 456 Parker v. Staniland 246 V. Wallis 330 V. Wells 457 Parkhurst v. Van Cortlandt 359, 382, 449, 453, 469, 471, 473 Parish v. Gilmanton 63 Parks V. Brinkerhoff 375 V. Hazlerigg 12 Parrish v. Koons 19, 383 Parsons v. Camp 28 V. Loucks 808 V. Walter 153 V. Wells 63 Parteriche v. Powlet 426 Parton v. Crofts 387 Pasley v. Freeman 170 Patchin v. Swift 408, 418 Patten v. Gumey 170 Patterson v. Cunningham 143, 448 V. Ware 477 Pattison v. Horn 88, 232 Patton V. McClure 444 Pawle V. Gunn 115, 312 Payne v. Baldwin 193 V. Johnson 134 Payson v. West 128, 448 Peabody v. Harvey 154, 190 xxxu INDEX TO CASES CITED. Peacock v. Pervis 483 Pearce v. Blagrave 188 Peate v. Dickens 419 Peck V. Thompson 147 Peebles v. Reading 77 Peifer v. Landis 460 Peltier «. Collins 364, 401 Pembroke ». Thorpe 70, 449, 465 Pengall (Lord) v. Ross 457, 458, 461, 471 Pennell v. Pentz 192 Penniman v. Hartshorn 372, 374, 881 Penton v. Robert 240 Pentz V. Stanton 380, 381 People V. Beebee 305 V. Goodwin 29 V. Rickert 36, 38 Percival ti. Blake 345 Perkins v. Pitts 68 Perley v. String 150, 163 Perrine v. Leachman 482 Perry v. McHenry 81, 88 Peter v. Compton 276, 294, 296 Peters v. Ballistier 325 V. Inhabitants of West- borough 277, 283, 286 Petrick v. Ashcroft 473 Philbrook v. Belknap 120, 124 Phillimore v. Barry 379 Phillips V. Bistolli 323 V. Crammond 84 V. Gray 157 V. Hooker 380, 402 V. Hunnewell 333 V. Leavett 272 V. Thompson 29, 462, 473 Philpot V. Briant 181 V. Walcot 220 Phipps V. Sculthorpe 51 Pickering v. Appleby 302 Pierce v. Paine's Estate 295 V. Woodward 138 Piercy v. Adams 482 Pierpont v. Barnard 128 Pike V. Brown 115, 153, 157, 180, 217 V. Irwin 162, 164 V. Morey 448 Pillans «.Van Mierop 162, 164, 181 Pilling V. Armitage 473 Pinkham v. Gear 71 Pinney v. Fellows 86, 94 Pinnock v. Clough 83 Pipkin V. James 367, 402 Pitkin V. Long Island R. R. Co. 278 Pitman v. Poor 29 Pitts V. Beckett 365, 372 Plimpton V. Curtiss 282 Plummer v. Russell 17 Plymouth (Earl of) v. Hickman 102 Podmore v. Gunning 87, 99 Pomeroy J). Windship 115,235 Poole V. Bentley 9 Popham V. Eyre 456, 476 Porter v. Hill 66, 68 V. Perkins 66 Postlethwaite v. Freaze 232 Poulter V. Killingbeck 249 Poultney t). Holmes 235 Powell V. Jessop 263 V. Lovegrove 395 V. Rich 250 V. The Monson and Brim- field Mannf. Co. 81, 86 Powers V. Fowler 418 Prather v. Vineyard 179 Pratt V. Bank of Bennington 63 V. Humphrey 178, 180, 181 V. Parkman 325 Preble v. Baldwin 180, 273 Preece v. Corrie 44 Preston ». Meroeau 396 Price V. Combs 169 V. Lea 348 V. Leybum 116, 122, 238 V. Richardson 415 Pringle V. Sturgeon 67 Pritchard v. Brown 86 Proctor V. Jones 323, 325, 334 Propert v. Parker 372 Prop's of Upper Looks v. Abbott 188 Prosser v. Allen 193 Puckett V. Bates 190 Pugh V. Good 231, 450, 461, 462, 464 Pugsley V. Aiken 35 Purcell V. Miner 274, 468, 473 Putney v. Day 250, 261 Pyke V. Williams 462 Pym"«. Blackburne 51 Q. Quackenbush v. Ehle 268, 276 Quinn V. Hanford 164, 179, 481 Quintard v. D'Wolf 186 R. Rabaud v. D'Wolf 188, 418, 421 Rabsuhl V. Lack 484 Raffensbe^er v. CuUison 436 Raikes v. Todd 407, 414, 419 INDEX TO CASES CITED. XXXlll Rake V. Pope Ralph V. Stuart Rand V. Mather Randall v. Morgan V. Rich t'. Silverthorne ■ V. Turner Page 290 823 140, 141 224, 227, 228 51 77 280 199 468, 473 181, 482 449, 450 409 8, 35 Randle V. Harris Rankin v. Simpson Rann v. Hughes Rathbun v. R,athbun Ratliffe V. Trout Rawlins v. Turner Rawlings (Doe d.) v. Walker 50 Ray V. Young 122 Rayner v. Linthorne 364, 383, 482 Raynor ». Wilson 57 Read V. Gaillard 61 V. Ladd 190 V. Nash 147, 207 Reade v. Lamb 133, 487, 494 V. Livingston 227 Reader v. Kingham 180 Readhead v. Cator 148 Redding v. Wilks 454, 455, 486 Redhead v. Cator 419 Redpath v. Roberts 55 Reech v. Kennegal 440 Reed v. Evans 408 V. Holcomb 155, 190 — V. Reed 461, 462 Reeve v. Bird 52, 65 V. Strawn 83 Reeves v. Pye 368, 465 Remington v. Linthicum 71 Rerick v. Kern 31 Reuss V. Ricksley 381 Reutch V. Long 308 Rex V. Dunston 492 V. Horndon-on-the-Hill 27 V. Inhabitants of Little Dean 8 ». Inhabitants of Longnor 14 V. St. Michaels 62 V. Standon 27 Reynolds v. Carpenter 409 V. Dunkirk & State Line R.R. Co. 383 V. Hewett 70, 467 V. Johnston 460 V. Waring 475 Rhine v. Robinson 68 Rhoades v. Castner 363 Rhode V. Thwaites 349 Rhodes V. Frick 68, 461 V. Leeds 188 V. Otis 29, 31 Rhodes V. Rhodes V. Storr Rice V. Barry V. Carter V. Gove V. Peet — ; V. Rawlings Richards v. Allen ». Porter V. Richards '■ V. Sym Richardson v. Gifford V. Price V. Squires Richman (Doe d.) v. Baldwin Richter v. Irwin Ricker v. Kelly Rickett V. Madeira Riddle V. Brown V. Emerson Rideley v. Stillwell Ridley v. McNairy Rigby V. Norwood Rigge (Doe d.) v. Bell Riges V. Magruder Rigly V. Norwood Rigney v. Lovejoy Riley v. Riley Ringgold V. Newkirk Rist V. Hobson Robbins i". Ayres Roberts v. Rockbottom Co. Page 459, 473, 495 120, 121 154 167 380 131, 143 389 118, 119 391 235, 486 62 38 2,78 322 66 273 30 61 29 78 36 444, 469 409, 420 38 304 483 63 221 409 482 157 280 ■ V. Tennoll ■ V. Tucker Robertson v. Robertson V. Vaughan Robinson v. Garth V. Lane V. Page V. Tipton Robson V. Harwell 123, 275 282, 391 86 308, 312 72, 384, 387 186 435 482 89, 109, 140, Roche V. Chaplin Rockwell V. Hobby Rodwell V. Phillips Roe d. Earl of Berkley v. Arch- bishop of York Rogers v. Atkinson V. Collier V. Kneeland — V. Murray V. Phillips V. Waters Roget V. Merritt Rondeau v. Wyatt 142 148 61 254 Roots V. Dormer 41, 42, 48, 49 425 204 419 80,83 339 154 383 299, 477, 486, 489 320 xxxiV INDEX TO CASES CITED. .Rose V. Bates V. Cunynghame Rosenbaum v. Gunter Rosenthall v. Freeburger Ross V. Hegeman EoTvan v. Lytle Rowe V. Teed V. Whittier Rowland v. Garman V. Rorke Rowton V. Kowton Rucker v. Abell ■ ■ V. Cammeyer RufFey v. Henderson Rugg V. Minet Runyan v. Mersereau Russell V. Babcoek V. Clark ■ V. Mosely V. Slade Rutledge v. Smith Ryall V. Ryall Ryde b. Curtis Ryers v. Wheeler Ryland v. Wynn Ryley v. Hicks 126 367 423 465 81 42,45 489, 493, 601 157 122 155 469, 473 118 389 27 349 63 191,208 170 419 279 90, 96, 98, 101 81, 84, 85, 94 416 65 208 32, 34 Sackett v. Palmer Safford V. Annis Sage V. McGuire V. Wilcox 153, Sailors v. Gambril Sains v. Fripp Sainsbury v. Matthews Sale V. Darragh Salmon Falls Manuf. Co. v. dard 359, 362, 363, 379, Sampson v. Burnside V. Swift Sanborn v. Flagler V. Merrill V. Sanborn 367 Sanders v. Clason Sari V. Bourdillon 382, Satterthwaite v. Emley Saunders v. Cramer V. Kastonbine V. Topp B.Wakefield 399, Saunderson v. Jackson 371 409 250, 259 468, 473 182, 408, 412 448 383 247 351, 402 God- 380, 396, 398, 401 29 147 379, 383 147 , 874, 447 214 394, 898, 402 228 221 282, 286 323 407, 411, 412 359, 366, , 373, 392 Savage v. Carroll ■ V. Foster Sayre v. Townsends Schieffelin v. Carpenter Schmidt V. Gatewood Schneider v. Norris Page 453, 466, 466, 476 469 81,82 50,62 88, 438 865, 871, 374, 381 School District No. 3 ». McLoon 469 Schuyler v. Leggett 36, 88 Scoby V. Blanchard 86, 86 Scoggin V. Slater 239 Scorell V. Boxall 128, 264, 267 Scott B. Eastern Counties R.R. 815, 847, 348 V. McFarland 236 168, 198 124, 128, 131 192 36 444, 457, 460, 465 826 184, 409 80 V. Thomas Scotten V. Brown Scudder v. Wade Scully V. Murray Seagood v. Meale Searle v. Reeves Sears v. Brink Seeley (Jackson d.) v. Morse Selby V. Selby Selkrigg v. Davies Sellack v. Harris Senior v. Butt Sennett v. Johnson Seton V. Slade Sewall V. Allen V. Baxter V. Fitch Seymour v. Bennett V. Davis V. Mitchel- Shamburger v. Kennedy Sharon v. Shaw Shattuek v. Gragg ShawB. Finney B. Jakejnan B. Shaw B. Woodcock Sheehy B. Adarene Sheffield b. Collier Sheid V. Stumps Shepard b. Spaulding Shepherd «. Bevin V. Pressy V. Shepherd Sherburne b. luUer V. Shaw 368, 371, 379 264 440 134, 212 128 381, 382 304 84 808, 812, 387 116 310, 312, 448 482 18 328 71 386 226 119, 120 115 297 29 393, 396 41 450, 469, 473 389 460, 460, 473 57 393, 394 Sherman v. Champlain Trans. Co. 282 Sherwood b. Stone 211 Shields B. Middleton 162 INDEX TO CASES CITED. XXXV Shindler v. Houston Sliipley V. Patton Shippey V. Derrison Shirley v. Shirley — V. Spencer Shitz V. Diffenbach Shook V. "Van Mater Shorey v. Picker Short V. Spackman Shortfede v. Cheek Shotwell !■. Sedam Shreve v. Grimes Shute V. Dorr Sian V. Piggott Sigerson v. Hahmann Silsbee v. Ingalls Simmons v. Spruill Simms v. Killian Simon V. Motivos V. Metivier Simonds v. Catlin Simons v. Steele Simpson v. Nance V. Patten V. Penton Sims V. Hutchins V. McEwen Sinclair v. Richardson Singstack v. Harding Sites V. Keller Sivewright v. Archibald Skelton V. Brewster Skett V. Whitmore Skinner v. Conant V. McDowal Slaymaker v. St. Johns Slingerland v. Morse Sloan V. Wilson Small V. Owings V. Schsefer 323, 327, 328, 339 297 368 381, 383 460, 473 61 198 250 364 418 71, 235 117, 118 117, 122, 282 199 323 178 402 235 387 298 70, 71, 72, 269 183, 420 151, 180 160 193 119 117 193 387 444, 457 364, 365, 366 160, 186 78, 85, 456 191 494 77 203 409 199, 483, 487, 495 218 236 Smart v. Harding Smith V. Arnold 269, 270, 271, 366, 368, 384, 387, 395 V. Bradley 122 V. Bryan 240, 260 V. Bnrnham 80, 83, 84, 133, 235, 267 V. D,evlin 45 V. Evans 10, 369 V. Fab 482 V. Finch 155 V. Goulding 274 V. Greer 227 V. Harris 174 V. Hyde 188, 193 Smith V. Ide V. Ives V. Jones t>. Kelly V. Mason «. Matthews V. Mayo ■ V. Neale V. Niver ■ V. Price V. Say ward V. Smith Page 408, 421 418, 419- 387, 388, 400 63 338 91 147 290, 382 50, 51, 55 240 150, 198 117, 122, 461 ■ V. Surnam 246, 249, 254, 309, 321, 323, 330, 339, 392 V. Tarleton 266 ■ V. Underdunk 464, 468 V. Westall 282 Sneed v. Bradley 132 Snelling v. Huntingfield 297 Snow V. Warner 338, 342 Soames v. Spencer 364 Sobey v. Busbee 34, 275 Soggins V. Heard 279 Soles V. Hickman 38, 232, 395, 400 Souch V. Strawbridge 117, 282, 290, 291, 294 Soule V. Albee 180 Southerin v. Mendum 63 Southern Life Ins. & Trust Co. V. Cole 305 Southwestern Co. v. Stanard 333, 338 Spalding v. Andrews 102 Sparling V. Parker 263 Sparrow v. Ilawkes 51 Spear v. Orendorf 466 Spencer v. Cone 313 ^ V. Field 380 V. Hale 338, 339, 345 Spicer V. Cooper 398 Spooner v. Drum 198 Sprague v. Blake 349 Springle v. Morrison 126 Spurrier v. Fitzgerald 476, 477, 479, 482 Staats V. Howlett 419 Stackburger v. Mostaller 235 Stackpole v. Arnold 379, 380, 381 Stadt V. LiU 414 Stanley v. Hendricks 157, 179 Stansfield v. Johnson 387 Stanton v. Small 325 Stapp V. LiU 381, 414 Stark V. Canady 81 V. Wilson 274 XXXVl INDEX TO CASES CITED. Page State Bank at New Brunswick ». Mettler 180 Stead V. Dawber 427 V. Liddard 420 Stearns w. Hall 425,431 V. Hubbard 489 Stebbins v. Smith 178 Steele v. Hoe 418 V. Towne 190 Steere v. Steere 82, 91, 101, 103 Stephens v. Pell 179 V. Squire 164 V. Winn 409 Stern v. Drinker 167, 198, 482 Stevens v. Cooper 434 V. Stevens 27, 28, 30, 234 Stewart v. Careless 489, 493 V. Malone 165 V. McGwin 181 V. Stewart 461 Stickland v. Aldridge 78, 99, 440 Stillwell V. Otis 179 St. John V. Benedict 85 Stocker v. Partridge 869 Stocking V. Sage 150 Stoddart v. Hart 272 Stoddert v. Vestry of Port To- bacco Parish 383 Stokes V. Moore 372, 378 Stone V. Dennison 114 V. Symmes 186 V. Whiting 51, 63 Stoney v. Shultz 19 Storms V. Snyder 286 Stoudt V. Hine 179, 200, 219 Stowell V. Robinson 432, 433 Str.itford v. Bosworth 891 Strickland v. Aldridge 78, 96 Strimpfler v. Roberts 85 Strohecker v. Cohen 162 Strong V. Crosby 41, 45 Stuart V. Baker 66 Sturtevant v. Sturtevant 99, 442 Suggett V. Cason 279, 290 Sullivant V. Commissioners of Franklin Co. 30 Summerall v. Thorns 128 Surcome v. Pinniger 439, 454, 469 Sutherland v. Briggs 453, 466 Sutton V. Sears 287 V. Sutton 119, 460 Suydam v. Clark 364 V. Westfall 154 Swan V. Nesmith 212 Swann v. Phillips 173, 505 Swansey v. Moore 124 Swartz V. Swartz 31 Sweeney v. Miller 68 Sweet V. Jacocks 82, 88 V. Lee 289, 379, 407 Swift V. Pierce 191, 192 Switzer v. Skiles 476, 484, 486 Svkes V. Dixon 416 Syler v. Eckhart 461, 469 Sylvester v. Jarman 62 Symes v. Hutley 391 Symondson v. Tweed 476 T. Taggard v. Roosevelt 35, 36, 275 Talbot V. Bowen Taliaferro v. Robb V. Taliaferro ,484 181 82 859, 402 Tallman v. Franklin Talmadge v. Rennsalaer & Sara- toga Railroad Co. 278, 291 Talver v. West 346 Tapp V. Lee 170 Tarleton v. Vietes 484, 493 Tate V. Greenlee 72, 269 V. Reynolds 46 Tatton V. Wade 175 Tawney v. Crowther 869, 392 Tayler v. Waters 26 Taylor v. Beech 454, 498, 499 V. Chapman 62 V. Deming 871 V. Drake 163, 190, 208 V. Hillyer 154 V. Pratt 409 V. Ross 409 V. Salmon 89 ii. Wakefield 823 Teal V. Auty 240, 256 Teed v. Teed 855 Tempest v. Fitzgerald 331, 835 V. Kilner 302 Templetons v. Bascom 186, 208, 209 Terry v. Chandler 69 Thayer v. Niles 11,5 V. Rock 135, 258 Therasson v. McSpeddon 205 Thomas v. Cook 61, 149 V. Croft 182 V. Dickinson 122, 448 V. Welles 167 V. Williams 189 Thome v. Seabright 24 Thompson v. Alger 305, 357 V. Blanchard 147, 411 ». Bond 176 V. Dixon 264 V. Gordon 276 INDEX TO CASES CITED. XXXVU P»go Thompson v. Gould 448 V. Hall 409 V. Jamesson 489 V. Mason 117, 126 V. Tod 457, 489, 490, 493 Thomson v. Scott 468, 473 V. Wilson 43, 62 Thornborough v. Baker 62 Thornton v. Charles 364 r. Dixon 264 V. Jenyns 418 V. Kempster 364 V. Meux 364 V. Vaughan 460, 484 Thoroughgood's case 14 Thresh v. Rake Thwaites v. Curl Thynn i'. Thynn Thynne v. Glengall Tibbs v. Barker Tiemey i: Wood Tileston v. Nettleton Tindal v. Touchberry Tippets V. Walker Tisdale v. Harris Todd V. Tobey ToUej' V. Greene Tomkinson v. Staight Tomlinson v. GeU - V. Gill 431 191 87. 367, 465 460 99 188, 190 168, 199 263 302 179 277 338 197 144, 189, 206 Tompkins v. Smith 186, 208 Tomson v. Ward 57, 68 Toole V. Medlicott 463, 469 Toomer v. Dawson 369, 364 Toppin V. Lomas 236, 271 Towers v. Osborne 299, 307 Towne v. Grover 168 Townend v. Drakeford 364, 388 Townseud v. Ash 262 V. Devoynes 264 V. Houston 458 V. Sharp 449, 450, 457, 482 V. Townsend 115 Townsley v. Sumrall 166, 183 Trammell v. Trammell 29, 271 Tress v. Savage 38 Trice v. Pratt 269 Troughton v. Troughton 382 Trowbridge v. Wetherbee 142, 267, 268 Trull V. Skinner 67, 68 Truman v. Loder 364 Truscott V. King 272 Trustees, &c. v. Wright 484 of Andover v. Flint 154 , &c. V. Brooklyn Fire Ins. Co. 282 Tucker v. Buffington V. Ruston Page 325 325 Tufts V. Plymouth Gold M. Co. 863 Turner v. Coolidge 326 V. Hubbell 145 Turnley v. Macgregor 506 Turton v. Burke 193 Tuttle V. Swett 284 Twidy V. Sanderson 142 u. Ulen V. Kittredge 376, 389 Underbill v. Allen 457, 483 V. Williams 444, 461, 469 Underwood v. Campbell 409, 413 V. Hossack 376 Union Bank of La. v. Coster 419, 421 U. S. Bank v. Carrington 76 V. Southard 154 Upper Locks (Proprietors of) v. Abbott 188 Upton V. Elsie 134 V. Vail 170 Valpy V. Gibson 396, 401 Van Allstine v. Wimple 142, 143 Vanderbergh v. Spooner 394 Van Epps v. McGill 157 Vanmeter v. McFadin 61 Van Reimsdyk v. Kane 133, 162 Van Rensselaer v. Penniman 48, 50 Van Slyck v. Pulver 198 Vaughan v. Cravens 117 V. Hancock 136, 268 Vaupell V. Woodward 263, 484, 496 Vauxhall Bridge Co. ex parte 263 Verlander v. Codd 359 Vielie v. Osgood 365, 371 Villers ». Handley 8 Vincent v. Germond 330, 362 Violett V. Patlon 409 Voluntine v. Godfrey 116 Voorhees v. Presbyterian Church of Amsterdam 78 Vose V. Handy 63 r'W. Wack V. Sorder 470, 471 Waddington v. Bristow 242 Waggoner v. Gray 157 Wagnon v. Clay 154, 481 Wain V. Warlters 184, 406, 418, 421 XXXVlll INDEX TO CASES CITED. Page Wain-wright v. Straw 191 Wait V. Wait 165 Wakefield v. Greenhood 164 Wakeman v. Sutton 482 Walden v. Murdock 334 Walker v. Bernard 65 V. Constable 122, 387 V. Musaey 349, 356 V. Norton 147 V. Richards 192, 482 V. Richardson 42, 53, 64 V. Sherman 182 V. Taylor 195 V. Walker 373, 439 Wallace v. Duffield 77 V. McCuUough 13 Waller v. Tate 63 Wallis V. Harrison 27 Walrath v. Thompson 417 Walsh V. Kattenberg 482 Walter v. Walter 448 V. Morgan 489 AVanchford i\ Fotherley 223, 224 Ward V. Shaw 336 Warden v. Adams 63 Ware v. Adams 184 V. Stephenson 190 Warneford v. Warneford 10, 369 Warren v. Barker 170 V. Leland 240, 260 V. Stagg 431 Warwick v. Bruce 243 Waterbury v. Graham 419 Waterman v. Meigs 308, 393 Waters v. Towers 132 Watkins v. Perkins 191 Watrous v. Chalker 116 Watson u. J'acobs 186 V. Randall 186 V. Spratley 262, 263, 302 Watson's Adm'r v. Violett 270 Watts V. Ainsworth 359 V. Friend 258, 309, 318 Waul V. Kirkman 359 Webb V. Paternoster 24, 25 Webster v. Ela 393 Weddall v. Capes 41, 46 Weed V. Clark 417 V. Terry 68 Weeks v. ^urton 170 Weld V. Nichols 152, 180 Welford V. Beazely 93, 375 Welles V. Cowles 262 Wells V. Bannister 117 Wells V. Horton 276 V. Prince 175 Welsh V. Usher 61 Page Wentworth v. Buhler 448 Westbrook v. Eager 260 Western v. Russell 359, 372 Westfall V. Parsons 160 Weston (Martin d.) v. Mowlin 62, 63 Wetherbee ». Potter Wetmore v. White Whaley v. Bagnel V. Dawson 119 Wheeler v. Collier V. Newton Whitaker v. Cawthome Whitbeck v. Whitbeck Whitbread v. Brockhurst , 142, 268 469 391, 449 64 393 8,369 29 157 470,486, 489, 490 Whitchurch v. Bevis 367, 443, 456, 476, 486, 487, 489, 492, 497, 600 Whitcomb v. Kephart 148 White V. Carpenter 81 V. Coombs 271 V. Crew 462 V. Hanchett 277 V. Procter 387 V. White 235 V. Woodward 419 Whiteacre (d. BoiJt) v. Symonds 22 Whitehead v. Carr 231 V. Clifford 43 Whiting V. Gould 88, 477 Whitmarsh v. Walker 28, 249, 259 Whitney (Doe d.) v. Cochran 123 Whitton I). Russell 87 Whitridge v. Park"hurst 438 Whittemore v. Gibbs 63, 237, 306 Whittier v. Dana Whitwell V. Wyer Whitworth v. Gaugain Wible V. Wible Wiggins B. Reiser Wilber v. Paine Wilcox V. Wood Wilde V. Fox Wildey V. Bonney Wilhelm v. Hardeman Wilkes V. Ferris Wilkinson v. Evans V. Hardt V. Scott V. Wilkinson Wilks V. Atkinson V. Back Willeyu. Roberts Williams, ex parte, 425, 431 349 59 232, 460 277, 283 467 36 466, 466 66 277 326 359 282 115, 459 469 309 16 359 152, 191 ■ V. Bacon 365, 380, 392, 393 ■ V. Brown 80 • V. Burgess 300 INDEX TO CASES CITED. XXXIX Pago Williams v. Byrnes 393 r. Dyde 155 V. Evans 325, 329 1). Hills 61,272 V. Hollingsworth 86 V. Ketchum 414 V. Lake 393 V. Landman 466 V. Leper 199, 200, 201 V. Morris 26 V. Pope 460 V. Sawyer 46 V. Stratton 61 Willis V. Evans 478, 479 V. Willis 85 Wills V. Stradling 465, 466 Wilson V. Beddard 371 V. Clialfant 30 V. Clarke 232 V. Dent 90 V. Foreman 84 V. Hunter 390 V. Martin 22, 275 V. Ray 295, 443 V. Sewell 47, 48 V. Troup 63 Wilton V. Harwood 447, 469 Winckworth v. Mills 149 Windham v. Way 240 Wingate v. Dail 473 Winn V. Albert 227, 479, 489 Win ship ». Buzzard 315 Winter v. BrockweU 27 Wise V. Kay 373 V. Wilcox 170 Withers v. Lyss 325 Wolfe V. Frost 470 V. Sharp 271 Wolff u. Koppel 195, 212 Wood V. Benson 137, 141, 419 V. Corcoran 186 V. Gee 115 V. Goodridge 10, 17 V. Lake 27, 28, 30 V. Leadbitter 24, 27 Page Wood V. Manly 27, 28, 249 V. Midgley 359, 368, 377, 892, 486 V. Savage 227 V. Wheelock 420 Woodbury v. Parshley 29 Woodcock V. Nuth 64 Woodhull (Den d.) v. Longstreet 66, 67 Woods V. Dille 476 r V. Farmare 460, 461 V. Wallace 271 Woodward v. Sealey 29 V. Wilcox 200, 219 Worrall v. Munn 369, 382, 389 Worthey v. Jones 277 Wray v. Steele 81 Wren v. Pearce 409 Wright V. Cobb 368, 395 V. Dannah 383, 389 V. Douglass 90, 91, 92, 97 V. Freeman 30 V. Stavert 22, 235 V. Wakeford 370 V. Weeks 400 Wylie V. Kelly 329 Wyman v. Gray 164, 409 V. Smith 179 Y. Yarborough v. Abemathy 69 Yates V. Martin 271 Yeakle v. Jacob 29 Yerby v. Grigsby 372, 389 Young V. Dake 36, 235, 275 V. Frost 68 V. Glendenning 461 V. Peachy 86 Z. Zachrisson v. Poppe 323 Zickaposse v. Hulick 239 Zimmerman v. Wengort 463 PART I. THE CREATION AND TRANSFEE OF ESTATES m LAND. STATUTE 29 Car. H. c. 3. THE FIRST THREE SECTIONS J BEISTG SUCH AS AFFECT THE CREATION AND TRANSFER OF ESTATES IN LAND. Section 1. All leases, estates, interests of freehold or terms of years, or any uncertain interest of, in, or out of any messuages, manors, 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 creat- ing 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 notwithstanding. Section 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. Section 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, tene- ments 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. TREATISE STATUTE OF FRAUDS. CHAPTER I. FORMALITIES FOR CONVEYING ESTATES IN LAND. § 1. The Statute of Frauds found the law of England in regard to the alienation of corporeal interests in land in a singularly unsettled condition. The ancient invesiitura propria, or actual delivery of the land by the donor to the vassal, which was practised in early feudal times, had been accompanied by such solemnities in the presence of chosen witnesses as gave the highest notoriety to the transaction and secured ample evidence of it. This was properly that livery of seisin which is mentioned in the first section of the Statute of Frauds, and it may be supposed that if it had been preserved in its original strictness and formality, the policy of the statute would not have demanded the substitution of any other ceremony. But the diffusion of landed property among the middle classes, and the extension of commercial intercourse between men, soon brought about infringement upon the ancient practice. The lord delegated the investiture of his tenant to the attorney or steward, and the attestation of common witnesses, instead of the pares curice of the particular manor, was received. Other relaxations of the ancient form followed, until there remained scarcely a vestige of the original ceremony. It had always 4 STATUTE OP PEAtTDS. [CH. I. been customary to make a brief written record of the investi- ture, and as the old formalities of the parol transfer fell into disuse, this record grew more elaborate and finally came to be the sole resort for evidence of the transaction. Still, it was never indispensable, and down to the time when the Statute of Frauds was passed, land could be transferred by parol with livery of seisin, loose and informal as that ceremony had then become, and consequently great danger was incurred of such transfers being attempted to be proved by false and fraudulent means. By this statute it was finally made essen- tial to the conveyance of estates in land (with an exception to be hereafter noticed), that it should be done by writing signed by the party or his agent, and all estates created " by livery of seisin only and by parol " were declared to possess no greater force or effect than estates at will. The statute made no pro- vision however for the registration of the written conveyances, which omission doubtless left open a wide field for fraud, and was not cured in England till some years after, when record- ing acts were passed. § 2. It will be observed that the operation of the statute is confined to such interests in land as could formerly be con- veyed by livery of seisin or by parol. Hence it is clear, and has always been held, that in regard to incorporeal estates no change has been introduced, but that they were left, as they stood at common law, transmissible only by deed or writing sealed. § 3. Again, if we consider the first three sections in con- nection with the fourth and sixth, the broad and comprehensive views of those who produced the Statute of Frauds will be still more clearly appreciated. The fourth section not only has the effect of preventing an action upon a verbal contract for the sale of any interest in land, but also cuts off those equitable claims to land which would arise upon such a contract made for a valuable consideration, and which might be enforced in chancery so as ultimately to effect a transfer of real estate without writing. And so with the sixth section, which pre- vents any trust in real estate from being manifested or proved CH. I.] FORMALITIES FOR CONVEYING ESTATES IN LAND. 5 without writing. By force of all those sections, if faithfully enforced by courts of equity as well as courts of law, it becomes impossible to transfer any interest in land, other than the very small class of estates saved by the second section, except by complying with those formalities which the statute has wisely required. § 4. There is, it is true, a difference of phraseology between the sections just referred to, and it may be confessed that this and similar irregularities in the language of the statute lead to confusion and embarrassment in treating of the general topics to which it relates. The sections which speak of conveyances specify in detail the various grades of property which may exist in real estate, whether " leases, estates, interests of free- hold, or terms of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements, or hereditaments." The section which prevents actions from being brought upon contracts for real estate goes, it might be thought, even far- ther ; it says " lands, tenements, or hereditaments, or any interest in or concerning them." The section which prevents trusts in real estate from being verbally proved, simply uses the words " lands, tenements, or hereditaments." We shall have occasion hereafter to refer to cases where judges have dwelt upon the expressions " uncertain interests," " concern- ing," etc., as embracing particular cases then before them ; but no case appears to have been directly decided upon the ground of any of these differences of expression. § 5. Sir Edward Sugden explains very clearly the mutual relation of the several sections which i-efer to the creation of estates in land. He says that the former seem to em- brace interests of every description, and that all estates actually created without the formalities required therein are avoided by their operation ; while, if the same estates rest in fieri, the agreement to perfect and consummate them cannot be enforced by reason of the latter section, relating to con- tracts.^ But it is to be remembered that the sections which • 1 Vend. & Purch. 94, 95. 6 STATUTE OP FRAUDS. [CH. I. relate to contracts for, and trusts in land, take a wider range than those which relate to transfers of land. The operation of the statute in the latter case is confined to corporeal estates, or such as could previously have been created by " livery of seisin or parol," and does not extend to incorporeal estates, which lie in grant and which, as well after the statute as before, require to be created by deed. But actions cannot be maintained on verbal contracts for, nor verbal proof admitted of trusts in, incorporeal any more than corporeal estates. On a comprehensive view of the statute as it regards the alienation of estates in land, therefore, we see that all estates, great and small, corporeal and incorporeal, are now provided for. Where an incorporeal estate is to be conveyed, the common law demands a deed for that purpose ; and the Statute of Frauds leaves that requirement untouched. Where a corporeal estate is to be conveyed, the statute demands a writing. Where a contract is made for the conveyance of either a corporeal or incorporeal estate, the statute prevents that contract from being enforced unless it be in writing ; and if a trust is alleged in either corporeal or incorporeal estates, the statute requires writ- ten evidence of that trust to be provided. § 6. The next question to be considered is, what changes the statute made in the formalities required for the transfer of estates in land ; and, in answering it satisfactorily, we are met by no little difficulty in the exceedingly concise and somewhat obscure language of the first section. One construction, and perhaps the most obvious one, is derived from reading it affirm- atively, that is, as if it enacted that all the interests and estates therein enumerated should thereafter be made or created by writing and signed by the parties, etc. ; but as estates of free- hold are embraced in the enumeration, this construction requires us to say that they too may be created by writing merely with- out deed.i If, to avoid this difficulty, we say that a seal must ' As lately as the year 1815, in Jackson d. Gough v. Wood, 12 Johns. (N.Y.) 73, it was insisted that a writing not under seal was sufficient under the Statute of Frauds to pass a fee-simple. This position was not sustained CH. I.] FORMALITIES FOR CONVEYING ESTATES IN LAND. 7 be understood as required in addition to the writing, then it follows that terms for years which could originally be created without writing must now be not only in writing but also under seal. The important inquiry arises therefore whether the stat- ute has in fact made it necessary that terms for years be created by deed. This inquiry was presented in the Supreme Court of New Jersey, in 1835, in the case of Den d. Mayberry v. Johnson, and answered in a masterly decision of that court pronounced by Mr. C. J. Hornblower. The 9th section of the New Jersey statute is copied almost literally from the first section of the I]nglish statute, and the case came before the court upon a verdict for the plaintiff, taken in an action of ejectment, sub- ject to their opinion on two questions, of which the first was, " Whether a lease for more than three years, not under seal, is a good and valid lease within the Statute of Frauds." The argument for the plaintiff was the same suggested above, that if a lease could be without deed, so could a conveyance of free- hold. The Chief Justice, after acknowledging the absence of any satisfactory judicial decision upon the question, proceeds to decide it upon the construction of the statute as ascertained by comparison with the common law. " At the common law, estates in fee, for life, or for years with remainder in fee, in tail or for life, might have been created by deed and livery of seisin, or by livery of seisin only ; and leases or estates for years might have been made by deed or by parol, or by parol merely, without livery of seisin. It must also be remembered, that by the common law of England, all contracts were divided into agree- ments by specialty, and agreements "bj parol; there was no such third class as agreements in writing. If they were written and not under seal they were parol agreements. A lease for years written, but not sealed, was a parol lease, as well as a lease unwritten and verbal only. Thus stood the law of conveyanc- ing, and of contracts, when the 29 Car. 2, cap. 3, was passed. The question then occurs, what change did the statute introduce by the court, but they admit that no direct decision appeared to have been made on the point. 8 STATUTE OP FRAUDS. [CH. I. in the mode of creating and transferring the different interests and estates of freehold, and less than freehold, mentioned in the statute ? The answer is plain : it abolished the practice of creating estates in fee and all other estates of freehold, by livery of seisin orHy ; and prohibited the making of leases for more than three years, by parol agreements, not put in writing. It did not prescribe the manner in which sUch estates should be created or transferred ; but only declared, that freehold estates, if made by livery and seisin only, and estates for years, if made by parol, and not put in writing, should operate as estates at will. In whatever way, therefore, such estates might have been created prior to the statute, other than by mere livery of seisin, or by parol, and not put in writing, they may still be created. Now it is manifest, that before the Statute of Frauds, estates of freehold and of inheritance, might have been created by deed and livery of seisin, and that leases might have been made by writing simply, or to speak technically, by a parol agreement reduced to writing. It follows, therefore, that after the Statute of Frauds, no estate of freehold could be created or conveyed, but by deed; and that a lease for more than three years, could only be made by indenture of lease, or, by parol agreement ' in writing, signed by the parties.' Thus by resort- ing to this distributive construction (a mode of construction not unusual, and often necessary to be adopted), the 9th section of the Statute of Frauds becomes plain and intelligible ; and we are able to decide without hesitation, that a lease for more than three years, in writing, though not under seal, is good and valid under that statute." ^ § 7. There are a number of early decisions in England, in which it is more or less directly held, that a lease for years, since the statute, miist be by deed.^ But nevertheless it seems that a practical if not a judicial construction of the statute has determined otherwise. There are many cases to be found in " Den d. Mayberry v. Johnson, 3 Green (N. J.), 116. 3 Rawlins v. Turner, 1 Ld. Raym. 736 ; Rex v. The Inhabitants of Little Dean, 1 Stra. 655 ; Harker ». Birkbeck, 3 Burr. 1556 ; Villers v. Handley, 2 WUs. 49. See also Wheeler v. Newton, Free, in Ch. 16. CH. I.J FORMALITIES FOR CONVEYING ESTATES IN LAND. 9 the books, from which it appears that agreements in writing for leases, signed but not sealed, have been held to amount to leases, if in words in presenti, and if it did not appear upon the whole instrument that the parties intended it should not take effect until a more formal lease should be prepared and executed.^ These agreements are not leases, in strict and legal language ; they are more properly parol demises " put in writing and signed by the parties," etc., or written evidence of leases. A lease, when we mean thereby the instrument, is in legal language an indenture of lease, or a deed ; but in common speech, where it is said a man has a lease for property, nothing more is meant than that he has a term or an estate for years in the premises, which may be by deed or by writing not under seal.^ Although, as admitted by the court in Mayberry v. Johnson, there is no other case in which the question had been judicially decided as one arising under the Statute of Frauds, the settled opinion in England seems to be that the statute has not re- quired a lease for years to be under seal.^ § 8. In the third section of the statute, relating to the assign- ment, grant, or surrender of an existing term or estate, the distinction is plainly marked between a deed and a note in writing ; the latter being mentioned as something different from a deed. The same difficulty, therefore, is not presented here as upon the first section, and it is well settled by a series of decisions in both countries that an assignment, grant, or surrender of an existing term may be by writing unsealed.* ' Baxter d. Abrahall v. Browne, 2 W. Black. 973 ; Goodtitle d. Est- wick 17. Way, 1 Term K. 735 ; Morgan d. Dowling v. Bissell, 3 Taunt, 65 ; Poole V. Bently, 12 East, 167, and cases there cited. ^ Den d. Mayberry v. Johnson, 3 Green (N. J.), 120, 121. ' 4 Greenl. Cruise, 34; Koberts on Frauds, 249. Mauls, J., in Aveline ». Whisson, 4 Mann. & Gr. 801. The enactment of Stat. 8 & 9 Vict. ch. 106, § 3, providing that leases, etc., shall be by deed, is a circumstance strongly tending to show that previously a deed was not supposed to be ne- cessary. In Allen v. Jaquish, four years after Mayberry v. Johnson, the Supreme Court of New York say: "There is no doubt that either a sur- render or a demise may be effected by a simple writing not sealed." 21 Wend. 628. * Fanner d. Earl v. Rogers, 2 Wils. 26 ; Becked. Fry v. Phillips, 5 Burr. 10 STATUTE OP PRATTD8. [CH. I. § 9. On the other hand it has been doubted whether, since the statute, a lease is sufficiently executed by being sealed, though not signed. Sir "William Blackstone says the statute " revives the Saxon custom, and expressly directs the signing in all grants of lands and many other species of deeds, in which therefore signing seems to be now as necessary as seal- ing, though it hath been sometimes held that the one includes the other." i Chief Justice Willes, in Ellis v. Smith,^ strongly disclaimed deciding to the contrary, and the same view appears to be favored by several recent cases in Massachusetts in which questions have been made as to the effect of a defective signa- ture upon the validity of a deed.^. But the opinion stated in the Commentaries is opposed by another eminent writer, who says it was conceived through not attending to the words of the statute.* The words in question, namely, " by livery of seisin only, or by parol," defining those transfers which were thenceforth to be by writing signed, were examined in Cooch v. Goodman, in the Queen's Bench in 1842. It was not neces- sary in that case to decide the question we are now consider- ing, but it is manifest, that the remarks of Mr. J. Patteson strongly support the position that the statute did not mean to require a signature to a conveyance of lands which was sealed.^ 2827 ; Doe d. Courtail v. Thomas, 9 Barn. & Cres. 288 ; Holliday v. Mar- shall, 7 Johns. (N. Y.) 211 ; Allen v. Jaquish, 21 Wend. (N. Y.) 628. ' 2 Black. Com. 306. ' Ellis V. Smith, 1 Ves. Jun. 10. Soon after the act was passed, the question was raised in the Common Pleas upon another branch of the stat- ute ; three judges held the signature to be unnecessary to a will having a seal; the other doubted. Lemayne v. Stanley, 3 Lev. 1. That sealing a will is a signing of it was decided in Warneford v. Warneford, 2 Stra. 764. But see Smith v. Evans, 1 Wils. 313. This point is farther examined, post, §365. ' Wood V. Goodridge, 6 Cush. (Mass.) 117 ; Gardner ». Gardner, 6 lb. 483. * Mr. Preston, in 1 Shep. Touch. 66, n. 24. * Cooch V. Goodman, 2 Adol. & Ell. (n. s.) 580. The following extract from the report is deemed justified by the doubt which has been entertained upon this important point. Counsel speaking of the first section of the statute says : CH. I.] FORMALITIES FOR CONVEYING ESTATES IN LAND. 11 Again, in the more recent case of Aveline v. Whisson, where a declaration was in covenant upon an indenture of lease, a plea that an indenture was not signed by the plaintiff or any agent authorized in writing, was held by the Court of Common Pleas to be bad ; and Mr. Justice Maule said : " Can the other side contend that a deed requires a signature? This is not like a lease by parol." ^ And more recently still, in the Court of Exchequer, it has been stated to be settled that under the first section of the statute sealing alone is suflBcient.^ These latter decisions appear to leave no room for question upon the point as matter of authority, and upon close inspection and analysis of the language used in the statute, it does not seem easily reconcilable with any other interpretation.^ In this country also, that interpretation has received the approbation of the Supreme Court of Indiana, and it is considered by a re- " The section must be read as requiring every such lease to be in writing and signed, otherwise to have the effect only of a lease at will. Can any instance be found in which, since that statute, a lease under seal has been held valid without signature ? " [Patteson, J. "You read the statute so as to throw out the words ' or by parol.' "] " Some words must be rejected. The meaning is that there shall be no leases by livery of seisin only, or by parol only ; ' parol ' may be construed as distinguished either from a deed or from a writing.'' [Pattbson, J. " ' Livery and seisin only,' mean without deed ; you give no sense whatever to the intermediate words."] " The intention was that all demises should be evidenced by the signature of the party or his agent." [Patteson, J. "The reference to the agent supports the agreement on the other side ; had the intention been to include deeds, it would have re- quired the agent to be authorized by deed, and not merely in writing."] _ Lord Dbnman, C. J., in delivering the judgment of the court, says : "It is curious that the question should now for the first time have arisen in a court of law, and perhaps as curious that it is not now necessary to deter- mine it." ' Aveline v. Whisson, 4 Mann. & Gr. 801. " Cherry v. Hemming, 4 Wels., Hurl. & Gord. 631. ' See the reasoning of Mr. J. Patteson, in Cooch v. Goodman, quoted supra. The English law is also stated to be in conformity with the position presented in the text, in Gresley, Eq. Evid. p. 121 ; and Preston, Abs. Tit. 293. 12 STATUTE OP FRAUDS. [CH. I. spected Amerioan writer, in a recent, treatise, to be the better doctrine.! § 10. Supposing, however, that the statute does require a signature to a conveyance of an interest in land, an important question arises, what is to be deemed a signature under its provisions ; whether it contemplates such a signature as would have been good at common law, as, for instance, by having the grantor's name affixed to the instrument in his presence and by his direction. This point came before the Court of Appeals of South Carolina quite recently, and was very ably discussed. The case was of a marriage settlement embracing real property, and one question was, whether the intended wife had validly executed the instrument, she not having signed it herself, but requested a witness to sign her name for her, which was ac- cordingly done in her presence. The court, which consisted of four chancellors, being equally divided on the question, it was not determined, and the decision passed upon another ground ; but the opinion of Chancellor Johnston, in delivering judg- ment, presents very strongly the argument against the validity of such an execution. He said : " The statute requires the party to sign himself, or if he signs by an agent, the agent must be authorized in writing. When another person sub- scribes for him, that person is his agent, whether the act be done in his presence or out of it. The only difference between an agency exercised in the presence and one executed in the absence of the principal is in the evidence of the agent's au- thority. The presence and superintendence of the principal are proof of his assent ; other proof may be necessary when he is absent. But in either case it is the principal who acts and not the agent. If the agency be made out by proof of authority, then the law comes in aiir^declares that the act done by him shall be attributed to and Stiall- Bind the principal. The > Parks V. Hazlertgg, 7 Blackf. (Ind.) 536; 1 Parsons on Contracts, 96, note, in whioh some valuable suggestions, may be foun^ as to the formali- ties required for conveyances by tfife statute. By the Kevised Statutes of Indiana, 1843, p. 416, conveyances of lands or of any estate or interest therein are expressly required to be subscribed and sealed. See Appendix. CH. I.] FORMALITIES POB' CONVEYING ESTATES IN LAND. 13 common law which admitted parol proof of authority would no doubt have declared that an act done in the presence of the latter by his procurement was binding on him, and in this sense that it was his own act. But the statute in this section has emphatically declared that if an agent sign, his authority shall not be made out by parol, but must in all cases be proved by writing. The act, if otherwise evidenced, shall not be the act of the principal, nor bind him. This enactment, it is therefore contended, has materially altered the common law in this, that a subscription by Agency, wherever executed, if the authority to make it depend upon parol, is not the subscription of the party nor conclusive on him." The learned Chancellor sup- ports this view by comparing the provisions of the statute in regard to the execution of conveyances with those in regard to the execution of wills ; the latter expressly permitting the alter- native of signature by the testator, or " by some other person in his presence and by his express direction ; " and argues that the omission of this alternative in the former case shows the intention of the legislature that the alternative act should not, in cases of conveyances, be permitted. In cases of wills, the probable physical incapacity of the testator at the time, affords a reason for allowing him to sign by the hand of another ; and in maintaining that no exception can be engrafted upon the statute on consideration of expediency, where the statute itself is clear against such exception, the Chancellor seems to admit that, by his construction, all persons laboring under such phys- ical incapacity to sign a conveyance or letter of attorney to convey are disqualified from making a transfer of land.^ , § 11. In the case of Gardner v. Gardner, very recently de- cided in Massachusetts, the Supreme Court refused so to con- strue the statute. The grantor assented by a nod to her daughter's signing for her, whereupon the daughter signed thus : " Polly Gwinn by Mary G. Gardner," and the court held that it was not to be considered as an execution by an attorney, which would have required a power written and sealed, but as ' Wallace v. McCoUough, 1 Rich. Eq. (S. C.) 426. 14^ STATUTE OF FRAUDS. [CH. I. an execution by the grantor herself. Chief Justice Shaw, de- livering the opinion of the court, said : " The name being writ- ten by another hand in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. To hold otherwise would be to decide that a person having a full mind and clear capacity, but 'through physical inability incapable of making a mark, could never make a conveyance or execute a deed ; for the same in- capacity to sign and seal the principal deed would prevent him from executing a letter of attorney under seal."^ The report, however, does not show any physical inability on the part of the grantor to sign for herself, but a plain case of execution of a deed of land by the hand of another, similar to that which the court in South Carolina found itself unable to sustain. The reasoning in Gardner v. Gardner is certainly very satisfac- tory as to cases where there exists such physical inability ; but the report shows no reasoning upon the question which appears to have been actually presented on the facts. None of the au- thorities quoted are decisions upon the statute. Ball v. Dunster- ville ^ was upon a bill of sale, a partnership transaction, and one partner signed for both. Remark in Greenleaf on Evidence,^ that " if the signature of an obligor be made by a stranger, in his presence, and at his request, it is a sufficient signing," is based upon the decision in Rex v. Longnor.* That was a case upon an indenture of apprenticeship, where the names of the appren- tice and his father were signed by another person, in their pres- ence, and at their request. The instrument was not read over to the father, but the court held upon the authority of Thorough- good's case,^ that it was not for that reason invalid. The son ' Gardner ». Gardner, 5 Cush. 483. « Ball V. Dunsterville, 4 Term R. 313. ' Vol. n. § 296. ♦ Rex V. The Inhabitants of Longnor, 1 Nev. & Man. 576. ^ Thoroughgood's case, 2 Co. Rep. 6. CH. I.] FORMALITIES FOR CONVEYING ESTATES IN LAND. 15 subsequently had it read to him and approved it, and carried it to his master and entered as apprentice under it. It vas decided that the instrument was validly executed by both, but the question whether the signature by the hand of a third per- son was sufficient was not raised. The decision went entirely upon Thoroughgood's case, in which the deed was actually Sealed and delivered by the grantor, and which was before the Statute of Frauds was enacted.^ § 12. In Irvin v. Thompson, the Supreme Court of Kentucky adopted the same course of reasoning as that in Gardner v. Gardner. A letter authorizing the sale of lands was subscribed with the name of the party, by another person, at her request, and in her presence, and a contract for the sale of the land, made by the attorney under that letter, was now sought to be enforced. The court held that the power was sufficient though not actually signed by the principal, because, " to construe the statute to require an authority to make a contract for the sale of land to be in writing and signed by the party giving such authority, would in effect prevent any person who is unable to write from making a binding contract. Such an effect cannot be presumed to have been within the intent of the legislature to produce by the statute." ^ Upon the point actually before the court in this case, however, no question could arise, as contracts for the sale of lands are provided for by the fourth section of the statute, which does not require that the authority to make them should be in writing. It seems, therefore, that there is no decision directly supporting Gardner v. Gardner, if the point there decided be that a deed of land is well sigped if the signature of the grantor be affixed thereto by a third party, in his presence, and at his request, notwithstanding the Statute of Frauds. But as the Revised Statutes of Massachusetts ^ do not in terms require that the attorney for signing shall be ap- ' A material alteration in a deed in the absence of the grantor, though by his parol authority, and though the person so acting is a co-grantor, in- validates the deed. Basford v. Pearson, 9 Allen (Mass.), 387. ' Irvin V. Thompson, 4 Bibb, 295. ' Mass. R. S. cap. 69, § 29. 16 STATUTE OP PEAUDS. [CH. I. pointed by writing, and as the common law does not require a written authority to make a transfer by parol (whether verbal or written), the decision in question does not necessarily go to that extent, and under such limitations is entirely tenable. In those States where the provision of the statute requiring the attorney to be appointed by writing is re-enacted, the question will undoubtedly present considerable difficulty. But to the suggestion that a istrict adherence to the statute will prevent a person laboring under physical incapacity from making a con- veyance, it may be answered that a case can hardly be supposed where the party would not be able to make his mark, a mode of execution which is well known to be sufficient. That the opinion of Chancellor Kent, on the other hand, is opposed to any relaxation of the statute in this respect, is evident from his language in the case of Jackson v. Titus, where he says : " The affixing of the hand and seal to a piece of blank paper never can be considered an assignment by deed or note in writing, within the requisitions of the Statute of Frauds. And to allow the subsequent filling. up of the deed by a third person to have relation back to the time of the sealing and delivery of the blank paper in consequence of some parol agreement of the parties, is to open a door to fraud and perjury, and to defeat the wise and salutary provisions of the statute."^ § 13. When the deed is executed by an attorney for that purpose, he should sign the name of the grantqr.^ But if that be done, it matters not in what form of words such execution is denoted by the signature of the names, or whether the at- torney place his name first or last.^ In Wilks v. Back * it was said by Lawrence, J., that if an attorney should seal and deliver a deed in the name of the principal, that would be enough ' Jackson d. Lloyd v. Titus, 2 Johns. (N. Y.) 430. " Coombe's case, 9 Rep. 77 b ; Bac. Abr. Leases, I. § 10 ; Preston, Abs. Tit-. 293 ; Elwell v. Shaw, 16 Mass. 42. In Maine, it is sufficient if the deed be executed in the name of the agent for the principal. Compare Curtis V. Blair, 4 Cush. (Miss.) 309. ' Bac. Abr. ut supra; Wilks v. Back, 2 East, 142, 145. * Supra. CH. I.] FORMALITIES FOR CONVEYING ESTATES IN LAND, 17 without stating that he had so done ; and it does not appear to have been ever decided that the signing of the grantor's name by the attorney, without adding words to show that it was done by attorney, was not a sufficient signing. The question was presented recently in Massachusetts, where the conveyancer wrote at the bottom of the deed the words " Benjamin Good- ridge, by his attorney," and the attorney, instead of writing his own name, wrote the name of the grantor, " Benjamin Goodridge." The court decided the case upon another ground, but in the opinion by Fletcher, J., it is said that they were in- clined to think it was not a valid execution. It is strongly urged that it is nowhere stated or suggested in any work of authority that such a mode of execution is proper and legal, and the inconvenience of permitting it is forcibly explained. The doctrine of Lawrence, J., above quoted, is noticed, but not much regarded. 1 If, however, a conveyance under seal is good without any signature, as has been shown to be the doctrine of the more recent English authorities, and wherever that doctrine is received as law, it would seem unreasonable to hold that a defective signature invalidated the deed ; and such appears to be the opinion expressed by an eminent English writer.^ § 14. As to the agent who may sign for the grantor under the first three sections, he is simply required to be " thereunto ' Wood V. Goodridge, 6 Cush. (Mass.) 117. The learned judge thus states the argument from inconvenience: "If the agent might execute instruments in this mode, the principal, if he found his name signed to an instrument, would have no means of knowing by whom it had been signed, or whether he was bound or not bound by such signature ; and other per- sons might be greatly deceived and defrauded, by relying upon such signa- ture as the personal act and signature of the principal, when the event might prove that it was put there by an agent, who had mistaken his authority, and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by him, as it purports to be, it might be wholly impossible to prove the execution by attorney, as there would be nothing on the note to indicate such an exe- cution." 2 4 Greenl. Cruise, Dig. 48 ; Co. Litt. 48, c, 62 b. See Plummer v. Russell, 2 Bibb (Ky.), 174. 2 18 STATUTE OP PEAUDS. [CH. I. lawfully authorized in writing." ^ No personal qualifications therefore appear to be demanded for the agent other than those which are demanded at common law in other cases of agency. Whether it is necessary that the authority be signed if it be sealed, is a (Question quite identical with that which has been heretofore considered upon the subject of execution by the principal instead of an attorney. If, as was there suggested, it is a suflficient execution by the principal to seal the instrument without signing, it will of course be a sufficient execution of the authority to the agent. The general rule however applica- ble to this subject is clear, that whatever be the act required to be done, the power to do it must be conferred by an instrument of as solemn a nature as the act itself to be performed.^ If a deed is to be executed, the power to do it must be sealed ; this is a principle of common law. But at common law it was not necessary to appoint in writing an attorney to make a transfer of an interest in land not under seal though in writing.^ This difference results from the distinction, heretofore alluded to, between conveyances by parol and conveyances by deed. The common law put all parol transfers of land, whether written or oral, upon the same footing, and one inferior to transfers by deed; not requiring any but a verbal authority to make them. It was to this point that the clause we are now consid- ering was directed. As the statute declared that all convey- ances which might have been made by parol should thenceforth be made in writing only, so it declared that to make such writing the attorney must thenceforth be authorized by writing.* ' In Tennessee, the attorney need not be authorized in writing. John- son V. Somers, 1 Humph. 268. Nor, it seems, in Massachusetts ; see ante, §12. ^ 1 Story on Agency, § 50 ; 2 Kent, Com. 614. ' 1 Story on Agency, § 50. " In a case in North Carolina (Shamburger v. Kennedy, 1 Dev. 1), it was said that an authority by parol would not be sufficient, because titles to land must be evidenced by written conveyances. This is manifestly an incorrect view, for under the 4th section of the statute, certain contracts are required to be evidenced by writing, but the agent to make them may be appointed verbally. The written letter of attorney, expressly required by CH. I. J FORMALITIES FOR CONVEYING ESTATES IN LAND. 19 § 15. The rule requiring a written power to the attorney from whom a conveyance of an estate in land is to proceed is equally applicable, although the power is to be exercised through judicial forms. Thus it was held in Pennsylvania that a verbal submission to arbitrators of a question of partition did not give them authority to make that partition. ^ § 16. A doctrine recently applied in Massachusetts to cases of transfers of land within the Statute of Frauds, that if the grantor request another to- affix his name to the deed, and it is so done in the grantor's presence, this is an original execution by the grantor and not" a verbal appointment of an attorney, has been heretofore considered under the question, what constitutes a valid execution by the principal.^ § 17. A subsequent ratification in due form of an attorney's a'ct always cures any defect in his original appointment ; and for such purpose, in cases affected by this branch of the Statute of Frauds, the ratification must of course be by writing.^ In South Carolina, where a sale and conveyance of land was made by a sheriff under a defective order of court for foreclosure of a mortgage, it was held that it operated as an assignment of the mortgagee's legal title, that the sheriff was the agent of the mortgagee, and that the answer of the mortgagee admitting the facts was a sufficient compliance with the Statute of Frauds.* the 1st section, appears to be a mark of that superior caution always exer- cised by legislatures in regard to whatever concerns the title to land. ' Gratz V. Gratz, 4 Rawle (Penn.), 411. ' Gardner v. Gardner, 6 Cush. (Mass.) cited ante, § 11. s McDowell V. Simpson, 3 Watts (Penn.), 129; Parrish v. Koons, 1 Pars. Eq. Cas. (Penn.) 79. The doings of an agent whose appointment is not valid for want of writing, cannot estop his principal unless actually adopted by him. Holland v. Hoyt, 14 Mich. 238. * Stoney v. Shultz, 1 Hill, Eq. (S. C.) 499. 20 STATUTE OP FRAUDS. [CH. II. CHAPTER II. LEASES COVERED BY THE STATUTE. § 18. The first section of the English Statute of Frauds is sufficiently comprehensive in its language to embrace the crea- tion of every possible estate in land, from the greatest to the least. But, as has been suggested heretofore, its object was not to dispense with, but to superadd, solemnities in their crea- tion ; and hence, as all freehold and all incorporeal estates were at common law required to be by deed, and so already provided for, the first section may be regarded as contemplating only those estates in land which might, up to the period of the statute, have been created verbally ; namely, corporeal estates less than a freehold, and the creation of which is commonly said to be by lease. Whether it may not be necessary to restrict it still farther, was a question in the case of Crosby v. Wadsworth, where a verbal agreement was made for the pur- chase of a standing crop of mowing grass, with liberty for an indefinite time to the purchaser to enter and take the grass. Lord EUenborough said that, construing the first and second sections together, the former should be held to embrace only those leases which were for a longer term than three years, but still under a rent reserved upon the thing demised, and that the agreement in the case before him, not containing either of these features, was not vacated as a lease} The decision was upon another ground, however, and it must be doubted whether the suggestion was well considered. Sir A. McDon- ald, C. B., only three years afterwards, seems to have enter- • ' Crosby v. Wadsworth, 6 East, 110. CH. 11.] LEASES COVERED BY THE STATUTE. 21 tained no such view of the mutual relation of the first three sections, for, when it was argued that by the leases mentioned in the third section, as requiring to be assigned by writing, must be intended such leases as were required by the first and second to be created by writing, namely, those conveying a larger interest than three years, he rejected that construction, and held that the lease in question, though created verbally, could be assigned only by writing.^ Sir Edward Sugden shows very clearly that to confine the first section to leases upon a rent would lead to conclusions quite inadmissible ; ^ and it may be added that if we take into consideration the whole language of the second section, as consistency requires that we should do, we must confine the statute to leases upon such a rent as is equal "to two-thirds of the full improved value of the thing demised ; " a construction which would render the statute almost wholly inoperative, as it regards leases. In a subse- quent part of this chapter we shall have occasion to examine what practical efi"ect this second section of the English statute, and kindred enactments in our own country, have had upon the law of leases. § 19. Confining ourselves therefore to the first section of the English statute, the first inquiry which presents itself is, — What is a lease of land within the meaning of its provisions ? It is obvious that for the most part, and in the common cases of letting land, it is one upon which no great difiSculty can arise. But the Statute of Frauds descends in this respect to very minute, and, so to speak, indistinct interests in lands, and in regard to these, questions of much nicety may occur. § 20. The relation of landlord and tenant must, of course, in all cases, be distinctly found to exist, whether the interest acquired in the premises be great or small. Merely giving permission to a tenant, who has been duly notified to quit, to re- main on the premises till they are sold, does not amount to a new lease to him, so as to entitle him to any term of notice ' Botting «. Martin, 1 Camp. 317. * Treatise on Yendors and Purchasers, 95. 22 STATUTE OP FRAUDS. [CH. II. afterwards.^ Nor does an agreement to pay an increased rent, in consideration of repairs, amount to a lease, but it may be proved verbally.^ Nor does the letting of land upon shares for a single crop only, constitute a lease, the possession re- maining in the owner ; but if the lessee is by the contract to possess the land, with the usual privileges of exclusive enjoy- ment, it is the creation of a tenancy for a year, although the land be taken to be cultivated on shares.^ An agreement for board and lodging is not a lease, and does not require a writ- ing, although the party hiring designate the particular rooms he wishes to occupy.* § 21. By far the most important questions, however, as to the essential features of a lease, within the statute, have arisen upon transactions having the form of a mere verbal license ; and it will be eminently useful to give a somewhat extended examination to the cases involving them. We shall probably be able to deduce from the English decisions a tolerably con- sistent doctrine in regard to these questions ; but, in some of our own States, it must be confessed there has been a freedom exercised in the construction of the statute, on this point, which seems to have gone far to unsettle established principles of the common law itself, as well as to confound the interpreta- tion and defeat the policy of the Statute of Frauds. § 22. It may not be superfluous to call to mind some of the ' Whiteacre d. Boult v. Symonds, 10 East, 13. " Hoby V. Roebuck, 7 Taunt. 157 ; Donellan v. Eead, 3 Barn. & Adol. 899. ' Bradish v. Schenck, 8 Johns. (N. Y.) 151 ; Bishop v. Doty, 1 Verm. 87. See Hare v. Celey, 1 Cro. Eliz. 143 ; Jackson d. Golden v. Brownell, 1 Johns. (N. Y.) 267. In Pennsylvania, where the statute as it relates to contracts has not been adopted, verbal contracts for the sale of interests in land, appear to have been, in some measure, brought within the range of the first section, so as to forbid a decree for their specifiic execution, though actions for damages for the breach of them may be maintained ; the decree in the former case having the effect to transfer land on verbal evidence of title, but the judgment in the latter case resting only in pecuniary " Wilson V. Martin, 1 Denio (N. Y.), 602; Wright v. Stavert, 2 L. T. N. S. 175. CH. n.] LEASES COVERED BY THE STATUTE. 23 leading characteristics of licenses properly so understood. A mere license, whether written or verbal, conveys no interest in the land. It simply confers an authority to do a certain act or series of acts upon the land of another, and so long as it remains unrevoked it is a justification for all acts done in pur- suance of it, and for which the party committing them would otherwise be liable in trespass or case. Moreover, when the license is to enter and remove certain property from the land, the licensee acquires a good title to the property so removed while the license continues in force, and may, upon the ground of the license, defend an action of trover by the previous owner. Such licenses, however, are in their nature mere per- sonal privileges, not .assignable by the licensee, not enuring to his representatives, and not binding upon the assignees or heirs of the estate in respect of which they are granted. So long as they remain unexecuted, they are revocable by the grantor ; and they are ipso facto revoked upon the conveyance of his estate, and expire with the performance of the act or acts which they authorize to be done. These doctrines in regard to licenses as understood at common law, and in respect to which the Statute of Frauds has certainly made no change, are to be found in every text-book, and are so familiar and so firmly fixed, that they have never in terms been questioned, even where their spirit has been most plainly invaded. But in the application of the saving principles that licenses, after execution, cannot be re- voked, and that they justify acts done in pursuance of them, many practical difficulties have arisen. So long as the act or acts done are of a transitory nature, the foregoing rules may be applied without embarrassment, the very doing of the acts working a determination of the license. But if the act done be of a permanent nature, amounting to a continued occupation and enjoyment of another's land, we have at once to reconcile the principle that acts done in execution of a license are justi- .fied by it, and cannot be converted into wrongs by a revocation of the license afterwards, with the principle of common law that an easement in land or continuing privilege to make use 24 STATUTE OP FRAUDS. [CH. II. of land, in derogation of the proprietor's original rights, cannot be enjoyed without a grant by deed or a prescription which pre- sumes a deed, and with the provision of the Statute of Frauds that no estate or interest in land shall pass without writing. § 23. The confusion which has to a certain extent prevailed, between licenses and leases, appears to have had its origin in the case of Wood v. Lake, decided a few years after the Statute of Frauds was passed. A verbal license was given to stact coals on part of another's close for seven years, and that during that time, the licensee should have the sole use of that part of the close. After the plaintiff had acted upon the license for three years, the defendant (his grantor) forbade him to stack any more coals there, and shut his gates. The court decided that the agreement amounted to a license only, and not to a lease, and was good for seven years, and the plaintiff had judg- ment.^ The only authority upon which this decision professes ' Sayer, 3. The following report of this case, from the manuscript of Mr. J. Burrough, is given in Wood v. Leadbitter, 13 Mees. & Wels. 838, and it seems well worth while to insert it here. Case. "A parol agreement that the plaintiff should have liberty of laying and stacking of coals upon defendant's close, for seven years. After- wards defendant forbids plaintiff to lay any more coals there, and shuts up his gates. Defendant says that plaintiff was but tenant at will. Qucere, if this was an interest within the description of the Statute of Frauds. Serjeant Booth. This is but a personal license or easement. 1 Koll. Abr. 859, p. 4 ; Roll. Rep. 143, 152 ; 1 Saund, 321. A contract for sale of timber growing upon the land, has been determined to be o\it of the statute ; 1 Ld. Raym. 182. Vide the difference of a license and a lease ; 1 Lev. 194. This must be taken only as a license, for that the coal-loaders also are to have benefit as well as plaintiff. Serjeant Poole, for defendant. Question is, if any interest in land passed by the agreement ; for, if interest passed, it is within the statute, ergo void, being for longer term than three years. Bro. License, p. 19 ; Thome V. Seabright, Salk. 24; Web v- Paternoster, Poph. 151. A license to enter upon and occupy land amounts to a lease. The plaintiff not con- fined to a particular part of the close, and might have covered the whole if he pleased, on that account it is an uncertain interest. The distinction of license to plaintiff and his coal-loader is nothing ; he could not stack the coal himself, and it is merely vague. Easement may be of more value than the inheritance ; ex. gr. way-leave. Leb, C. J. If this be a lease, as it is argued, it is within the statute, and CH. II.J LEASES COVERED BY THE STATUTE. 25 to rest is Web v. Paternoster, decided previously to the pas- sage of the statute.^ This was a case of license to the plain- tiff to keep his hay in a certain close until he could sell it ; and it having been there two years, it was held that a reasonable time for selling it had elapsed. This seems to have been really the sum of the decision. Indeed there are indications in the report that the license was, in point of fact, under seal, and therefore in conformity with the requirements both of the com- mon law and of the statute, if it can be said to have any bearing whatever upon the latter. Upon the authority of these two cases, that of Tayler v. Waters was decided in the Common Pleas, in the year 1815. That was an action against the doorkeeper of an opera house, for preventing the plaintiff from entering during a performance. The plaintiff had come into possession, by purchase, of a silver ticket entitling the holder to admission to the house for twenty-one years, and had been allowed by the proprietors, by virtue of the ticket, to attend the house for fourteen years. It was objected that the right claimed was an interest in land, and, being for more than three years, could not pass without a writing signed by the party or his agent authorized in writing, and that the person who, as void for not being in writing. No answer as yet is given to the case in Popham, where the stacking of hay, which is similar, was determined to be a license. The word uncertain, in the statute, means uncertainty of duration, not of quantity. License was not revocable, and there is no case to show this to be considered as a lease. Dbnnison, J. This seems not to be an interest, so called, in the lan- guage of the law ; although easements, in general speaking, may be called interests. Had the plaintiff such an interest as to have maintained a clausum /regit ? Certainly not. If a man licenses to enjoy lands for five years, there is a lease, because the whole interest passes, but this was only a license for a particular purpose. FoSTBK, J. These interests, grounded upon licenses, are valuable, and deserve the protection of the law, and therefore may, perhaps, have been within the intention of the words of the statute. Desired further time for consideration ; stood over. N. B. — Afterwards, upon motion for judgment the last day of the term, and gave judgment for the plaintiff. Foster, non-dissentiente.'' » Reported in Palmer, 71 ; Godbolt, 282 ; Popham, 151 ; Rolls, 152 ; Noy, 98. 26 STATUTE OF FRAUDS. [CH, 11. agent of the proprietors, had originally granted the ticket in question to the first holder was not so authorized. It was fur- ther insisted that such an interest, being an easement, could only pass by deed. Chief Justice Gibbs referred to Wood v. hake, and Web v. Paternoster, as abundantly proving that a license to enjoy a beneficial privilege on land might be granted without deed, and, notwithstanding the Statute of Frauds, with- out writing, and held that what the plaintiff claimed was a license of this description and not an interest in land.^ This decision was never followed in England, and has in effect been overruled by subsequent cases, some of which it may be well to notice briefly in this place. § 24. In Hewlins v. Shippam, the plaintiff, at considerable expense, made a drain over the defendant's land, by his verbal permission. The defendant afterwards stopped up the drain, and the plaintiff brought his action. Bayley, B., delivered the judgment of the court, holding that, although a parol license might be an excuse for a trespass till countermanded, a right and title to have passage for the water for a freehold interest required a deed to create it ; and that, as there had been no deed in this case, the present action, which was founded upon a right and title, could not be supported.^ Cocker v. Cowper was an entirely similar case, and therein it was said that Hew- lins V. Shippam was conclusive to show that an easement to have water running upon another's land could not be conferred by parol.^ In a later instance in the Court of Exchequer, where Web v. Paternoster and Tayler v. Waters were cited to the point that there might be an irrevocable license to be exer- cised upon land, Parke, B.', remarked : " It certainly strikes one as a strong proposition to say that such a license can be irrevocable, unless it amounts to an interest in land, which must therefore be conveyed by deed."* The latest and what must be regarded as the decisive case in England on this sub- ' Tayler v. Waters, 7 Taunt. 374. 'i Hewlins v. Shippam, 6 Barn. & Ores. 221 ; 7 Dow. & Ky. 783. '■' Cocker v. Cowper, 1 Cro., Mees. & Ros. 418. * Williams v. Morris, 8 Mees. & Wels. 488. CH. il.] LEASES COVERED BY THE STATUTE. 27 ject is Wood v. Leadbitter, in the Court of Exchequer, in 1845. The plaintiff had a ticket for which he paid a guinea, admit- ting him to the grand stand of the Doncaster races, and was in the enclosure upon the strength of his ticket, when the defendant by order of the steward of the races turned him out, and without paying back the price of the ticket. It was held that a right to come and remain for a certain time on the land of another, as was the right claimed by the plaintiff, could be granted only by deed, and that a parol license to do so, though money were paid for it, was revocable at any time and without paying back the money. ^ § 25. Indeed, with the exception of Tayler v. "Waters, the decision in Wood v. Lake, establishing a parol lease under the name of a license, does not appear to have ever been affirmed in England, and its principles have been repudiated in a long series of cases in addition to those just cited.^ § 26. The distinction between such licenses to be exercised upon land as may be well granted by parol, and such as amount to leases and require a writing, is thus stated by Parker, C. J., delivering the judgment of the Supreme Court of Massachu- setts, in the case of Cook v. Stearns, in 1814. " A license is technically an authority given to do some one act or series of acts on the land of another, without passing any estate in the ' Wood V. Leadbitter, 13 Mees. & Wels. 836, lately affirmed in Ruffey V. Henderson, 8 Eng. Law & Eq. 306. ^ Rex V. Horndon-on-the-liill, 4 Maule & S. 565 ; Fentiman v. Smith, 4 East, 107 ; Bryan o. Whistler, 8 Barn. & Cres. 298; 2 Man. & Ry. 318; Wallis V. Harrison, 4 Mees. & Wels. 538 ; Rex v. Standon, 2 Maule & S. 461 ; Bird v. Higginson, 6 Adol. & Ell. 824; Ruffey v. Henderson, 8 Eng. Law & Eq. 305. Sir Edward Sugden, in a note to p. 96, of his Treatise on Vendors and Purchasers, cites Winter v. Brockwell, 8 East, 308, and Wood V. Manley, 11 Adol. & Ell. 34, as having followed Wood v. Lake. But, with great deference, this must be an oversight. The former case was a mere case of extinguishment of an easement by express permission of the party entitled to it, accompanied by corresponding acts on his part ; such as is always admitted to be binding in view both of the common law and of the statute. (Stevens v. Stevens, 11 Met. (Mass.) 251 ; Dyer v. Sandford, 9 lb. 395 ; Angell on Watercourses, 361.) The latter relates to an entirely different rule ; namely, that a parol license, coupled with an interest, is irre- vocable. See post, §27. 28 STATUTE OF FRAUDS. [CH. II. land, such as a license to hunt in another's land, or to cut down a certain number of trees. These are held to be revocable while executory, unless a definite term is fixed, but irrevocable when executed," " Such licenses to do a particular act, but passing no estate, may be pleaded without deed. But licenses which in their nature amount to granting an estate for ever so short a time are not good without deed, and are considered as leases, and must always be pleaded as such. The distinction is obvious. Licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act which would otherwise be a trespass. But a perma- nent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an impor- tant interest which ought not to pass without writing, and is the very object provided for by our statute." ^ Accepting this doctrine as generally correct and in accordance with what we have seen to be the later and better opinion in England, it re- mains still to inquire what may be considered licenses to do an act or series of acts merely, and what licenses amount to granting an estate. § 27. A verbal license to enter upon land to remove property which the owner of the land has sold is good, and conveys no interest in the premises.^ And a license to one, who has been a tenant, to enter and remove a house or fixtures which it is ' Cook V. Stearns, 11 Mass. 633. The doctrine here laid down is manifestly opposed to the spirit of Wood v. Lake, but from the difference in phraseology between the Massachusetts and the English Statutes of Frauds, it was not necessary in terms to repudiate that decision. See Ste- vens V. Stevens, 11 Met. (Mass.) 251. It is proper to note also a little lati- tude of expression in Cook ». Stearns, namely, that "licenses which amount to granting an estate for ever so short a time are not good without deed." There are, of course, many estates which, so far as the Statute of Frauds is concerned, may be granted by simple writing without deed. ' Whitmarsh v. Walker, 1 Met. (Mass.) 313 ; Erskine v. Hummer, 7 Greenl. (Me.) 457; Wood v. Manley, 11 Adol. & Ell. 34; Parsons «. Camp, 11 Conn. 625. CH. II.] LEASES COVERED BY THE STATUTE. 29 agreed he shall have, is also good without writing. This partic- ular act is all that the license contemplates. It no more grants an interest in the land than would a permission to cut and re- move a tree.i So with a verbal license to enter and straighten a boimdary line, and generally to do any act of a temporary and transient nature.^ All such licenses are irrevocable after they have been executed ; or, in other words, no action lies against the party who has done them in pursuance of the per- mission given for that purpose ; and they may be properly said to be of a transient nature, for the owner's enjoyment of the land is not affected by their having been done. § 28. But where the act licensed is of such a character that the licensee cannot perform it without actually holding and occupying the grantor's land for the purpose, the permission must be in writing, as the transaction is in efifect a lease of the premises to that extent. Of this nature is a license to erect and maintain a dam by which water is flowed back upon the grantor's land, to dig and carry away ore, etc.* In some States, however, such licenses have been held to be good without a writing, and upon the ground that the permission was after all only to do a series of acts upon the grantor's land.* But it would seem that under such an interpretation of a license, any ' Dubois V. KeUey, 10 Barb. (N. Y.) 496. " Davis V. Townsend, 10 Barb. (N. Y.) 343 ; The People v. Goodwin, 1 Seld. (N. Y.) 668 ; Whitaker v. Cawthorne, 3 Dev. (N. C.) 389 ; Claflin V. Carpenter, 4 Met. (Mass.) 580 ; Rhodes v. Otis, 33 Ala. 600. ' Mumford v. Whitney, 15 Wend. (N. Y.) 380 ; Brown v. Woodworth, 6 Barb. (N. Y.) 550; Brown v. Galley, HiU & Denio, 310; Foot v. New Haven & Northampton Co., 23 Conn. 223; Moulton v. Faught, 41 Maine, 298 ; Yeakle v. Jacob, 33 Penn. State, 376 ; Trammell v. Trammell, 11 Rich (S. C), 471 ; French v. Owen, 2 Wisconsin, 250; Carter v. Harlan, 6 Maryland, 20 ; Collins Co. v. Marcy, 25 Conn. 239 ; Riddle v. Brown, 20 Ala. 412; Pitman v. Poor, 38 Maine, 237; Bridges v. Purcell, 1 Dev. & Bat. (N. C.) 492 ; Woodward v. Sealey, 11 Illinois 167 ; Hall v. Chaffee, 13 Verm. 150 ; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131 ; Bennett V. Scutt, 18 Barb. (N. Y.) 347 ; McKellip v. Mcllhenny, 4 Watts (Pa.), 317 ; Desloge v. Pearce, 28 Missouri 688 ; Duinneen v. Rich, 22 Wis. 560. * Clement v. Durgin, 6 Greenl. (Me.) 9 ; Woodbury v. Parshley, 7 N. H. 237 ; Sampson v. Burnside, 13 N. H. 264. And see Sheffield v. Collier, 3 Kelley (Ga.), 82. 30 STATUTE OP FRAUDS. [CH. II. lease whatever for any length of time might be verbally created by merely giving to it the form of a license. § 29. This violent interpretation of a license to do a partic- ular act or series of acts on another's land has been in several cases carried so far as to hold that a parol permission to place permanent erections upon the land itself was valid and bind- ing, and that the owner of the land could not afterwards remove them without committing a trespass.^ It is clear, however, that the weight of authority in both countries, is against such a doctrine. As was said by Swift, J., in Benedict v. Benedict, where a man built a house on the land of another under a mere parol license : "If the license, even when carried into effect, will give the builder a right to continue the house so long as it shall last, and to maintain ejectment for it, then real estate may be transferred by parol, which is directly contrary to the stat- ute." 2 And in a late case in New York, the Supreme Court, speaking of Wood v. Like, and of two cases in Maine, Eicker V. Kelley, and Clement v. Durgin, which are among those to which we have just referred, declared that they held doctrines in the teeth of the statute and were excrescences upon the law.* § 30. The ground upon which the cases holding these ex- treme doctrines have been placed is, that by doing the act in question, the license became executed and consequently irrevo- cable. It would be enough to say that the framers of the Statute of Frauds never could have contemplated so obvious and simple an evasion of its provisions as would follow from such an appli- cation of the rule in regard to licenses. But, in point of fact, ' Ricker ». Kelley, 1 Greenl. (Me.) 119; Ameriscoggin. Bridge u. Bragg, 11 N. H. 109 ; Wilson v. Chalfant, 15 Ohio, 248 ; Sullivant v. Commissioners of Franklin Co., 3 Hamm. (Ohio) 89. " Benedict v. Benedict, 6 Day (Conn.), 464. ' Houghtaling v. Houghtaling, 6 Barb. (N. Y.) 379, per Pratt, P. J. See Cook v. Stearns, 11 Mass. 533 ; Stevens v. Stevens, 11 Met. (Mass.) 261; Miller v. The Auburn and Syracuse B,. R. Co., 6 Hill (N. Y.), 61; Hazleton v. Putnam, 3 Ghand. (Wis.) 117. A right to lay open and con- tinue a road through another's field cannot be granted but by deed. See Hays V. Richardson, 1 Gill. & Johns. (Md.) 366 ; Wright v. Freeman, 5 Harr. & Johns. (Md.) 467. CH. II.] LEASES COVERED BY THE STATUTE. 31 the license being, as was before suggested, continuous in its operation, cannot be said to be capable of execution by any one act. In some of the cases it seems to be admitted that it may be revoked after such inchoate execution, by paying or tender- ing to the licensee the expenses he has incurred therein.^ § 31. Courts of equity, however, in deahng with the entire subject of contracts within the Statute of Frauds (and to this head licenses may in one view be referred), introduce a prin- ciple beyond the province of a court of law to regard. Where, upon the faith of a verbal contract for an interest in land, a party has entered and incurred expenses and improved the premises, they will as a general rule enforce the contract against the other party on grounds of equity and conscience, and to prevent what would be in the nature of a fraud. Therefore, it would seem that such licenses as we have been considering, so acted upon by the licensee, will in some cases, be made effectual in equity, though the result be to confirm in the licensee an estate in land without any written conveyance.^ ' Addison v. Hack, 2 Gill. (Md.) 221 ; Ameriscoggin Bridge v. Bragg, 11 N. H. 109 ; Clement v. Durgin, 6 Greenl. (Me.) 9. But see Rhodes v. Otis, 33 Ala. 600; Clute v. Carr, 20 Wis. 531. " Hall V. Chaffee, 13 Verm. 150 ; Foster v. Browing, 4 E. I. 47. Upon which principle the following cases, decided in Pennsylvania, where the com- mon-law courts have equity powers, would seem to depend. Rerick v. Kern, 14 Serg. & Rawle, 267 ; McKellip v. Mcllhenny, 4 Watts, 317 ; Swartz v. Swartz, 4 Barr, 853 ; LeFevre v. LeFevre, 4 Serg. & Rawle, 241. See post, Ch. xrx. 32 STATUTE OP FBAUDS. [CH. III. CHAPTER HI. LEASES EXCEPTED PROM THE STATUTE.' § 32. The second section of the statute, which saves certain descriptions of short leases from its operation, does not seem to have been precisely/ presented for consideration in any English case, though it would be too much to say, as has been said by high authority, that the English decisions have not alluded to it at all.^ There are many instances in which the courts have paid attention to that clause of it which prescribes three years as the maximum duration of such leases ; but, strange to say, they have to all appearance wholly disregarded the next and qualifying clause, which provides that those short leases only shall be accepted, " whereupon the rent reserved to the land- lord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised." ^ Indeed in one instance a verbal lease was upheld by Chief-Jus- tice Raymond solely (according to the report) on the ground that its duration was limited to three years, as prescribed by the second section, while there is nothing in the case to show that the rent -reserved amounted to two-thirds of the value of the demised premises.* That it was the intention of the par- liament which enacted this section that the validity of verbal leases should depend entirely upon their limitation to three years from the making, cannot of course be supposed ; as they explicitly added another requisite. As is remarked by Sir Bd- ' 4 Kent, Com. 116. " In a note to Coffin v. Lunt, 2 Pick. (Mass.) 70, a dissenting opinion of Mr. Justice Putnam is given which is very instructive on this point. For the other cases referred to in the text see the following sections, where the construction as to duration of leases is examined. 3 Kyley v. Hicks, 1 Stra. 661. CH. III.J LEASES EXCEPTED PROM THE STATUTE. 33 ward Sugden, the whole section seems to have been inserted under the impression that such a short lease, at nearly rack rent, would not be a suflBcient temptation to induce men to commit perjury ; i and, accordingly, we should not expect to see any such case brought before the courts, if the second section were construed according to its language and clear import. The question is, however, not one of much interest in this country, as this section has been literally re-enacted in only a few States ; ^ and but one instance is discovered where it was the subject of judicial remark. This was in a late case in Georgia, where the court said that though the building of a house on a piece of land, which was the consideration of the lease of it, might very possibly be equal to two-thirds of the improved value of the land, yet in the absence of proof of such value, the lease would not be held good for the stipulated time. Even there, however, as the term of the lease exceeded three years, the court did not find it necessary to decide any question upon the second section ; and the reference is, perhaps, ' Treatise on Vendors and Purchasers, 93. " See Appendix under the , titles of .the different States. The Revised Statutes of Massachusetts make no exception in favor of short leases, and it has been said that the English doctrine respecting tenancies from year to year, derived from parol leases, could only be sustained by the exception in the English statute ; and that, for that reason, there could be no tenancy from year to year in Massachusetts, unless by a lease in writing. (Ellis v. Paige, 1 Pick. (Mass.) 43.) But the remark upon the effect of the second section does not seem to have been essential to the decision of the case, and the dissenting opinion of Mr. Justice Putnam, approved by Mr. Justice Jackson, contains a very fuU discussion of that point, and its reasoning is very satisfactory to show that no such effect has been given to the second section by the English courts. (See note to Coffin v. Lunt, 2 Pick. (Mass.) 70.) Again, in the case of Lord Bolton v. Tomlin (6 Adol. & EU. 856), Lord Denman makes the remark that " leases not exceeding three years have always been considered as excepted by the second section from the operation of the fourth,'' so that special terms in a contract of tenancy might be proved by parol after entry, though an action could not have been brought' for refusal to perform the contract. But the right to prove such special terms in a parol lease does not seem to be necessarily dependent upon the second section. See post, § 39. 3 34 STATUTE OP FRAUDS. [CH. III. only useful as showing that the courts of that State are ready to apply it to its full extent when a proper case arises.^ § 33. But although there appears to have been no case in England where a verbal lease has been sustained, as coming within the whole language of the second section, yet, as has been said, there are many cases in which the courts have taken occasion to explain that part of it which limits the duration of a verbal lease to three years, and these cases wiU be instructive in getting at the construction of such limitations in our own statutes. In Rawlins v. -Turner it was held by Lord Holt, in accordance with the plain words of the section, that the three years were to be computed from the time of making the agree- ment, and not from any subsequent day.^ And although the lease is to commence and take effect at a future day, yet if from the time of making the agreement until the lease expires, the interval be not more than three years, the statute does not apply to it.^ These two rules in regard to verbal leases are very plainly settled. § 34. A question arose recently in New York, having a somewhat important relation to this subject. As the law of that State originally stood, the term for verbal leases was, as in England, " three years from the making.'-' But the Eevised 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 revisers 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 the same question, • Cody V. Quarterman, 12 Georgia, 386. In Scotland, leases of land, exceeding the term of a year, are not effectual unless in writing and fol- lowed by possession. 1 Bell's Com. 20. ° Rawlins v. Turner, 1 Ld. Raym. 736. ' Ryley ». Hicks, 1 Stra. 651. See also Chapman «. Gray, 15 Mass. 439. ^ N. Y. Rev. Stat. Part H. Cap. VH. Tit. 1, §§ 6, 8. ^ Croswell v. Crane, 7 Barb. (N. Y.) 191. See Sobey v. Busbee, 20 Iowa, 106. CH. III.J LEASES EXCEPTED FROM THE STATUTE. 35 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 deci- sion 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. § 35. 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 retro- spectively, 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 V. Dake, 1 Seld. (N. Y.) 463. See, also, Taggard v. Roose- velt, 2 E. D. Smith (N. Y.), 100. In Allen v. Devlin, 1 Bosworth (N. Y.), 1, the same doctrine is applied to a surrender. ^ Legg V. Strudwick, 2 Salk. 414 ; Birch v. Wright, 1 Term K. 378. See, also, Pugsley v. Aikin, 1 Kernan (N. Y.), 494. •" Plowden, 273 ; Bro. Tit. Leases, 49. ' Roberts on Frauds, 242, note (d). 36 STATUTE OP FRAUDS. [CH. III. § 36. In estimating the prescribed number of years, although there is no clear and settled doctrine, it seems now to be under- stood that the day of the date is to be included ; upon the principle that where an interest is to pass, that construction is to be assumed which is most beneficial to him in whose favor the instrument is made, and by which an immediate interest § 87. 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 require- ments 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 Eevised Statutes actions will lie in that State upon contracts for leases for a term not exceed- ing one year.^ § 38. The English Statute qf 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 ten- ancy is converted into a tenancy from year to year.* It was said in the Supreme Court of Massachusetts, in Ellis v. Paige, ' 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. 96. « Edge V. Strafford, 1 Cro. & Jer. 391 ; 1 Tyrw. 93. And see Delano v. Montague, 4 Cush. (Mass.) 42. 3 Young V. Dake, 1 Seld. (N. Y.) 463. ■• 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 ; Ridgely v. Stillwell, 28 Missouri, 400 ; Drake v. Newton, 3 Zabriskie (N. J.), Ill ; Taggard v. Roosevelt, 2 E. D. Smith (N. Y.), 100 ; Camden V. Batterburg, 6 C. B. (n. s.) 808. It makes no difference that the rent is payable at intervals of less than a year. Scully v. Murray, 34 Missouri, 420. CH. III.] LEASES EXCEPTED FROM THE STATUTE. 37 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 ground of that exception.^ This view receives some countenance 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 " has since been very properly con- strued to enure as a tenancy from year to year."^ Neverthe- less, 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 convertibil- ity by entry and payment of rent into a tenancy from year to year .2 The Supreme Court of Massachusetts determined, however, upon the strength of the absence from the law of that State of any exception as 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 Massachusetts.* 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 a payment or acknowledgment of rent.^ 1 Ellis V. Paige, 1 Pick. (Mass.) 43. 2 Clayton v. Blakey, 8 Term K. 3. ' 4 Kent, Com. 115. See the note of Mr. Smith (Lead. Cas. 2d 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. * Davis V. Thompson, 1 Shep. (13 Maine) 209. * Doidge V. Bowers, 2 Mees. & Wels. 365. In Pennsylvania, where there is no statute prohibiting actions upon executory contracts for land, and where there is an exception in the second section in favor of leases fdr 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 38 STATUTE OF FRAUDS. [CH. III. § 39. 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 where the statute in any particu- lar 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 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 given upon the point. Jones v. Peterman, 3 Serg. & R. (Penn.) 543. Farley ». Stokes, 1 Sel. Eq. Cas. (Penn.) 422, is to the saibe effect. But the case of Soles v. Hickman, 20 Penn. State, (8 Harr.) 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 convey- ance. 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 Ken- tucky (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, &c., 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. ' The People v. Kickert, 8 Cowen (N. Y.), 226. ^ Beale v. Saunders, 6 Scott, 58. ' Barlow v. Wainwright, 22 Verm. 88 ; De Medina v. Poison, Holt, 49 ; 49 ; Norris v. Morrill, 40 N. H. 395. * Doe d. Rigge v. Bell, 6 Term R. 471 ; Schuyler v. Leggett, 2 Cowen (N. Y.), 660; Hollis v. Pool, 3 Met. (Mass.) 860. See, also, Richardson *j). Gifford, 1 Adol. & Ell. 52; Tress v. Savage, 26 Eng. Law & Eq. 110; Currier v. Barker, 2 Gray, 226. CH. III.] LEASES EXCEPTED FROM THE STATUTE. 39 lessee has actually used and occupied the land, he will be liable on his implied promise to pay for such use and occupation. And in such cases recourse may be had to the original agree- ment, to calculate the amount of rent.^ ' De Medina v. Poison, Holt, 47. See Morehead v. Watkyns, 5 B. Mon. (Ky.) 228. 40 STATUTE OF PEAUDS. [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 wliich were thenceforth only to he created by writing should not be surrendered or assigned vrithout 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 assign- ments, 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 inheritance, it cannot be that a long termor can assign his whole interest ver- bally, when he could not underlet part of it without writing.^ . § 42. The same gieneral remarks which have been made in regard to the effect of 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 seal in addi- tion to the writing, and such is clearly the case whenever an estate is to be surrendered which might have been created with- out deed, though in point of fact it may have been created by deed.2 ' Briles v. Pace, 13 Ired. (N. C.) 279. " Roberts on Frauds, 248, 249 ; Farmer d. Earl v. Rogers, 2 Wils. 26 ; CH. IV.] SURBENDERS. 41 § 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 recital in a second lease that it was in consideration of the surrender of a prior one, was a sufficient note in writing of such surren- der, 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 sufficiently 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 effect, Parke, B. remarked upon the custom, at the renewing of a lease, of reciting that it is in consideration of the surrender of the old one ; from which, he said, it was clear that such a recital could not import cer- tainly that the interest of a lessee in a prior lease had been in fact surrendered.* Den. d. Gwynn v. Wellborn, 1 Dev. & Bat. (N. C.) 313 ; Allen v. Jaquish, 21 Wend. (N. Y.) 628. 1 Weddell v. Capes, 1 Mees. & Wels. 60; Greider's Appeal, 6 Barr (Pa.), 422; Strong v. Crosby, 21 Conn. 398; Den d. Gwynn v. Well- born, supra; Shepard ». 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. ' Greider's Appeal, stipra. See, in regard to the cancellation of instru- ments of conveyance, post, §§ 59, 60. ' Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 86. * Lyon V. Reed, 13 Mees. & Wels. 285. 42 STATUTE OP FRAUDS. [CH. IV. § 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 Gilbert, 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 lands, by signs, symbols, and words only, and, therefore, as a livery and seisin of a parol feoffment was a sign of passing the freehold, 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 uncertainty in respect to its contents, but that every difficulty and presumption ought to be turned against him.^ We shall have occasion be- fore passing from the subject of conveyances as affected by the statute, to consider rather more at large the effect of altering, destroying, or redelivering title deeds, and until then reserve the examination of certain farther modifications of the rule.* § 45. It will be observed that the language of the third sec- tion of the statute, providing for the assignment and surrender of estates in land, is general, and contains no express reserva- tion in favor of short leases. It declares that " no leases," etc., " 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 • Magennis v. McCoUough, Gilb. Ch. 235. = Bolton V. Bishop of Carlisle, 2 H. Black. 259 ; Walker v. Richarfson, 2 Mees. & Wels. 882 ; Koe d. Earl of Berkeley v. Archbishop of York, 6 East, 86 ; Doe d. Courtail v. Thomas, 9 Bam." & Ores. 288 ; Rowan v. Lytle, 11 Wend. (N. Y.) 616. ' Jackson d. Butler v. Gardner, 8 Johns. (F. Y.) 394. * See post, §§ 59, 60. CH. IV.] SURRENDERS. 43 such short terms as could, by the statute or otherwise, be cre- ated 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 Betting v. Martin. It was argued that as a lease from year to year could be origi- nally 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 section applied only to those estates which were covered by the first and second taken to- gether. The decision of the court to the contrary is very briefly given, the report merely stating, that " Sir A. McDonald, C. B., held that the assignment was void for not being by deed or note in writing, and, therefore, nonsuited the plaintiff." ^ In the following year also, at nisi prius, in Mollett v. Brayne, Lord Bllenborough ruled- that a tenancy from year to year cre- ated by parol was not determined by a parol license from the landlord to the tenant to quit in the middle of a quarter, and the tenant's quitting accordingly ; thus affirming the rule laid down in Botting v. Martin, but without entering into the reasons to support it.2 In Whitehead v. Clifford, 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 cre- ated by parol to three years had nothing to do with that which required surrenders to be in writing ; " but the case was de- termined upon another point than the efficacy of the verbal surrender.^ Thomson v. Wilson followed, where it was deter- mined by Lord Bllenborough, at nisi prius, that a verbal agree- ment 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 surrender, not binding.* The Court of Common Pleas, also, in Preece v. Corrie, in holding an assignment of a ' Botting V. Martin, 1 Camp. 317. " Mollett V. Brayne, 2 lb. 103. 3 Whitehead v. Clifford, 6 Taunt. 618. * Thomson v. Wilson, 2 Stark. 379. 44 STATUTE OP FRAUDS. [CH. IV. short lease to be valid without writing, gave as a reason for their decision that 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. ^ Prom a view of the fore- going 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 different conclusions arrived at in different States. In Pennsylvania (where the first three sections of the statute are re-enacted, 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 legislature should have purposely contravened a common-law maxim by re- quiring 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 legislature meant to establish a distinction without a reason for it. The apparent difference in the prescribed forms of constituting 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 intended 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 constitution." ^ In Greider's Appeal, the same court, upon the strength of this ' Preece v. Corrie, 6 Bing. 24. « McKinney v. Keader, 7 Watts (Penn.), 123. CH. IV.] SURRENDERS. 45 language, declared the law to be settled for Pennsylvania, 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 de- cision. In the first, it was held that the facts showed a surren- der by operation of law (which is expressly excepted by the statute), and in the second, the surrender 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 appears is somewhat obscure, and the decision is that there was no such surrender shown.^ The States of New York and Dela- ware have both followed, without discussion, the English con- struction ;^ and, upon the'whole, it must be admitted that the weight of authority is to the effect that the statute itself being unqualified in this respect, no qualification is to be ingrafted 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. In many of our States, where the law provides that leases must be surrendered by writing, the ques- tion 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 that it may arise in regard to any lease which may be verbally created, 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 » Greider's Appeal, 5 Barr (Penn.), 422; and see Tate v. Reynolds, 8 Watts & Serg. (Penn.) 91. 2 Strong V. Crosby, 21 Conn. 398. " Rowan v. Lytle, 11 Wend. (N. Y.) 616 ; Logan v. Barr, 4 Harr. (Del.) 546. * In New York, where the statute requires writing for the surrender of " any estate or interest in lands other than leases for a term not exceeding one year," it is held that if less than a year remain of a lease for more than a year, such unexpired term may be surrendered without writing. Smith v. Devlin, 23 N. Y. 364 ; on appeal from Superior Court, 6 Bosw. (N. Y.) 6. 46 STATUTE OP PEAUDS. [CH. IV. 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 efifect in futuro, but the grounds of that conchision are not stated, and the authorities 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 Bench, where an insufficient notice to quit was verbally given by the tenant and accepted by the landlord ; and there, so far from deciding 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 surrender.^ On the other hand, it was stated by the court, at nisi 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 sur- render of the tenancy.* In the more recent cases of Williams V. Sawyer, in the Common Pleas,^ Nickells v. Atherstone, in the Queen's Bench,^ and Forquet v. Moore, in the Court of Exchequer,^ the question seems to have been treated as unset- tled. In the Supreme Court of New York the contrary doc- trine to that of Doe d. Murrell v. Milward has been held, and ' Doe d. Murrell v. Milward, 3 Mees. & "Wels. 328. « Weddall v. Capes, 1 Mees. & Wels. 50. ' Johnstone v. Huddlestone, 4 Barn. & Cres. 922. ■* Aldenburgh v. Peaple, 6 Carr. & Payne, 212. » Williams v. Sawyer, 6 J. B. Moore, 226 ; s. o. 3 Brod. & Bing. 70. " Nickells b. Atherstone, 10 Adol. & Ell. (n. s.) 944. ' Forquet v. Moore, 7 W., H. & G. 870. CH. IV.] SURRENDERS. 47 supported by reasoning which appears satisfactory. An un- sealed agreement was made by a lessee, to relinquish, upon failure to perform certain stipulations, a lease previously exe- cuted under seal, and it was decided that the agreement, though inoperative as a defeasance for want of a seal, was valid as a contingent surrender. Cowen, J., in delivering the judgment 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 princi- ple, if the interest surrendered be not a freehold. That can- not in general be granted to take effect in futuro, but a term for years can. The surrender of a term, to operate in futuro, is equally free of the objection. Contracts of parties, whether by deed or otherwise, should always take effect according to their real intent, if that be possible consistently with the rules of law." 1 § 48. It is necessary to a correct understanding of this branch of the statute, that we consider, as briefly as may be, what are those surrenders by 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 " sus- render 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, and which would not be valid if his particular estate continued to exist.^ The great 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 1 Allen V. Jaquish, 21 Wend. (N. Y.) 635. See Shep. Touch. 807 ; Woodfall's Landlord and Tenant, 141 ; Coupknd v. Maynard, 12 East, 134;' Allen v. Devlin, 6 Bosworth (N. Y.), 1. ' Lyon V. Reed, 13 Mees. & Wels. 285. 3 Davison d. Bromley v. Stanley, 4 Burr. 2210; Wilson v. Sewell, 48 STATUTE OF FRAUDS. [CH. IT. obvious instance under the first definition given above of tliese 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 prejnises, to take effect 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 tenancy were not first determined.^ § 49. If the second lease is void, and the lessee takes noth- ing under it, a surrender of the first one will not result, which- ever definition of surrenders by operation of law we adopt ; for the lessee cannot be said to be estopped to dispute the va- lidity of an act equally void whether his old term ceased or continued, nor could he be presumed to intend to surrender his previous tenancy and get nothing in return.^ And it is still farther settled, that if the second lease be not good and sufiicient to pass an interest according to the contract and in- tention of the parties, the acceptance of it is no implied sur- render 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 surren- "ders in law, will save the lessee from the loss of his old estate, when it is obvious 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 4 Burr. 1975; Goodright d. Nichols v. Mark, 4 Maule & S. 30; Donellen V. Read, 3 Bam. & Adol. 899 ; Roberts on Frauds, 259. 1 LyoQ V. Reed, supra ; Van Rensselaer v. Penniman, 6 Wend. (N. Y.) 567. * Roe d. Earl of Berkeley v. Archbishop of York, 6 East, 86. ' Wilson V. Sewell, 4 Burr. 1975; Davison d. Bromley v. Stanley, 4 Burr. 2210. CH. IV.] SURRENDERS. 49 a bishop made a second lease in consideration of the actual sur- render 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 efifect 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 ex- tinguished the former once for all.^ § 60. 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 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 what time ; but if it is created, the old tenancy ' Roe d. Earl of Berkeley v. Archbishop of York, supra ; Doe d. Mur- ray V. Bridges, 1 Barn. & Adol. 847. ' Fulmerston v. Steward, Plowd. 107, b. 3 Donellan v. Read, 3 Barn. & Adol. 899. * Hamerton v. Stead, 5 Dow. & Ry. 206 ; Mellow v. May, Cro. Eliz. 873. See the remark of the court upon Donellan v. Read, in Lyon v. Reed, 13 Mees. & Wels. 285 ; Doe d. Gray v. Stanion, 1 Mees. & Wels. 701. 4 60 STATUTE OP FRAUDS. [CH. IV. 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 pre- sumed 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 purported to convey, besides the personal covenant of the lessor for the pay- ment of improvements ; that the first lease was for three lives, and the second only for one of them ; and that no surrender was in fact 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 observed 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 expires.* 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 blanks 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 ' Doe d. Gray v. Stanion, 1 Mees. & Wels. 695. = Schieffelin v. Carpenter, 16 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 pur- posely created by the parties, and do not apply to such as may result, for instance, from an unsuccessful attempt to create a term by parol for more than the statutory period. The lease which is to work the surrender must, as we have seen, be valid, to pass the interest which it purports to convey. ^ Van Rensselaer v. Penniman, 6 Wend. (N. Y.) 667. * Roberts on Frauds, 260 ; Doe d. Rawlings v. Walker, 6 Barn. & Ores. 111. CH. IV. J SURRENDERS. 51 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 perform- ance by accepting a lease to run from the expiration of the first one.^ § 63. A surrender by act and operation of law will also fol- low 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 and operation of law.^ These are 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 doctrine, resting on a long series of decisions, was strongly condemned, in the late case of Lyon v. Reed, in the Court of Exchequer; 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 ' Pym V. Blackburne, 3 Ves. Jr. 34, Sir Richard Pepper Arden, M. R. 2 Stone V. Wliiting, 2 Stark. 235 ; Pliipps v. Sculthorpe, 1 Barn. & Aid. 50 ; Thomas v. Cook, 2 lb. 119 ; Spurrow v. Hawkes, 2 Esp. 504 ; Randall V. Rich, 11 Mass. 494 ; Hesseltine v. Seavey, 16 Maine (4 Shep.) , 212 ; Smith V. Niver, 2 Barb. (N. Y.) 180. 3 Lyon V. Reed, 13 Mees. & Wels. 286. 52 STATUTE OP FRAUDS. [CH. IV. 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 concernedj he has created an estate in the new tenant which he is estopped to dispute with him, and which is inconsistent with the continu- ance of defendant's term. As far as the new tenant is con- cerned, the same is true. As far as the defendant is concerned, he has been an active party in this transaction, not merely by consenting to the creation of the new relation between the landlord and the new tenant, but by giving up possession and 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 stewards of both land- lords, 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 will 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.^ Thus, a verb&.l license to a tenant from year to year, ' Nickells V. Atherstone, 10 Adol. & Ell. (n. s.) 944. ^ Bees V. Williams, Tyrw. & Gt. 23. ' Reeve v. Bird, 1 Cro., Mees. & Eos. 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. 456. * Taylor v. Chapman, Peake, Add. Cas. 19 ; Thomson v. Wilson, 2 Stark. 379 ; Lammott v. Gist, 2 Harr. & Gill (Md.), 483. CH. IV.j SURRENDERS. 63 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, on the ground that in this case no possession was taken as in the other cases, and therefore the surrender did rest entirely in agree- ment, and was against the spirit of the statute.^ Where, how- ever, 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, neces- sary that the possession should be taken by a new tenant ; the resumption of it by the landlord himself is held to be sufficient.* And the court of Common Pleas lately held, that by the deliv- ery back of the key by the tenant animo 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, tha^ when a tenant abandons the premises 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 ' Mollett ». Brayne, 2 Camp. 103. ' Stone V. Whiting, 2 Stark. 235 ; Doe d. Jolinstone v. Huddlestone, 4 Barn. & Ores. 922. ' Walker v. Richardson, 2 Mees. & Wela. 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. Brown- son, 7 Johns. (N. Y.) 227. ■• Grimman v. Legge, 8 Barn. & Cres. 324 ; Lamar v. McNamee, 10 Gill & Johns. (Md.) 116. But this is doubted in Morrison ». Chad wick, 7 Mann., Gr. & Sc. 266. 5 Dodd V. Acklom, 6 Mann. & Gr. 672. This c^se has been since dis- cussed, but not overruled, in Fumivall v. Grove, 8 C. B. (n. s.) 496. « McKinney v. Reader, 7 Watts (Pa,), 123. 54 STATUTE OP FRAUDS. [CH. IV. new tenant, but it must be with the landlord's assent and q,coeptance 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, and 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- 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 circumstances 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 second 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 re- ' 1 Barn. & Aid. 50. " Matthews ». Sawell, 8 Taunt. 270. ' Walker v. Richardson, 2 Mees. & Wels. 882. * Woodcock V. Nuth, 8 Bing. 170. CH. IV.J SURRENDERg. 55 ceiving 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 and not a subtenant, the landlord, it is held, is estopped from denying a legal surrender of the first lease.^ § 57. The acts of landlord or tenant, which will estop him to deny a surrender, being, 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.* • Copeland v. Watts, 1 Stark. 95. = Smith V. Niver, 2 Barb. (N. Y.) 180. Bailey ». Delaplaine, 1 Saund. (N.Y.)5. ' Redpath v. Roberts, 3 Esp. 225. It will be observed that in Reeve 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. ' McKinney v. Reader, 7 Watts (Pa.), 123. 56 STATUTE OP FRAUDS. [CH. V. CHAPTER V. CONVEYANCES BT OPERATION OP LAW, ETC. § 58. In the present chapter, which closes our consideration of the first three sections of the statute, it is proposed to in- quire how far, if at all, an estate in land may be still created or transferred by manual or symbolical acts of the parties, without writing, and what are conveyances by act and operation 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 partic- ular reference to them. § 59. The general principle that cancelling, altering, or re- delivering the title deeds of corporeal interests in lands does not operate to revest the land in the grantor, is too familiar to require the citation of authorities. Lord Chief Justice Byre declared in the case of Bolton v. The Bishop of Carlisle,^ that he would hold the law to be the same with respect to incor- poreal 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 cor- poreal 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. In ' Bolton V. The Bishop of Carlisle, 2 H. Black. 259. " Gilbert, Evid. Ill, 112 ; Buller, N. P. 267 ; Roberts on Frauds, 251. CH. V.J CONYEYANCBS BY OPERATION OP LAW, ETC. 57 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 alteration 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 pre- vent the party making it, aod those who claim under him with notice, from using it for the purposes of a deed, 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, where 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 acceptisd in Connect- icut, 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 reconveyance to him ; * but » Chesley v. Frost, 1 N. H. 145 ; Barrett v. Thomdike, 1 Greenl. (Maine) 73 ; Jackson d. Gould v. Gould, 7 Wend. (N. Y.) 364. » LewisD. Payn, 8Cowen(N.Y.), 71. , ' 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. 191 ; Tomson v. Ward, 1 lb. 9 ; Dodge «. Dodge, 33 N. H. 487 ; Faulks V. Burns, 1 Green, Ch. (N. Y.) 260 ; Mallory v. Stodder, 6 Ala. 801 ; Gilbert v. Bulkley, 5 Conn. 262 ; Coe v. Turner, lb. 86 ; Holmes v. Trout, 7 Peters (S. C), 171 ; Raynor v. Wilson, 6 Hill (N. Y.), 469. * 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. 133. 58 STATUTE OP FRAUDS. [CH. V. 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 that it' was good under these con- ditions, 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 possession it cannot be de- vested by cancelling or surrendering the deed.^ § 61. The principle on which the doctrine of the cases re- ferred 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 an 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 intro- duce secondary evidence, in violation of his undertaking, and to defeat the fair intentions of the parties." * Again, the can- cellation of a deed unrecorded and before possession taken, may be said to destroy the grantee's inchoate title, leaving the grantor in possession of his former title ; ^ or if it does not have 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 in- ' Trull V. Skinner, just cited, and Marshall v. Fisk, 6 Mass. 24. " Commonwealth v. Dudley, 10 Mass. 403. See a note to this case, in which the decision is strongly criticised and many authorities collected. ' Trull V. Skinner, 17 Pick. (Mass.) 213. * Mussey v. Holt, 4 Foster (N. H.), 248. Also, Farrar v. Farrar, 4 N. H. 191. 6 Tomson v. Ward, 1 N. H. 9. CH. v.] CONVEYANCES BY OPERATION OP LAW, ETC. 59 ciimbrancer 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 1783, and that is by equitable mortgage arising on the de- posit 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 Statute of Frauds.^ The primary intention must be to execute an immediate pledge, and thereupon an engagement is implied to do whatever may be 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 fature advances, 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, without in- volving the necessity of actual redelivery .^ When, however, > Mallory v. Stodder, 6 Ala. 801. ^ 1 Bro. Ch. 269. See cases referred to in other notes to this section. ' 2 Story, Eq. Jur. § 1020. * Norris v. Wilkinson, 12 Ves. Jr. 192 ; Keys v. Williams, 3 Yo. & Coll. (Ex.) 55 ; Hockley v. Bantock, 1 Kuss. 141 ; Brizick v. Manners, 9 Mod. 284 ; Hooper, ex parte, 1 Meriv. 7 ; Pain v. Smith, 2 Myl. & Keen, 417. s Whitworth v. Gaugain, 3 Hare, 416 ; Langston, ex parte, 17 Ves. Jr. 228. But see Hooper, ex parte, 19 Ves. Jr. 477. » Kensington, ex parte, 2 Ves. & Bea. 79. 60 STATUTE OP FRAUDS. [CH. V. the parties accompany the deposit by a written memorandum to explain, its purpose, parol evidence will not be admitted to show any other intention. Indeed, in the absence of any writ- ten memorandum a mere deposit will never create an equitable 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 ;i and the delivery of such a memorandum to the creditor 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 de- posit with the mortgagor'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 con- forming to these rules, creates an equitable lien which is pre- ferred to a subsequent purchaser or mortgagee of the legal estate with notice. The whole doctrine has been strongly con- demned by the most eminent English judges, and the disposi- tion of the courts is to restrict rather than enlarge its operation. It is not, therefore, ordinarily applied to enforce parol agree- ments to make a mortgage or to make a deposit of title deeds for that purpose.^ § 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 es- ' Coote on Mortgages, 217; Bozon v. Williams, 3 Yo. & Jerv. 160; Allen V. Knight, 11 Jur. 527 ; Hooper, ex parte, supra. ' Coming, ex parte, 9 Yes. Jr. 116. 3 Ibid. ■* Coote on Mortgages, p. 203. * 2 Story, Eq. Jur. § 1020; 4 Kent, Com. 151. CH. v.] CONVEYANCES BY OPBRA.TION OP LAW, ETC. 61 tablish au 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, au 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, the doctrine also appears to be admitted as prevailing ; though apparently in Kentucky, and clearly in Pennsylvania and Mississippi, 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.^ § 65. Upon the question whether a mortgage of land is a conveyance within the Statute of Frauds, so as to be not assign- able without writing, very eminent authorities are divided. In the case of Martin d. Weston v. Mowlin, decided as early as 1760, the question before the court seems to have been, whether, under a general bequest of a testator's personal property, in- cluding 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 ' RoekweU v. Hobby, 2 Sand. Ch. 9. = Welsh V. Usher, 2 Hill, Ch. (S. C.) 166 ; WiUiams v. Stratton, 10 Sm. 6 Marsh. (Miss.) 418 ; Gothard v. Flynn, 25 (Miss.) 68 ; Vanraeter v. McFaddin, 8 B. Mon. (Ky.) 435 ; Bowers v. Oyster, 3 Penn. 239 ; Shitz V. Diffenbach, 3 Barr (Pa.), 233; Rickett «. Madeira, 1 Rawle, 325-327. See, also, Williams v. Hill, 19 How. (U. S.) 250. In "Vermont, the ques- tion has been lately judicially treated as an open one ; but the decision went on other grounds. Bicknell v. Bicknell, 31 Verm. 498. ' Howe's case, 1 Paige (N. Y.), 126; Bank of Muskingum v. Carpenter, 7 Ohio, 21 ; Lake v. Doud, 10 lb. 415 ; Doe d. Burgess v. The Bank of Cleveland, 3 McLean (C. C), 140; Bead v. Gaillard, 2 Desaus. (S.C.) 652. 62 STATUTE OP FRAUDS. [CH. V. 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." ^ The view here taken by Lord Mansfield is adopted by Powell in the Treatise on Mortgages, but vigorously opposed by Mr. Roberts in his work upon the construction of the statute.^ Considering a mortgage according to its strict legal effect, we should say with the latter author that " it should seem extraor- dinary indeed that, with respect to that part of the complex transaction called a mortgage which consists in the conveyance of the land itself, the Statute of Frauds should be restrained from applying to it." The doctrine in Martin v. Mowlin, how- ever, is that of Courts of Equity both in this country and in England,^ and the tendency of the courts of law has been con- stantly towards conformity with the equitable and, we may say, the reasonable and practical construction 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 as well as in equity, with the debt to which it is collateral, and consequently with- out the formalities imposed by the statute upon the alienation of lands.* This doctrine is not opposed by the circumstance ' Martin d. Weston v. Mowlin, Burr. 969. * Powell on Mortgages, 187 ; Roberts on Frauds, 272. ^ Thornborough v. Baker, Cas. in Ch. 1, 283 ; 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, 6 Johns. Ch. (N. Y.) 670 ; 2 Story, Eq. Jur. §§ 1018-1018 ; 4 Kent, Com. 160. * 1 Powell on Mortgages, 187 ; Rex v. St. Michael's, Doug. 630 ; Eaton V. Jaques, V H. Black. 117, note ; Chimney v. Blackburne, Doug. 114 ; Syl- vester V. Jarman, 10 Price (Ex.), 78; 4. Kent, Com. 160. The doctrine in Martin v. Mowlin, has been affirmed in New York, both at law and in equity. Green v. Hart, 1 Johns. 680 ; Jackson v. Willard, 4 Johns. 41 ; CH, v.] CONVEYANCES BY OPERATION OF LAW, ETC. 63 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 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- Runyan v. Mersereau, 11 Johns. 634; Wilson v. Troup, 2 Cowen, 195; Johnson v. Hart, 3 Johns. Cas. 322 ; Aymar v. Bill, 5 Johns. Ch. 570, 571, 672; Jackson d. Curtis v. Bronson, 19 Johns. 325; Gillett v. Campbell, 1 Denio, 620. And in the New York Court of Appeals, Malins v. Brown, 4 Comst. 403, it was said that such being 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 New Hampshire, Southerin v. Mendum, 5 N. H. 420, 432; Rigney v. Lovejoy, 13 N. H. 247 ; Bell v. Morse, 6 N. H. 205 ; Ellison v. Daniels, 11 N. H. 274 ; Parish ». Gilmanton, lb. 298 ; Whittemore v. Gibbs, 4 Foster, 484 ; Page v. Pierce, 6 Foster, 317. In Connecticut, 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 v. Farmington, 2 Conn. 600. In Ver- mont, Pratt V. Bank of Bennington, 10 Verm. 293 ; Keyes v. Wood, 21 Verm. 331; Belding v. Manly, 21 Verm. 550. In Illinois, McConnell u. Hodson, 2 Gilm. 640. In Kentucky, Burdett v. Clay, 8 B. Mon. 287; Waller v. Tate, 4 B. Mon. 529. In Mississippi, Dick v. Maury, 9 Smedes & M. 44b ; Lewis v. Starke, 10 ib. 120 ; Henderson u. Herrod, lb. 631. In Tennessee, Ewing v. Arthur, 1 Humph. 537. In Alabama, McVay ». Bloodgood, 9 Port. 547. But it is rejected in Massachusetts, Wardens. Adams, 15 Mass. 236 ; Hatch v. Dwight, 17 Mass. 289 ; and see Judge Trowbridge's tract upon mortgages contained in 8 Mass. 557, et seq. ; and Parsons v. Welles, 17 Mass. 419, in which places the doctrine in Martin v. Mowlin is strictly examined. But mere delivery of a note and mortgage, accompanied with a power of attorney to authorize enforcing payment, con- fers 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, 6 Halst. 158 ; and in Maryland, Evans v. Merriken, 8 Gill & Johns. 39. In those States where paying tbe 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. ' Gray v. Jenks, 3 Mass. (C. C.) 620; 4 Kent, Com. pp. 193-196, 4th ed. 64 STATUTE OP FRAUDS. [CH. V, 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 unneces- 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 deed, 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 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.* ' 2 Greenl. Cruise, 91. ^ Roberts on Frauds, 277. = Roberts on Frauds, 285 ; 2 Black. Com. 323 ; AUnatt on Partitions, 130; Johnson ». Wilson, Willis, 248; Ireland ». Rittle, 1 Atk. 541; Whaley v. Dawson, 2 Sch. & Lef. 367. * Jackson v. Bradt, 2 Caines (N. Y.), 169. See, also, Jackson v. CH. v.] CONVEYANCES BY OPERATION OP LAW, ETC. 65 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 for ever 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 effect of this decision, that the division and the separate possession were sufficient to effect 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.^ § 69. A similar doctrine has been held in the Carolinas and in Mississippi. In an early case in North Carolina the Court said : " The only privity by which tenants in common are united is that of 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 dis- solved. 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 calcu- lated to give notoriety to the transaction as if the parties had entered into a deed." ^ More recently, however, it has been Harder, 4 Johns. (N. Y.) 212 ; Jackson v. Vosbrugh, 9 lb. 270 ; Corbin ». Jackson, 14 Wend. (N. Y.) 619 ; Ryerrs ». Wheeler, 25 lb. 434. ' 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. ' Walker v. Bernard, 1 Cam. & Norw. (N. O.) 82 ; Haughabaugh v. Honald, 1 Const. (S. C.) 90; Wildey v. Bonney, 31 Miss. 644; Natchez v. Vandervelde, lb. 706. 5 66 STATUTE OP FRAUDS. [OH. T. questioned in that State whether a parol partition with livery was effectual; so the point cannot be considered as being settled.^ § 70. In no case, however, has a verbal partition been held suificient for any other purpose than to ascertain the limits 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 parti- tion could in no case operate to pass a title.^ § 71. The decided weight of authority in the United States seems to favor 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 to, or not until they severally took possession ? What, then, shall amount to such a possession as to bind the parties ? How long must it continue ?' If for any period less than twenty years, why not ten or five years, or a month, or a day ? Again, suppose two out of three, or nine out of ten, co-tenants 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 be susceptible of actual occupation or enclosure ; what is to be done in such cases ? " " It is a mis- take, in my opinion, to suppose that tenants in common have ' Den d. Anders v. Anders, 2 Dev. (N. C.) 629. " Jackson v. Vosbrugh, 9 Johns. (N. T.) 270. ' Porter v. Perkins, 5 Mass. 233 ; Porter v. Hill, 9 lb. 34 ; Den d. WoodhuU u. Longstreet, 3 Harr. (N. J.) 405 ; Doe d. Richman v. Bald- win, 1 N. J. 396 ; Stuart i'. Baker, 17 Texas, 417 ; Goodhue v. Barnwell, Kice, 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. CH. v.] CONVEYANCES BY OPERATION OF LAW, ETC. 67 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." ^ § 72. It is worthy of remark, that in all the English cases which have been referred to, the sepg.rate possession had existed for more than twenty years after the verbal partition had been made ; nor does the question of the effect at law of such posses- sion, 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, C. 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 suflB- cient, 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 of time.^ But it is held that where a parol partition has been made between tenants in com- mon, and possession held in severalty according to it for a con- siderable 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.^ ' Den d. WoodhuU v. Longstreet, 3 Harr. (N. J.) 405. * Marcy v. Marcy, 6 Met. (Mass.) 360 ; Dall v. Brown, 5 Cush. (Mass.) 291 ; Duncan v. Sylvester, 16 Maine (4 Shep.), 388. ■* 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 them to the other of part or the whole of his property, must be in writing ; for the Statute of Frauds applies to any con- tract for a transfer of an interest in land,' between whatsoever descriptions of parties it is made. Galbreath v. Galbreath, 6 Watts (Pa.),' 146. 68 STATUTE OP FRAUDS. [CH. V. § 73. It may be remarked that, in regard to partitions be- tween joint tenants, as the reasoning adopted in cases of ten- ants in common, namely, that the only privity by which they are united is privity of possession, and that their several pos- sessions may be well ascertained without writing, is inapplica- ble, 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 spe- cifically 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 pro- ceed in cases of part-performance of contracts affected 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 ; the custom of the law courts of that State being to administer equity through the forms of law.^ § 75. 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 ver- bal only, is binding on the parties and those claiming under tliem.^ It does not have the operation of a conveyance to pass the title to land from one party to the other, but, recognizing ' 4 Greenl. Cr. 77; Roberta on Frauds, 283-285; Porter v. Hill, 9 Mass. 36. And see, as to partition by tenants in mortgage, Perkins v. Pitts, 11 Mass. 125. In Haughabaugh v. Honald, 1 Const. (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. « Ebert v. Wood, 1 Binn. fPa.) 216 ; Galbreath v. Galbreath, 6 Watts (Pa.), 146; Calhoun v. Hays, 8 Watts & Serg. (Pa.) 127; Rhodes v. Frick, 6 Watts (Pa.), 315 ; Rhine v. Robinson, 27 Penn. State, 30. See, also. Weed v. Terry, 2 Doug. (Mich.) 344; Cummings v. Nut, Wright (Ohio), 713 ; Goodhue v. Barnwell, Rice, Eq. (S. C.) 198 ; Young v. Frost, 1 Maryland, 377 ; Sweeny v. Miller, 34 Maine, 388. 3 Jackson d. Nellis v. Dyeling, 2 Gaines (ST. Y.), 198 ; Houston v. Mat- thews, 1 Yerg. (Tenn.) 116 ; Davis u. Townsend, 10 Barb. (N. Y.) 333 ; Boyd V. Graves, 4 Wheat. (S. C.) 613 ; Lindsay v. Springer, 4 Har. (Del.) CH. V.J CONVEYANCES BY OPERATION OF LAW, ETC. 69 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 \ipon 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 have 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, yhere it has been recognized and ac- quiesced in by the adjoining owners, and more especially where it is indicated and marked out by fences, or other permanent monuments, to which they have claimed and occupied for a sufficient length of time to bar an entry, in such case the verbal agreement is invalid ; for, if it operate at all, it manifestly 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. 2 And it seems to have been held in Tennessee, that if money be paid by either party upon the parol settlement of the boundary line, even where it had previously been in dis- pute, 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- 547 ; Blair v. Smith, 1 Benn. (Mo.) 273 ; Fuller «. County Commissioners of Plymouth, 15 Pick. (Mass.) 81. ' Davis V. Townsend, supra. " Boyd V. Graves, supra ; Kip v. Norton, 12 Wend. (N. Y.) 127 ; Yar- borough V. Abemathy, Meigs (Tenn.), 413. ' Davis V. Townsend, supra; Nichols v. Lytle, 4 Yerg. (Tenn.) 456; May V. Baskin, 12 Smedes & M. (Miss.) 428 ; Gilchrist v. McGee, 9 Yerg. (Tenn.) 465 ; Terry v. Chandler, 16 N. Y. 354. ■• Carroway v. Anderson, 1 Humph. (Tenn.) 61. 70 STATUTE OP FRAUDS. [CH. V.. 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 upon conscientious grounds, and to prevent fraud. § 77. The force of the exception in the third section of the statute in favor 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 chapter. In Simonds v. Catlin, Kent,. J., said that the words, " act and operation of law," were strictly technical and referred to cer- tain definite estates such as 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 legislative dispensation with the formalities by which the grantor's consent should be made evident. His consent, his individual act, still remains neces- sary, and is the operative means of making the transfer. The transfers which are excepted are those which take place by act ' Roberts on Frauds, 285 ; Pembroke v. Thorpe, cited in 3 Swanst. 437 Lindsley v. Coates, 1 Hamm. (Ohio) 243 ; Newell v. Newell, 13 Verm. 24 Clark V. Graham, 6 Wheat. (S. C.) 577 ; Lane v. Shackford, 5 N. H. 130 Maydwell v. Carroll, 3 Harr. & Johns. (Md.) 361. See, however, in Pennsylvania, Reynolds v. Hewett, 27 Penn. State, 176. ' Simonds v. Catlin, 2 Caines (N. Y.), 61; Briles v. Pace, 13 Ired, (N. C.) 27a. See, also, Davis v. Tingle, 8 B. Mon. (Ky.) 639. ' Noyes v. Chapin, 6 Wend. (N. Y.) 461. CH. V.J CONVEYANCES BY OPERATION OF LAW, ETC. 71 and operation of law merely. Thus an assignment of a widow's dower is good without deed or writing, for it is not a convey- ance 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.^ § 78. In the case of Boring's Lessee v. Lemmon, the Mary- land Court of Appeals decided that a deed from a sheriflf 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 weight of opinion in this country. Mr. Justice Kent, after referring to and criticising 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 conveyance." * But it is not clear that the Maryland doctrine 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 ' Conant v. Little, 1 Pick. (Mass.) 189; Jones v. Brewer, lb. 314; Baker ». Baker, 4 Greenl. (Me.) 67 ; Pinkham v. Gear, 3 N. H. 163 ; Shattuck V. Gragg, 23 Pick. (Mass.) 88 ; Johnson v. Neil, 4: Ala. 166 ; Shotwell ». Sedam, 3 Hamm. (Ohio) 5. ' Boring V. Lemmon, 6 Harr. & Johns. (Md.) 223. See, in further explanation of the law of Maryland on this point, Barney v. Patterson, 6 lb. 182 ; Remington v. Linthicum, 14 Pet. (D. S.) 84 ; Fenwick v. Floyd, 1 Harr. & Gill (Md.), 172. 3 Simonds v. Catlin, 2 Caines (N. Y.), 61 ; Attorney-General v. Day, 1 Ves. Sen. 218. 72 STATUTE OP FRAUDS. [CH. T. far as regards executory contracts to sell land.^ Upon what principles that opinion is to be sustained, as confined to the executory contract, will be seen hereafter ; but beyond doubt, the prevailing, if not universal doctrine in this country is, that sales of land by sheriffs or other public officers are not to be considered as conveyances by act and operation of law, but re- quire 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.^ > Tate V. Greenlee, 4 Dev. (N. C.) 149. * Simonds v. Catlin, and Tate v. Greenlee, supra; Catlin v. Jackson, 8 Johns. (N. Y.) 620; Jackson «. Bull, 2 Gaines (N. Y.), 301; Robinson V. Garth, 6 Ala. 204 ; Ennis v. Waller, 3 Black. (Ind.) 472 ; Evans v. Ash- ley, 8 Missouri, 177 ; Alexander v. Mury, 9 lb. 510. ' Gratz V. Gratz, 4 Rawle (Pa.), 411. PAET 11. DECLARATION'S OF TRUSTS. DECLARATIONS OF TRUSTS, AS AFFECTED BY THE 7tH, 8tH, AlO) 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 extinguished by an act or operation of law ; then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made ; any thing herein- before contained to the contrary notwithstanding. Section 9. All grants or assignments of any trust or confidence, shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect. CH. VI.J TRUSTS IMPLIED BY LAW. 75 CHAPTER VI. TRUSTS IMPLIED BT LAW. § 79. It seems to be essential to our obtaining a clear under- standing 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 sub- ject 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 prasenti of an estate in lands. § 80. The States of Kentucky and Virginia, while substan- tially re-enacting 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 in- terested in the purchase, it was argued 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 : " It 76 STATUTE OP PBAUDS. [CH. VI. is evident that the trust in the present case, if it can he so de- nominated, 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 another 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 riot 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 cir- cumstance that in England it was thought necessary to enact the seventh section expressly providing for trusts, although the fourth section of the statute of Charles contained larger lan- guage than the corresponding section of the Virginia statute ; namely, that the former included contracts for " any interest in or concerning 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 the grantee declares it, himself paying the money which is the price of the land. In the former, it is held that a confidence arises which it would be unconscientious for the grantee to 1 Parker v. Bodley, 4 Bibb, 102. " Chiles v. Woodson, 2 Bibb, 72. ' Bank of the United States v. Carrington, 7 Leigh, 266. CH. TI.] TRUSTS IMPLIED BY LAW. 77 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 account of the re- tention of the first three sections, they will not generally decree a specific execution of it, as that would work indirectly a con- veyance of land without writing. Or, briefly, it would seem the rule in that State is, that if the purchaser of an estate ver- bally declare that he holds it in trust, the statute as to convey- ances applies ; but if the grantor declares that he conveys it in trust, the statute does not apply .^ With this reservation as to what is to be considered a declaration of trust, the courts of Pennsylvania have uniformly held, in conformity with those of Virginia, and in opposition to those of Kentucky, that, in the absence of any re-enactment of the seventh section of the statute of Charles, a verbal declaration of trust was valid and would be enforced.^ And, notwithstanding the first section in their statute provides that no estate, etc., made or created with- out 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 parol." ^ Without assuming to harmonize these apparently discordant 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 difference between creating an equitable estate by parol, and reserving by parol an equita- ble estate in land which is granted absolutely by deed ; and • A very full and clear discussion of the Pennsylvania cases on this sub- ject -will be found in Freeman ». Freeman, 2 Parsons, Eq. 81. 2 German 3 Gabbald, 3 Binn. 302'; Wallace v. Duffield, 2 Serg. & K. 521- Peebles v. Reading, 8 Serg. & R. 484; Slaymaker v. St. Johns, 5 Watts, 27 ; Randall v. Silverthorne, 4 Barr, 173 ; and other cases referred to in the foregoing. 3 Murphy v. Hubert, 7 Barr, 420; per Gibson, C. J. 78 STATUTE OF FRAUDS. [CH. VI. that, consequently, the reservation of a trust for himself or for a third party by a grantor of land, at the time of the conveyance, should seem to be properly covered by any statute which con- tains (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 favor of a third person, for value received or to be received from him, is hardly distin- guishable from an agreement that the latter shall hold the equitable title in the land, and, as such, would naturally be embraced by the fourth section of the statute of Charles, with- out regard to any provision expressly covering trusts. We pass, however, to the examination of the seventh section as it stands. § 82. In regard to what kinds of trusts are embraced by the statute, there seems to have been little question made, the lan- guage 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 affected by its operation.^ On the other hand, it is equally clear that they embrace and apply to chattels real.^ In New York, an exception seems to be ad- mitted of uses or trusts in favor of religious societies, but this is in consequence of, and by inference from, the peculiar con- dition in which the statutory law of that State concerning 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 delaying or defrauding creditors, but that they may always be proved by ■ Holt, 733 ; Roberts on Frauds, 94. « Nab V. Nab, 10 Mod. 404 ; Kimball v. Morton, 1 Halsted, Ch. (N. J.) 26 ; 2 Story, Eq. Jur. § 912 ; Roberts on Frauds, 94. 3 Skett V. Whitmore, Freem. Ch. 280 ; Forster v. Hale, 6 Ves. Jr. 308 ; Riddle v. Emerson, 1 Vern. 108. And see Hutchins v. Lee, 1 Atk. 447 ; Bellasis ». Compton, 2 Vern. 294. " Voorhees v. Presbyterian Church of Amsterdam, 8 Barb. (N. Y.) 135. See Adlington v. Cann, 3 Atk. 141 ; Muckleston v. Brown, 6 Ves. Jr. 62 ; Strickland v. Aldridge, 9 Ves. Jr. 616. OH. VI.J TRUSTS IMPLIED BY LAW. 79 parol, and, when so proved, render wholly inoperative the formal transactions which may have been ddopted 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 language is general, applying to all cases where creations of trust estates are to 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. § 83. The eighth section of the English Statute of Frauds, however, expressly 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 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 been carried on maid fide. In the report of the same case in Barnardiston, the third class is stated to have been 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 trhstee." ^ These resulting 1 Hills V. Elliott, 12 Mass. 26. * Lloyd V. Spillet, 2 Atk. 148; Barnardiaton, 384. Mr. Roberts, in 80 STATUTE OP PBAUDS. [CH. VI. 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 whose 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 implica- tions 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 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. Eesulting 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 qui trust, was afterwards dis- quoting this case, objects to the classification of Lord Hardwicke, which he says is confined to two kinds of resulting trusts. He appears to have over- looked 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. Roberts on Frauds, p. 97. • Church V. Sterling, 16 Conn. 388; Brothers v. Porter, 6 B. Mon. (K.y.) 106; Murphy v. Hubert, 7 Barr (Penn.), 420; Hoxie v. Carr, 1 Sumn. (C. C.) 173. 2 Smith V. Burnham, 3 Sumn. (C. C.) 436 ; Williams v. Brown, 14 Illi- nois, 200 ; McElderry v. Shipley, 2 Maryland, 25 ; Jackman v. Ringland, 4 Watts & S. (Penn.) 149 ; and cases there cited. 3 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. TI.] TRUSTS IMPLIED BY LAW. 81 regarded by Sir Thomas Plumer, Vice Chancellor, in Wray v. Steele, where it was held that a joint advance by several upon 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 by it.^ § 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 thougb 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 payment does not constitute the whole consideration, does not raise 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 tlie whole estate nor in any given part of it could result from such a payment to the party who makes it, without injustice to the grantee by whom the residue of the consideration is con- tributed.2 Upon the same view, it is held that if the propor- tion 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 be- cause the sum paid is left uncertain upon the evidence, no trust results by operation of law.^ ' Crop V. Norton, 9 Mod. 233; 2 Atk. 74; Wray v. Steele, 2 Ves. & Bea. 388; Bendow v. Townsend, 1 Mylne & Keen, 606; Dale v. Hamilton, 6 Hare, Ch. 369 ; Ryall v. Eyall, 1 Atk. 68 ; Buck v. Swazey, 85 Maine (5 Red.), 41; Livermore v. Aldrich, 6 Cush. (Mass.) 436; Powell v. The Monson and Brimfield Manuf. Co.,. 3 Mass. (C. C.) 362-364; Botsford ». Burr, 2 Johns. Ch. (N. Y.) 406 ; Stark v. Cannady, 3 Litt. (Ky.) 399 ; Brothers v. Porter, 6 B. Mon. (Ky.) 106 ; Ross v. Hegeman, 2 Edwards, Ch. (N. Y.) 373; Larkins v. Rhodes, 6 Port. (Ala.) 196; Cecil Bank v. Snively, 23 Maryland, 261. « White V. Carpenter, 2 Paige, Ch. (N. Y.) 217 ; Sayre v. Townsends, 15 Wend. (N. Y.) 647 ; Perry i>. McHenry, 13 Illinois, 227 ; McGowan ». McGowan, 14 Gray (Mass.), 119; Buck «. Warren, 16 Gray; Gee v. Gee, 2 Sneed (Tenn.), 395. 3 Sayre v. Townsends, 15 Wend. (N. Y.) 647 ; Baker v. Vining, 30 6 82 STATUTE OP PBAUDS. [CH. VI. § 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 vendor 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 difference that the money to meet the obligation is subsequently furnished him by another,^ unless there was a previous agreement to that effect, in which latter 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 purchase, 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 prevents the party who pays all the money part of the consideration from claiming a resulting trust in the whole purchase ; ^ hence, Maine (17 Shep.), 121. See, liowever, Jenkins v. Eldridge, post, § 111, note. In so far as this case may be supposed to conflict with the rule stated in the text, it is doubted in McGowan v. McGowan, supra. ' Buck V. Pike, 11 Maine (2 Fairf.), 9; Brothers v. Porter, 6 B. Mon. (Ky.) 106. ' Buck V. Swazey, 35 Maine (6 Bed.), 41. ' Sweet V. Jacocks, 6 Paige, Ch. (N. Y.) 355. ' Dwinel v. Veazie, 36 Maine (1 Heath), 609; De Peyster ». Gould, 2 Green, Ch. (N. J.) 474 ; Taliaferro v. Taliaferro, 6 Ala. 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 admitting such proof is clearly settled. = Buck V. Swazey, supra. " Forsyth v. Clark, 8 Wend. (N. Y.) 637. ' Steere v. Steere, 6 Johns. Ch. (N. Y.) 1. ' Crop V. Norton, 9 Mod. 233 ; Sayre v. Townsends, 16 Wend. (N. Y.) 647. CH. VI.] TRUSTS IMPLIED BY LAW. 83 it would seem reasonable that such a waiver, being in the 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 contribution 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.* § 90. It is obvious that the purchase-money must at the time of payment be the property of the party paying it and setting up the trust.* The ownership of that which was converted into land is the thing to be ascertained. If, however, the party who takes the deed lend 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 understand- ing that it may be afterwards repaid and the land redeemed by him who sets up the trust.® If a trustee or executor purchase ' Jenkins v. Eldredge, 3 Story (C. C), 181, 284. See this case ab- stracted, post, § 111, note. ' Buck V. Swazey, 35 Maine (5 Ked.), 41; Hollida v. Shoop, 4 Mary- land, 466; Alexander v. Tarns, 13 Illinois, 221; Conner v. Lewis, 16 Maine (4 Sliep.), 268; Foster v. Trustees of the Athenseum, 3 Ala. 302; Jackson d. Erwin v. Moore, 6 Cowen (N. Y.), 706; Graves v. Dugan, 6 Dana (Ky.), 331 ; Botsford ». Burr, 2 Johns. Ch. (N. Y.) 405; Rogers v. Murray, 3 Paige, Ch. (N. Y.) 390. But see Harder v. Harder, 2 Sandf. Ch. (N. Y.) 17. ^ Buck V. Pike, 11 Maine (2 Fairf.), 9; Pinnock v. Clough, 16 Verm. 500. * Jackson d. Livingston v. Batemen, 2 Wend. (N". Y.) 570 ; Getman v. Getraan, 1 Barb. Ch. (N. Y.) 499 ; Smith v. Burnham, 3 Sumn. (C. C.) 435 ; Hertle v. McDonald, 2 Maryland Ch. Dec. 128; Gibson v. Foote, 40 Miss. 788. " Reeve v. Strawn, 14 Illinois, 94 ; Bartlett v. Pickersgill, 1 Eden, 515 ; 1 Cox, 16 ; 4 East, 577, n ; Lathrop v. Hoyt, 7 Barb. (N. Y.) 59. « Getman v. Getman, supra. 84 STATUTE OP FRAUDS. [CH. TI. estates with the trust money, and take a conveyance to himself ■without the trust appearing on the deed, the estate will be liable to the trusts, if the application of the trust money to the pur- chase be clearly proved.^ And so if one partner make a pur- chase 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 lapse of time,^ or when the trust is not claimed until after the death of the alleged trustee.' The testimony of the trustee is com- petent for this purpose ; ^ but mere evidence given during his lifetime of his declarations to that effect seems to be inadmissi- ble as not being the best existing evidence.* So if it appears upon the face of the conveyance, by recital or otherwise, that the purchase was made with the money of a third person, that ' Lane v. Dighton, Ambler, 409 ; Ryall v. Ryall, 1 Atk. 59 ; Wilson v. Foreman, 2 Dickens, Ch. 593; Kisler v. Kisler, 2 Walts (Pa.), 323; Sug- den on Vendors and Purchasers, 919 ; and cases cited. « Phillips V. Crammond, 2 Wash. (C. C.) 441 ; Buck v. Swazey, 35 Maine (5 Red.), 41. " Dale V. Hamilton, 5 Hare, Ch. 369 ; Smith ». Burnham, 3 Sumn. (C. C.) 436. ■• 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. * Sewall V. Baxter, 2 Md. Ch. Dec. 447 ; Baker v. Vining, 80 Maine (17 Shep.), 121 ; Hollida v. Shoop, 4 Maryland, 465 ; Malin u. Malin, 1 Wend. (N. Y.) 625 ; Gascoigne v. Thwing, 1 Vern. 366 ; Finch v. Finch, 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. « Carey v. Callan, 6 B. Mon. (Ky.) 44. ' Enos V. Hunter, 4 Gilman (111.), 211-218. 8 Ambrose v. Ambrose, 1 P. Wms. 321 ; Ryall v. Ryall, 1 Atk. 69 ; Malin «. Malin, 1 Wend. (N. Y.) 625. See Lord Gray's case, Freem. Ch. 6. ° Roberts on Frauds, 100. \ CH. VI.] TRUSTS IMPLIED BY LAW. 85 is clearly sufficient to create a trust in his favor.^ 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 result- ing trust ; the latter being left by the statute as at common 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 result- ing trust.'^ § 93. It was formerly doubted whether parol evidence was admissible to show payment by a third person, in contradiction to the face of the deed expressing payment to have been by the nominal grantee,^ but it is now clearly settled in the affirma- tive.^ Indeed, as has been said by the Supreme Court of New » Kirk V. Webb, Free. Ch. 84 ; Deg v. Deg, 2 P. Wms. 412 ; Young v. Peachy, 2 Atk. 234. = Willis V. Willis, 2 Atk. 71 ; Ryall v. Ryall, 1 Atk. 59 ; Lench v. Lench, 10 Ves. Jr. 511 ; Strimpfler v. Roberts, 18 Penn. (6 Harr.) 283. ' Faringer v. Ramsay, 2 Maryland, 365. * Lake v. Lake, Ambler, 126; Baker v. Vining, 30 Maine (17 Shep.), 121 ; Foster v. Trustees of the AthenaBum, 3 Ala. 302. 6 Botsford ». Burr, 2 Johns. Ch. (N. Y.) 405. « Sugden on Vendors and Purchasers, 911. ' 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. 8 Kirk V. Webb, Free. Ch. 84; Newton v. Preston, lb. 103; Skett v. Whitmore, Freem. Ch. Cas. 280. 9 Livermore v. Aldrich, 5 Cush. (Mass.) 435 ; Page v. Page, 8 N. H. 187 ; Scoby v. Blanchard, 3 N. H. 170; Powell v. The Monson & Brimfield Manuf. Co., 3 Mas. (C. C.) 347 ; Gardner Bank v. Wheaton, 8 GreenL 86 STATUTE OP FRAUDS. [CH. VI. Hampshire, such evidence does not go to contradict the state- ment in the Seed that the grantee paid the money, but to show tlie 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 ; ^ biit 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 up 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 proceeding 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 (Me.) 373 ; Pritchard v. Brown, 4 N. H. 397 ; Botsford v. Burr, 2 Johns. Ch. (N. Y.) 405 ; Boyd v. McLean, 1 lb. 582. ' Pritchard v. Brown, and Scoby v. Blanchard, supra. ' Sugden on Vendors and Purchasers, 909, and cases there cited. " Boyd V. McLean, 1 Johns. Ch. (N. Y.) 582 ; Dorsey v. Clarke, 4 Harr. & Johns. (Md.) 551 ; Faringer v. Ramsay, 2 Maryland, 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. ■■ 1 Sanders on Uses, 123 ; Roberts on Frauds, 99. ' Sugden on "Vendors and Purchasers, 910, and cases there cited. Wil- liams V. Hollingsworth, 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 Oilman (111.), 211. " Robertson v. Robertson, 9 Watts (Pa.), 32 ; Jackman v. Kino-land, 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 honor, word, or promise of the defendant, the statute making these promises void, equity will not interfere." In Jenkins v. Eldridge, CH. VI.] TRUSTS IMPLIED BY LAW. 87 seems to be that there must have been an original misrepresenta- tion by means of which the legal title was obtained ; an original intention to circumvent, and get a better bargain, by the confi- dence reposed.! Thus, as lias been held in many cases, if a man procure a certain devise to be made to himself, by repre- senting to the testator that he will see it applied to the trust pur- poses contemplated by the latter, he will be held a trustee for those purposes.2 In such cases, it seems to be requisite that there should appear to have been an agency, active or passive, on the part of the devisee in procuring the devise ; it must ap- pear that the testator was drawn in to make the devise by the fraudulent representation or engagement 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 agreement, a trust will be decreed ; though not where it has only been deferred from negligence, accident, or some unexplained cause.* And where it appeared by parol proof that the defendant agreed at the time, and as part of the original bargain, that he would execute a declaration of trust in favor of the grantor and keep it among his papers, and failed 3 Story, 181, post, § 111, note, Mr. Justice Story dissents from the doctrine, even as applied to contracts in consideration of marriage, and says : "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." 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. ' McCuUoch V. Cowher, 5 Watts & Serg. (Pa.) 427. But see Jenkins 0. Eldridge, 3 Story, 181 ; post, § 111, note. ' Harris v. Howell, Gilb. Eq. 11 ; Chamberlaine v. Chamberlaine, 2 Freem. 34 ; Devenish v. Baines, Free. Ch. 3 j Oldham v. Litchford, 2 Vern. 506 1 Thynn ». Thynn, 1 Vern. 296; Hoge «. Hoge, 1 Watts (Pa.), 163. But see Burrow ». Qrenough, 3 Vea. Jr. 161; Hargrave v. King, 5 Ired. Eq. (N. C.) 430 ; Cloninger v. Summit, 2 Jones, Eq. (N. C.) 613 ; Pod- m^re v. Gunning, 7 Sim. 644. * Whitton V. Eussell, 1 Atk. 448; Miller v. Pierce, 6 Watts & S. (Pa.) 97. * Bartlett v. Piokersgill, 1 Eden, 615 ; 1 Cox, 15 ; 4 East, 677, n ; Dean V. Dean, 6 Conn. 285. 88 STATUTE OP FRAUDS. [CH. VI. 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 decreeing a trust upon parol evidence.^ In all such cases of resulting trusts arising ex malefieio, equity, to use the forci- ble expression of Chief-Justice Gibson, turns the fraudulent procurer of the legal title into a trustee, to get at him.^ § 95. Upon similar 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 pre- tended to act, or, at least, the purchase be set aside on account of the fraud.* But in no case will the grantee be deemed a trustee if he used no fraud or deceit in getting his title, al- though 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 purchas- ing 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 al- ' Jenkins v. Eldridge, 3 Story, 181 ; post, § 111, note. ' Hoge V. Hoge, 1 Watts (Pa.), 214. » McCuUoch V. Cowher, 5 Watts & S. (Pa.) 430 ; Kisler v. Kisler, 2 Watts (Pa.), 427 ; Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 162. ' Leman v. Whitley, 4 Russ. Ch. 423 ; Whiting v. Gould, 2 Wis. 683 ; Barnet v. Dougherty, 32 Penn. State, 372; Chambliss «. Smith, 30 Ala. 366 ; Campbell ». Campbell, 2 Jones, Eq. (N. C.) 364 ; Pattison v. Horn, 1 Grant (Penn.), 301 ; Hogg v. Wilkins, lb. 67. * Lees I). Nuttall, 1 Russ. and Mylne, 53 ; Carter v. Palmer, 11 Bligh, N. R. 897 ; Dale v. Hamilton, 5 Hare, Ch. 369 ; Sweet v. Jacocks, 6 Paige, Ch. (N. Y.) 355 ; Jenkins v. Eldridge, 3 Story, 181 ; Jackson v. Stern- bergh, 1 Johns. Cas. (N. Y.) 153 ; Perry v. McHenry, 13 Illinois, 227. See Fischli V. Dumaresly, 3 A. K. Marsh, (Ky.) 23. CH, Tt.] TRUSTS IMPLIED BY LAW. 89 I leging the parol trust agreement and the failure to execute it.^ It seenas to have heen held that where, in a case of trust aris- ing upon an agency, the defendant's answer denied the fact of agency, parol evidence was inadmissible to prove it ; but the later English cases favor a contrary doctrine. As the object of the parol testimony is to sliow, not an agreement to pur- chase 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.^ ' Miller v. Cotton, 5 Georgia, 341 ; Robson v. Harwell, 6 lb. 589. » Bartlett ». Pickersgill, 1 Eden, 515 ; 1 Cox, 15 ; 4 East, 677, n ; Tay- lor V. Salmon, 4 Mylne & Cr. 134 ; Dale v. Hamilton, 5 Hare, Ch. 369. 90 STATUTE OP FRAUDS. [CH. VII. CHAPTER VII. EXPRESS TRUSTS. § 97. We come now to consider the formalities which are required by tlie 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 by law entitled to declare such trusts, or by his last will in writing." It has been suggested that, by a comparison of the ninth sec- tion of the English statute with the seventh, just referred to, it appears to have been the intention of the legislature to re- quire 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 that it is to be re- garded as an entirely independent transaction. It has been uniformly held, though perhaps not necessarily, on the ground of this peculiarity of phraseology ,2 that it may be executed subsequently to the creation of the trust,^ or even, it is said, in anticipation of it ; * or it may be executed subsequently to the death of the grantor ; ^ or the bankruptcy of the grantee.® The ' Lewin on Trusts, p. 30. " Be&post, § 104. * Forster ». Hale, 5 Ves. Jr. 308 ; Barrell ». Joy, 16 Mass. 221 ; Wright v. Douglass, 3 Selden (N. Y.), 564; Butledge ». Smith, 1 McCord, Ch. (S. C.) 119 ; McCubbin v. Cromwell, 7 Gill & Johns. (iMd.) 157. * Jackson d. Erwin v. Moore, 6 Cowen (N. Y.), 706. * Ambrose v. Ambrose, 1 P. Wms. 321 ; Wilson v. Dent, 3 Sim. 386. ' Gardner v. Rowe, 2 Sim. & Stu. 346. CH. VII.] EXPRESS TRUSTS. 91 consequences are important ; for if the trust had no effect pre- viously to, or independently of, tlie written declaration, the trust property could not be disposed of by the cestui que trust in the mean while, and would be subject to the acts and encum- brances of the ostensible owner. § 98. It has been uniformly held that letters under the hand of the trustee, distinctly referring to the trust, are sufficient as written manifestations or proofs to satisfy the statute ; ^ and in Massachusetts a printed pamphlet, published and circulated by the trustee, has also been considered sufficient.^ So with entries made by the trustee in his books, or any memorandum, 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 effect 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 re- spects, he says, they differed from letters which had been ad- mitted in English cases.^ The opinion of the learned Chancellor shows, however, abundant grounds upon which 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 expressly decide ' Forster v. Hale, supra ; O'Hara v. O'Neil, 7 Bro. P. C. 227 ; Crook «. Brooking, 2 Vera. 50 ; Morton v. Tewart, 2 Yo. & Coll. 67 ; Steere v. Steere, 5 Johns. Ch. (N. Y.) 1 ; Movan ». Hays, 1 Johns. Ch. (N. Y.) 339 ; Mc- Cubbin v. Cromwell, 7 Gill & Johns. (Md.) 157 ; Wright v. Douglass, 3 Sel- den (N. Y.), 564; Day v. Koth, 18 N. Y. 448. « Barrell v. Joy, 16 Mass. 221. ' Jaques v. Hall, an unreported case, recently decided in Massachusetts, and a note of which has been kindly furnished to me by the counsel. Bar- row V. Grreenough, 3 Ves. Jr. 161 ; Lewin on Trusts, p. 30; Roberts on Frauds, p. 95 ; Smith v. Matthews, 4 L. T. N. S. 266. * Steere v. Steere, 5 Johns. Ch. (N. Y.) 1. 6 O'Hara v. O'Neil, 7 Bro. P. C. 227 ; Forster v. Hale, 3 Ves. Jr. 696. 92 STATUTE OP FRAUDS. [CH. VII. 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 conscien- tious 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 with the intention of manifesting the trust. In Barren v. Joy,^ in the Supreme Court of Massachusetts, the defendant had received from the plaintiff's father sundry con- veyances of land, and, upon a suit brought after 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 to be held in trust for him, of which trust they claimed the benefit. There was a pamphlet 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 in an indenture between himself and certain third parties, covenanted with them to sell a portion of the lands he had re- ceived, and apply the proceeds to the payment of demands which they held against the plaintiff's father ; from which it was evi- dent that he considered himself as holding the land upon trust and not for his own use. Parker, C. J., delivering the opinion of the court, said : " This is a suflScient declaration in writing, » Deg V. Deg, 2 P. Wms. 412 ; Bellamy v. Burrow, Cas. Temp. Talb. 97 ; Kirk V. Webb, Free. Ch. 84 ; Hutchinson v. Tindall, 2 Green, Ch. (N. J.) 357 ; Wright v. Douglass, 3 Selden (N. Y.), 564. « Barrel! v. Joy, 16 Mass. 221. CH. VII.] EXPRESS TRUSTS. 93 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 mani- festation 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 Cliancel- lor in Steere v. Steere ; but it does not seem that the mere form of the manifestation should make any diflFerence 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 sufii- cient certainty to be ascertained and executed. 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 Porster v. Hale, although the parol declarations 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, intro- duced for the purpose of proving the trust, that they were drawn up for another purpose and not addressed to, nor in- tended for the use of, the cestui que trust? ' Hutchinson v. Tindal, 2 Green, Ch. (N. J.) 357. ' Forster v. Hale, 5 Ves. Jr. 308. " Huberts 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. 603), where Lord Hardwicke said, that "the word 'party' in the statute was not to be construed ;7ai' Sturtevant, 20 N. Y. 39. " Tierney v. Wood, 19 Beavan, 330. * Adlington v. Oann, 3 Atk. 141. * Stickland v. Aldridge, 9 Ves. 516 ; Podmore v. Gunning, 7 Simons, 644 ; Tierney v. Wood, 19 Beavan, 337. Post, § 442 ; ante, § 94. 100 STATUTE OP FRAUDS. [CH. VII. of trust in land is revocable at any time, and is revoked by a devise of the declarant to another person.^ § 108. All that remains before concluding this chapter is to see what form of language will be sufficient to manifest a trust as reqiiired 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 Porster v. Hale, where it was attempted to establish a trust upon the expressions " our" aad "your," contained in letters of the defendant to the alleeep cestui que trust, referring to the property in disputft. ItwQ^yid that such terms did not neces- sarily imply that tnm)ar®«Hp%e correspondence were jointly interested in the estataka^md to^and the Master of the Rolls, Sir Richard Pepper Ar^s^mid there was great danger in exe- cuting trusts proved om^jy letters loosely speaking of trusts which might or ^^^11(^1^^^^^ actually and definitively settled between the partie^^^^^ucli expressions as those above quoted, intimating omj^^^e intention of a trust, and that it should be clear from thK^eclaration 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 purchase-money and expenses. The evidence relied upon con- sisted of a number of letters written by one or more of the de- fendants, 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 lan- guage did not tend to show the trust alleged, which was a trust in favor of the testator ; but that even if a trust in favor of the ' Kelly V. Johnson, 34 Missouri, 400. ' Forster v. Hale, 3 Ves. Jr. 696. CH. Vn.] EXPRESS TRUSTS. 101 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 ac- knowledgment 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 carrying out the will to that extent.^ So where the defendant, the owner of the legal title to an estate, had cove- nanted 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 defendant held the legal title, there was a beneficial interest remaining in the plaintiff's father.^ So where the holder of a note indorsed to him as security for a debt, having recovered judgment agaiust 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 plaintiflF 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 payment, 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 per- sons (the plaintiffs) were to have certain legacies and annuities, has been held to be a sufficient declaration of the trust for those purposes.® § 110. A covenant to convey or hold lands, purchased or to be purchased, to certain uses, or a bond to convey lands as the ' Steere v. Steere, 6 Johns. Ch. (N. Y.) 1. ' Kutledge v. Smith, 1 McCord, Ch. (S. C.) 119. ' Barren v. Joy, 16 Mass. 221. ■* Arms V. Ashley, 4 Pick. (Mass.) 71. ' Barrow v. Greenough, 3 Ves. Jr. 152. 102 STATUTE OP PEAUD9. [CH. VII, cestui que trust shall direct, are obviously equivalent to a decla- ration of trust.^ So, also, where a revolutionary soldier entitled to bounty land delivered to one Birch (from whom 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 encumbrances, the grantor mortgaged the equity of redemption, by deeds of lease and release, to two persons of the name of Rogers, as purchasers 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 encumbrances 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 en- cumbrancer 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 ; 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 ' Earl of Plymouth v. Hickman, 2 Vem. 167 ; Blake v. Blake, 2 Bro. P. C. 250 ; Moorcroft v. Dowding, 2 P. Wms. 314. ■" Pisher v. Fields, 10 Johns. (N. Y.) 495. CH. VTI,] EXPRESS TRUSTS. . 103 the equity of redemption, further evidence by parol was admis- sible to prove the truth of the transaction.^ 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, it could not have been rebutted by parol.2 But in Leman v. Whitley, while the exception in favor of trusts partly proved in writing was recognized, the binding application of the Statute of Frauds to cases of mere parol ' 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 ». 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 sub- ject 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 equiva- lent 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 in- demnify 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 princi- pally relied on by the Lord Chancellor, as not at all reconcilable with an absolute disposition of the whole interest to the defendant), and other circumstances raising a strong presumption of a trust intended. Lord 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 face of it ; but however though there can be no parol declara-, tion of a trust, since the stat. of 29 Car. II., 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 plaintiff of all the benefit of his estate. Hutchins v. Lee, 1 Atk. 447. « Steere v. Steere, 5 Johns. Ch. (N. Y.) 1. 104 STATUTE OP FRAUDS. [CH. VII. trusts was firmly sustained. A son had conveyed an estate to his father, nominally as purchaser, for the consideration, ex- pressed 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 im- plication 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 purchaser 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 y. Jee, in favor of trusts partly manifested by writing, is difi&cult to reconcile with the plain language and policy of the statute requiring the trust (that is, the whole trust) to ap- pear by written evidence ; and that the determination in Leman V. Whitley, not to admit it unless clearly applicable, was wise and consistent.^ ' Leman v. Whitley, 4 Euss. Ch. 423. " In the case of Jenkins v. Eldredge (3 Story, 181), Leman v. Whitley, was referred to and disapproved, as improperly excluding parol evidence in cases of trusts, and Mr. Justice Story says "he should have had great diffi- culty in following it, even if there were no authorities which seemed fairly to present ground for doubt," which authorities are Lees v. Nuttall, 1 Russ. & Mylne, 63 ; Carter v. Palmer, H Bligh, 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 remark- CH. VII.] EXPRESS TRUSTS. 105 § 112. When we come to that part of our subject which relates to contracts, it will be seen that one of the most im- able that any qualification of that principle should have been intended, no reference being 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 §rst-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 before re- ferred to, and are always excepted from the operation of the statute upon the ground of a resulting trust, ex maleficio, in favor of the principal. The last is the common 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, and 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 documents 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 is a case itself which in all its bearings is highly interesting in relation to the whole subject of trusts as affected by the stat- ute, and as it has been several times referred to in preceding 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 fop 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 de- livered 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 mort- gage of the premises to secure the payment of the note and taxes ; other- wise 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 Blois, pressing payment, threat- ened 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 per- 106 STATUTE OF FRAUDS. [CH. VII. portant questions to be settled is, Whether, in the memorandum of the contract, the consideration is required to be expressed. form 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 rais- ing 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, th'e 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 equita- ble estate should be in Eldredge, to enable him to raise money on it to complete building and discharge the encumbrances. 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 made 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 El- dredge. 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. Because it was a case of agency. 3. Because Eldredge had been guilty of fraud in his conduct and operations. 4. Because the plaintiff 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 Jen- kins had a resulting trust in the estate, he says, "that the plaintiff had ex- pended a large sum of money on the premises ; that De Blois never could have conveyed the same to Eldredge without the plaintiff's express solicita- tion 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 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 have 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 tanto for his liabilities, expenditures, and CH, Til.] EXPRESS TRUSTS. 107 It may be sufficient to remark, in reference to the writing required by the seventh section in cases of trusts, that all the compensation." He proceeds: "In the next place, as to the agency. It appears to me, that here a confidential relation of principal and agent did 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 con- fidential 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 sup- poses, Eldredge originally engaged in the undertaking with a meditated de- sign 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 re- fers to Montacute v. Maxwell (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 honor, 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 agree to reduce the trust to writing, and to keep a private memorandum thereof in his own pos- session, as evidence, in case of his death or other accident. I do not accede to the statement, 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, 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 in- cline however, to impute to Eldredge any such original, premeditated in- tention of fraud as the agreement of the plaintiff supposes, unless driven to 108 STATUTE OP FRAUDS. [CH. VII. reasons in favor of requiring the express statement of the con- sideration under the fourth section seem to hold good in relation to the other. There, are two cases found in which this question has been passed upon, and in which it was decided 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 con- sideration to appear in the memorandum, and the other was it by the most cogent circumstances of necessity. 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 Eldredge was perfectly fair and honorable, if he has since deviated from his duty, and attempted to absolve himself from the obligations of the trust, such as he knew the plain- tiff 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 suffered 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 sefvices, 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 maintainable, 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 aU, the release to Eldredge by the plain- tiff 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 and 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 the 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 case to take the case out of the statute." CH. VII.] EXPRESS TRUSTS. 109 upon an instrument under seal, a case excepted, even in Eng- land, from the application of the general rule.^ § 113. It should also be observed, before passing from this branch of our subjects, that the principles upon which Courts of Equity, under peculiar circumstances, decree the specific exe- cution of verbal contracts, notwithstanding the Statute of Frauds, comprehend cases of trust resting in parol.^ It is not, however, deemed worth while to anticipate here the dis- cussion of any part of the important subject of the enforcement in equity of obligations affected by the statute, that being re- served for especial examination hereafter.^ ' Arms V. Ashley, 4 Pick. (Mass.) 71 ; Fisher v. Fields, 10 Johns. (N. Y.) 495.* ^ Jenkins v. Eldredge, ante, § 111, n. ; Robson v. Harwell, 6 Georgia, 589. = Post, Chapter XIX. PART III. OF CONTEACTS. OF CONTRACTS, AS AI'FBCTED BY THE FOURTH AND SEVENTEENTH SECTIONS OF THE STATUTE OF FKAUDS. 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 mar- riage ; 4, or upon any contract or sale of lands, tenements, or heredita- ments, or any interest in or concerning them ; 5, or upon any agreement that is not to be performed within the space of one year from the making there- of; 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. Section 17. No contract for the sale of -any goods, wares, and merchan- 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 bargain, or in part-pay- ment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. CH. VIII.] VERBAL CONTEACTS, HOW PAR VALID. 113 CHAPTER VIII. VERBAL CONTRACTS, HOW PAR 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 difficulty. The method proposed for the discussion of it is that suggested by the very arrange- ment 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 contracts embraced by it ; and. Thirdly, What are the formalities which it requires in the making of such contracts ; or, more briefly, its operation, its svhjectrmatter, and its requirements. The first of these divi- sions 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 in- gredients, but simply prescribes as a rule of evidence, that, in 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 enforce- able if the proof of it be such a writing as the statute requires.^ ' Although the phraseology of the 17th section of the English statute is different from that of the 4th, namely, that no contract, &c., for goods, &c., shall be 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" 8 114 STATUTE OP PEAUDS. * [CH. VIII. In many cases the legal effect will indeed be the 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 consequences 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 consequences 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 exe- cuted 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 ex- ceeding three years, followed by an actual verbal demise ac- cordingly ; 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 avail himself of the fact that the agreement could not, in the first instance, have been enforced against him.^ appears to mean, considered 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 most irregularly and loosely. Many of our States, in adoptiilg the substance of it, have disregarded the difference alluded to, and put the sales of goods into the same section with other con- tracts, extending to them the common provision that no action shall be brought upon them unless they are put in writing. (See Appendix.) 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 iha fourth section. Carrington V. Roots, 2 Mees. & Wels. 248. ' Stone v. Dennison, 13 Pick. (Mass.) 1 ; Mushat v. Brevard, 4 Dev. N. C. 73. " Lord Bolton v. Tomlin, 6 Adol. & EU. 866. CH. VIII.] VERBAL CONTRACTS, HOW FAB VALID. 115 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 person for whom another had purchased goods, avoid 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 court 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. § 117. 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 within ' Crane v. Gough, 4 Maryland, 316 ; Andrews v. Jones, 10 Ala. 400 ; Craig V. Van Pelt, 3 J. J. Marsh. (Ky.) 489 ; Watrous v. Chalker, 7 Conn. 224; Pawle v. Gunn, 4 Bing. N. C. 446 ; Shaw v. Woodcock, 7 B. & C. 73; s. c. 9 D. &K. 889; Price v. Leyburn, Gow, 109; McCue v. Smith, 9 Minn. 258. ' Pomeroy v. Winship, 12 Mass. 514 ; Wilkinson ». -Scott, 17 Mass. 249 ; Townsend v. Townsend, 6 Met. (Mass.) 319 ; Brackett v. Evans, 1 Cush. (Mass.) 79; Pike ». Brown, 7 Cush. (Mass.) 133; Dearborn u. Parks, 6 Greenl. (Me.) 81 ; Linscott v. Mclntire, 8 Shep. (15 Maine,) 201 ; Thayer V. Niles, 23 Verm. 494 ; Voluntine v. Godfrey, 9 Verm. 186 ; Cone v. Tracy, 1 Root (Conn.), 479; Bower v. Bell, 20 Johns. (N. Y.) 338; Massey ». Holland, 3 Ired. (N. C.) 197 ; Wood «. Gee, 3 McCord (S. C.) 421 ; Butter «. Lee, 11 Ala. 885 ; Morgan v. Bitzenberger, 3 Gill (Md.), 350 ; Holland v. Hoyt, 14 Mich. 238 ; Basford u. Pearson, 9 Allen (Mass.), 390- Nutting v. Dickinson, 8 Allen (Mass.), 642. A parol lease is for this purpose executed when the lessee is put in possession. Moore v. 116 STATUTE OF FRAUDS. [CH. VIII. 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 performance, 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 life, then of course the rule does not apply, as the effect 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-performance 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 property, or its value, ^delivered in the same way, in any suitable form of action ; ^ Beaseley, 3 Hamra. (O.) 294. And see Gibson v. Wilcoxen, 16 Ind. 333. 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. A tender of deed of land under a verbal contract, is not sufficient to support an action for the agreed price. Hodges v. Green, 28 Verm. 358, explained in Ballard v. Bond, 32 Verm. 855. 1 Donellan v. Read, 3 Barn. & Adol. 899. ' Townsend v. Townsend, 6 Met. (Mass.) 319 ; Hibbard v. WUtney,. 13 Verm. 21 ; Ballard v. Bond, 32 Verm. 355 ; Dyer v. Graves, 37 Verm.^ ^ 369. 3 Post, Chapter XIX. * Kidder v. Hunt, 1 Pick. (Mass.) 328 ; Seymour b. Bennett, 14 Mass. 266 ; Greer v. Greer, 18 Maine (6 Shep.), 16 ; Lockwood v. Barnes, 3 Hill (N. Y.), 128; Keeler v. Tatnell, 4 Zabriskie (N. J.), 62; Gray «. Gray, 2 J. J. Marsh. (Ky.) 21 ; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ; Allen V. Booker, 2 Stew. (Ala.) 21. 6 Luey V. Bundy, 9 N. H. 298 ; Keath v. Patton, 2 Stew. (Ala.) 38 ; Basford V. Pearson, 9 Allen (Mass.), 387. CH. VIII.] VERBAL OONTBACTS, HOW PAR VALID. 117 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.i 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 ver- bal contract for the purchase of it, and has made improvements on the land which enhance its value, a court of equity will com- pel the other party, who has repudiated the contract or become unable to perform it, to remunerate the former for those im- provements.* But whether an action at law will lie in such a case upon the implied assumpsit is more doubtful. It has been decided in England at nisi.prius that it would ; that, the plain- tiff 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 that the defendant was legally liable to remunerate him for what he had done.* But the weight of authority is the other way in this country.^ In all cases where • Hawley v. Moody, 24 Verm. 603. " Souch «. Strawbridge, 2 Man., Gr. & Sc. 808 ; King ». Brown, 2 Hill (N. Y.), 485 ; Burlingame «. Burlingame, 7 Cowen (N. Y.), 92, 94 ; Shute V. Dorr, 5 Wend. (N. Y.) 204; Hambell v. Hamilton, 3 Dana (Ky.), 601 ; Davenport v. Gentry, 9 B. Mon. (Ky.) 427 ; Sims ». McEwen, 27 Ala. 184. = Findley ». Wilson, 3 Litt. (Ky.) 391 ; Thompson v. Mason, 4 Bibb (Ky.), 195; Bellamy v. Ragsdale, 14 B. Mon. (Ky.) 364; Vaughan v. Cravens, 1 Head (Tenn.), 108. See also on this subject. Chap. XIX., post. But if a bill be filed for the specific execution of an agreement for the purchase of land, alleged to be evidenced by a written memorandum, and the allegation be not sustained by the proof, the plaintiff cannot under the prayer for general relief obtain compensation for improvements on the land. Smith v. Smith, 1 Ired. Eq. (N. C.) 83. < Gray ». Hill, Ry. & Mood. 420; Smith i>. Smith, 4 Dutch. (N. J.) 208. ^ Farnam v. Davis, 32 N. H. 302 ; Wells v. Banister, 4 Mass. 614 ; Kem- 118 STATUTE OP FRAUDS. [CH. Till. 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 deducted from the sum he is to recover for his expenditures made on the faith of the contract.^ § 120. It has been determined in Tennessee, that the advance 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 consider- ing 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.^ ble V. Dresser, 1 Met. (Mass.) 271 ; Gillett ». Maynard, 5 Johns. (N. T.) 85; Shreve v. Grimes, 4 Litt. (Ky.) 220; Harder v. Hays, 9 Barr (Pa.), 151 ; Miller v. Tobie, 41 N. H. 84. ' Richards v. Allen, 17 Maine (5 Shep.), 296 ; Lockwood v. Barnes, 3 Hill (N. Y.), 128 ; Rucker v. Abell, 8 B. Mon. (Ky.) 666 ; Shreve v. Grimes, 4 Litt. (Ky.) 220. = McNew v. Tobey, 6 Hump. (Tenn.) 27. ' Sugden on Vend, and Purch. 857. * Ewing V. Osbaldestone, 2 Myl. & Cr. 53. ^ McCampbell v. McCampbell, 5 Litt. 92 ; Rucker v. Abell, 8 B. Mon. 666. CH. VIII.] YERBAL COISTRACTS, HOW PAR VALID. 119 § 121. Where the purchaser under a verbal contract for land has been pxit in possession, and has made payments on account of the price, it is plain that he cannot recover back the money without surrendering or offering 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 himself in a condition which enables the defendant, upon payment of the purchase-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 plaintifi" himself having 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 ' Abbott V. Draper, 4 Denio (N. Y.), 51; Cope v. Williams, 4 Ala. 362. " Gillespie v. Battle, 15 Ala. 276 ; Curnutt v. Roberts, 11 B. Mon. (Ky.) 42 ; Ott V. Garland, 7 Missouri, 28. But see Bates v. Terrell, 7 Ala. 129. ' Johnson v. Hanson, 6 Ala. 361. * Hawley u. Moody, 24 Verm. 603; Shaw v. Shaw, 6 Verm. 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 v. Camp, 12 Johns. (N. Y.) 541 ; Lane v. Shackford, 6 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.) 552 ; Barickman v. Kuykendall, 6 Black. (Ind.) 21 ; Sims v. Hutchins, 8 Sm. & Marsh. 328 ; Donaldson u. Waters, 30 Ala. 175 ; Cobb v. Hall, 29 Verm. 510 ; Miller v. Tobie, 41 N. H. 84 ; Wetherbee v. Potter, 99 Mass. 361. If the vendor meanwhile decease, and administration 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 commis- sion for his compensation. Sutton u. Sutton, 13 Verm. 71. 120 STATUTE OP FRAUDS. [CH. VIII. verbaV 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 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 im- plied ; 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 applicable 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 quitted 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 ' Shaw V. Shaw, 6 Verm. 69 ; Philbrook v. Belknap, lb. 383. » Seeposi, §§ 131-136. ' Rhodes v. Storr, 7 Ala. 346 ; Meredith v. Nash, 3 Stew. (Ala.) 207. * Abbott V. Draper, 4 Denio (N. Y.), 51. See ante, p. 118. ' Comes «. Lamson, 16 Conn. 246. See, also, Philbrook v. Belknap, 6 Verm. 383. CH. Vni.] VERBAL CONTRACTS, HOW PAB VALID. 121 prohibiting a recovery of money paid for land where the vendor is willing to convey ; and perhaps the cases may be thus dis- tinguished. 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 ser- vices the plaintiff may refuse to perform, as his contract 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 can- not 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 re- cover back the purchase-money while the vendor is willing 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 ability and willingness to convey according to the bargain.^ But the admis- sion of a vendor that he has no title may furnish a good ground for abandoning the possession and rescinding the contract, and, it should seem, a good ground for defending an action for the unpaid purchase-money, or for an action to recover that which has been paid.* ' Rhodes v. Storr, 7 Ala. 346 ; McGowen ». West, 7 Missouri, 567. 3 Edelin v. Clarkson, 3 B. Mon. (Ky.) 31, approved in Gillespie v. Bat- tle, 15 Ala. 282. See, also, Ehodes v. Storr, 7 Ala. 346 ; and King v. Hanna, 9 B. Mon. (Ky.) 369. ' Gillespie v. Battle, supra; Barnes v. Wise, 3 T. B. Mon. (Ky.) 167. 122 STATUTE OP FRAUDS. [CH. Till. § 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,^ § 124. 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 ' Barnes v. Wise, supra; Rowland v. Garman, 1 J. J. Marsh. (Ky.) 76 ; Nelson v. Forgey, 4 lb. 569. ^ Smith V. Smith, 14 Verm. 440. ' Gray v. Hill, Ry. & Mood. 420 ; Thomas v. Dickinson, 14 Barb. (N. Y.) 90 ; Hollins v. Morris, 2 Harr. (Del.) 3 ; Hill v. Hooper, 1 Gray (Mass.), 131 ; Ives v. Gilbert, 1 Root (Conn.), 89 ; Shute v. Dorr, 6 Wend. (IST. Y.) 204; Hambell u. Hamilton, 3 Dana (Ky.), 601; Ray «. Young, 13 Texas, 660. * Goodwin V. Gilbert, 9 Mass. 510; Smith v. Bradley, 1 Root (Conn.), 148. » Cocking V. Ward, 1 Mann., Gr. & Sc. 868; Kelly ». Webster, 12 lb. 283. " Cocking V. Ward, supra; Buttemere v. Hayes, 5 Mees. & Wels. 456; Griffith V. Young, 12 East, 513 ; (Cocking v. Ward apparently overrules Price V. Leyburn, Gow, 109) ; Walker ». Constable, 2 Esp. 660 ; Kidder v. Bunt, 1 Pick. (Mass.) 328; King v. Brown, 2 Hill (N. Y.), 486; (which CH. Vin.] VERBAL CONTRACTS, HOW PAR VALID. 123 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 aud occupation, and it was objected that the parol agreement was void by the Statute of Frauds, the Supreme Court of New York held that evidence of the agreement was ' admissible to show that the defendant went into the occupation of the premises by the permission of the plaintiff, thus estab- lishing 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 ac- tion for the money will, it is said, not lie until the stipulated time arrives ; and evidence of the verbal agreement will be ad- mitted to show, in such a case, that the suit has been prema- turely commenced.^ So if money be loaned, to be repaid with interest after an interval of more than a year, the verbal con- tract here limits both the time of bringing the action and the amount of interest to be recovered.^ § 125. It seems to be settled that in an action on the implied promise, for the value of property conveyed or services ren- dered, the plaintiff cannot insist upon the stipulation as to value or compensation in the verbal contract itself.* At best, it is an item of evidence to be submitted to the jury,^ and cannot be overrules, on this point, Burlingame v. Barlingame, 7 Cowen (N. Y.), 92 ; McDowell V. Oyer, 21 Penn. State, 417 ; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247; HiU w. Hooper, 1 Gray (Mass.), 131. ' Little V. Martin, 3 Wend. (N. Y.) 219 ; Doe d. Whitney v. Cochran, 1 Scam. (111.) 209. 2 Gully V. Grubs, 1 J. J. Marsh. (Ky.) 887. See, also, Clark v. Terry, 26 Conn. 396, explaining and affirming Comes v. Lamson, 16 lb. 246. -'■ Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247. See on this subject, Elli- cott ». Turner, 4 Maryland, 476. * Earl of Falmouth v. Thomas, 1 Cro. & Mees. 89 ; Ellet v. Paxson, 2 Watts & Serg. (Penn.) 418; Erben v. Lorillard, 19 N. Y. 299, explaining King V. Brown, 2 Hill (N. Y.), 486; Montague v. Garnett, 3 Bush (Ky.), 297. ^ Ham V. Goodrich, 37 New Hampshire, 185. In the absence of any other evidence, it may be conclusive. Nones v. Homer, 2 Hilton (N. Y.), 116. 124 STATUTE OP FRAUDS. [CH. Till. referred to at all, unless the stipulated value or compensation is fixed and determinate in its amount and character at the time of the stipulation.^ Nor can the value of land agreed to he conveyed in payment for services be resorted to as a meas- ure of damages on quantum meruit, where the agreement is to convey it in consideration of a specified sum payable in work.^ § 126. The defendant, however, in an action for the price o^ 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 is proper to remark that this is not, as it might be considered, an instance of allowing a verbal contract to be set up in defence, in distinction from allowing an action to be maintained upon it. 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 hav- ing once fixed the valuation of his property or labor, 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 ' Lisk V. Sherman, 26 Barb. (N. T.) 433 ; King v. Brown, supra ; Ham V. Goodrich, supra. ' King V. Brown, supra. ' Philbrook v. Belknap, 6 Verm. 383 ; King v. Brown, supra ; Swansey V. Moore, 22 111. 65 ; Montague v. Garnett, supra. In Scotten v. Brown, 4 Harr. (Del.) 324, which was an action of assumpsit for work and labor in clearing a piece of ground, the defence was that 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 estimated value of the stipulated use of the land, but the contract waa set up in bar of any recovery. * Boyd V. Stone, H Mass. 342. CH. Vm.] VERBAL CONTRACTS, HOW PAR VALID. 125 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.^ § 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 verbal contracts upon which actions at law are prohibited by the Stat^ ute 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 such a contract cannot, under ordinary circum- stances, be specifically enforced, any more than the damages for a violation of it can be recovered by action. But, at the same time, equity pays great regard to the moral obligation 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 ad- mitted as a defence in those courts, since that would be to relieve them entirely from the binding power of the statute, it seema to be clear that they will not lend their aid to enforce and perfect a legal right which the plaintiff sets up, against his 1 Kidder v. Hunt, 1 Pick. (Mass.) 328. ^ Glenn v. Rogers, 3 Maryland, 312. And see post, Chapter XX. 126 STATUTE OP FRAUDS. [CH. VIII. conscientious duty under a verbal contract interposed on the part of the defence.^ Thus, where an execution creditor ver- bally agrees, with his debtor, that he will purchase in the prem- ises at the sheriflF's sale, and, on being repaid the amount of the execution, or on any other specified terms, will reconvey to the debtor, and afterwards, by representing those facts at the sale, 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 purchase certain land jointly, and one of them 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 per- formed ; it was admitted 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 allowed.^ 1 Jarrett v. Johnson, 11 Grat. (Va.) 327 ; Story, Eq. Jur. § 1622. ' Rose V. Bates, 12 Missouri, 30. And see Moore v. Tisdale, 5 B. Mon. (Ky.) 352, and Letcher v. Crosby, 2 A. K. Marsh. (Ky.) 106. ' 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 laud, although by a contract on which no action could be maintained against him by his ven- dee, in representing the title of the vendor to be good, and thereby in- ducing 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 the second. Springle v. Morrison, 3 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 g,vailability 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. CH. Vin.] VEEBAL CONTRACTS, HOW PAR VALID. 127 § 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 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 de- fence and consummate the contract, and cannot be deprived of his election to do so, by a stranger. Though a vendor is not legally bound to fulfil his contract by a conveyance, yet a 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 obligation to convey, a stranger to the contract has no right to complain, nor to preclude from him 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 concede." ^ § 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 quarir turn meruit for property or labor received from the plaintiff in pursuance of it, still the clear rule of law is that such a con- 1 Dawson v. Ellis, 1 Jac. & Walk. 624 ; Jackson d. Crabb v. Bull, 2 Gaines's Gas. in Err. (N. Y.) 301, per Kent, J. ; Lucas v. Mitchell, 3 A. K. Marsh. (Ky.) 244. ' Glary «. Marshall, 6 B. Mon. (Ky.) 266. So if a principal purposes to sell land to a person, " provided his 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. 128 STATUTE OF FRAUDS. [CH. Till. tract 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 ob- ligation 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 for three years, and should bring an action in the mean time for the value of the services he had actually rendered, the defendant could not protect him- self by setting up the verbal contract as binding upon the plaintiff, though its terms and stipulations might be admissible to regulate the damages.^ 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.^ § 132. 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 con- tract as varied can defend upon the verbal variation, will be considered in another part of this work.* Such a case, mani- festly, cannot be treated purely as a defence upon a verbal contract. § 133. It is well established that if an action, as for instance trespass, be brought against a defendant for certain acts which were done by him in pursuance of a verbal contract between himself and the plaintiff, the contract will in such case be a perfect defence; or, more correctly speaking, the defendant ' Comes V. Lamson, 16 Conn. 246 ; Scotten v. Brown, 4 Harr. (Del.) 324; King v. Welcome, 5 Gray (Mass.), 41. ' Payson o. West, Walker (Miss.), 615; Senett v. Johnson, 9 Barr (Pa.), 335. ^ Pierpont v. Barnard, 6 Barb. (N. Y.) 364 ; Summerall v. Thorns, 3 Florida, 298; Scorell v. Boxall, 1 Yo. & Jerv. 396. See, also, as to defence upon a contract covered by the statute, Finch v. Finch, 10 Ohio State, 607. _ ■* See post, § 409 et seq. OH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 129 may set up the license of the plaintifiF 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 that the application of this rule must be carefully limited to cases where the contract is set up merely as a justification, and that it does not hold where the result will be to establish the contract as binding, for 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 grow- ing 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 pur- chaser 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 encumbering it, and doing damage, wherefore he took and distrained the same, etc. ; the plaintiff replied, set- ting 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 committed by the defendant. It was held that the action would not lie. Lord Abinger, 0. B., states the dis- tinction 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. 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 brought on the assumption that the contract is good in law, ' See ante, ^ 22 et aeq. 9 180 STATUTE OP FRAUDS. [CH. VIII. that seems to me to be in effect an action on the contract. If the whole transaction between the parties were set forth in the declaration, the contract would form part of it ; and, in effect, the plaintiff 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 different 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 agree- ment might have been available in answer to a trespass, by setting up a license ; not setting up the contract itself as a con- tract, 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.^ § 134. 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 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 ^ Camngton v. Roots, 2 Mees. & Wels. 248. In this case, as remarked by Baron Parke, the plaintiff might have pleaded a license, but the defend- ant would have replied that it was countermanded, and the plaintiff could not have succeeded on that issue. See, farther, Buck v. Pickwell, 27 Verm. 167. = Baker ». Jameson, 2 J. J. Marsh. (Ky.) 547 ; Cammack v. Masterson, 3 Stew. & Port. (Ala.) 411. But, perhaps, if there were circumstances of deceit in the case, the plaintiff might recover in an action on the case for the deceit. See Kidder ». Hunt, 1 Pick. (Mass.) 328. CH. VIII.] VERBAL CONTRACTS, HOW PAR VALID. 131 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.^ So, an engagement to forfeit a cesrtain sum of money, in case of failing to perform another engagement which, within the Statute of Frauds, could not itself be enforced, cannot be enforced by the party to whom it is made.^ So, money paid for another under a verbal con- tract affected by the statute, cannot be recovered from him as money paid to his use.^ So, where the debt of a man has been verbally guaranteed to his creditor, it seems that in an action by the creditor to recover the whole amount due, the defendant cannot set up the guaranty ; it being not available to the cred- itor if he should sue upon it ; and this although it appear that the guarantor is ready to pay according to his engagement, notwithstanding the defence which he had upon the statute.* So, where the defendant agreed to take up certain notes and receive a conveyance of land which a third party had verbally engaged to give, the defendant's promise was held void for want of consideration.^ § 135. As the Statute of Frauds, however, only affects 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. Accordingly, when such a contract comes in question inter alios, or for any other purpose than that of recovery between the parties, it is to a great extent regarded as a subsisting valid contract. A third party cannot invoke the application of the statute for his own benefit. Thus, where one summoned as trustee made answer that a debt was due ' North V. Forest, 26 Conn. 400 ; Head v. Baldrey, 6 Adol. & Ell. 459. " Goodrich «. Nickols, 2 Root (Conn.), 498; Rice v. Feet, 16 Johns. N. Y.) 603. But see Couch v. Meeker, 2 Conn. 308. » Davis V. Farr, 26 Verm. 592. * Comes V. Lamson, 16 Conn. 246 ; Scotten o. Brown, 4 Harr. (Del.) 324. 5 Catlett V. Bacon, 33 Miss. 280. 132 STATUTE OP FRAUDS. [CH. VIII. from him to the defendant, but that he had verbally promised, and considered himself bound to pay a debt to a greater amount due from the defendant to a third person, it was held that he was not obliged to set up the Statute of Frauds and avoid this promise; and that if he chose to recognize it, he was not chargeable as trustee.^ So, where, in an action by the plaintiffs for the non-fulfilment by the defendants of a contract to finish certain machinery within a reasonable time, it was averred as special damage that the plaintiffs had thereby been prevented from fulfilling a contract with third parties and had lost the profits thereon, it was held that such damages could be recov- ered, although the contract, which would have produced the profits, could not have been enforced by law because not in compliance with the Statute of Frauds.^ And it has been also held that the maker of a verbal guaranty may pay the amount and recover it from the original debtor ; and may pay his mem- orandum check for the amount and recover it from the original debtor, although the latter, after its making, forbade its pay- ment.^ § 135 a. 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 slander 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 v«rbal contract for hiring for a year, to ' CahiU V. Bigelow, 18 Pick. (Mass.) 869 ; HaU «. Soule, 11 Mich. 494. See, also, Bohannon ». Pace, 6 Dana (Ky.), 194 ; Garrett v. Garrett, 27 Ala. 687 ; HoflFman v. Ackley, 34 Missouri, 377 ; Houser «. Lament, 66 Penn. State, 311. => Waters v. Towers, 8 W., H. & G. 401 ; Sneed v. Bradley, 4 Sneed (Tenn.), 301 ; Kratz v. Stocke, 42 Missouri, 351. ' Beal V. Brown, 13 Allen (Mass.), 114. Qucere, if an oral contract to convey his land made by a husband, can control her right of dower. See Madigan v. Walsh, 22 Wis. 601. * Howard V. Sexton, 4 Comst. (N. Y.) 157. OH. VIII.] VERBAL CONTRACTS, HOW FAR VALID. 133 commence at a future day, will be quite suificient for the pur- pose of acquiring a settlement.^ § 136. 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 enforcible, still no action can be maintained upon it in the courts of the country where the statute prevails, un- less 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. § 137. Where a contract has been once made and properly • Bracegirdle v. Heald, 1 Barn.' & Aid. 722. » Leroux v. Brown, 12 C. B. 801. 3 Van Reimsdyk o. Kane, 1 Gallis. (C. C.) 630; Smith v. Burnham, 3 Sumn. (C. C.) 435. The learned judge may have had in his mind the opinion of BouUenois : " Ainsi deux particuliers contractent ensemble en presence de temoins, et sans ^crit, dans un endroit ovi pareilles conventions forment de v^ritables engagemens, et k raison de quoi la preuve par temoins est admise dans cet endroit pour quelque somme que ce soit m6me au dessus de 100 livres ; ils plaident ensuite dans un lieu oii cette preuve par temoins n'est pas admise ; dans cette espAce, je ne trouve pas de difficult^ h. dire qu'il faudra admettre la preuve par temoins, parceque cette preuve appar- tient ad vinculum obligationis et solemnitatem.''^ 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 coun- terbalanced by contrary suggestions in previous cases. (See Carrington v. Roots, 2 Mees. & Wels. 248 ; Reade v. Lamb, 6 Wels., Hurl. & Gord. 130.) The distinction does not appear to have ever been judicially upheld, and is certainly not supported by any considerations of difference in policy between the two sections. See ante, § 115 and note. 134 STATUTE OP FRAUDS. [CH. VIII. 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.^ But it has been held that a statute requiring a writing for renewal of a promise barred by the United States Bankrupt Law,, applies to a suit instituted after the passage of the law, but based on a verbal promise made before its § 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.^ ' Gibbons v. McCasland, 1 Barn. & Aid. 690. Moreover, it would be sufficient in any case to declare upon the original promise. Leaper v. Lat- ton, 16 East, 420; Upton v. Else, 12 Moo. 303. * Kingsley v. Cousins, 47 Maine, 91. ' Evans v. Duncan, 1 Tyrw. 283 ; Senior v. Butt, and Payne v. Johnson, there cited ; Greave's ease, 1 Cro. & Jerv. 374, note. CH. IX.J CONTRACTS IN PART WITHIN THE STATUTE. 135 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 may 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- ald, C. B., remarking that it never could be the intention of the parties that the stock should be sold apart from the premises, as most of it was of little comparative value separately, and, besides, that the agreement being for an entire sum the court could never sever it.^ Similar to this was the case of Lea v. ' Cooke V. Tombs, 2 Anst. 420. 136 STATUTE OP FRAUDS. [CH. IX. 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 price, but the defendant refused to complete the purchase. An action was brought upon the en- tire agreement, and the plaintiif, 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 sev- ered, and that, being void as to the land, it was void in toto} So in Mechelen v. Wallace, where the declaration stated that the defendant wished the plaintiff to hire of her a house, and furniture for the same, at the rent, etc., and thereupon, in con- sideration that the plaintiff would take possession of the house partly furnished, and would, if the defendant sent into it com- plete 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, etc., the defendant promised the plaintiff to send into the said house, within a reasonable time after the plaintiff's taking pos- session, all the furniture necessary, etc. ; 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.^ § 142. In Irvine v. Stone, the Supreme Court of Massachu- setts held a contract for the purchase of coals at Philadelphia and to pay for the freight of the same to Boston, to be insepa- rable, so that no recovery for the freight could be had ; ^ and ' Lea V. Barber, 2 Anst. 426, note. See, also, Thayer v. Rock, 13 Wend. (N. Y.) 63, 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. ^ Mechelen u. Wallace, 7 Adol. & Ell. 49. And see the similar case of Vaughan v. Hancock, 3 Mann., Gr. & Sc. 766. * Irvine v. Stone, 6 Gush. (Mass.) 608. So with a contract to convey CH. IX.J CONTRACTS IN PART WITHIN THE STATUTE. 137 this case is not unlike that of Biddell v. Leeder, where the Court of Queen's Bench held, upon a contract for the purchase 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 insep- arably connected with the former.^ A contract to hire a shop at a certain rent and to pay the landlord 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 be- ing reasonably considered separately, or as contracts, so to speak, pro 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 wheat, and also of certain dead stock upon a farm, it was remarked by Abbott, C. J., that the bargain in regard to the latter was made after an interval of time (though at the same interview and almost simultane- ously 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 independent of any such distinction. Thei-e 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 recover upon the former branch of the contract, on a count properly framed for the purpose.* land and pay off the encumbrances upon it. Duncan v. Blair, 5 Denio (N. Y.), 196 ; Dock v. Hart, 7 Watts & Serg. (Pa.) 172. So with a verbal ■warranty of quality of goods sold under a verbal contract. Lamb v. Crafts, 12 Met. (Mass.) 353. ' Biddell v. Leeder, 1 Bam. & Ores. 327. ^ McMuUen v. Riley, 6 Gray (Mass.), 600. An agreement to convey land, coupled with a guaranty that a certain parcel of it should contain a certain number of acres, has been held indivisible. Dyer v. Graves, 37 Verm. 369. » Mayfield v. Wadsley, 3 Bam. & Ores. 357. * Wood V. Benson, 2 Tyrw. 93 ; Littlejohn, Ex parte, 3 Mont., Dea. & 138 STATUTE OF FRAUDS. [CH. IX. § 144. Where an agreement is originally, and remains until the time of bringing suit, thus connected and entire in its vari- ous 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 tenor 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 can 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 declara- tion 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 con- sideration of being allowed to hold possession till a certain time aijd to remove certain fixtures, promised to pay the .£160 and i£ 260 more ; that she did hold possession and took the fixt- ures, 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 good for the other, for it is an entire agreement, and the action is brought for both the sums, and indeed could not be otherwise without a variance from the promise." ^ In Thomas v. Williams, the defendant ver- bally promised the plaintiff, who was about to distrain upon his De Gex, 182 ; Pierce v. Woodward, 6 Pick. (Mass.) 206 ; Mobile Marine Dock & Mutual Ins. Co. v. McMillan, 31 Ala. 720. • Lord Lexington v. Clarke, 2 Vent, 223. CH. IX.] CONTRACTS IN PART WITHIN THE STATUTE. 139 tenant for rent, that if he would not distrain, he would pay him the rent which would be due at Michaelmas ensuing, in- cluding, 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 timie 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 declaration 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 the Statute of Frauds, and upon which he wished to re- cover, there was a fatal variance between the contract he had counted upon and that which he had proved. In Chater v. Beckett, where the defendant engaged to pay the plaintiff the debt a third person owed him, and all the expenses he had in- curred 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, however, for in paying his own expenses, the plain- tiff had only paid his own debt ; and so the case was correctly decided for the defendant, the authorities last quoted being precisely in point.^ § 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 • Thomas v. Williams, 10 Bam. & Cres. 664. « Chater v. Beckett, 7 T. E. 197. ' The following American cases all stand upon the same ground. Noyes 140 STATUTE OP FRAUDS. [CH. IX. 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 aflBrmed and decided as law in any case but that of Loomis v. Sfewhall in Massachusetts. There the defendant had furnished supplies to the plaintiff's son, for which the son was liable, and the de- fendant at the request of the plaintiff continued to furnish sup- plies, the plaintiff saying, " for what you have done and for what you shall do for my son, I will see you paid." Besides the coujit on an account annexed, the declaration contained the common money counts. It was held upon the supposed author- ity of Ohater 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 early English cases was defined in the case of Wood v. Benson, de- cided in the Court of Exchequer in 1831. That was assump- sit on the following guaranty signed by 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 be consumed in the Minor Theatre and by the lamps out- side 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 V. Humphreys, 11 Grat. (Va.) 636 ; Crawford v. Morrell, 8 Johns. (N. Y.) 253; Henderson v. Hudson, 1 Munf. (Va.) 510. And see Alexander v. Uhiselin, 6 Gill (Md.), 188 ; Duncan v. Blair, 5 Denio (N. Y.), 196. ' Loomis V. Newhall, 15 Pick. (Mass.) 159 ; overruled in Kand v. Mather, 11 Gush. 1. The case of Robson ». Harwell, 6 Georgia, 589, while admit- ting Loomis V. Newhall as authority, decides that the principle there held does not extend to declarations of trusts. CH. IX.] CONTRACTS IN PABT WITHIN THE STATUTE. 141 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 admitted 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 separate 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 Eng- lish 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 over- ruled 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 partic- ularly noticed that in Loomis v. Newhall there were common counts upon which the plaintiff was entitled to recover ; other- wise, 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 objection under the Stfitute of Frauds, provided that part is, from the nature of the contract, capable of being considered separately from the remainder. But even where the various stipulations are so connected together that, so long as they all remained execu- tory, no action could be maintained upon any one of them ' See post, § 386 et seq. * Wood V. Benson, 2 Cro. & Jerv. 94. ". Irvine v. Stone, 6 Cush. (Mass.) 608. * Rand v. Mather, 11 Cush. 1. 142 STATUTE OP PBAUDS. [OH. IX- separately, yet if that part to which the statute would have ap- plied 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 goods previously sold, and 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 cer- tain description. On his refusing to accept the bill, an action was brought in which, besides the special count upon the con- tract, 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 de- murrer to the plea, because the declaration showed a good consideration (namely, the debt for goods previously sold), it ' Dock V. Hart, 7 Watts & S. (Pa.) 172 ; Hess v. Fox, 10 Wend. (N. Y.) 436 (distinguishing Van AUstine ». Wimple, 6 Cowen (N. Y.), 162) ; Page V. Monks, 6 Gray (Mass.), 492 ; Trowbridge v. Wetherbee, 11 Allen (Mass.), 364; Wetherbee v. Potter, 99 Mass. 361. And see Twidy v. Sanderson, 9 Ired. (N. C.) 6 ; Manning v. Jones, Busb. (N. C.) 368 ; Dyer «. Graves, 37 Verm. 369. ' Alexander v. Ghiselin, 5 Gill (Md.), 138; Henderson ». Hudson, 1 Munf. (Va.) 510, per Tucker, J. ; Robson v. Harwell, 6 Georgia, 589, per Lumpkin, J. CH. IX.] CONTRACTS IN PART WITHIN THE STATUTE. 143 was held in the Queen's Bench that, part of the consideration failing by reason of the statute, the plea was good, and the de- fendant 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.^ ' Head v. Baldrey, 6 Adol. & Ell. 459. * Van AUstine v. Wimple, 5 Cowen (N. Y.), 162 ; Patterson u. Cunning- ham, 3 Fairf. (Me.) 506; Goodrich v. Nickols, 2 Root (Conn.), 498; Rice . V. Peet, 15 Johns. (N. Y.) 503. But see Couch w. Meeker, 2 Conn. 308. 144 ' STATUTE OP FRAUDS. [CH. IX. CHAPTER X. GUARANTIES. § 153. In the fourth section of the Statute of Frauds, spe- cial 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 representa- tive 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 indebted- ness of the estate which he represents, the distinction after all seems to be more technical than substantial. It will, accord- ingly, 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 to the former admits of separate notice. One observation in regard to them, however, it is important to make. As an administrator derives his office and interest from the appointment of the court, the statute affords him no protection against the enforcement of his verbal promise to answer damages out of his own estate, made after the death of the testator but before his own appoint- ment. 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.^ ' Tomlinson v. GUI, Ambl. 330 ; Roberts on Frauds, 201. CH. X.] GUARANTIES. 145 § 154. In considering the general subject of guaranties as affected by the Statute of Frauds, it is proposed to inquive, first, What are debts, defaults, or miscarriages within the meaning of the statute ; secondly, What is the natiire 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 case 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.i 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 death. All the judges concurred that the liability was such as the statute would cover by force of the word " miscarriage ; " 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 somewhat farther, and considered that both " miscarriage " and " default " applied to a promise to answer for another with respect to the non-per- formance of a duty, though not founded upon a contract.^ Per- haps 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 as is already incurred, the latter to such as may be incurred at a future time.^ ' Buckmyr v. Darnall, 2 Ld. Raym. 1085. * Kirkham v. 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. ' Castling v. Aubert, 2 East, 325. 10 146 STATUTE OP FRAUDS. [CH. X. § 156. Under whatever class it may fall, however, the liabil- ity of the party for whom a guarantor within the statute makes himself answerable, must be a clear and ascertained legal lia- bility, capable of being enforced against the party himself. Thus, if the party be a minor or a married woman, or under any legal disability to form binding contracts, 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 consid- eration that Tuack would not proceed to trial but would with- draw his record, undertook and promised to pay him fifty pounds and costs. Tuack, relying upon this promise, did with- draw 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 1 Harris v. Huntbach, Burr. 373 ; Chapin v. Lapham, 20 Pick. (Mass.) 467 ; Roche v. Chaplin, 1 Bailey (S. C), 419 ; Connerat v. Goldsmith, 6 Georgia, 14; Mease v. Wagner, 1 McCord (S. C), 395; Drake v. Flewel- len, 33 Ala. 106. A recent decision of the Supreme Court of Massa- chusetts (Dexter v. Blanchard, 11 Allen, 365) is directly opposed to the text, the court haying there held that no action lies upon an oral promise by a father to pay his minor son's debt not contracted for necessaries. They say that the fallacy of the argument for the plaintiff was in assuming that there was no debt due from the minor, whereas his obligation was not void, but only voidable ; and they added : " The effect of the doctrine contended for by the counsel for the plaintiff would be that a verbal agreement to answer for the debt of another would be valid, if it could have been shown that the original party would have established a good defence to the debt in an action brought against him." But, is it so ? The distinction is between a defendant who has a good defence and one who is not liable to be sued at all. The cases cited in the text are not referred to at all by the court ; and yet it will be found that they fully sustain the doctrine there stated. The recent case of Donney v. Hinchman, 25 Indiana, 455, is to the same effect. CH. X.] GUARANTIES. 147 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 we can tell ; he never was liable to the particular debt, damages, or costs." ^ But where, in a comparatively recent case, the defendant had verbally promised the plaintiff to pay the damages sustained by reason of a third person's having wrongfully 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 sustained. The court distin- guished 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 defendant is of course binding, upon the foregoing principles.^ It is not material that the defendant's promise is made for the benefit of a third person ; if the credit is given to him alone, his promise need not be in writing.* § 158. It is not necessary, however, that the obligation for the performance of which the guaranty is given, should be ex- press ; it is sufficient if it be implied by law. Such was the decision of Lord Ellenborough, in a case where the miscarriage ' Read v. Nash, 1 Wils. 305. See Bray ». Freeman, 2 Moore, 114, where, however, the court seemed to have applied Read v. Nash somewhat freely. See, also. Griffin v. Derby, 5 Greenl. (Me.) 476; Sampson v. Swift, 11 Verm. 315 ; Peck v. Thompson, 15 Verm. 637 ; Jepherson v. Hunt, 2 Allen (Mass.), 417 ; Merrill v. Englesby, 28 Verm. 157 ; Walker v. Nor- ton, 29 lb. 226 ; Douglas v. Jones, 3 E. D. Smith (N. Y.), 551 ; Johnson V. Noonan, 16 Wis. 688 ; Thompson v. Blanchard, 3 Corns. (N. Y.) 335. * Kirkham v. Marter, 2 Bam. & Aid. 613. •" Loomis V. Newhall, 16 Pick. (Mass.) 159. * Smith V. Mayo, 1 Allen (Mass.), 160; Sanborn v. Merrill, 41 Maine, 468 ; Hodges v. Hall, 29 Verm. 209 ; Eddy v. Roberts, 17 111. 605 ; post, §197. 148 STATUTE OF FRAUDS. [CH. X. 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, tlie obligation resting on the third person in such a case arising, of course, by impli- cation. It has been said in the Supreme Court of Massachu- setts that there might be instances in wliich a plaintiff who, for the benefit of a third person, had undertaken an onerous obli- gation at the defendant's verbal request, would have a remedy against him, notwithstanding such third person were also liable incidentally, and upon a 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 infant 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 im- portant to be examined at this point of our discussion, as hav- ing been assumed 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 ex- amination 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 nisiprius, in 1796. One Taylor made a promissory 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 ' Redhead v. Cator, 1 Stark. 14 ; Whitcomb v. Kephart, 50 Penn. State, 85. ' Chapin v. Lapham, 20 Pick. (Mass.) 467, per Shaw, C. J. But see the remarks of the same judge in Alger v. Scoville, 1 Gray (Mass.), 891. ' Harrison v. Sawtel, 10 Johns. (N. Y.) 242 ; Chapin v. Merrill, 4 Wend. (N. Y.) 657. See post, §§ 160, 161. CH. X.] GUARANTIES. 149 about paying it, whereupon the defendant verbally promised to indemnify the plaintiff if he would endeavor to enforce pay- ment from the maker. The action was in part to recover ex- penses incurred in such endeavor, and Lord Kenyon ruled that, as to that part which was based on the promise to indemnify, the plaintiff could not recover, because it was a promise to answer for the debt and default of another. The report states that the plaintiff's counsel seeming to be dissatisfied with the ruling, his Lordship offered to save the point, but they dechned.^ 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 executing 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 con- sequences of becoming, at his request, bail for one Hadley who was arrested for debt, was not binding without 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." ^ . 1 Winckworth v. Mills, 2 Esp. 483. 2 Thomas v. Cook, 8 Barn. & Ores. 728. ' Green v. Creswell, 10 Adol. & Ell. 453. See, also, Creswell v. Wood, lb. 460 ; Cripps v. HartnoU, 6 L. T. n. s. 605, s. c. 4 Best & Smith, 414. (The American republication of this case in 106 Eng. Common Law Rep. p. 420, has a valuable note on this subject of " indemnities " as affected by the Statute of Frauds.) Kelsey v. Hibbs, 13 Ohio, 340. 150 STATUTE OF FRAUDS. [OH. X. § 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 account, the promise of the defendant to indemnify the plaintiff for in- curring the risk of such damage is collateral to that implied liability, and must be in writing. In New 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 com- mercial 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 en- tirely overlooking the implied liability of the third person to reimburse his guarantor, to which liability the defendant's prom- ise 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 express 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 fol- lowed, 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 where it occurred.^ In Connect- icut, an early case adopts the same theory, but it does not ap- pear to have been ever approved in the courts of that State.* ' Chapin v. Merrill, 4 Wend. 667. ' Kingsley v. Balcombe, 4 Barb. 131. Also CarviUe ». Crane, 6 Hill (N. Y.), 483, per Cowen, J. ' Smith V. Sayward, 5 Greenl. 604; decided upon Harrison v. Sawtel, 10 Johns. 242. (See post, § 161) and Parley v. Spring, 12 Mass. 297. (See post, § 162, n.) * Stocking u. Sage, 1 Conn. 619. 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. CH. X.] GUARANTIES. 151 In Vermont, the Supreme Court have lately examined the ques- tion, in a case where the defendant promised that, in consider- ation 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 de- fendant's special promise could be collateral ; though they ex- pressed, it is true, an indisposition to hold otherwise, even if the case had shown such an obligation.^ In Georgia and Ken- tucky, 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 Carolinas and of Ala- bama 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 application. 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, ' Beaman v. Russell, 30 Verm. 205. And so in the case of Holmes v. Knights, 10 N. H. 176. * Jones ». Shorter, 1 Kelley (Geo.), 294 ; Dunn v. West, 5 B. Mon. (Ky.) 382. So in Massachusetts. Aldrich v. Ames, 9 Gray, 76. ' Draughan v. Bunting, 9 Ired. (N. C.) 10 ; Simpson v. Nance, 1 Speers (S. C), 4; Brown v. Adams, 1 Stew. (Ala.) 61. So, also, apparently in Maryland. Griffith v. Frederick Co. Bank, 6 Gill & J. 424. So in Indiana. Brush V. Carpenter, 6 Ind. 78. A°d see Alger v. ScoviUe, 1 Gray (Mass.), 394, 395. * Conkey ». 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 uncjer- 152 STATUTE OP FRAUDS. [CH. X. a promise to indemnify the plaintiff against a suit to be brought for a trespass committed by him 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 plaintiff, 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 affected 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 plaintiff to do the act against which he agrees to indemnify him, clearly the defendant's promise is in effect for his own benefit, and consequently not affected by the statute.^ § 162. 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 writers. An agreement to insure is binding without writing. Mobile Ma- rine Dock & Mutual Ins. Co. v. McMillan, 31 Ala. 711 ; Commercial Mut. Marine Ins. Co. ». Union Mut. Ins. Co., 19 How. (U. S.) 318; s. c. in 2 Curt. C. C. 646, and cases there cited. ' Marcy v. Crawford, 16 Conn. 549 ; Allaire v. Ouland, 2 Johns. Cas. (N. Y.) 52. And see Weld v. Nichols, 17 Pick. (Mass.) 538. ' Adams v. Damsey, 6 Bing. 506. See the remarks upon this case by Lord Denman, in Green v. Creswell, 10 Adol. & Ell. 453. See, also, Good- speed V. Fuller, 46 Maine, 141. ' Chapman v. Ross, 12 Leigh (Va.), 565. * See post, § 188. * Harrison v. Sawtel, 10 Johns. (N. Y.) 242. CH. X.] GUARANTIES. 153 person.! But in the following year he appears to have dis- tinctly abandoned that doctrine,^ and it has certainly never prevailed since. Buller, J., in a subsequent case, said that the authorities against it were 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 Lord Mansfield's rea- soning in Mowbray v. Cunningham had struck him very forcibly .3 There seems, however, to be but little difficulty in considering the guaranty, in such an instance, 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. § 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 special 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 special.* § 164. It is obvious that, if the guarantor was already per- sonally liable to pay the debt, his engagement to pay it, if a third person does not, cannot afford him any protection on the ground of the Statute of Frauds. Although in form a guar- anty, it is virtually an engagement to pay his own debt, and is binding without writing. In a late Exchequer case, this rule ' Mowbray (or Mawbrey) v. Cunningham, Hilary Term, 1773, cited, in Jones V. Cooper, infra. " Jones V. Cooper, 1 Cowp. 227. See Parsons v. Walter, 3 Dougl. 14, n. ; Mallet v. Bateman, Law Eep. 1 C. P. ' Matson v. Wharam, 2 T. R. 80. The later doctrine prevails in the United States. Cahill v. Bigelow, 18 Pick. (Mass.) 369 (which in this re- spect overrules Perley ». Spring, 12 Mass. 297) ; Williams, Ex parte, 4 Yerg. (Tenn.) 579. ■* Per Hosmer, C. J., in Sage v. Wilcox, 6 Conn. 81 ; Allen v. Pryor, 3 A. K. Marsh. (Ky.) 306 ; Pike v. Brown, 7 Cush. (Mass.) 133, per C. J. Shaw ; Goodwin v. Gilbert, 9 Mass. 510. 154 STATUTE OP PBAUDS. [CH. X. seems to have been applied to an engagement by the defend- ant, that a judgment previously recovered against him as surety for certain third parties' repaying advances made by the plaintiff to them, should stand as security for farther advances 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 engagement 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 partner, 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 pre-existing liability, resting upon the defendant, to make such payment. If such pre-existing liability be merely contingent 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 ' Macrory v. Scott, 5 Wels., Hurl. & Gord. 907. See Hoover v. Morris, 3 Hamm. (Ohio) 56 ; Chambers v. Eobbins, 28 Conn. 544. ' Stephens v. Squire, 5 Mod. 205 ; Howes v. Martin, 1 Esp. 162 ; Flies V. McLeod, 14 Ala. 611; Aikin v. Duren, 2 Nott & McC. (S. 0.) 370; Durham ». Manrow, 2 Coms. (N. Y.) 641 ; Rice v. Barry, 2 Cranch, (C.C.) 447. And see Batson v. King, 4 Hurl. & Norm. 738. ' Taylor v. Hillyer, 3 Blackf. (Ind.) 433; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 267. * Trustees of Free Schools in Andover ». Flint, 13 Met. (Mass.) 539 ; Rogers v. Waters, 2 Gill & J. (Md.) 64 ; Wyman v. Gray, 7 Harr. & J. (Md.) 409. * U. S. Bank v. Southard, 2 Harr. (N. J.) 473 ; Peabody v. Harvey, 4 Conn. 119 ; Huntington v. Harvey, lb. 124. « Harrington v. Rich, 6 Verm. 666 ; Elder v. Warfield, 7 Harr. & J. (Md.) 391, per Buchanan, C. J. ; Suydam v. Westfall, 4 Hill (N. Y.), 211. CH. X.] GUARANTIES. 155 have been decided that a mere moral or conscientious obliga- tion, already resting on the guarantor, to pay certain money, will prevent the statute from affecting his fresh promise to pay that money on a valid consideration ; but that doctrine, how- ever tenable it might have been formerly, can hardly be main- tained, now that it is settled that such an obligation is not even a valid consideration of itself to support an express promise to the same effect.^ § 165. And here we remark a general principle which pre- vails 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 guar- anteed, 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 guarantees in substance his own debt.^ § 166. Under the same head may be treated those arrange- ments, frequently made between parties, by which one man ' The decision in question is Williams v. i)yde, 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 guaranteed, and therefore legally- liable already. ^ Per Bronson, J., in Brown v. Curtis, 2 Comst. (N. Y.) 229, 234 ; and in Johnson v. Gilbert, 4 Hill (N. Y.), 178. And see Adcock v. Fleming, 2 Dev. & Bat. (N. C.) 225 ; Ashford ». Robinson, 8 Ired. (N. C.) 114 ; Car- penter V. Wall, 4 Dev. & Bat. (N. C.) 144 ; Smith ». Finch, 2 Scam. (111.) 321 ; Allen v. Pryor, 3 A. K. Marsh. (Ky.) 306 ; Hackleman «. Miller, 4 Blackf. (Ind.) 322 ; Jones ». Palmer, 1 Doug. (Mich.) 379 ; Rowland v. Rorke, 4 Jones (N. C), 337 ; Cardell ». McNiel, 21 N. Y. 336 ; Devlin ». Woodgate, 34 Barb. (N. Y.) 252 ; Wait ». Wait, 28 Verm. 350 ; Reed v. Holcomb, 31 Conn. 360; Huntington ». Wellington, 12 Mich. 10; Dyer ». Gibson, 16 Wis. 657 ; Stewart ». Malone, 5 Phila. 440. See post, % 185, in notis. 156 STATUTE OF FRAUDS. [OH. X. who owes another a debt, agrees with him to discharge the obligation by assuming and paying a debt which he (the cred- itor) owes to a third person. Upon sucli an agreement, if so communicated to liim and accepted by him as to make him privy to it, such third person may of course resort to tlie party making the promise, and recover the amount of his immediate debtor's obligation. And the promise of the defendant in such a case is not 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, delivered 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 account of his de- mand against his brother. The defendant's promise was made directly to his brother, and it did not appear that any accept- ance of the proposition had been made by the plaintiff and communicated to the defendant, so as to establish an under- standing between them; and accordingly, as the declaration stated the promise to have been made to the plaintiff, he was nonsuited on account of variance between the court 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." i 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 ' Barber v. Bucklin, 2 Denio (N. Y.), 45. CH. X.J GUARANTIES. 157 Court of Maine directly decided the same point, and held the agreement to be good without writing; Weston, J., who de- livered the opinion, remarking that, although the effect 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 tlie mere existence of a debt owing by the guarantor to the party for whom he becomes responsi' ble, would have any effect to take out of the statute his prom- ise 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. § 167. 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 i-ests. One Rowley owed the plaintiff $87, and the defendant owed Rowley |150. On a settlement between Rowley and the de- fendant, the latter gave the former his note for all he owed 1 Dearborn v. Parks, 5 Greenl. 81. And see, upon the same point, Whit- beck V. Whitbeck. 9 Cow. (N. Y.) 266 ; Rice v. Carter, 11 Ired. (N. C.) 298 ; Rowe v. Whittier, 21 Maine, 546 ; Haydon w. Christopher, 1 J. J. Marsh. (Ky.) 382 ; Robbins v. Ayres, 10 Missouri, 538 ; Mt. Olivet Ceme- tery Co. V. Sherbert, 2 Head (Tenn.), 116; Maxwell ». Haynes, 41 Maine, 569; CaiUeux v. Hall, 1 E. D. Smith (N. Y.), 6; Stern u. Drinker, 2 lb. 401 ; Phillips v. Gray, 3 lb. 69 ; Brown v. Stuart, 19 111. 88 ; Barringer v. Warden, 12 Cal. 311. Also, Pike v. Brown, 7 Cush. (Mass.) 133, in which the same principle is stated, though unnecessarily, as the plaintiff and prom- isee was the debtor and not the creditor. The cases of Campbell v. Find- ley, 3 Humph. (Tenn.) 330 ; Waggoner v. Gray, 2 Hen. & Munf. (Va.) 603 ; and Jones v. Ballard, 2 Mill (S. C), 114, so far as they assert a con- trary doctrine, do not profess to rest upon authority. 2 Stanley v. Hendricks, 13 Ired. (N. C.) 86 ; Van Epps v. McGill, Hill & Denio (N. Y.), 109; Decker u. Shaffer, 3 Ind. 187; Benson v. Walker, 6 Harr. (Del.) 110. 158 STATUTE OF FRAUDS. [CH. X. liim, except |87 which he promised him verbally to pay to the plaintiff. He afterwards refused to do so, and the plaintiff 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 which they were re- ferred. 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 labor 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, and 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 labor, 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 tlie 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 the amount to the latter's creditor. But in the present case it ' Blunt V. Boyd, 3 Barb. (N. Y.) 209. CH. X.] . GUARANTIES. • 159 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 deci- sion may rest. So with Clapp v. Lawton, 31 Conn. 95, which otherwise seems to be in conflict with the cases cited in the last section. § 168. The views expressed in Barber v. Bucklin are espe- cially 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, tliough 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 per- son's delivering to the defendant a quantity of hay to the value oif 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, iu point of fact, the defendant's engjigement 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 ouly ques- tion was, whether the plaintiff, being a stranger to the consid- eration, could maintain a suit upon that engagement.^ Yery similar is the case of Elwood v. Monk, in the same court in 1830, where the defendant, in consideration that Johannes Monk delivered to him certain valuable property, verbally ' This doctrine will be found separately discussed hereafter. § 207, et seq. ' 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. 160 STATUTE OF FRAUDS. , [CH. X. 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 assign his property to the indorsers, and that they should pay the note, and look to the assignment for remuneration, which was accord- ingly done, it was decided that, on account of the new considera- tion thus moving to the indorsers, their engagement to pay the holder of the note was original and not collateral, and that con- sequently the statute did not apply. But there appears to be no difi&culty 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 risk of real- izing from the property a less amount than its estimated 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. Rayner, the defendant told the plaintiff that he had taken an assignment of a third party's property, and meant to pay his debts, and ' Elwood V. Monk, 5 Wend. 235. ' Skelton v. Brewster, 8 Johns. 376. ■" Westfall V. Parsons, 16 Barb. 645. CH. X.] GUARANTIES. 161 would pay the debt owing by him to the plaintiff. The defend- ant had not contracted a debt by becoming such assignee ; 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 obliga- tion of the third person not appearing to have been extinguished tliereby.i 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.^ § 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 founded upon an inde- pendent 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 themselves to pay cer- tain debts and judgments against Wood, and also a debt due from Wood to the plaintiffs, and wrote to the plaintiffs that, by arrangement with Wood, they were to be accountable for the debt due to them. The court said, " The promise of the de- fendant was not within the Statute of Frauds. It had no im- mediate connection with the original contract, but was founded on a new and distinct consideration. The distinction noticed in Leonard v. Vredeuburgh ^ applies to this case, and takes it out of the statute. The defendants made the promise in con- sideration of a sale of lands made to them by Wood, and they assumed to pay the debt of the plaintifis, as being, by arrange- ment with Wood, part-payment of the purchase-money. Here was a valid assumption of the debt of Wood." * The decision ' Jackson v. Rayner, 12 Johns. 291. ' Simpson v. Patten, 4 Johns. 422. " Which appears to have been the first American case in which the doc- trine was announced, that a new consideration moving between the parties, to the guaranty takes it out of the statute. * Gold V. Phillips, 10 Johns. 412. 11 162 STATUTE OF FRAUDS, [CH. X. 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. § 172. Under this same general head it would seem proper to place the numerous cases which hold that a verbal accept- ance 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 prom- isor. 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.^ § 173. Having now seen that the promise of a guarantor, within the Statute of Frauds, must be a special or express promise, raising a liability which did not exist before, and in- tended 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. § 174. In the case of Oarville v. Crane, in New York, the defendant promised, 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 ' Pillans V. Van Mierop, Burr. 1663 ; Van Reimsdyck v. Kane, 1 Gall. (C. C.) 633; Grant v. Shaw, 16 Mass. 311 ; Shields i'. Middleton, 2 Craach (C. C), 206; Pike v. Irwin, 1 Sand. (N. Y.) 14; Strohecker b. Cohen, 1 Speers (S. C), 349 ; Leonard v. Mason, 1 Wend. (N. Y.) 522 ; O'Donnell V. Smith, 2 E. D. Smith (N. Y.), 124 ; Spalding v. Andrews, 48 Penn. State, 411. In Butter v. Prentiss, 6 Mass. 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." CH. X.] QUARANTIES. 163 in assumpsit upon this promise, and came before the Supreme 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, entirely without the operation of the statute, from the consideration that 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 prom- ise 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 re- ceived, should not, upon the grounds stated in Carville v. Crane, be treated as within the statute. The acceptor or promisor cer- tainly puts himself in such a position that the payee can com- pel 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 de- fendant's offering to prove that he had no funds of the drawer in his hands at the time of making the promise to pay an order > Carville v. Crane, 5 Hill (N. Y.), 483. And see Gallagher v. Brunei, 6 Cowen (N. Y.), 346 ; Mallet v. Bateman, Law Rep. 11 C. P. 70. In Tay- lor V. Drake, 4 Strobh. (S. C.) 431, it was held, as in Carville ». Crane, that a verbal promise to indorse was within the statute. 164 STATUTE OF FRAUDS. [CH. X. 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 defendant was in the nature of a new con- sideration moving to him ; but the result of the case certainly is that a verbal accommodation acceptance is not, as such, saved from the operation 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 ex- pectation of having funds of the payee in their hands, agreed with the plaintiffs to honor their draft, to be thereafter drawn, to reimburse them for money lent him ; after the loan and be- fore the draft was made, the proposed payee failed, and the defendants notified the plaintiffs that their draft would not be accepted, but the latter nevertheless drew, and their draft was dishonored. The agreement being by written correspondence, no question was made upon the Statute of Frauds, but the de- cision 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 pres- ent case ; that this was a mercantile transaction ; that the credit was given upon a supposition " that the person who was to draw upon the undertakers within a certain time had goods in his hands, or would have them. Here the plaintifis trusted to this undertaking. Therefore it is quite upon another founda- tion than that of a naked promise from one to pay the debt of another." ^ ' Pike V. Irwin, 1 Sandf. (N. Y.) 14. To the same effect is Quin v. Hanford, 1 Hill (N. Y.), 82. And see Wakefield v. Greenhood, 29 Cal. 597. ' 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 convenience of trade and commerce. Fides est servanda. An accept- ance for the honor of the drawee shall bind the acceptor ; so shall a verbal acceptance." In the absence of aU explanation of, or even allusion to, his CH. X.] GUARANTIES. 165 § 176. 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 (plaintifiF in error), in consideration that Rabaud & Co., 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- ored, but the defendant failed to ship the sugar, and this action was brought to recover damages therefor. It was in- sisted, 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 language at the first hearing, it is not to be supposed that his Lordship con sidered himself as being really inconsistent. The remarks just quoted seem to be justly applicable only to ordinary business securities, and not to en- gagements for the mere accommodation of others, on consideration of per- sonal 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 between the parties to a guaranty • (or, as in this case, moving only yrom one of them though not to the other) takes it out of 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 utmost deference that it is difficult to see what is left of the Statute of Frauds, as it regards this class of contracts, if the rule is to be so applied. 166 STATUTE OP FRAUDS. [CH. X. 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, O.'s to do the act. Bach is an original promise, though the one may be deemed subsidiary or secondary to the other." ^ It appears a little doubtful from this language whether the promise of James. D'Wolf to ship the sugars to Rabaud & Co. was or was not 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's en- gagement. § 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 > D'Wolf «. Rabaud, 1 Peters, 476. The suggestion that such a concur- rent liability as is referred to in this case, 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 as- surance of his deliberate judgment. CH. X.j GUABANTIES. 167 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, 0. 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 Connecticut, where the defendant, in consideration that an ofiScer 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 difference, 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 debtor, 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 ' Jarmain v. Algar, Ry. & Mood. 348. » 10 Adol. & Ell. 463. ' Chitty on Contracts, 460, note. See, also, the case of Martin v. Eng- land, in Tennessee, where it was held that a verbal promise to be the secu- rity of another for the delivery of property levied upon is not binding. 5 •Yerg. 313. * Thomas v. Welles, 1 Boot, 57. 168 STATUTE OP PEAUDS. [CH. X. 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 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 ' Towne v. Grover, 9 Pick. (Mass.) 306. And see Scott v. Thomas, 1 Scam. (111.) 58. ' Marion v. Faxon, 20 Conn. 486. A distinction has been intimated be- tween promising that property levied upon and released to the debtor should be returned, 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. ' 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. CH. X.] GUARANTIES. 169 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 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 por- tion of the debt, in satisfaction of the whole, if the debtor failed to meet his obligation, was not within the statute, because 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 disre- garded 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, nothwithstanding 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 » Price V. Combs, 7 Halst. (N. J.) 188 ; Mather v. Perry, 2 Denio (N. Y.), 162. ^ French v. French, 2 Mann. & Gr. 644. ' Barry v. Law, 1 Cranch (C. C), 77. * By Mansfield, C. J., in Anstey v. Marden, 1 Bos. & Pull. N. R. 124. See post, § 210, where that case is fully examined. A similar suggestion is made in JoUey v. Walker, 26 Ala. 690. » Emmett v. Dewhirst, 3 McN. & G. 587. ° AUing V. Munson, 2 Conn. 691. See the whole subject of submissions by executors and administrators well discussed in Williams on Executors, 1619-1522. 170 STATUTE OF PEAUD8. [CH. X. the Queen's Bench in 1789, it, has been considered, both in England 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.^ 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 ' Pasley v. Freeman, 3 T. R. 61, followed in England in Eyre v. Duns- ford, 1 East, 318 ; Haycraft v. Creasy, 2 lb. 92 ; Tapp v. Lee, 3 Bos. & Pull. 367 ; Poster v. Charles, 6 Bing. 396 ; and in this country in Wise v. Wilcox, 1 Day (Conn.), 22 ; Hart v. Tallmadge, 2 lb. 381 ; Russell v. Clark, 7 Cranch, 69 ; Patten v. Gurney, 17 Mass. 182 ; Benton v. Pratt, 2 Wend. (N. Y.) 385 ; Allen v. Addington, 7 lb. 1 ; Upton v. Vail, 6 Johns. (N. Y.) 181 ; Ewins v. Calhoun, 7 Verm. 79 ; Weeks o. Burton, lb. 67 ; Warren v. Barker, 2 Duvall (Ky.), 165. ° 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 experi- ence, 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 defend- ant against the stout assertion of a single 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 per- son may be trusted, answers, ' You may trust him, and if he does not pay you, I will ; ' upon that the plaintiff 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 al- ways did, to the counsel, that a special verdict should be taken ; 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 appears to me 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 rep- CH. X.] GUARANTIES. 171 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 reason of any representation or assurance made or given concerning 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, [meaning ' money or goods upon credit'], ' unless such repre- sentation or assurance were made in writing signed by the party to be charged therewith." ^ It is much to be hoped that this example will be followed in all 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. Soon after the passage of this act, it was made a question, in the Court of Exchequer, whether the representa- tions which were required to be in writing, were such only as related to the third person's general pecuniary ability, standing, or condition, or whether the act embraced specific representa- tions as to the state of a certain portion of his property. The resentation, and the defendant positively denied he had made that represen- tation, and only one witness was produced to prove it, the court of equity would give the defendant so much protection that they would refuse the re- lief, and yet upon the very same circumstances, the law would enable the plaintiff to recover. Whether that is following equity, or not quite out- stripping 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 Tenterden's Act, referred to in the text. See also Carr, Ex parte, 3 Ves. & Bea. 108. ' Per Gurney, B., in Lyde v. Barnard, Tyrw. & Gr. 260. " 9 Geo. rV. 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, Massachusetts, Virginia, Ala- bama, 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. 172 STATUTE OF FRAUDS. [CH. X. plaintiff was about to lend money to T. on the purchase of an annuity, 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 encumbrances 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, subject 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 plaintiff was nonsuited, and the present question was upon setting aside the nonsuit. It was conceded that if the defendant's repre- sentation was within the statute at all, it was as concferning the ability of the third person, and upon the meaning of that ex- pression 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 representa- tion, as one affecting the third person's ability to give the de- sired security, was covered by the statute, but Barons Alderson 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 non- suit, 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 ' Lyde v. Barnard, Tyrw. & Gr. (Exch.) 250. Where the plaintiff was induced to lend money to a third party by the defendant's representation that he had in his possession the title deeds to an estate which he said such CH. X.] GUARANTIES. 173 § 183. The application of the statute is to be strictly con- fined to representations in regard to a third party, and made for the purpose of obtaining credit for him. It has been held, that it did not bar an action of tort upon oral representations falsely and fraudulently made by a defendant to the plaintiff, on his assuming the prosecution of a contract of work com- menced for the defendant by another person (who had become unable to carry it on), that there would be no risk in his under- taking the work, and that defendant had sufficient funds in his hands due to the former contractor.^ In a case in 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 plaintiff's un- willingness to sell upon their sole credit), that " yet contriving and intending to injure and defraud the plaintiffs, and to in- duce them to sell and deliver, etc., and thereby subject the plaintiffs to the loss, etc., the defendant falsely and deceitfully represented and held out to the plaintiffs that he, the defend- ant, was willing to indorse the proposed note, etc. That they did sell and deliver it in confidence, etc., 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, etc. ; 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 third party had lately bought, and nothing could be done without his (the defendant's) knowledge, arid that the plaintiff would be perfectly safe in making the desired loan ; it was held to amount to a representation that the third party's credit was good, and to be not binding without writing. Swann V. Phillips, 8 Ad. & Ell. 457. In Massachusetts, it has been held that false assertions fraudulently made by the defendant, as to the cost and other par- ticulars in regard to an estate belonging to a third person, which the plaintiff was thereby induced to buy, were actionable in trespass on the case, with- out proving that they were made in writing. Medbury v. Watson, 6 Met. 246. ' Norton V. Huxley, 13 Gray (Mass.), 286. And see Kimball v. Corn- stock, 14 lb. 608. 174 STATUTE OP FRAUDS. [OH. X. nothing more than that the defendant encouraged the plaintiffs to sell to the third parties, and as surety promised to indorse their notes.^ 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 de- fendant was within the statute ; but held to be clearly not so, but a palpable fraud and cheat, for which the plaintiff was en- titled to damages.^ Whether fraudulent verbal misrepresenta- tions as to a third person's. residence, or family connection, 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. § 184. It does not not save a case from the operation of this statute, that the procuring of credit, etc., for a third party was not the only, or the principal purpose with which the repre- sentation was made. For instance, a fraudulent representation by the defendant, that a third party was of good credit, although made for the purpose of enabling the third party to pay his debt to the defendant, has been held to be within the statute, and to require a writing ; the plaintiff having been by such representation, induced to sell such third party merchandise on credit.^ And where an insurance agent made representations as to the credit of an insurance company, in which he thereby induced the plaintiff to effect an insurance ; although it was alleged, and evidence offered to show, that the defendant's mo- tive in making the representations was to secure his commis- ' Gallagher v. Brunei, 6 Cowen (N. Y.), 846. And see Smith v. Harris, 2 Stark. 47. So, in Massachusetts, it is held that the warranty of the genu- ineness of the signatures on a note, by the person offering it for discount at a bank, need not be in writing. Cabot Bank «. Morton, 4 Gray, 166. " Adams ». Anderson, 4 Harr. & Johns. 668. " Kimball v. Comstock, 14 Gray (Mass.), 508. And see Mann«. Blanoh- ard, 2 Allen (Mass.), 386. CH. X.] GUARANTIES. 176 sions as agent ; yet as that profit would accrue only in conse- quence of the credit given to the company, the case was held to be within the statute.^ § 184 a. An action will lie for a false representation in writing as to the character and circumstances of a third per- son, whereby the plaintiff was induced to give him credit, although he might have been in part influenced by subsequent oral representations of the defendant ; if the jury are satisfied that the plaintifif was substantially induced, by the written rep- resentation, to give the credit.^ § 184 h. Although the action be not brought in terms upon the defendant's representation as to the third party's credit, etc., yet if proof of such representation be essential to the ac- tion, the statute applies. The case in the Queen's Bench was assumpsit for money had and received ; the plaintifi" had been induced by the defendant's misrepresentations as to the credit of a third party to supply her with goods, from the sales of which she had paid a debt of her own to the defendant; and the plaintiff sought to recover back, under this form of action, the sums so received by the defendant. It was held that he could not recover. Lord Denman, C. J. : " The plaintiff says, the action is not upon the representation, but for money had and received ; that the representation is a mere medium of proof ; the case being that a fraud was committed, in the course of which this representation was made, and that the produce of the goods obtained by such fraud belongs to the plaintiff. But the only fact on which the case of fraud rested at the time of offering the evidence was, that the defendant had given Mrs. B. a fair character." ^ § 185. A question of much importance and nicety arises, in the absence of such a statute as tiiat now under consideration, when a false and fraudulent representation as to the credit of ' Wells ». Prince, 15 Gray (Mass.) ; McKinney v. Whitney, 8 Allen (Mass.), 207. » Tatton V. Wade, 18 C. B. 370. ^eepost, § 185. ' Haslock I). Ferguson. 7 Ad. & Ell. 94. 176 STATUTE OP FRAUDS. [CH. X. a third person is coupled with a promise to answer for his paying the debt about to be incurred. Such was the case of Hamar v. Alexander, where the defendant represented to the plaintiff " that one Leo was a good man, and might be trusted to any amount ; that the defendant durst be bound to pay for the said Leo ; and that if Leo did not pay for the goods, he would." It was objected by the defendant, that the action could not be maintained for the deceit, because the injury might have arisen not from the false representation, but from the violation of the promise to pay, which was not actionable on account of the Statute of Frauds. After a verdict for the plaintiff below, and upon motion in the Common Pleas to set it aside and enter a nonsuit upon that ground, the court took time to deliberate, and finally determined that the verdict should stand. Sir James Mansfield delivered the opinion, in which, after admitting the difficulty suggested for the defence, he says : ^' I am far from wishing to sustain an action simply upon misrepresentation ; but there never was a time in the English law, when an action might not have been maintained against the defendant for this gross fraud." " There is no proof that the plaintiff ever considered the defendant as his debtor, or. ever called upon him for the money, or relied upon his promise in the least degree. In the next place, we must suppose every man to know the law ; and if the plaintiff was acquainted with the law, he must have known that the defend- ant's promise was worth nothing, and could have given no credit to him upon it. He cannot have considered it in any other light than as a mode of expression, by which the defend- ant intended more strongly to express his opinion of Leo's cir- cumstances." ^ It does not appear that any case directly in- volving the same point, namely, the combination of a deceit and a guaranty, has been since decided, though it has been so alluded to as to indicate that it was settled, and in conformity with the decision in Hamar v. Alexander.^ It seems, then, ' Hamar v. Alexander, 5 Bos. & Pull. 241. " Thompson v. Bond, 1 Camp. 4, by Lord Ellenborough. In a subse- CH. X.] GUARANTIES. 177 that the question, in all such cases of deceit as to the third party's credit, accompanied by a promise to answer for him, is whether the party imposed upon by the false representation did or did not rely in addition upon the promise ; for if not, but the sole credit was given to the third party by reason of the false representation as to his responsibility, then an action will lie for the deceit ; and that this is a question of fact to be determined upon all the circumstances of the case. § 186. The special promise intended by the statute is, in the next place, such as raises au obligation to pay out of the promisor's own estate. That clause which relates to the en- gagements of executors and administrators to answer damages, or, in other words, to pay debts of the decedent, is express to the same efifect ; but for an obvious reason. Their promises to pay out of the decedent's estate, though special, it would clearly not be within the policy of the statute to require to be put in writing. We cannot, therefore, draw from that differ- ence in the phraseology of the two clauses any argument against the rule as just stated, and as to be presently illus- quent case Lord EUenborough held the words "that plaintiff might lend one H. £20 or £30 and that he would be perfectly safe, and that he (de- fendant) would see the plaintiff paid," to amount to nothing more than a guaranty within the Statute of Frauds. I do not understand his Lordship, as it seems Mr. Fell does (Law of Mercantile Guaranties, p. 235, note), to differ with the previous decisions upon this point, but that he considers the words used as having no meaning farther than a promise to answer for H. If the words used are put in the first person, thus : " You will be perfectly safe • I will see you paid," it is still more manifest that there is no distinct aflirmation as to the fact of responsibility. The rule in Hamar v. Alexander is also incidentally stated (though that case is not referred to) in Gallagher V. Brunei, 6 Cowen (N. Y.), 346, per Woodworth, J. And see, also, Has- lock V. Ferguson, 7 Adol. & Ell. 86. Since the publication of the secondi edition of this work, it has been held that a verbal guaranty that certain notes sold by defendants to plaintiffs were good and collectable, and the makers responsible ; and that the maker of a certain mortgage sold at the same time was responsible and able to pay; that the land mortgaged was amDle security and the title perfect and unencumbered, was valid without wnting; the statute in regard to parol representations of credit, etc., being confined to cases where the representations formed no part of a contract. Huntington ». Wellington, 12 Mich. 10. 12 178 STATUTE OP FRAUDS, [CH. X. trated. Meanwhile it may be here remarked that whether a bare promise by an executor or administrator to pay a debt of his decedent will be regarded as a promise to answer from Ms own estate, or not, seems to depend upon his having or not having assets from the estate at the time of promising. If he have not assets, his promise must be fulfilled, if at all, out of his own estate, and the statute would require it to be in writ- ing. If he have assets, he would have a right to charge them with the damages recovered against him upon., such promise ; and so, though the judgment might be against him personally, the damages would ultimately be answered out of the estate of ,the decedent, not out of his own, and the statute would not re- . quire it to be in writing. Accordingly, it is held that an exec- utor's or administrator's plea in bar to an action against him on such a promise should allege that he has no assets, as other- wise it does not appear that a memorandum in writing is neces- sary.^ And in this view, it may be considered immaterial ■whether the promise be in terms to pay out of his own estate, but that the true question is, whether by his promise he has .assumed an obligation which is to be a charge upon his per- sonal and private resources. For undoubtedly the statute, in .this whole matter of collateral engagements, was designed to .prevent the fraudulent assertion of claims against third parties who were, except for their alleged promises, not personally (liable at all. § 187. It is obvious that an engagement in terms to apply .the debtor's own funds, received or to be received by the defend- .ant, to the payment of the demand against him, creates a duty ' Pratt V. Humphrey, 22 Conn. 317. The same view is contained in the case of Stebbins v. Smith, 4 Pick. (Mass.) 97, in which it is farther held that the executor's giving bond to the Judge of Probate is an admission of assets in his hands. The decision in Stebbins ». Smith seems to have been overlooked in the subsequent case of Silsbee u. Ingalls, 10 Pick. (Mass.) 626, where, however, the court did not find it necessary to hold the prom- ise (notwithstanding the admission of assets) to be within the statute, for if it had not been, the plaintiff could have had no relief in equity, the statute not depriving him of his remedy at law. CH. X.] GUARANTIES. 179 as agent rather than as surety ; the defendant's promise is not to pay the debt, but merely to deliver certain property to the nominee of the original debtor ; and the right of action of such nominee against the defendant for a breach of his promise is not at all affected by the Statute of Frauds.^ And though the form of the defendant's engagement be different, as for instance to pay if he should receive funds of the debtor to the amount of the debt, still it is clear the statute does not apply, as the debtor's own funds are in effect relied on for payment.^ And, in general, where the defendant has in his hands money or prop- erty of the debtor, deposited with him for the purpose of pay- ing the debt, he may be sued upon his special promise to pay it, without the production of evidence in writing.^ It is, of course, necessary that such money or property should be within his control ; he must be himself the 'bailee of it, and not the mere agent of others who are such bailees.* If he is to sell or otherwise; convert such property with a view to payment, he is acting as the trustee of the debtor who placed it in his hands, and of those to whose benefit the proceeds are to be applied.^ And it has even been decided that a promise thus to sell prop- erty and pay a creditor, coupled with a guaranty that it should ' Wyman v. Smith, 2 Sandf. (N. Y.) 331 ; Hitchcock v. Lukens, 8 Por- ter (Ala.), 833; Andrews v. Smith, Tyrw. & Gr. 173; Loomis v. Newhall, 16 Pick. (Mass.) 169 ; Todd v. Tobey, 29 Maine (16 Shep.), 219 ; Stephens V. Pell, 2 Cro. & Mees. 710 ; Andrews «. Smith, 2 Cro., Mees. & Ros. 627 ; Corbin v. McChesney, 26 111. 231 ; Lucas v. Payne, 7 Cal. 92 ; Nelson v. Hardy, 7 Ind. 364 ; Consociated Presbyterian Society of Green's Farms v. Staples, 23 Conn. 644 ; Stoudt v. Hine, 45 Penn. State, 30 ; Clymer v. De Toung, 54 Penn. State, 118 ; McLaren v. Hutchinson, 22 Cal. 187. See post, § 206. ' McKeenan v. Thissel, 33 Maine (3 Redf.), 368; Stillwell v. Otis, 2 Hilton (N.Y.), 148. ^ Hilton V. Dinsmore, 21 Maine (8 Shep.), 410; Cameron v. Clark, 11 Ala. 259; Laing v. Lee, Spencer (N.J.), 337; Goddard v. Mockbee, 5 Cranch (C. C), 666; Stanleys. Hendricks, 13 bed. (N. C.) 86; Lee v. Fontaine, 10 Ala. 756 ; McKenzie v. Jackson, 4 Ala. 230. But see Jackson V. Rayner, 12 Johns. (N. Y.) 291. ' Quin V. Hanford, 1 Hill (N. Y.), 82. ' Prather v. Vineyard, 4 Gilm. (111.) 40; Drakely v. Deforest, 3 Conn. 272. 180 STATUTE OP FRAUDS. [CH, X. sell for enough to pay him, was not such a promise to pay as was covered by the statute.^ The mere possession of property or funds belonging to the original debtor, not deposited with the defendant for the purpose of paying the debt, will not, how- ever, 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 par- ties to the contract of guaranty and owed to one of those parties.' A verbal promise, therefore, to the debtor himself, to pay, or to furnish him the means of paying, his own debt, is binding not- withstanding 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 plaintifiF. 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.^ • Lippincott ». Ashfield, 4 Sandf. (N. Y.) 611. « Dilts i>. Parke, 1 South. (N. J.) 219 ; Simpson v. Nance, 1 Speers (S. C), 4 ; State Bank at New Brunswick v. Mettler, 2 Bosw. (N. Y.) 392. ' Eastwood V. Eenyon, 11 AdoL & Ell. 438. Mr. Smith, in his Lectures on the Law of Contracts, remarks that it is a singular thing that this question 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 v. Root, 17 Mass. 229. It is now firmly settled by numerous cases. Hargraves e. Parsons, 13 M. <& W. 561 ; Reader v. Eingham, 7 Law Times, n. 8. 789 ; Mersereau v. Lewis, 25 "Wend. (N. Y.) 243 ; Weld v. Nichols, 17 Pick. (Mass.) 538 ; Barker v. Bucklin, 2 Denio (N. Y.), 45 ; Hardesty v. Jones, 10 Gill & J. (Md.) 404 ; Pratt v. Hum- phrey, 22 Conn. 317 ; Preble w. Baldwin, 6 Cush. (Mass.) 549 ; Pike v. Brown, 7 lb. 133 ; Alger v. Scoville, 1 Gray (Mass.), 391 ; Flemm v. Whitmore, 23 Miss. (2 Jones) 430 ; Fiske v. McGregory, 34 N. H. 414; Soule v. Albee, 31 Verm. 142; Aldrich v. Ames, 9 Gray (Mass.), 76; North v. Robinson, 1 Duvall (Ky.), 71 ; Howard v. Coshow, 33 Missouri, 118; Morin v. Martz, 13 Minn. 191. * Hardesty v. Jones, supra ; Alger v. Scoville, supra. ' Brown v. Hazen, 11 Mich. 219. CH. X.] GUARANTIES. 181 § 189. The next and last remark to be made as to the char- acter 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 de- fendant 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 agreements, merely in writing, are by the common law.^ There is, of course, no necessity for discussing the sufficiency of different kinds of con- sideration 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 con- sideration, however, occurs so frequently in such cases as to be worthy of particular notice ; namely, the engagement of the creditor to forbear enforcing his pre-existing demand, where- upon 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 abundantly settled,^ and it clearly includes any kind of indulgence by which his remedy is postponed, as for instance the adjournment 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 sufficient.* ' Lord Chief Baron Skynner in Rann v. Hughes, 7 T. 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 sub- sequent cases to the same effect. They are alluded to in this and the follow- ing sections on the same topic. ' See the cases cited below. And that it applies equally in cases of prom- ises by executors and administrators. See Rann v. Hughes, 7 T. R. 350 (n.) ; Parish v. Wilson, Peake, 73 ; Forth v. Stanton, 1 Saund. 210 ; Bar- ber V. Fox, 2 Saund. 136 ; Philpot v. Briant, 4 Bing. 717 ; Goring v. Gor- ing, Yelv. 11, n. 2, Am. ed. ; Pratt ». Humphrey, 22 Conn. 317 ; Harrington V. Rich, 6 Verm. 666 ; Taliaferro o. Robb, 2 Call (Va.), 217. ' Stewart v. McGuin, 1 Cowen (N. Y.), 99. * The rule is so laid down by Lord Hobart in Mapes v. Stanley, Cro. Jac. 182 STATUTE OP FRAUDS. [CH. X. A mere agreement not to push an execution, however, has been held to be no consideration in the nature of forbearance ; the court apparently regarding the expression as too vague to im- pose any duty whatever on the creditor.^ And, of 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 enure in the interim and the debtor should continue to avail himself of the original promise. In all cases there must be ah 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, like every other legal contract, requires a consideration for its support, it does not necessarily require a separate and special one, passing directly between the plaintiif and the defendant. Chancellor Kent (then Chief Justice) took occasion, in the case of Leonard v. Vreden- burgh,^ to divide considerations of guaranties into three classes ; the first of which is where the defendant's promise, though col- lateral 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 Bldon, 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- 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. 81. " McKinney v. Quilter, 4 McCord (S. C), 409. ' Martin v. Black, 20 Ala. 309. * Macorney v. Stanley, 8 Cush. (Mass.) 86 ; "Walker v. Sherman, 11 Met. (Mass.) 170 ; Breed v. Hillhouse, 7 Conn. 523 ; Sage v. Wilcox, 6 Conn. 81 ; Crafts V. Beale, 11 C. B. 172. 5 8 Johns. (]Sr.Y.)29. , " Minet, Ex parte, 14 Yes. Jr. 190. OH. X.] GUARANTIES. 183 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- ation for the original debt will not attach to this subsequent promise." As to the first class, the rule, as stated, is undoubt- edly correct.^ As to the second, to apprehend its full purport, we must notice also the third class mentioned by the Chan- cellor, 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 no't within the statute at all. This last doctrine will be the subject of particular examination here- after. But we remark here that, considering both together, the principle intended to be laid down clearly is, that the only consideration which will support a written guaranty of a pre- existing debt, without taking the guaranty out of the statute altogther (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 guaranty of it, must be the only such con- sideration. 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 ' Kabaud v. D'Wolf, Paine (CO.), 580; Larson v. Wyman, 14 Wend. (N. Y.) 246 ; Townsley v. Sumrall, 2 Pet. (S. C.) 170 ; Nelson v. Boynton, 3 Met. (Mass.) 396 ; Simons v. Steele, 36 N. H. 73. And Leonard v. Vred- enburgh itself presented the same point, to which it is therefore an authority, and a most respectable one. The writer, however, cannot but remark that if the Chief Justice had on that occasion, refrained from passing any ex- pression of opinion upon the other questions alluded to in the text, much of the existing perplexity on questions of guaranties within the statute might have been avoided. 184 STATUTE OF FRAUDS. [CH. X. promise is not collateral 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 that upon which the original credit was granted, must certainly 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 decisions. 1 Of course, any consideration which would suf- fice to take a guaranty of a pre-existing 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 aud the old debt.^ § 192. Having now considered what is meant by the debt, default, 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 prom- ise is to answer for the third party's debt, default, or miscar- riage. It has come to be customary 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 some- times criticised, 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 dis- charged, and yet is not held to be affected by the statute ; and for the sole reason, as our subsequent inspection of those cases ' Fish V. Hutchinson, 2 Wils. 94 ; Chater v. Beckett, 7 T. R. 201 ; Wain v. Warlters, 5 East, 10; D'Wolf v. Rabaud, 1 Pet. (S. C.) 476; Sears v. 3rink, 3 Johns. (N. Y.) 210; Gillighan u.Boardman, 29 Maine (16 Shep.), 79 ; Huntress v. Patten, 20 Maine, 28 ; Ware v. Adams, 24 Maine, 177 ; ElUot V. Giese, 7 Harr. & J. (Md.) 457 ; Crane v. BuUock, R. M. Charl. (Geo.) 318. ' Loomis V. Newhall, 15 Pick. (Mass.) 159 ; Hargroves v. Cooke, 15 Georgia, 321. CH. X.j GUARANTIES. 185 mil show, that it is not essentially an obligation of guaranty of, or, in other wordsj 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 he 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 necessary to justify the occasional use of that term hereafter. § 193. In the first place, the two obligations must concur or run together. Take the cases of special promises to answer for the payment of pre-existing 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 has been argued that, as to such pre-existing liabilities, the language of the statute did not necessarily require that they should continue to exist concurrently with the defendant'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 say- ing 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 in- tention of Parliament, 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 de- fault or miscarriage, 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 mere- ly, 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 to hold a third party, where the claim against him who had been originally liable had proved worthless. But, ' Roberts on Frauds, pp. 224, 225. 186 STATUTE OP FRAUDS. [CH. X. however all this may be, it is now clearly settled by authority in both countries, that if, by the arrangement between the par- ties, the original debtor is discharged, the defendant's promise is good without 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 must be a question to be determined upon all the circum- stances of each case, whether the original debtor has been in fact discharged.* ' Goodman v. Chase, 1 Barn. & Adol. 297 ; Bird v. Gammon, 3 Bing. N. C. 883 ; Butcher v. Steuart, 11 Mees. & Wels. 857 ; Gull v. Lindsay, 4 Wels., Hurl. & Gor. 45 ; Stone v. Symmes, 18 Pick. (Mass.) 467 ; Chrtis v. Brown, 5 Gush. (Mass.) 492, per Shaw, C. J. ; Anderson v. Davis, 9 Verm. 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. Mc- Afee, 7 Port.. (Ala.) 62 ; Armstrong o. Flora, 3 T. B. Mon. (Ky.) 43 ; Wood V. Corcoran, 1 Allen (Mass.), 405 ; Mead v. Keyes, 4 E. D. Smith (N. Y.), 510; Andre v. Bodman, 13 Maryland, 241 ; Eddy v. Roberts, 17 Illinois, 606 ; Gleason j>. Briggs, 28 Verm. 135,; Watson v. Jacobs, 29 Verm. 169 ; Quintard v. D'Wolf, 34 Barb. (N. Y.) 97. So if the estate be dis- charged, the executor's promise to pay the debt is binding without writing. Harrington v. Rich, 6 Verm. 666 ; Robinson v. Lane, 14 Sm. & Marsh. (Miss.) 161; Mosely ». Taylor, 4 Dana (Ky.), 642. If the discharge be by protracted forbearance in pursuance of a general agreement to forbear for an indefinite time, qucere if statute applies. Templetons v. Bascom, 33 Verm. 132. 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. 64, the court " incline to think there is no differ- ence between a promise on consideration of giving day to the original debtor, and his discharge, they both relate to his indebtedness." (!) = Ex parte Lane, 1 De Gex, 300. ' Lane v. Burghart, 1 Adol. & Ell. (n. s.) 933, 937 ; Goodman v. Chase, 1 Bam. & Aid. 297 ; Cooper ». Chambres, 4 Dev. (N. C.) 261. * The entry of such discharge on the books of the plaintiff, and his debit- CH. X.] GUARANTIES. 187 § 194. 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 without writ- ing, the original debtor should be discharged. This is undoubt- edly true in cases of mere guaranty, where the relation of the defendant to the plaintifiF 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 without writing ; its object and character being other than that of guaranteeing the debt, though the discharge of the debt may be incidental to the performance of that promise. These cases form a most im- portant 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 ing the new promisor with the amount, will be sufficient. Corbett v. Coch- rane, 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. 666. The case of Mallet v. Bateman, Law Bep. 1 C. B. should, it would seem, have been decided for the plaintiff on the ground that by the agreement between the parties the plaintiff's claim against the third party was virtually extinguished. ' See post, § 207, et seq. Mr. Chitty, after referring to fsome of these cases, remarks that 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 defendant or his property, except such as arises from his express promise.^'' ' 188 STATUTE OP FRAUDS. [CH, X. clearly true than in the case of a guaranty of an old debt.^ If, for instance, goods are sold upon the sole credit and responsi- bility of the defendant, though delivered to a third person, there is no liability to w^hich that of the defendant can be collateral, and consequently it does not require a memorandum in writ- ing.2 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, ttiat when one advances money at the request of another (and on hia 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 his credit, the liar bility of the party on whose request and promise it was made is original and not collateral, and not within the Statute of Frauds.* ■ § 196. It was held recently, in the Supreme Court of Ver- mont, that where the original debtor's liability is contingent, and, the contingency occurring, he is discharged, the defendant's guaranty made before it occurred was discharged with it. " The accessory obligation must necessarily fall with the principal ob- ligation." * And, conversely, if the obligation, either on the part of the third party or on the part of the defendant, is simply contingent at the time of the contract, the happening of the contingency in the interim can have no effect to draw the case within the operation of the statute.* The case of Buckmyr v. Darnall is strongly illustrative of this point. There the defend- ' Koberts on Frauds, p. 216 ; TUeston v. Nettleton, 6 Pick. (Mass.) 509 ; Doyle V. White, 26 Maine (13 Shep.), 341 ; Arbuckle v. Hawkes, 20 Verm. 638 ; 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. ' McCaffil «. Radcliflfe, 3 Robertson (N. Y.), 445. ' Pearce v. Blagrave, 3 Com. Law, 338 ; Prop's of Upper Locks ». Ab- bott, 14 N. H. 157. * Smith v. Hyde, 19 Verm. 54. ' Harrington v. Rich, 6 Verm. 666 ; Elder ti. Warfield, 7 Harr. & J. (Md.) 391, per Buchanan, C. J., Ante, § 164. CH. X.] GUABANTIES. 189 ant, in consideration that the plaintiff at his request would hire a horse to one English to ride to another town, promised that English should return him again. At the first hearing of the case, a majority of the judges thought the defendant's prom- ise was not within the statute, because English was not liable 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 for matter subsequent to the agree- ment. 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 per- son's liability in tort, but it determines also by implication, that that liability must begin to run with the defendant's assumpsit ; 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 liable at all the promise of the defendant must be in writing.^ If this rule be understood as confined to cases where the third party and the ' Buckmyr (or Birkmire, or Bourquemire) v. Darnall, 1 Salk. 27 ; 6 Mod. 248 • 2 Ld. Raymond, 1085. Lord Hardwicke, in Tomlinson v. Gill, Am- bler, 330, commenting on this case, remarks that the distinction taken in it " is a very slight and cobweb distinction." It is not easy to see, however, how it related to the case before him. I da 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. " Matson v. Wharam, 2 T. K. 80. 190 STATUTE OP FRAUDS. [CH. X. 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 principal 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.* All 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.^ ' Barber v. Fox, 1 Stark. 270; Buckmyr v. Darnall, supra; Tileston v. Nettleton, 6 Pick. (Mass.) 509 ; Peabody v. Harvey, 4 Conn. 119 ; Hun- tingdon V. Harvey, lb. 124; Newell v. Ingraham, 15 Verm. 422; Cutler v. Hinton, 6 Rand. (Va.) 609 ; Ware v. Stephenson, 10 Leigh. (Va.) 155 ; Noyes V. Humphreys, 11 Grat. (Va.) 636; Leland v. Creyon, 1 McCord (S. C), 100; Taylor w. Drake, 4 Strobh. (S. C.) 431; Puckett v. Bates, 4 Ala. 390 ; Caperton v. Gray, 4 Yerg. (Tenn.) 563 ; Hall v. Wood, 3 Chand. (Wis.) 38. = Aldrich ». Jewell, 12 Verm. 125. ' 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 «. Warfield, 7 Harr. & J. (Md.) 391; ConoUy B. KettleweU, 1 Gill (Md.), 260; Larson v. Wyman, 14 Wend. (N. Y.) 246 ; Darlington v. McCunn, 2 E. D. Smith (N. Y.), 411 ; Hanford v. Higgins, 1 Bosw. (N. Y.) 441 ; Allen v. Scarf, 1 Hilton (N. Y.), 209 ; Bushee v. Allen, 31 Verm. 631 ; Walker v. Richards, 39 N". H. 269 ; Dixon . o. Frazer, 1 E. D. Smith (N. Y.), 32 ; Steele v. Towne, 28 Verm, 771 ; ' Hill V. Raymond, 3 Allen (Mass.), 540 ; Swift v. Pierce, 13 Allen (Mass.), 136; Boykin v. Dohlonde, 1 Sel. Cas. Ala. 602; Bresler v. Pendell, 12 Mich. 224 ; Read v. Ladd, Edm. Sel. Cas. (N. Y.) 103 ; Ante, § 167. * Fish V. Hutchinson, 2 Wils. 94 ; Curtis v. Brown, 5 Cush. (Mass.) 491. ' See also Jack v. Morrison, 48 Penn. State, 113. The decision in Reed V. Holcomb, 31 Conn. 360, seems to be in conflict with this well-settled principle, though it is disavowed by the opinion. CH. X.] GUARANTIES. 191 If, however, the credit is given to both jointly, as neither can be said to be surety for the other to the creditor, their engage- ment need not be in writing.^ § 198. It is sometimes a matter of diflBculty to determine to whom the credit has been actually given, whether to the defendant alone, in which case the debt is his own, and his promise is good without 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 are " 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 that the 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 ' Wainwright v. Straw, 15 Verm. 215; Williams, Ex parte, 4Yerg. (Tenn.) 579 ; Hetfield v. Dow, 3 Dutch. (N. J.) 440. Gibbs v. Blanchard, 15 Mich. 292 ; Swift v. Pierce. 13 Allen (Mass.), 136. ' Watkins v. Perkins, 1 Ld. Raym. 224. And see Skinner v. Conant, 2 Verm. 453 ; and Bates v. Starr, 6 Ala. 697 ; Briggs v. Evans, 1 E. D. Smith (N. Y.), 192. 3 Jones V. Cooper, 1 Cowp. 227 ; Matson v. Wharam, 2 T. R. 80. See, also, Thwaites v. Curl, 6 B. Mon. (Ky.) 472. * Blake v. Paulin, 22 Maine, 396 ; Moses v. Norton, 36 Maine (1 Heath), 113, and the cases hereinafter cited on this subject. But see Russell v. Babcock, 2 Shep. (14 Maine) 138. 192 STATUTE OP FRAUDS. [CH. X. was made to the third party, and this circumstance controlled the absolute expressions used by the defendants, and their en- gagements were held cdllateral.^ And in like 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 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 books 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 evidence 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, an instructive case on this subject, the defendant was a lieutenant in the navy, and ' said to a slop-seller, who was to supply the crew with clothes, that he would " see him paid at the pay-table," and afterwards, ' See, also, Leland v. Creyon, 1 McCord (S. C), 100; ConoUy v. Kettlewell, 1 Gill (Md.), 260; Dixon v. Frazer, 1 E. D. Smith (N. Y.), 34. But evidence that the charge was made to the defendant is not conclusive that credit was given to him. Swift ». Pierce, 13 Allen (Mass.), 136. » Larson v. Wyman, 14 Wend. (N. Y.) 246 ; Pennell v. Pentz, 4 E. D. Smith (N. Y.), 639. ' Cutler ». Hinton, 6 Rand. (Va.) 509 ; Kinloch v. Brown, 1 Rich. (S. C.) 223 ; Noyes ». Humphreys, 11 Grat. (Va.) 636 ; Walker v. Richards, 41 N. H. 388. In Scudder ». Wade, 1 South. (N. J.) 249, the jury found that in fact the whole credit was given to the defendant. * Loomis V. Smith, 17 Conn. 116. ' 7 Harr. & J. 391. CH. X.] GUARANTIES. 193 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 the 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 for it upon the personal credit of a lieutenant in the navy, who could not bo 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 effect, and also that these two obli- gations 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. § 201. First," there is a large class of cases which hold that if the defendant (meaning the party who makes the promise to ' Keate v. Temple, 1 Bos. & Pull. 158. See, farther, on this subject, Simpson v. 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. 64 ; Sinclair ». Kichardson, 12 Verm. 33 ; Hetfield v. Dow, 3 Dutch. (N. J.) 440 ; Hazen v. Bearden, 4 Sneed, 48 ; Turton v. Burke, 4 Wiscon- sin, 123; Prosser ». Allen, Gow, 117; Billingsley ». Dempenwolf, 11 Ind. 414; Blodgett v. Lowell, 33 Verm. 174. 13 194 STATUTE OF FRAUDS. [CH. X, answer for the debt, default, or miscarriage of another), for his own use and advantage, procures from the creditor the surren- der, 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 an- swerable for the debt, is not embraced by the provisions of the Statute of Frauds. It is simply a purchase from the creditor of such lien or security, for a price which is the amount of the original debt. . The leading case to this effect is Castling v. Aubert, decided by the Court of Queen's Bench in 1802. § 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 lien on the policies to indemnify himself against the acceptances. A loss happened, 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 undertook verbally, in consider- ation of the policies being made over to him, to pay that par- ticular 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 EUenborough observed, the plaintiff was entitled to recover, as the defendant had received a much larger amount from the underwriters. But after recap- itulating the facts, and without reference to the common count, his Lordship remarked that in entering into the agreement 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 event- ually follow. It is rather, therefore, a purchase of the securi- CH. X.J GUARANTIES. 195 ties 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 undertaking, with- out writing, charge themselves for the debt, default, or miscar- riage of another." And the plaintiff had judgment.^ § 203. It is to be carefully 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 by 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 arrange- ment 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 employed, by a then part-owner of the ship " Mathe- sis," to procure a charter for the vessel under an agreement ' Castling v. Aubert, 2 East, 325. The case of Walker o. Taylor, decid- ed 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. 762. And see Fitzgerald v. Dressier, 5 C. B. 892. The following are some of the American cases which seem to be in accordance with the principle of Castling u. Aubert. Allen v. Thompson, 10 N". H. 82. Here the plaintiff had obtained the account book of his debtor as a pledge to secure the debt, and the defendant, in consideration 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 v. Thompson, 6 Verm. 54 ; Olmstead v. Greenly, 18 Johns. (N. Y.) 12, 13; Hindman v. Langford, 3 Strobh. (S. C.) 207; and Wolff V. Koppel, 6 Hill (N. Y.), 458, where the rule was applied (perhaps unnecessarily) to the case of a factor guaranteeing his sales under a del credere commission. A promise by the purchaser of personal property stib- iect to mortgage, to pay the mortgage note, the mortgagor continuing liable notwithstanding the promise, is within the statute and must be in writing. Doolittle v. Naylor, 2 Bosw. (N. Y.) 206. 196 STATUTE OF FRAUDS. [CH. X. that, in consideration of his paying a certain sum due from the ship for repairs, he should have a lien upon her certificate of register, and should collect and receive the freight. The " Mathesis " 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 commissions on the charter-party when ascertained, and all together 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 un- dertook to have the same removed. This was the writing pro- duced in evidence, and in regard to which the defendants contended that it purported to be an agreement to answer for the debt, default, or miscarriage of another, within the Statute of Frauds, and did not disclose upon the face of it any consider- ation moving from the plaintiff, and was therefore nudum pac- tum. They contended also that there was a variance between it and the declaration, which set forth the plaintiff's lien, and that the defendants were the brokers for parties who during the voyage had become 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 aban- don 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 collecting 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 hot 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- CH. X.] GtJABANTIES. 197 out regard to the question whether he was or not entitled to such lien." i In another case, not quite so recent, where the discontinuance of a suit was the consideration of the defendant'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 making the promise; as the security for a debt."^ § 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, " Where 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 relinquish- ment, the same interest or advantage has enured to the benefit of ike defendant, there his promise is binding without writing. In such case, though the result is that the payment 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 defend- ant from the plaintiff of the lien, right, or benefit in question." " It is not enough that the plaintiff has relinquished an advan- tage or given up a lien in consequence of the defendant's prom- • 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 u. Scott, 6 W., H. & G. 907.) Parke, B., speaks of the judgment as a fund which is only to be appropri- ated 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 if the judgment was already binding on the defendant and the effect of his prom- ise 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 obli- gation is imposed upon the defendant, than to strain unnecessarily so plain a decision as that referred to. " Tomlinson v. Gell [not GUI'], 6 Adol. & Ell. 564. See, also, Chater V. Beckett, 7 T. R. 201, where the plaintiff gave up a ca. sa., but still the defendant's promise was held bad by the statute. 198 STATUTE OP PBAUDS. [CH. X. ise, if that advantage has not also directly enured to the benefit of the defendant, so as in effect to make it a purchase by the defendant from the plaintiff." ^ § 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 relin- quishment of a lien by the creditor, whether it enures to the de- fendant or not, is sufficient to take the promise of the latter, made in consideration of such relinquishment, out of the stat- ute. In that case, certain carriages belonging to one Copey had been sent by the defendant to the plaintiffs to be repaired, and the defendant gave the orders concerning them. The biU 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 pre- sented to the defendant, 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 prom- ised to pay the rent, though it was clearly the debt of another, yet a note in writing 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 • Per Shaw, C. J., in Curtis v. Brown, 5 Cush. 491, 492. And see Nel- son ». Boynton, 3 Met. (Mass.) 396 ; Alger ». Scoville, 1 Gray (Mass.), 398; Smith J). Sayward, 5 Greenl. (Me.) 604; Boyce v. Owens, 2 McCord (S. C), 208 ; Scott v. Thomas, 1 Scam. (111.) 68 ; Stern v. Drinker, 2 E. D. Smith (N. Y.), 401 ; Van Slyck v. Pulver, Hill & Denio (N. Y.), 47 ; Fay V. Bell, lb. 261 ; Mallory «. Gillett, 23 Barb. (N. Y.) 610 ; Spooner v. Prum, 7 Ind. 81 ; Lampson v. Hobart, 28 "Verm. 697 ; Cross v. Richardson, 30 Verm. 641 ; Fish ». Thomas, 5 Gray (Mass.), 45. The case of King v. Despard, 6 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. See also in support of the text, Corkins v. Collins, 16 Mich. 478; Arnolds). Stedman, 46 Penn. State, 186. Gordra, Shook ». Van Mater, 22 "Wis. 632. CH. X.] GUARANTIES. 199 parted with on the defendant's promise to pay, and it was held that for that reason the case was out of the statute.^ Prom 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 plaintiffs 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 decided 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 affording a test of the correct- ness 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 no support whatever in that case, when closely examined and rightly un- derstood. The facts were that one Taylor, who was tenant to ' Houlditch V. Milne, 3 Esp. 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 Williams ». Leper, cited in the following section. In Bushell 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 unncessary to the case, which was in point of fact determined on another ground. = 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 Houl- ditch 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. » See Mercein v. Andrus, 10 Wend. (N. Y.) 461, which, however, was actually determined upon a different question unconnected with the statute. Also Slingerland v. Morse, 7 Johns. (N. Y.) 464. And the following South Carolina cases : Adkinson v. Barfield, 1 McCord, 675 ; Sian v. Pigott, 1 Nott & McC. 124 ; Dunlap v. Thome, 1 Rich. 213. * Bandle v. Harris, 6 Yerg. 608. 200 STATUTE OP FRAUDS. [CH. X. 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 rent if he would desist from dis- training ; 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 decision appears to be sufficiently clear. The Chief Justice, Lord Mansfield, said : " The res gestcB would entitle the plaintiff to his action against the defendant. The landlord had a legal pledge. He enters to distrain. He has the pledge in his custody. The defendant agrees that the goods shall be sold and the plaintiff paid in the first place. The goods are the fund. The question is not be- tween 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 £45 from the plaintiff who had an original lien upon the goods." Mr. Justice Aston said he looked upon the goods as the debtor, as &fund between loth, 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 Wilmot said, " Leper became the bailiff of the land- lord, and when he had sold the goods the money was the land- lord's (as far as £45) inhis own bailiff's hands. Therefore an action would have lain against Leper for money had and re- ceived for the plaintiff's use." And in this view Mr. Justice Yates concurred.^ Now the promise of Leper was in terms, it ' Williams v. Leper, Burr. 1886. See Clark v. Hall, 6 Halst. (N. J.) 78; Alger v. Scoville, 1 Gray (Mass.), 891., Woodward ». Wilcox, 27 Indiana, 207 ; Stoudt v. Hine, 45 Penn. State, 30. See ante § 187. CH. X.] GUARANTIES. 201 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 from him and supporting 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 acquired the lien which the landlord 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 undertook to pay ; for he was considered by all the judges as the mere trustee of the creditors whom he repre- sented, 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 man- ner in which it is presented upon the statement of facts), but as a transaction by which certain goods were intrusted out of the landlord's constructive possession and put in Leper's hands, for the purpose 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 re- gard to which it was to be exercised. As Mr. Justice Wilmot said, Leper became the baihff 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 ' 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 aa 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. 202 STATUTE OP FRAUDS. [CH. X. is that Leper's obligation hardly arose out of his special prom- ise at all. The res gestos would have entitled the landlord to his action against him, as Lord Mansfield expressly says. § 207. It is deemed well worth while to have analyzed this decision, because out of a misunderstanding of it has grown a doctrine, which seems to make a dead letter of the Statute of Frauds in all cases of promises to pay the pre-existing 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. § 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 EUenborough, C. J., said : " Perhaps this case might be distinguishable from Williams v. Leper, if the goods distrained had not been delivered up to the de- fendants. But here was a delivery to them in trust, in effect, to raise by sale of the goods sufficient to satisfy the plaintiff's de- mand ; the goods were put into their 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 de- fendant, an auctioneer, was employed 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 ' Edwards « Kelly, 6 Maule& S. 204. CH. X.] GUARANTIES. 203 court were all clearly of opinion that the case was not distin- guishable from Williams v. Leper, and refused to set aside a verdict for the plaintiff.^ § 209. It seems therefore that the English courts have clearly 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 relinquishing by the plaintiff 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 them certain articles, undertook and promised by their agreement in writing (which, however, as it did not express any consideration, was inefficient as a memorandum) to deliver 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 tenant, and that the articles mentioned in the declaration were duly distrained, of which notice was given to the tenant, accompanied with an inventory of the articles distrained, but the goods were not re- moved ; and that the defendants, at the request 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 contained 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 dis- ' Bampton v. Paulin, 4 Bing. 264. ' Slingerland v. Morse, 7 Johns. 463. 204 STATUTE OP FRAUDS. [CH. X. tinguishing 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 foreborne 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 considerar tion of the promise of the defendant to apply the proceeds of the goods to the satisfaction of the execution,^ or where the defend- ant simply holds the goods from the original debtor for the purpose of paying the debt, and promises to pay it, if the cred- itor 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 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 prin- ciple entirely distinct from any of those which have been before examined, 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. Harden in the Common Pleas, where the facts were briefly as follows: The defendant being insolvent, it was verbally agreed between him and one Weston and the defendant's cred- itors (among whom was the plaintiff), that Weston should pay, ' Rogers v. Collier, 2 Bailey (S. C), 581. ' McCray v. Madden, 1 McCord (S. C), 486. ' Edwards v. Kelly, 6 Mauls & S. 204. OH. X.] GUARANTIES. 205 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 Harden for the full amount of his claim, objecting to the de- fence upon the agreement and Weston's readiness and ability to perform it, that it was not enforcible against Weston for want of a memorandum in writing, and consequently his own engagement to accept ten shillings was nudum pactum. The defence was nevertheless 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 Harden. 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 rigorously, but the contract was a contract of purchase, and he had a right to make use of the names of tlie original creditors to recover the same to the full amount, if Harden had effects to satisfy the debts. Instead of being a contract to discharge Harden 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, without discharging him altogether, is not what the statute contemplates, it might seem to be setting up a nice dis- tinction. But its real 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 pur- chase merely in the fact that incidentally the debt of a third party was satisfied.'^ And it is well perhaps to observe that ' Anstey v. Marden, 1 Bos. & Pull. N. R. 124. See Therasson v. McSpeddon, 2 Hilton (N. Y.), 1. ' It is necessary to remark in regard to Mr. Roberta'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 trans- action the distinctive character of a purchase. The same author classes this case with Castling v. Aubert as being both cases of " considering the 206 STATUTE OP FRAUDS. [CH. X. this decision is not, as was intimated by one of the judges, in conflict 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. Marden, 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 would permit liim 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 Chancellor, 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 agree 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 engage- 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 extinguished the original creditor's claim upon the original debtor ; the latter left that claim unimpaired. ' Chater v. Beckett, 7 T. R. 201 ; Case v. Barber, T. Raym. 450, de- cided four years only after the enactment of the statute. » Tomlinson v. Gill, Ambler, 330. CH. X.] GUARANTIES. 207 ment to see the whole amount of the debts paid, but indicates rather a transaction, in part like that in Castling v. Aubert, the control of the assets being the security acquired by the de- fendant, and in part like Williams v. Leper, the assets being a fund between both the defendant and his fellow-creditors. The case was, however, decided prior to either of them. The Chancellor remarks that " the modern determinations 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 before the court, and which is declared to be strong to the purpose that here was a new, distinct consideration, such as would take the de- fendant's promise out of the statute.^ It is difficult to see how that case applied. There the defendant promised to pay a cer- tain 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 ac- tion for the assault, was not a debtor, that he did not appear to have been guilty of any default or miscarriage, 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 Tom- linson v. Gill, where the debt was certainly actually existing ; if that decision be taken as broadly as the reporter's statement 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 ' Kead v. Nash, 1 Wils. 305. 208 STATUTE OP FRAUDS. [CH. X. 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 sur- prising to find it since extended to cases which bear not the least resemblance to those on which the rule professes to be based.^ Again, Chief-Justice Kent, in the case of Leonard v. Vredenburgh, 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 con- sideration of benefit or harm moving between the newly con- tracting 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 themselves from which the doctrine was first extracted. But acting upon this rule, and too often pressing ' it against the clear application 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 between the parties to the guaranty, the defendant's promise was saved from the operation of the statute.^ How- ' Roberts on Frauds, 232. " Myers v. Morse, 15 Johns. (N. Y.) 425 ; Meech v. Smith, 7 Wend. (N. Y.) 315 ; King v. Despard, 5 Wend. (N. Y.) 277 ; Creel v. Bell, 2 J. J. Marsh. (Ky.) 309 ; Taylor v. Drake, 4 Strobh. 431 ; Cooper v. Chambers, 4 Dev. (N. C.) 261 ; Tompkins v. Smith, 3 Stew. & Port. (Ala.) 54. Ry- land V. Wynn, 1 Sel. Cas. (Ala.) 270. It is uniformly held, however, that forbearance by the creditor is not enough to take the defendant's promise out of the statute. Hilton v. Dinsmore, 21 Maine, 410, overruling Russell V. Babcock, 14 lb. 138 ; Harrington v. Rich, 6 Verm. 666 ; Caston v. Moss, 1 Bailey (S. C), 14; Musick v. Musick, 7 Missouri, 495; King v. Wilson, Stra. 873. Nor the creditor's merely stating and swearing to the account. Brown V. Barnes, 6 Ala. 694. QucBre, if forbearance, pnotracted (without agreement to that effect) so long as to involve the loss of the claim against the original debtor, as by limitation, etc., will take the case out of the statute. Templeton v. Bascom, 33 Verm. 132. Infra, p. 217, note 1. ^ Leonard v. Vredenburg, 8 Johns. (N. Y.) 29. ' See the cases cited in the preceding note. Several decisions whose CH. X.] GUARANTIES. 209 ever respectable 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 commen- tators is now leaning against it.^ 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 Wil- liams 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 sim- ple meaning, seem to give us the true rule. It contemplates a promise to answer for another's debt ; a promise for that pur- pose ; a mere guaranty ; and it never was meant that a man should set it up as a pretext to escape from the performance of a valid verbal obligation of his own, because, in performing language affirms this doctrine Lave, in previous pages of this chapter, been referred to other principles by which they were clearly determinable. In a late case in Vermont, Templetons v. Bascom, 33 Verm. 132, defendant being sole heir of, and coming into possession of an estate which was solvent, stated to the plaintiffs, who held a claim against the estate, that it was ajust claim, that they might give themselves no trouble about it, and that he would pay it, etc. Held, that the Statute of Frauds did not require the de- fendant's promise to be in writing. The opinion of the court proceeds upon the ground that the promise was founded upon a new and distinct con- sideration, moving from the plaintiffs directly to the defendant ; to wit, their " waiver" of their claim against the estate. By the statement of facts, ifc would appear that they lost their claim against the estate by their forbear- ance to present it. If the defendant's promise was taken in substitution for the liability of the estate, then the decision was correct upon other and obvious grounds. If it was not so substituted, but the claim against the estate was merely forborne for a time, then the decision is clearly not law. " Kingsley v. Balcome, 4 Barb. (N. Y.) 131, per Sill, J. ; Noyes v. Hum- phreys, 11 Grattan (Va.), 636 ; Floyd v. Harrison, 4 Bibb (Ky.), 76 ; Barker V. Bucklin, 2 Denio (N. Y.), 46 ; Chit,ty on Contracts, 460 ; Lampson v. Ho- bart, 28 Verm. 700; Cross v. Richardson, 30 Verm. 647. 14 210 STATUTE OP PEAUDS. [CH. X. that, the discharge of a third party's debt was incidentally in- volved.^ '. 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 hold- ing a note of the 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 verbally undertook 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 harm- less. It was contended that the promise was void by 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 endorser, still this would not, 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 encumbrances ? 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 considera- tion 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 ». Scoville, 1 Gray (Mass.), 391. These cases are approved in Jepherson v. Hunt, 2 Allen (Mass.), 423. See also Fitzgerald ». Dressier, 5 C.B. 885. In Engsley u. Balcome, 4 Barb. (N. Y.) 131, Sill, J., says : " 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 etanding to him in the relation of surety." The Supreme Court of Indiana say the new consideration must be "of such a character 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. Davidson, 6 Blackf. 367. In an important case, decided by the Supreme Court of the United States, the plaintiff had been employed by a railroad company to build certain bridges on their line, and the company failing to make its monthly pay- ments as agreed, the plaintiff refused to go on. The defendant was a large stockholder in the road, and had leased to the company railroad iron to the value of sixty-eight thousand dollars, and, as a security for payment, held an assignment of the proceeds of the road to that amount, with interest, CH. X.] GUARANTIES. 211 § 213. Upon the principle just stated, the Court of Ex- chequer have recently settled the question, whether the guar- anty 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 effect that it was not. " Doubtless," he said, " if they [the factors defendant] had for a percentage guaranteed the debt owing, or performance of the contract by, the vendee, being totally unconnected with the sale, they would not be liable with- out a note in writing signed by them ; but being the agents to negotiate the sale, the commission is paid in respect to that employment. A higher reward is paid in consideration of their taking greater care in sales to their customers, and precluding all question whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents ; namely, responsibility for the solvency and performance of their contracts by their vendees. This is the main object of the reward being given to them, and though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given ; and the case resem- bles in this respect those of Williams v. Leper, and Castling v. Aubert." ^ And in Wolff v. Koppel, in the Supreme Court of which was to be paid in monthly instalments of five thousand dollars. Un- less the bridges were completed there could be no proceeds, and the company could not pay for the iron. The defendant orally promised to pay the plaintiff if he would go on and complete the bridges ; and, to secure him from any loss on such engagement, he took from the company securities con- sisting of real estate and the company's bonds secured by the mortgage on the road, to an amount deemed by the company and himself sufficient to in- demnify. The company itself was insolvent. The court held, that the defendant's promise was not within the statute. They say: "Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his ovm, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be inform a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability." Emerson v. Slater, 22 Howard (U. S.), 28. (As to this rule for determining whether the statute applies, see post, § 21^.) » Couturier v. Hagtie, 8 W., H. & G. 40 ; Sherwood v. Stone, 14 N. Y. 267.. 212 STATUTE OP FRAUDS. [CH. X. 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 in- cidentally as a measure of damages."^ The observation of Parke, B, that if the defendants in the case before him had, merely and without being connected with the sale, guaranteed the debt owing or performance of the contract by the third party, /or a percentage, doubtless their engagement would have required a writing, is especially noteworthy ; for such a case ■would present the naked point of a new and independent con- sideration 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. The difficulty which some of the cases decided since the second edition of this treatise have shown to exist in ap- plying admitted rules, will justify a re-examination of those rules as they regard cases in which the original debtor remains liable. It is frequently said that where the leading object of the defendant in agreeing to pay or answer for the third party's debt, is to benefit himself, the statute does not apply. It is certainly true that in those cases where the promise of guar- anty, although the original debt continues, is unaffected by the statute, the leading object of the defendant in making that promise will appear to be to benefit himself. But when we put it conversely, and attempt to set up the object of the de- fendant as a test of the application of the statute, we find that it does not practically answer that purpose. For what is a leading object as distinguished from a secondary one, in any sense in which a court can define or a jury ascer- ' Wolff V. Koppel, 5 HiU (N. Y.), 468. See, also, Swan b. Nesmith, 7 Pick. (Mass.) 220; Bradley v. Richardson, 23 Verm. 720. * Evans v. Duncan, 1 Tyrw. 283, on the authority of Senior v. Butt, Hil. 1827, K. B, CH. X.] GUARANTIES. 213 tain it ? And how can the object of making a promise be made the test of its legal obligation ? We must come after all to the question, what state of facts imply, in law, the exist- ence of such an object or purpose. Again, it is frequently said that considerations of a certain sort moving between the original creditor and the new promisor, make the case one to which the statute does not apply, and this is sometimes said by courts which do not profess to recognize the notion which once pre- vailed, that " any new and independent consideration of benefit or harm moving between the newly contracting parties " takes the case out of the statute. But the application of the statute does not depend upon the question from whom the consideration moves, nor upon the question what sort of consideration it is ; for the contract of guaranty, like every other contract, requires to be supported by a valuable consideration, and one valuable consideration, as such, is as good as another. " The question, indeed, is what is the promise f Not, what the consideration for that promise is ; for it is plain that the nature of the con- sideration cannot affect the terms of the promise itself, unless it be an extinguishment of the liability of the original party." ^ So in a recent case in Pennsylvania,^ the Supreme Court say that it can make no difference that the new consideration moves from the promisee to the promisor, and the danger which the statute is intended to guard against exists, " no matter whence the consideration of the contract proceeded or to whom it passed." To the same effect is a recent and very able judgment of the Supreme Court of Vermont,^ not to speak of many other well-considered cases decided earlier, and which are referred to in the text. § 214 a. It is not the motive of the promisor nor the nature of the consideration for his promise, but the substance of the transaction between him and the promisee, that must be re- garded in determining whether the promise is within the stat- ute. If the defendant is under an obligation to pay the amount ' Williams's Saunders, 211, b. note I. ' Maude v. Bucknell, 50 Penn. State, 53. 3 Fullam V. Adams, 37 Vt. 391. 214 STATUTE OP FRAUDS. [CH. X. of the debt, independently of any contract of guaranty, his promise to pay it, although expressed as a guaranty or an agreement to answer for the debt of another, is binding without writing. The substance of the transaction is undertaking to pay his own debt in a particular way. It is not within the ability of the author to reconcile all the decisions under this most intricate head of the subject ; but it is believed that the principle above stated (and which is but repeated from the pre- vious editions of this work) will, when carefully applied, be found useful and, upon the whole, satisfactory. § 214 b. The simplest illustration of it is in that class of cases where the defendant owes a third party, and the third party owes the plaintiff, and by agreement between the three parties the defendant is to pay the amount of his debt directly to the plaintiff, although the third party remains liable to the plaintiff; the promise of the defendant, being really a promise to pay his own debt, is not required to be in writing.^ And the cases show that the rule holds, whether the debt of the defendant to the third party was an old debt, or was incurred at the same time, and as part of the same transaction, with his agreement to pay to the plaintiff. The mere fact that the defendant has received property from the third party, does not take his prom- ise out of the statute ; it must appear that he incurred a debt thereby ; and not only so, but there must be an agreement that the amount of that debt shall be paid to the plaintiff.^ . § 214 c. The recent case of Furbish v. Goodnow, 98 Mass. 296, demands examination under this head. According to the report, one Eedding was indebted to the plaintiff on a promis- sory note, and by agreement between the plaintiff and Redding and the defendants. Redding conveyed certain real estate to the defendant, and, as part of the consideration therefor, the de- fendant promised to pay the plaintiff the amount of the note. If the substance of the transaction was, as it appears to have ' Ante, §§ 165-172, and cases there cited. Also M'Laren v. Hutchin- son, 22 Cal. 187. Connor «. Williams, 2 Rob. (N. Y.) 46 ; Clymer v. De Young, 54 Penn. State, 116 ; Ford ii. Finney, 36 Georgia, 258 ; Sanders v. Clason, 13 Minn. 379. " Ante, §§ 170, 166. CH. X.] GUARANTIES. 215 been, that the defendant became indebted to Redding in the amount which Redding owed to the plaintiff, and by agreement between the three, the defendant was to pay that amount di- rectly to the plaintiff, the Statute of Frauds by an unbroken course of decisions (unless Curtis v. Brown, 5 Gushing, 488, be an exception) fails to apply. It was held, however, that it did apply. There is no allusion in the opinion to the question whether the defendant's promise was not in effect to pay his own debt. The court say, in the first place, that " if the princi- pal and immediate object of the transaction is to benefit the promisor, not to secure the debt of another person, the promise is considered not as collateral to the debt of another, but as creating an original debt from the promisor, which is not within the statute, although one effect of its payment may be to dis- charge the debt of another." We have already (awie, § 214) re- marked upon the inadequacy of this rule for determining whether the statute applies. But the court say farther, " Where the orig- inal debtor remains liable, yet if the creditor, in consideration of the new promise, releases some interest or advantage relating to or affecting the original debt, and enuring to the benefit of the new\promisor, his promise is considered as a promise to an- swer for his own debt, and the case is not within the statute. But if no [such] consideration moves from the creditor to the new promisor [the defendant] and the original debtor still remains liable for the debt ; the fact that the promisee [the plaintiff] gives up something to that debtor, or that a transfer of property is made or other consideration moves from that debtor to the new promisor [the defendant] to induce the latter to make the new promise, does not make this promise the less a promise to an- swer for the debt of another ; but, on the contrary, the fact that the only new consideration either enures to the benefit of that other person [the original debtor] or is paid by him to the new promisor [the defendant] , shows that the object of the new promise is to answer for his debt." It is certainly true that if the creditor, in consideration of the new promise, release some interest or advantage relating to or affecting the original debt 216 STATUTE OF PEAUDS. [CH. X. and enuring to the benefit of the new promisor, the statute does not apply ; and that notwithstanding such release, if it does not enure to his benefit the statute does apply. But why is this ? It is because where the release enures to his benefit, the substance of the transaction is a purchase by him of the interest or advantage so released, at the price of the amount of the original debt ; so that he becomes, as such purchaser, a debtor himself to the plaintiff to the same amount ; and his promise in effect is to pay his own debt although expressed as an agreement to pay that of the original debtor. On the other hand, where the interest or security released does not enure to the benefit of the new promisor, he incurs no debt. The release is a sufiicient consideration for his promise to pay the debt of the original debtor, but that is not enough to prevent the appli- cation of the statute. Now, if this explanation of these cases is the right one, the next question is, whether the same rule applies to a defendant's promise to pay his own debt, whether it be to pay it to his own creditor or to the nominee of that creditor. In the cases of a release of an interest or security relating to the debt, which release enures to the benefit of the new promisor, it is his own creditor' that he agrees to pay. In the case of Furbish v. Goodnow it was the nominee of his own creditor that the defendant agreed to pay. What is the differ- ence ? If there be none, it is difficult to see on what ground the decision in Furbish v. Goodnow can rest. § 214 d. In the case of Curtis v. Brown, 5 Gushing, 488, one Coffin was under contract with the defendants to build for them certain houses under which the work proceeded for about three months, when Cofiin released the defendants from the contract, and assigned to them the materials on hand, in consideration of which the defendants agreed to pay all the bills for labor and materials then outstanding, and among them the bill for which the plaintiff sued. The court held that he could not recover, the promise of the defendants not being in writing ; remarking, among other things, that " the plaintiff did not release Coffin, or relinquish any lien or benefit ; and although there was a good CH. X.] GUAKANTIES. 217 consideration in law for the defendants' promise, it was a con- sideration moving from Coffin and not from the plaintiff." The question was not raised whether the transaction was such as to create against the defendant an independent obligation to pay Coffin money to the same amount as the debts which they un- dertook to pay ; and it would seem from the report of the facts that it was not. The case was put upon the question of the nature of the consideration and the party from whom it moved. If it does necessarily depend upon that question, it cannot be denied that it supports the decision in Furbish v. Goodnow ; and is subject also to the same difficulties.^ § 214 e. We have spoken thus far of the first class of cases to which the rule stated in § 214 a. applied ; namely, where the defendant owes a third party and the third party owes the plaintiff, and, by agreement between the three parties, the de- fendant is to pay the amount of his debt directly to the plain- tiff. The next class of cases to which the rule applies, is where the defendant contracts a debt directly with the plaintiff, which he agrees to pay by paying a third party's debt to the •plaintiff. In most cases under the statute, this debt arises from the plaintiff giving up directly or indirectly to the defend- ant some lien or security, or other advantage, for securing or ' In the case of Pike v. Brown, 7 Gushing, 133, the grantee in a deed of land which was subject to a mortgage verbally agreed to pay the interest on the mortgage debt as it became due. He failed to do so, and the grantor, having paid it himself, was held entitled to recover the amount from the grantee in assumpsit. The court said, " The substance of the contract with the plaintiff was on a consideration moving from him to pay his debt for his benefit, and to exonerate him, and was no less a direct promise to the plaintiff because, in the performance of it, it would satisfy a debt due to another.'' But according to Furbish v. Goodnow, if the grantee's promise had been communicated to the mortgage creditor, and Tie had sued the grantee for the amount of the interest, he could not have recovered. Again it is settled in Massachusetts, as everywhere else, that a verbal promise to accept a bill of exchange is binding (Grant ». Shaw, 16 Mass. 341). But this is a promise to pay the debt of a third party to the drawer of the draft, and is only valid without writing because the defendant, being indebted to the third party, agrees to pay his own debt by paying that third party's debt to the plaintiff. See ante, § 172. 218 STATUTE OP FRAUDS. [CH. X. recovering the debt owing to the plaintiff by the third party .^ Those cases in which the giving up of such lien, or security, or advantage, by the plaintiff, though not to the defendant directly or indirectly, has been held sufficient to take the defendant's promise out of the statute, are opposed to the clear current of later and better considered cases, and must be rejected as not law ; where the lien, or security, or other advantage, is given up directly or indirectly to the defendant, it is really a pur- chase of it by him. But it is not true as a general proposition that every transfer of value from the plaintiff to the defendant prevents -the statute from applying to the defendant's promise, in consideration of such transfer of value, to pay to the plaintiff the amount owing to him by a third party. The mere passing of a new and independent valuable consideration between the plaintiff and the defendant does not take the case out of the operation of the statute ; and so far as some of the decisions depend, upon the contrary, they cannot be regarded as law.^ Every contract of guaranty requires a valuable consideration moving from the party to whom the guaranty is given ; there can be no sensible distinction made between " new and independent " considerations and any other valuable consid- erations ; and the general proposition that " a new and inde- pendent consideration moving between the parties to the contract of guaranty," takes it out of the statute, simply nullifies the statute.^ The distinction is between a mere valu- able consideration for the defendant's promise of guaranty, and that transfer of value which creates an original obligation on the part of the defendant, the measure of which is, by the agreement of the parties, the defendant's payment of the third party's debt. Thirdly, the cases in which the property of the third party's is put into the hands of the defendant for the pur- pose of paying, out of the proceeds thereof, the third party's ' Ante, §§ 201-205 and 214 c. ; Small v. Schsfer, 24 Maryland, 143. = Ante, § 212 J Fullam v. Adams, 37 Verm. 391 ; Maule v. Bucknell, 50 Penn. State, 51 ; Kelsey v. Hibbs, 13 Ohio State, 34. ^ Maule V, Bucknell, supra. CH. X.J GUARANTIES. 219 debt to the plaintiff, are cases of obligation by the defendant as a trustee to make such payment, and it is that personal obliga- tion which the plaintiff seeks to enforce, and his right of action is not affected by the statute.^ ' Ante, § 206 ; Stoudt v. Hine, 45 Penn. State, 30 ; Woodward o. WUcox, 27 Ind. 207. In one of the most intelligent and instructive opinions that have been delivered upon this subject of guaranties under the statute of frauds (FuUam «. Adams, 37 Vermont), Chief- Justice Poland treats the cases of promises to pay the debt of another who still remains liable, as all reducible to the one principle that the promisor is liable because by the arrangement he becomes the holder of a fund or security which is appro- priated to the payment of the debt, and clothed with a duty or trust in respect thereto which the law will enforce in favor of the party to whom the promise is made. He says, " It has been often decided that when the purchaser of property promises to pay the price to a creditor of the ven- dor, such promise is binding, though not in writing, and the vendor still remains liable for the debt. . . . And where a debtor transfers funds or property to another for the purpose of paying his debt, and the person thus holding the debtor's funds or property promises the creditor to pay his debt, such promise is held good though not in writing. . . . We apprehend the true principle why the promise to the creditor is valid without writing is the same in both these classes of cases. In both the party making the promise Tiolds the funds of the debtor for the purpose of paying his debt, and as be- tween him and the debtor it is his duty to pay the debt, so that when he promises the creditor to pay it, in substance he promises to pay his own debt and not that of another ; and though the debtor still remains liable for the debt, his real relation is rather that of a surety for the party whose duty it is, and who has promised to pay his debt, than of a principal for whom the other has become surety or guarantor. He holds a fund in trust under a duty to pay it to the creditor, and he makes an express promise to perform it. . . . The cases which decide that where a creditor holds a security for his debt and surrenders it to a third person for his own benefit upon his promise to be answerable for the debt, stand really upon the same substantial prin- ciple." 220 STATUTE OF FRAUDS. [CH. XI. CHAPTER XI. AGREEMENTS IN CONSIDERATION OP 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 tlie statute intends to affect only what are commonly known as marriage settlements.^ Any promise made since the enact- ment of the statute, to give a portion to, or settle property upon, either of the parties to an intended marriage, as an in- ducement to, and consideration for, entering into it, is there- fore 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.^ Perhaps there might arise cases, not coming under the head of marriage settlements properly so called, which a strict application of the statute would nevertheless bring within its provisions ; as where a ' Philpot V. Walcot, Skin. 24 ; Freem. 641 ; 3 Lev. 65 ; decided in 33 Car. n. ' Harrison ». Cage, 1 Ld. Raym. 386 ; Salk. 24 ; 6 Mod. 411 ; Cork v. Baker, Stra. 34 ; Clark v. Pendleton, 20 Conn. 508 ; Dunn v. Thorpe, 4 Ired. Eq. (K. C.) 7. ^ In South Carolina, where the English statute has been literally re- enacted, it has been said in Chancery that an antenuptial agreement founded on the consideration of marriage, though resting in parol merely, provided it be satisfactorily established by proof, would be set up and en- forced. The case, however, did not require the remark, which it would seem must have been incorrectly reported. Hatcher v. Robertson, 4 Strobh. Eq. 179. CH. XI.] AGREEMENTS IN CONSIDERATION OP MARRIAGE. 221 party should agree to undertake some duty or office in consid- eration 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 be to give real or personal estate, the statute is equally applicable. Where an intestate, about seven years before his marriage, borrowed money from the person who afterwards became his wife, and in an inter- view with her in contemplation of marriage, and shortly before that event, promised her that if she would not enforce the pay- ment of the notes they should remain good and collectible against his estate ; and she retained the notes during the cover- ture and until after his death ; it was held that the promise of the husband was an antenuptial promise made in consid- eration of forbearance to collect the notes, and that after his death a claim for their amount by his wife was properly al- lowed against his estate, and that his agreement was not within the Statute of Frauds, and could be proved without writing.^ § 216. The marriage is the consideration, a legal and suffi- cient consideration, for ithe defendant's promise, and one which, it is said, courts regard with especial favor, as of a most meri- torious character.^ In a case in Maryland, where it was held that an agreement made by a father with his daughter, in contem- plation of her marriage, by way of advancement 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, ' Eiley v. Riley, 25 Conn. 154. ° See the remark of Lord-Chancellor Sugden, 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. 222 STATUTE OP FKAUDS. [CH. XI. 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 &n. 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 commu- nicated by letter of the promisor's agent to the intended hus- band, he expressed his desire to have the promisor's bond to the same effect, but it was not given, and nothing further took place until the celebration of the marriage. It was urged that the promise had not been accepted, but Lord-Chancellor Sugden 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 terras.^ § 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 £3,000 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 sub- sequent written acknowledgment to the daughter. But there ' Dugan V. Gittings, supra. ' Greene v. Cramer, 2 Con. & Law. 54. ' Luders u. Anstey, 4 Ves. Jr. 601. *■ Ayliffe V. Tracy, 2 P. Wms. 66. * In 9 Mod. 3. See Atherley on Marriage Settlements, 82. CH. Xt.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 223 can hardly be a doubt of the accuracy of the principle indi- cated 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 enforced, although the person making it afterwards dissent from the mar- riage and declare he will give the parties nothing.^ Such 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 be- ing revocable at any time before they have been acted on. In the case cited by the writer in question, Wanchford v. Pother- ley, the treaty for the settlement, upon the basis of a letter of the lady's father, 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 young people's affections were engaged ; " regarding such a tardy revocation, apparently, in the light of a fraud upon those who, reposing upon the promise, 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 1 Mr. Atherley, p. 84. ' Wanchford 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'Agui- lar 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 suffered 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, how- ever arbitrary and unreasonable, that the trustees might choose to dictate. 224 STATUTE OF FBAUDS. [CH. XI. 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 .£1,000,3 per cent stock is not sufficient to induce me to enter into a deed of settlement. Whether Mary [the daughter] remains single or marries, I shall allow her the interest of .£2,000 at four per cent; if the latter, I may hind myself to do it, and to pay the prin- cipal at her decease to her and lier heirs." Sir William Grant, Master of the Rolls, 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 es- sential to such contracts. An uncle, by a letter to his niece, promised her £1,000 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 ' Randall ». Morgan, 12 Ves. Jr. 67. ' Douglas J). Vincent, 2 Vern. 202. But compare Wanchford ». Foth- erley, Freem. Ch. 201. ■■ Marriage Settlements, p. 84. CH. XI.] AGREEMENTS IN CONSIDERATION OP MARRIAGE. 225 House of Lords, there was a letter by the father, upon which the husband and wife relied, and in which he says : " I can never be reconciled to the marriage," etc. ; then he proceeds 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 efifect 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 plaintiff married the defendant's daughter, the defend- ant would endeavor 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 ' Montgomery v. Reilly, 1 Bligh, 364. ' Chichester v. Vass, 1 Munf. (Va.) 98. 16 226 STATUTE OP PEAUDS. [CH. XI. 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 requires to be produced in all cases of contracts falling within its provisions.^ And in like manner, and for the sake of obtaining a more system- atic view of the subject, it is proposed to -defer to the same time all questions as to the effect which any acts of part-per- formance, 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, not- withstanding the absence of the writing required by the stat- ute.^ There will remain, therefore, only the question how far a writing or settlement made after marriage, upon the basis of an antenuptial 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 postnuptial settlement, reciting the antenuptial 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 credit- ors, 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., 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 1 See post. Chapters XVII. and XVIU. ' See post, Chapter XIX. ' Bundas v. Dutens, 1 Ves. Jr. 196. * Shaw V. Jakeman, 4 East, 201. CH. XI.] AGREEMENTS IN CONSIDERATION OP MARRIAGE. 227 the same time he expressed a strong doubt whether a writing after marriage would set up an antenuptial verbal promise, even as between parties ; but it was not necessary to decide, nor did he decide, either question.^ Still later, in the case of Battersbee v. 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 credit- ors 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 antenuptial 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 upoa the point. Mr. Chancellor Kent, in the case of Eeade v. Livingston, reviews all the authorities which favor or appear to favor the validity of such a settlement, and doubts much whether it can be upheld by the mere force of a, recital of the antenuptial 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 States have established the doctrine that, as against creditors, such a settlement has no force.* • Kandall v. Morgan, 12 Ves. Jr. 67. * Battersbee v. Farrington, 1 Swanst. 106. ' See, farther, on this point the early cases of Lavendar v. Blackstone, 2 Lev. 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. ■• Reade v. Livingston, 3 Johns. Ch. 481 ; Winn v. Albert, 2 Md. Ch. Dec. 169, affirmed on appeal, 5 Md. 66; Izard «. Izard, Bailey, Eq. (S. C.) 236 ; Andrews v. Jones, 10 Ala. 400 ; Blow v. Maynard, and Lawrence ». Blow, 2 Leigh (Va.), 29 ; Smith v. Greer, 3 Humph. (Tenn.) 118 ; Wood t>. 228 STATUTE OP FRAUDS. [CH. XI. § 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 ef- fect to set up an antenuptial 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 writ- ing, but that it is sufficient to show by written evidence the ex- istence 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 decidedly to establish that a settlement or other writing made after mar- riage and recognizing an antenuptial verbal contract, is bind- ing upon the parties.^ Nor does it appear that any violence is thereby done to the spirit of the fourth section. The memoran- dum required by that section need not be contemporaneous with the making of the contract ; it is only necessary that the con- tract be put in that form, before any action can be maintained upon it.^ Then, it becomes a binding agreement ; and it seems to be no reason for holding otherwise in cases of marriage con- tracts, that the marriage has intervened, for that is, so to speak, but the payment of the consideration. No relief is sought or Savage, 2 Doug. (Mich.) 316 ; Davidson v. Graves, Riley, Eq. (S. C.) 222; Borst v. Corey, 16 Barb. (N. Y.) 136; Story Eq. Jur. ed. 1861, § 374. The Court of Chancery in New Jersey, however, have said that ■where an antenuptial 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 postnuptial deed of settlement, nor declarations of a husband made during coverture and shortly before the con- veyance by the wife and himself to his son, as satisfactory proof. Satter- thwaite v. Emley, 3 Green, Ch. 489, per Haines, C. ' Randall v. Morgan, 12 Ves. Jr. 67. ' Montacute v. Maxwell, 1 P. Wms. 618 ; Stra. 236 ; Hammersly v. De Biel, 12 Clark & Fin. 45 ; Argenbright v. Campbell, 3 Hen. & Munf. (Va.) 144. 3 See^o**, §348. CH. XI.] AGREEMENTS IN CONSIDERATION OF MARRIAGE. 229 claim founded upon the contract, until after it is perfected by being put in writing. But when the rights of creditors accru- ing in the mean time are concerned, the case is different. The writing made after marriage, or the recital of the antenuptial contract in the postnuptial settlement, can have no relation back to the date of the verbal contract so as to make it effec- tive as of that date, and consequently the settlement upon the basis of that verbal contract must be regarded as purely volun- tary, and cannot affect pre-existing rights against the property conveyed.^ ' 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. 66. 230 STATUTE OP PBAUDS. [CH. XII. CHAPTER Xn. CONTRACTS FOR LAND. § 225. Op 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 affecting 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 written evidence of all declarations of trusts or confidences in land ; and we now find the same watchful disposition guarding against the too ready alienation 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 inde- pendent 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 creation 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 relation which the seventh section, covering trusts, bears to that which is now before us. CH. XH.] CONTRACTS FOB LAND. 231 § 226. In Pennsylvania, where the fitst three sections only of the English statute, those which relate to the creation and transfer of estates in land, have been re-enacted, 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 force, by adoption into the com- mon 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 whicli have been preserved in that State, the right is considerably af- ' Bell ». Andrews, 4 Dall. 162 ; Ewing v. Tees, 1 Binn. 450 ; McDowell V. Oyer, 21 Penn. 417 ; Kurtz v. Cummings, 24 Penn. State, 35 ; Malaun v. Ammon, 1 Grant (Penn.), 123. In Pugh v. Good, 3 Watts & Serg. 56, Gibson, C. J., said : " I would hold the particular clause in the fourth sec- tion of the British Statute of Frauds to have been introduced here by 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 anal- ogy 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 ingraft it on that clause of oar act which limits the effect of a parol conveyance to the creation 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 purchase land, the vendor was at most only entitled to recover his actual damage. In Whitehead v. Carr, 5 Watts, 868, 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 consider- ation." 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 incorporated together in the local law. 232 STATUTE OP FRAUDS. [CH. XII. fected in its extent. Thus, in an action by the vendor on 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 establishment 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 dam- age, 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 execution of a verbal contract for the sale or purchase of land, unless 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 ; or to eject the vendors by proceedings at law upon the proof of such oral contract ; and their determinations 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 appar- ent 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 ' Wilson V. Clarke, 1 Watts & Serg. 554; McDowell v. Oyer, supra; Moore v. Small, 19 Penn. (7 Harr.) 461 ; EUet v. Faxson, supra. * McDcwell V. Oyer, supra; Jack v. McKee, 9 Barr, 235 ; Bash B.Bash, lb. 260; Malaun v. Ammon, 1 Grant, 123. ' See the various cases cited in this section, and, in addition, Soles v. Hickman, 20 Penn. (8 Harr.) 180 ; Kurtz v. Cummings, 24 Penn. State, 35 ; Malaun v. Ammon, supra ; Pattison v. Horn, 1 Grant, 301 ; Wjble v. Wible, lb. 406 ; Postlethwaite v. Freaze, 31 Penn. State, 472. CH. XII.] - CONTRACTS FOR LAND. 233 for the purchase of it, that office is fulfilled by the other pro- visions referred to. § 227. With these preliminary observations, we pass to the examination of that clause of the fourth section which immedi- ately forms the subject of the present chapter. Two questions present themselves under this clause which will be examined in order : first, What is embraced in the words " lands, tene- ments, or hereditaments, or any interest in or concerning them," and, secondly, What is a "contract or [for] sale of" such lands, etc. ; the one question relating to the subjecUnatter, 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 em- ployed 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 af- fects real property, leads to th^ conclusion that the Parliament which enacted these several sections, as well as that which con- cerns trusts, did not design to make any distinction between them in this respect. In the case of Wood v. Lake, so promi- nent 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," etc., used in the first section, and considered that it meant un- certainty of duration, and not uncertainty of quantity, of interest.^ And it seems to have been supposed in a Massachu- setts case, that the decision in Wood v. Lake, to the effect that the privilege of stacking coal on another's land for seven years, could be conferred without writing, might be supported on the ' Ante, §§ 4, 5. ' Sir Edward Sugden, in his Treatise on the Law of Vendors and Pur- chasers, p. 95. ' See the report of that case in note to § 23, ante. 234 STATUTE OF FRAUDS. . [CH. XII. particular words in question.^ The repeated decisions in Eng- land 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 em- braced 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. § 229. 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 lands to him, was affected by the statute, because it was for ' Stevens v. Stevens, 11 Met. 251. ' Of the word tenements, which is the only word used in the statute de do- nis to express its subject-matter, Lord Coke says, that it "includes not only all corporate inheritances, which are or may be holden, but also all in- heritances issuing out of any of those inheritances, or concerning, or an- nexed 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 legislature to denote a fee-simple, and the words " any interest in or concerning them," were used to denote a chattel inter- est, 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 tenements 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, tenements, 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 loosely drawn, to determine any thing on merely verbal differences.. CH. XII.] CONTRACTS FOR LAND. 235 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 eventu- ally work a transfer of the equitable right and title. § 230. 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 agreements 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.'' But an agreement for board and lodging, as not involving an interest in land, is held not to require a written memorandum.* § 231. Mere possession of land seems to be properly regarded 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 question was ' Smith V. Bumham, 3 Sumn. 435 ; Hughes v. Moore, 7 Cranch (S.C.) 176 ; Simms v. Killian, 12 Ired. (N. C.) 252 ; Toppin v. Lomas, 30 Eng Law & Eq. 427 ; Richards v. Richards, 9 Gray (Mass.), 313. ' Scott V. McFarland, 13 Mass. 309 ; Marble v. Marble, 5 N. H. 374 Hughes V. Moore, supra ; Kelley v. Stanbeiy, 13 Ohio, 408 ; Agate v. Gig' noux, 1 Rob. (N. Y.) 278. But see Pomery v. Winship, 12 Mass. 614 Hogg ». Wilkins, 1 Grant, Pa. 67. » Griffin V. Coffey, 9 B. Mon. 452. ♦ Finney v. Finney, 1 Wils. 34 ; White v. White, 1 Harr. (N. J.) 202 ; Keeler v. Tatnall, 3 Zabriskie (N. J.), 62 ; Hall v. Hall, 2 McCord, Oh. (S. C.) 269 ; Shotwell v. Sedan, 3 Hamm. (O.) 5. See Madigan ». Walsh, 22 (Wis.) 601. 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. ' Roberts on Frauds, p. 127. Anon., 1 Vent. 361 ; Poultney v. Holmes, 1 Stra. 405. "> Edge V. Stratford, 1 Cro. & Jerv. 391 ; s. c. 1 Tyrw. 93 ; Delano v. Montague, 4 Cush. (Mass.) 42 ; Stackberger v. Moetaller, 4 Ind. (Porter) 461. But since the revision of the New York Statutes (2 R. S. 134, §§ 6, 8), see Young ». Dake, 1 Seld. (N. Y.) 463. « Wright V. Stravert, 2 L. T. n. s. 176. 286 STATUTE OF FRAUDS. [CH. XII. really for an assignment of a lease, and, of course, not binding by parol, said, that if it had been to relinquish the possession 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 Su- preme Court of New York, " Possession is primdfaeie evidence of title, and no title is complete without it," and accordingly they held that it " must be considered an interest in land, within the meaning of the Statute of Frauds." ^ In Maine, where by statute a mortgagee might recover possession 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 divesting the party of the right of pos- session.^ And it was apparently 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.* ' In Buttemere v. Hayes, 6 Mees. & Wels. 456. " 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 road 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 words former width, however, it may be gathered that the bargainor had without right enclosed 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. ^ Norton v. Webb, 35 Maine (5 Red.), 218; Coleman v. Packard, 16 Mass. 39. * Gilbert v. Bulkley, 5 Conn. 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, and must express the consideration of it. As to the possession of land being an interest, etc., within the statute, see, further, Smart v. CH. XII.] CONTRACTS FOB LAND. 237 § 232. An easement in the land of another is, by common law, grantable only by deed, and of course no verbal agreement which amounts to conferring an easement or a right in the na- ture 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 de- tailed citation of authorities.^ Many cases have arisen, how- ever, 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 contracts within the Statute of Frauds is examined.^ § 233. Although the improvements put upon land, such as buildings and other erections, tillage and labor generally, may be so incorporated with the land itself as to be inseparable therefrom in fact, yet it would seem that they ought to be so far separately 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 valua- tion growing crops thereon, and certain work, labor, and mate- rials which the plaintiff had done and expended upon the land," Lord Lyndhurst said : " The defendant would not have the benefit of the work, labor, and materials, unless he has the land ; and we are of opinion that the right to the crops, and the benefit of tlie work, labor, 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," etc. And again, of the latter part of the agreement, he says, " it was a contract for that which was, Harding, 29 E. L. & E. 252 ; WWttemore v. Gibbs, 4 Foster (N. H.), 484 ; Meranville v. Silverthorn, 1 Grant (Pa.J, 410 ; Sutton v. Sears, 10 Ind. 223. ' See the decisions collected and reviewed in Gale & Whatley on Ease- ments, cap. 3, § 1. Also in Angell on Watercourses, § 168, et seq. And see ante, § 21, et seq., in relation to licenses to be exercised upon land. * See post. Chapter XIX. 238 STATUTE OP FRAUDS. [CH. XII. at the time of such contract, an interest in the land, and for that which never was and never 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 doubt- less his attention was upon that account less strictly bestowed upon it. It is certainly settled in England, 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 qu6Stion, it appears to be settled, so far as this country is concerned, that these improvements put upon land are not necessarily to be regarded as land, because incor- porated with it. In New York, in a case where a verbal prom- ise 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 con- cerning them, but related to the labor only which had been bestowed upon the land, under the denomination of improve- ments. 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 undertaking as under the statute ? The contract in such case does not go to take from the promisor the land or any interest in or concerning it." ^ ' Earl of Falmouth v. Thomas, 1 Cro. & Mees. 89. ^ Hoby V. Roebuck, 2 Marsh. 433 ; s. c. 7 Taunt. 157 ; Price ■». Ley- burn, Gow, 109. ^ Frear «. Hardenburgh, 5 Johns. 272, and the following cases : Benedict V. Beebee, 11 Johns. 145 ; Mitchell v. Bush, 7 Cow. 186 ; 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 not a contract within the New York Statute of Frauds, in Barnes v. CH. XII.J CONTRACTS FOR LAND. 239 § 234. 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.^ § 235. Under the general head of contracts for the sale of what is annexed to, or incorporated with land, the most diflScult 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 determining 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 only 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 com- paring the principles upon which they have been respectively decided. § 286. There is, of course, nothing in the vegetable product itself which is an interest in or concerning land. When severed Perrme, 15 Barb. 249. The doctrine expressed in Frear v. Hardenburg has been also adopted in Alabama, Scoggin i*. Slater, 22 Ala. 687 ; Cassell ». Collins, 23 Ala. 676 ; in Iowa, Zickaposse v. Herlick, 1 Morris, 175 ; and in Missouri, Clark c. Shultz, 4 Mo. 236, where it was commended on the far- ther ground of the encouragement which it offered to settlers to occupy and improve uncultivated lands. Perhaps, also, in Vermont, Forbes v. Hamil- ton, 2 Tyler, 356 ; and it has been referred to by the Supreme Court of Indiana as settled. Green v. Vardiman, 2 Blackf. 324. ' Hallen v. Eunder, 1 Cro., Mees. & Ros. 266. Per Parke, B., in Horsfali «. Kay, 17 Law J. Exch. 266 ; Bostwick v. Leach, 3 Day (Conn.), 476. Where a house standing on the land of another has been sold and delivered to a third party, the seller may recover the price on the common count for goods sold and delivered. Keyson v. District No. 8, in Sinapee, 35 N. H. 477. * Chitty on Contracts, p. 320. 240 STATUTE OP FRAUDS. [CH. XII. from the soil, whether trees, grass, and other spontaneous growth (j>rima vestura), or grain, vegetables, or any kind of crops properly so called (^fructus industriales), 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 uiing 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 ' The seventeenth section. See post. Chapter XIV. ' Warren v. Leland, 2 Barb. (N. Y.) 613 ; Smith v. Bryan, 5 Maryland, 141. This appears to have been the case in Teal v. Auty, 2 Brod. & Bing. 99. ' Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542. A mortgage of growing 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 until the mort- gage becomes absolute by the non-performance of the condition. Per Paige, J., Ibid. * Per Dewey, J., delivering the opinion of the Supreme Court of Massa- chusetts in Miller v. Baker, 1 Met. 27 ; Penton v. Robert, 2 East, 88 ; Windham v. Way, 4 Taunt. 27 ; Smith v. Price, 39 111. 28. In Lee v. Ris- don, 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 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. CH. XII.] CONTRACTS FOR LAND. 241 mere annexation to, without incorporation 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.! § 237. Considering these vegetable 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 land. 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 lots 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 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, that if a nursery-man having trees lodged in the land, should afterwards purchase the land, the trees would not thereby be made part of the realty. ' Ante, § 234. ' Emerson v. Heelis, 2 Taunt. 38. Overruled in Evans v. Roberts, 5 Barn. & Ores. 829. See post, § 240. 16 242 STATUTE OP FRAUDS. [CH. XII. 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 circum- 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 undef 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 made any allusion to the Statute of Frauds. The point before the court was determined without 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 affords no authority for the decision in Emerson v. Heelis.^ § 239. In Warwick v. Bruce, decided in the Queen's Bench in 1813, a similar question arose. The defendant verbally agreed to sell to the plaintifif all 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 ^640 on the agreement, 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 EUenborough ' Waddington v. Bristow, 2 Bos. & Pull. 452. CH. XII.] CONTRACTS FOR LAND. 243 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 box, still it was a sale of a mere chattel.^ § 240. Evans v. Roberts, decided in the Queen's Bench in 1826, was an action on the defendant's verbal agreement to pur- chase of the plaintiff a cover of potatoes then in tlie 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 effect 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 Emerson 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 sale of goods and chattels to be delivered at a future day. Although the vendee might have an incidental right, by virtue of his contract, to some benefit from the land 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 > Warwick v. Bruce, 2 Maule & S. 205. 244 STATUTE OF FRAUDS. [CH. XII. 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 ' Iknds, 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 ' lands 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." ^ § 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, ' Evans v. Roberts, 5 Barn. & Ores. 829. » Post, § 244. " Ante, § 237. CH. XII.J CONTRACTS FOR LAND. 245 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 Ellenborough, 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 /jn'moe vestures may maintain trespass qu. cl. fr., or ejectment for injuries to his possessory right, but this defendant could not have main- tained 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 gave him no interest in the soil." Grove and Le Blanc, JJ., concurred, and also Bayley, J., who observed that " here the land was considered as a mere warehouse till the defendant could remove them." ^ § 242. 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 ' Parker v. Staniland, 11 East, 362. 246 STATUTE OP FRAUDS. [CH. XII. below for the plaintiff was made absolute, on the ground that, as a sale of goods, wares, and merchandise, there was no mem- orandum or acceptance as required by the seventeenth section. The case, 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 specific period. If, in this case, the contract had been for the sale of the trees with a specific liberty to the vendee to enter and cut them, I think it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber is, not to give the ven- dee 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 give the vendee any property in the trees until they were cut and ceased to be part of the freehold." ^ § 243. 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 transferred 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 ' Smith V. Surnam, 9 Barn. & Ores. 661 ; Cain v. McGuire, 13 B. Mon. (Ky.) 340. CH. XII.J CONTRACTS FOR LAND, 247 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 tlie defendant for that purpose, and cannot come on the land when he pleases.''^ Parke, B., said : " This is a contract for the sale of goods and chattels at a future day, the produce of certain land, and to be taken away at a certain time. It gives ilo right to the land ; if a tempest had destroyed the crop in the mean time and there had been none to deliver, the loss would clearly have fallen on the defendant." ^ § 244. The American decisions, which, upon the whole, are quite harmonious with the general tendency of those we have been quoting, will be referred to hereafter.^ Meanwhile, one more case, and that an early and most important one, requires to be examined. This is Crosby v. Wadsworth, decided in the Queen's Bench in 1805. The plaintiff verbally agreed to pur- chase 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 plaintiff had done any act under this agreement, the defendant notified him that he should not have the grass, and sold it to another man. Plaintiff after- wards made tender of the agreed price of the grass which was refused. Defendant locked plaintiff out of the close, and the grass was finally cut and carried away by the second purchaser. The action was trespass, that the defendant " with force and arms broke and entered a certain close whereof the plaintiff was lawfully possessed, and trode down the plaintiff's grass and hay, and cut down the plaintiff's grass then growing in the close, and took and carried away," etc. Lord Ellenborough, C. J., said : "As the plaintiff appears to have been entitled (if entitled at all under the agreement stated) to the exclusive en- joyment of the crop growing on the land during tiie proper pe- riod of its full growth, and until it was cut and carried away, he ' Sainsbury v. Matthews, 4 Mees. & Wels. 343. ' Post §§ 255-257. 248 STATUTE OP FRAUDS. [CH. XII. 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 plaintiff 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 provi- sions in the Statute of Frauds, or on any and what other ac- count ? " He then observes that the crop was not goods, wares, and merchandise, being an unsevered portion of the freehold, and also that for farther reasons the contract did not amount to a lease.^ He then proceeds to say, " I think the agreement stated, conferring as it professes to do an exclusive right to the vesture of the land during a limited time and for given pur- poses, is a contract or sale of an interest, in, or, at least, an interest concerning lands." He adds that although the statute, not making such a contract void^ 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 actiona- ble, it might be discharged before any thing was done under it which could amount to a part execution. " On this latter ground, therefore," he says, " namely, that this parol executory contract, supposing it to have been otherwise valid, was com- petently discharged by parol, we feel obliged to say that the plaintiff is not entitled to recover." ^ It is very material to note his remark 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 indeb- itatus assumpsit for moieties of crops sold, and for money ' See this case referred to as bearing on the construction of the statute as it regards leases, ante, § 18. » Ante, Chapter VIII. ^ Crosby v. Wadsworth, 6 East, 602. CH. XII. j CONTRACTS FOB LAND. 249 had and received, to -wliich it was objected that the contract was for an interest in land; but BuUer, J., said: " This agrecr ment does not relate to any interest in land, which remains altogether unaltered by the arrangement concerning the crops." ^ Of this case Lord Ellenborough says (in the decision from which we have been quoting), " The contract, if it had originally concerned an interest in land, after the agreed substi- tution of pecuniary value for specific produce no longer did so ; it was an agreement to render what should 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 com- prised 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. Li Crosby v. Wadsworth,^ the grass was to be mowed and made into hay by the purchaser, but that the reason why the con- tract there was held to convey an interest in land was not the right of entry given to the purchaser, is clear both on inspec- tion 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 writing. The remarks of Holroyd, J., in Evans v. Roberts,* and of Littledale, J., in Smith v. Sur- nam,^ 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 no 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 ' Poulter V. KilHngbeck, 1 Bos. & Pull. 397. ' Ante, § 244. ' Ante, § 239. * Ante, § 240. * Ante, § 242. ' Ante, § 241. And see Smith v. Surnam, ante, § 242 ; Jones v. Flint, 10 Adol. & Ell. 753 ; Nettleton v. Sikes, 8 Met. (Mass.) 34 ; Claflin v. Car- penter, 4 lb. 680 ; Whitmarsh v. Walker, 1 lb. 313 ; MUler v. Baker, lb. 27. ' Wood». Manley, 11 Adol. & Ell. 34. 250 STATUTE OF FRAUDS. [CH. XII. 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 buyer,^ or even for a number of years ^) as to ingraft upon a transaction which was nominally a purchase of a chattel the character of a lease of land. For certainly the privilege of oc- cupying another's land is as much a lease when the occupancy is by leaving purchased articles upon it as when it is by depos- iting any other articles upon it.^ Perhaps the only rule which can be safely stated on this point is, that tlie growing produce should be removed within such time as is reasonable /or the pur- pose and under the circumstances in which the parties are placed. § 246. Secondly. There is no materiality, as to whether the Statute of Frauds affects the contract or not, in the circum- stance that the produce is fully grown or in process of grow- ing, at the time of making the contract. True, Lord Ellen- borough made such a distinction in the case of Parker v. Stani- land,* observing that there the potatoes were matured, 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. Roberts,^ and Sainsbury v. Matthews,^ were both upon sales of immature crops, and in both the sales, though verbal, were held good. ' Erskine v. Plummer, 7 Greenl. (Me.) 447. " Putney v. Day, 6 N. H. 430 ; Olmstead v. Niles, 7 lb. 522 ; Buck «. Pickwell, 1 Williams (Vt.), 157. But see Safford ». Annis, 7 Maine, 168 ; Byassee v. Reese, 4 Met. (Ky.) 372. ' Ante, § 21 et seq., in regard to licenses which amount to leases. Huff V. McCauley, 53 Penn. State, 206. * Ante, § 241. * Ante, § 239. « Ante, § 240. ' Ante, § 243. And see Jones ». Flint, post, § 251. And Bricker v. Hughes, 4 Ind. 146; Shorey «. Picker, 10 lb. 375; Bull v. Griswold, 19 111. 631 ; Bryant v. Crosby, 40 Maine. 9 ; Marshall v. Ferguson, 23 Cal. 65. But see Powell v. Rich. 41 111. 466. CH. XII.] CONTRACTS FOE LAND. 251 § 247. Thirdly. The mere circumstance that the produce purchased may, or probably or certainly will, derive nourish- ment from the soil between the time of making the contract and the time of delivering the produce, is not conclusive as to the application 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 vegeta- tion 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 ; " and Bayley, J., remarked that the land was to be con- sidered as a mere warehouse till the defendant could remove them. But is it necessary to the application of the rule that the produce bargained for be, by the terms of the contract, to be taken immediately ? We should hesitate to assert a fresh distinction, 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 con- tract 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 parties that the purchaser shall use the vendor's land in the in- terval 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 dis- tinguished by form only from a lease of the land for that pur- pose ; for it can make no difference whether the cultivation is to be by the purchaser himself or by his agent, the vendor. ' Ante, § 239. ' « Ante, § 241. " Ante, § 240. And in Jones ». Flint, ^o«f, § 251. 262 STATUTE OF FRAUDS. [CH. XII. Lord Littledale's language in Evans v. Eoberts ^ is marked to this effect : " The legislature contenlplated 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 con- tract when executed is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute ; but if the contract is in the interim to confer upon the purchaser " an exclusive right to the land for a time /or 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. Wliether, 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 em- phasis 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 statute 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 authorities, that the mode of payment, whether in a gross sum for the entire yield, or at so much per cord, foot, bushel, acre, etc., 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 growing, then he enjoys meanvhile the use of the land, and ' Ante, § 240. ' Ante, § 240. CH. XII.] CONTRACTS FOR LAND. 253 a verbal contract to that effect is not good. Such, it is sub- mitted, is the doctriue established by the weight of authority. § 250. But there is another doctrine upon this subject which has attracted much favor of late years, and that is that the application of the statute is to be determined by the character of the growing crop ; verbal contracts for the fructus inckis- triales, or growing grain, vegetables, etc., which are produced by periodical planting and culture, which at common law are considered 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, etc., 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 full understanding of the question. § 251. In Evans v. Roberts,^ both Bayley and Littledale, JJ., 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, re- newed 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 underwood then standing, to be cut by him, had such a possession as would enable him to maintain the action. Chief-Baron Alexander said: " The action in this case proceeds upon the right of prop- erty 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 of Frauds." The decision seems to be entirely tenable without 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 ' Ante, § 240. 254 STATUTE OP FRAUDS, [CH. XII, the plaintiff's severing the underwood from the freehold, and until it was thus severed it remained the property of the owner of the soil.^ Moreover, this case was followed within two years by Smith v. Surnam,^ which held that the sale of standing trees, in prospect of severance and to be delivered after severance, was good without writing; and in that case the argument of the plaintiff took the same view of Scorell v. Box- all, and the court, not mentioning the case in terms, adopted the reasoning in the argument entirely. In Rodwell v. Phil- lips, a case in the Exchequer in 1842, the contract 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 George III., cap. 184, re- quiring 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 ex- cept 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 ex- ecution under a writ oifi.fa. by the sheriff; therefore it is dis- tinct from all those cases where the interest would pass, not to the heir-at-law, but to some other person."^ Here the action was assumpsit for not permitting the plaintiff to gather the crop. In Dunne v. Ferguson, a late Irish case, it was trover ' Scorell V. Boxall, 1 Yo. & Jerv. 396. See the remarks of Wilde, J., on this case, in Claflin v. Carpenter, 4 Met. (Mass.) 580. " Ante, § 242. ' Rod well V. Phillips, 9 Mees. & Wels. 501. In making this decision, the court thus alluded to Smith v. Surnam : " Undoubtedly there is a case in which it appears that a contract to sell timber growing was held not to con- vey 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 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. CH. XII.] CONTRACTS FOR LAND. 265 for a quantity of turnips which had been gathered and carried away by the defendant, ho having previously by a verbal bar- gain, 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 1839, 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 ; the defendant to harvest the corn and dig the potatoes ; the plaintiff to pay the tithe ; and when the crops, etc., were actually taken by the defendant, in conformity with this agree- ment, it was held that the Statute of Frauds did 7wt 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 occasion to de- duce from previous cases, adopts in terms the modern dis- tinction founded upon the nature of the crop. He observes, first, that at the time of the contract the crops were not ripe, thoui, h 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 fruetus 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 to derive nourishment from the land, yet a contract for the sale of them has been de- termined, 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 1 Dunne v. Ferguson, 1 Hayes, 640. 256 STATUTE OP FRAUDS. [CH. XII. be necessary to give the vendee an interest in the land. Tried by tliose 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 dicta, on this subject from the case of Wad- dington v. Bristow to the present time ; and we are, therefore, at liberty to abide by a general principle." And he adds, re- ferring 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 author- ity 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. Wads- worth, 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." ^ § 252. It is not to be denied that there thus appears a very strong tendency in the later English cases to stand upon the distinction between the prima vestura and fructus indusiriales, ' Jones V. Flint, 10 Adol. & Ell. 753. In Teal v. Auty, 4 Moo. 642, it was aaid that a contract for poles, made when they were growing, was a contract for an interest in land ; but there the contract Tyas executed, and ithe 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 Pur- chasers, p. 110, and ante, § 236, as to what works such a severance in law.) In Carrjngton u. Roots, 2 Mees. & Wels. 248, which was on a verbal agree- ment for the sale of grass, at so much an acre, to be taken by the pur- chaser, the court held that if it was for goods, etc., it was 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 prima vestura. CH. XII.] 00NTKACT8 FOR LAND. 257 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 growing, upon which parol evidence was plainly inadmissible.' That Lord Ellenborough 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 growth, 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. § 263. That case is thus given by Lord Raymond. " Treby, C. J., reported to the other justices that it was a question be- fore him in a trial at nisi prius at Guildhall, whether the sale of timber growing upon land ought to be in writing by the Statute of Frauds, or might be by parol, and he was of opinion that it might be by parol, because it was a bare chattel. And to this opinion Powell, J., agreed.^ Of course it. was not a chattel ' Gilinore v. Wilbur, 12 Pick. (Mass.) 120. " Reported anonymously in 1 Ld. Raym. 182. This case is pronounced by Mr. Bavon HuUock in Scorell v. Boxall, 1 Yo. & Jerv. 396, to amount to a mere dictum. It certainly has the appearance of an actual decision at nisi prius, only reported at second hand. It is quoted as an authority by Mr. Justice Holroyd in Mayfield v. Wadsley, 3 Barn. & Ores. 357. Also by Mr. Roberts in his Treatise 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 overrided. Law of Vendors and Purchasers, p. 110. 17 258 STATUTE OP FRAUDS. [CH. XII. while growing; the case, therefore, clearly means a sale in prospect of severance from the land. § 254. But it would seem that even those cases in which cultivated crops have been held capable of being sold without 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 and 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 seerns, therefore, that unless these crops are 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 Whit- marsh V. Walker, the defendant verbally agreed to sell to the plaintiff at a stipulated price two thousand mulberry-trees then growing in the defendant's close. The plaintiff paid a small ' See, in addition to the cases which have been examined in the text, that of Watts ». Friend, 10 Barn. & Ores. 446, where A. agreed to supply B. with a quantity of turnip-seed, and B. agreed to sell the crop of seed pro- duced therefrom 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." ' Earl of Falmouth v. Thomas, 1 Cro. & Mees. 89. In Mayfield v. Wadsley, 8 Barn. & Ores, 367, 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 paii of the land itself." " 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 land, for that would come from the land- lord." See farther, on this subject, Mochelen v. Wallace, 7 Adol. & Ell. 49 ; Vaughan v. Hancock, 3 C. B. 766 ; Foquet v. Moore, 7 W. H. & G. 870 ; Thayer v. Kock, 13 Wend. (N. Y.) 63. CH. XII.] CONTRACTS FOR LAND. 259 sum at the time, and was to pay the remainder on the delivery of the trees, which was to be on demand. The defendant re- fused 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 agreement ; the delivery was to be at a future day, and the defendant 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 de- mand, he at the same time paying the defendant the residue of the price. And it is immaterial whether the severance 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 not- withstanding the Statute of Frauds." ^ To the same effect is the subsequent case in the same court, Claflin v. Carpenter, which is the more noticeable as there the opinion of Treby, C. J., that growing timber might be sold without writing, is cited as a case and the leading case on this subject, and fully adopted, and the criticism of HuUock, B., upon it in Scorell v. Boxall distinctly disapproved.^ And this doctrine is adopted in Maine,^ if not in Connecticut,* and particularly in Maryland, where ia the case of Smith v. Bryan, the Court of Appeals said : " The principle to be gathered from a majority of the cases seems to be this, that where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it is to be severed from the soil by the vendor, or to be taken ' Whitmarsh «. Walker, 1 Met. 313, affirming Miller v. Baiter, 1 lb. 27.- 2 Claflin V. Carpenter, 4 Met. 580. ^ Safford v. Annis, 7 Maine, 168 ; Erskine v. Plummer, lb. 447 ; Cutler V. Pope, 13 lb. 377. * Bostwick ». Leach, 3 Day (Cdnn.), 476. 260 STATUTE OF FRAUDS. [CH. XII. by the vendee under a special license to enter for that purpose, it is still, in contemplation of the ^ parties, evidently and sub- stantially 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 diffi- culty of doing so consistently with admitted authorities, but exer- cising the discretion which was open to them, the question being a new one in that State, and in default of harmony in the de- cisions of other tribunals ; namely, to establish a doctrine for themselves on what they considered to be first principles.^ It has also been apparently approved in New Jersey.^ § 257. The Supreme Court of Vermont have lately had this subject under full consideration, and have pronounced in favor of the later English doctrine and that which is held in New York. The plaintiff 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 through 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 re- moved some of the trees, cut and removed the remainder, 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 ' Smith V. Bryan, 8 Maryland, 41. See, also, Harrell v. Miller, 35 Miss. 700. ^ Green v. Armstrong, 1 Denio, 550 ; Bank of Lansingburgh v. Crary, ] Barb. 542 ; Warren v. Leland, 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 neces- sarily in cultivating hops, which were taken down for the purpose of gather- ing the crop and piled in the yard with the intention of being replaced in the season of hop-raising, were a part of the real estate. Bishop v. Bishop, 1 Kernan, 123. . ' Westbrook v. Eager, 1 Harr. (N, J.) 81. CH. XII.] CONTBACTS FOR LAND. 261 the recent English cases setting up the distinction between the prima vestura and frudus industriales as decisive of the ques- tion 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 substan- tially based on title, and the title wholly dependent on the verbal 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 trespass being complained of as committed in respect of growing trees of the plaintiff." ^ In a case in the Supreme Court of New Hampshire,^ where the ac- tion 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 circumstances a sale of a growing crop, or of timber, was not within the statute, to which they cited, among other authorities, Smith v. Surnam and Evans v. Koberts, in both of which, as we have seen, the action was for breach of the con- tract, and the court sustained it because the sale contemplated the delivery of the growth as a chattel. We can hardly con- sider, therefore, 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 incorporated 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 concerning land, so as not to be capable of purchase and sale without a memorandum in writing, as required by the fourth section of the Statute of Frauds. The doctrine is stated • Buck ». Pickwell, 1 Williams, 167. " Putney v. Day, 6 N. H. 430. " Since the second edition of this Treatise the distinction between prima vestura and frudus industriales has been fully recognized in New Hampshire as the criterion of the application of the statute. Kingsley v. Holbrook, 45 N. H. 313. 262 STAT0TB OP FRAUDS. [CH. XII. with some confidence by Mr. Roberts, at least as applied to shares in canal navigations and all species of toUs.^ 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 testa- mentary disposition by a testator not qualified to devise real estate, notwithstanding their right of taking toll was limited to the reimbursement 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- 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.^ Tlie 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 tlieir joint-stock or partnership property, and their profits directly obtained from its use, he says : " The shareholder has only a right to receive the dividends on his share, that is, a right to his just propor- tion of the joint stock, consisting indeed partly of land, but whut-t he holds his share, he has no interest in, or right to, the laud or any part of it. He is indeed interested in the employ- ment 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 ' Roberts on Frauds, 126. ' Welles v. Cowles, 2 Conn. 567. ^ Townsend v. Ash, 3 Atk. 336 ; Drybutter v. Bartholomew, 2 P. Wms. 127. ■* Bligh V. Brent, 2 Yo. & Coll. 268. ' Watson V. Spratley, 10 Exch. 222. CH-. XII.J CONTRACTS FOB LAND. 263 one who has a direct interest in the land as a joint-tenant or tenant in common, who may make a part of it his 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 belong- ing 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 different 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 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 considered as now settled that shares in companies owning land are not neces- sarily themselves interests in land, whether tlie companies be incorporated or joint stock, or, whether they be for mining, rail- way, canal, banking, or any other purpose.^ § 259. Where land is owned by a partnership, eacli partner, of course, is entitled to his proper share in it. And here must be remarked an important exception (for so it seems we are forced to regard it) to the operation of the statute as it affects ' See Hilton v. Giraud, 1 De Gex & Sm. 183 ; Sparling v. Parker, 9 Beav. 450; Myers «. Perigal, 11 C. B. 90; Duncuft v. Albrecht, 12 Sim.. 189 ; Bradley v. 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 corpora- tion were personal property simply. Tippets v. Walker, 4 Mass. 595. But quaere, if the law in New York is not different from that stated in the text. Vaupell V. Woodward, 2 Sandf. Ch. 143. In England, the Court of Com- mon Pleas has recently acted upon the authority of Watson v. Spratley, though declining to commit themselves to its correctness. Powell v. Jessop, 36 Eng. Law & Eq. 274. 264 STATUTE OP FRAUDS. [CH. XII. interests in land. Where two men are found jointly occupy- ing 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 incident to that joint tenancy, upon the death of either the whole would go to the other by right of sur- vivorship. And naturally we should say that any agreement 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. As Lord-Chancellor Loughborough says in Forster v. Hale, a very valuable case on this point, " the partnership being estab- lished by evidence 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, iipon the death of the partners, distributable as personalty, and generally is to be for ordinary purposes regarded as stock in trade. ^ § 260, In Dale v. Hamilton, the latest and very important case on this subject, the question was presented in the English ' Forster v. Hale, 6 Ves. Jr. 308. « Thornton [Thompson] v. Dixon, 1 Bro. C. C. 199 ; Bell v. Phyn, 7 Ves. Jr. 463 6 ; Balmain v. Shore, 9 Ves. Jr. 500. Lord Eldon, as early as Crawshay v. Maule, 1. Swanst. 495, considered this an open question. = Per Lord Eldon, in Selkrigg «. Davies, 2 Dow, P. C. 236 ; Townsend ». 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 ; also 3 Kent, Com. § 37, Clagett v. Kilbourne, 1 Black (U. S.), 348. CH. XII.] CONTRACTS FOB LAND. 265 Chancery in a somewhat modified form. There the plaintiff, being a surveyor and land agent, alleged that he proposed to the defendant's testatpr an arrangement for the p\irpose 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 suflBcient 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 partnership grew solely out of that subject, and whether the cases in which that effect had been given to a partnership contract were not cases in which the dealing in land was only an incident to the partnership business. Vice-Chancellor Sir Lancelot Shadwell delivered a very elaborate and careful opinion, in which, while admitting t^e 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 also 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 ' Jeffreys v. Small, ,1 Verm. 217 ; Jackson v. Jackson, 9 Ves. Jr. 591 ; Lake v. Craddock, 3 P. Wms. 158; Elliott ». Brown, 3 Swanst. 489, n (another report of which is alluded to by Lord Eldon in Jackson v. Jackson, sttpra ) ; Forster v. Hale, 3 Ves. Jr. 696 ; s. c. 5 lb. 309 ; Fereday v. Wightwick, 1 Russ. & Myl. 49. 266 STATUTE OP FRAUDS. [CH. XII. 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 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 by which a court of equity transmutes real estate into personal property when it is once owned and possessed by a partnership, and independent 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 ' Dale V. Hamilton, 5 -Hare, Ch. 369. And see Smith v. Tarlton, 2 Barb. Ch. (N. Y.) 366 1 Fall River Whaling Co. v. Borden, 10 Cush. (Mass.) 474; contra, Gray «. Palmer, 9 Cal. 616. See^osi, § 262. CH. Xn.] CONTRACTS FOR LAND. 267 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 laud 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 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 tlie business of purchasing and selling lands and lumber in 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 was in virtue of this trust estate only that any right could attach to the moiety of the proceeds.^ § 263. 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 ' Black V. Black, 15 Georgia, 445. ' Bunnell v. Taintor, 4 Conn. 568 ; Linscott v. Mclntire, 15 Maine, 201 ; Hess V. Fox, 10 Wend. (N. Y.) 436 ; Trowbridge v. Wetherbee, 11 Allen (Mass.), 361 ; Gwaltney v. Wheeler, 26 (Ind.) 415 ; Bruce v. Hastings, 41 Vermont, 380. And see Clancy v. Craine, 2 Dev. Eq. (N. C.) 363. ' Smith V. Burnham, 3 Sumn. 460. * In Boyd v. Stone, 11 Mass. 846, 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. 268 STATUTE OP FRAUDS. [CH.^XII. contracts for tha sale of 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, is also within this section of the statute ; ^ and, as we shall see in the course of this chapter, the eflfect 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 be 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 : " Prom the public nature • Harder v. Harder, 2 Sandf. Ch. (N. Y.) 17 ; Mundorff u. Kilbourne, 4 Maryland, 469 ; Campbell v. Taul, 3 Yerg. (Tenn.) 548 ; Quackenbush v. Ehle, 5 Barb. (N. Y.) 469 ; Johnson v. Hubbell, 2 Stock. Ch. (N. J.) 332. ' King V. Hanna, 9 B. Mon. (Ky.) 369. It was, however, said obiter, in Trowbridge v. Wetherbee, 11 Allen (Mass.), 364, that an agreement to sell land to a third party was within the statute. It was also said obiter in Wetherbee e. Potter, 99 Mass. 354, that an agreement to join in a purchase of land, was within the statute. ' Chiles V. Woodson, 2 Bibb (Ky.), 72. • As was the case in Campbell v. Taul, supra. CH. XII.] CONTBACTS FOR LAND. 269 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 attempts were made to introduce evidence of what was said or done dur- ing the course of the sale." i And the cases show that there is no distinction in this respect between execution sales by sheriffs, and any other sales at auction.^ They have, it is true, been sometimes treated as judicial sales, but this in opposition to the general current of authority.* § 265. The distinction in favor 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 Lordsliip 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 criticised 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 fi. fa. 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 of the court. The decision of Lord Hardwicke was simply, that ' Blagden v. Bradbear, 12 Ves. Jr. 466. The rule is too familiar to re- quire the citation of authorities. They will be found collected in Chitty on Contracts, 271. * See preceding note. •* Tate V. Greenlee, 4 Dev. (N. C.) 149 ; Ingram v. Dowdle, 8 Ired. (N. C.) 455. * Attorney General «. Day, 1 Ves. Sen. 218. See, also, Blagden v. Brad- bear, SM/)ra ; Smith K. Arnold, 5 Mas. (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. (S. C.) 821. * Simonds v. Catlin, 2 Caines (N. Y.), 61 ; ante, § 28. 270 STATUTE OP FRAUDS. [CH.-Xn. after confirmation of the report, the parties were bound to carry but the sale, notwithstanding no memorandum of it had previously beeu made in writing. The grounds of this rule are well stated by Story, J., in the case of Smith v. Ar lold. " In sales directed by the Court of Chancery, the whole business is transacted by a public officer under the guidance and superin- 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 object to the reporf, 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 iu 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 witiiin the mischiefs supposed by the Statute of Frauds." ^ Sales by sheriffs on execution are not, as we have seen, to be regarded as judicial sales,^ nor sales by town ofiicers, nor by trustees, nor by administrators. The re- marks of Judge Story in the case from whicli we have just quoted, and where the point decided was that an administra- tor's sale of land was not saved from the statutes 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- ' Smith V. Arnold, 6 Mas. (C. C.) 420. See, also, Hutton v. Williams, 36 Ala. 603 ; Fulton v. Moore, 26Penn. State, 468 ; Halleck v. Guy, 9 Cal. 181. Armstrong v. Vroman, 11 Minn. 220; Watson's Adm'r v. Violett, 2 Duvall (Ky.), 332. ^ Ante, § 264, n. 2. Also, see Brent ». Green, 6 Leigh (Va.), 16. CH. XII.] CONTRACTS FOR LAND. 271 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 li- cense, or by the Court, of Probate having jurisdiction over the administration of the estate. So that the present case is not a judicial sale in any just sense, but it is 'the execution of a min- isterial 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 invalid.^ And so where it was attempted to prove that a deceased owner of land had said, during his life- time, that he had sold it to the plaintiff and that the proceeds belonged to him, the evidence was rejected, because it worked the same result as oral proof of an executory contract to sell the land.^ § 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 in- valid without writing,* but also an agreement to make a de- 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 effect.'^ It should seem to ' Smith V. Arnold, supra ; Wolfe v. Sharp, 10 Rich. (S. C.) 60. « Ledford v. Farrell, 12 Ired. (N. C.) 285 ; Trammell v. Trammell, 11 Rich. (S. C.) 471; Yates v. Martin, 1 Chand. (Wis.) 118. Lawrence v. Chase, 54 Maine, 196. So with the sale of a bond entitling the holder to the benefit of a mortgage of land. Toppin v. Lomas, 30 Eng. Law & Eq. 427. ' White V. Coombs, 27 Maryland, 489. • Clabaugh v. Byerly, 7 Gill (Md.), 345. 5 Boyd V. Stone, 11 Mass. 342. « Woods V. Wallace, 22 Penn. (10 Harr.) 171. ' Cox V. Peele, 2 Bro. C. C. 267. 272 STATUTE OF FRAUDS. [CH. XII. 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.^ An arrangement to extend the effect of a mortgage so as to cover other and farther liabilities is not good without writing.^ But a verbal exten- sion of the time for redeeming mortgaged land is, it seems, to be regarded as conferrihg no interest in the land.* Whether a mortgage can be verbally released or discharged, seems to depend upon the question (on which, as we have seen, there is great contrariety of opinion in the course of different States) whether it is to be regarded strictly as a conveyance of the land or a mere incident to the debt.^ § 268. An agreenleut to establish the title to land in any party is, of course, equivalent to an agreement to sell him the laud ; and it has accordingly been held that an engagement to brealc down a certain alleged title under which a third party claimed adversely, or in any way to perfect the title in the promisee, is within tlie 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 ' A different doctrine, however, might be inferred from the New York cases of Truscott v. King, 2 Seld. 147, and JMead v. York, lb. 449. ' Davis V. Parish, Litt. Sel. Gas. (Ky.) 153. ' Williams u. Hill, 19 How. (U. S.) 250 ; Stoddard v. Hart, 23 N. Y. 556 ; Curie V. Eddy, 24 Missouri, 117. Nor is an agreement to substitute certain other land for that which is described in a mortgage. Castro v. lilies, 13 Tex. 229. * Hamilton v. Terry, 11 C. B. 954; Griffin v. Coffey, 9 B. Mon. (Ky.) 452. ' Hunt V. Maynard, 6 Pick. (Mass.) 489; Parker v. Barker, 2 Met. (Mass.) 423 ; Malins v. Brown, 4 Comst. (N. Y.) 403 ; Phillips v. Leavitt, 54 Maine, 405 ; Leavitt v. Pratt, 63 Maine, 147 ; ante, § 65. As to a parol waiver ot a devise of land, see Doe d. Smyth v. Smyth, 6 Barn. & Cres. 112. As to a parol discharge of a contract for land, see post, % 429, et seq. ' Duvalljj. Peach, 1 Gill (Md.), 172; Bryan v. Jamieson, 7 Missouri, 106. See Bishop v. Little, 5 Greenl. (Me.) 366. ' Bliss V. Thompson, 4 Mass. 488. And it seems to have been considered by the Supreme Court of New York doubtful whether an agreement to pay off encumbrances was not also within the statute. Duncan v. Blair, 5 Denio, 196. CH. XII.] CONTRACTS FOR LAND. 273 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 agree- ment 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.^ Still less can the statute be con- sidered applicable to mere agreements to pay or account for the proceeds of sales of land.* § 269. It is undoubtedly the meaning of this branch of the statute that only those agreement 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 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.^ ' Jeakes v. White, 6 W., H. & G. 873. Huntington v. Wellington, 12 Mich. 10. ' See also Doggett v. Patterson, 18 Texas, 158 ; Evans v. Hardeman, 15 lb. 480 ; Natchez v. Vandervelde, 31 Miss. 706 ; Miller v. Roberts, 18 Texas, 16. ' Graves «. Graves, 45 N. H. 328 ; Ford v. Finney, 35 Geo. 258 ; Gwalt- ney v. Wheeler, 26 Ind. 415. * Ante, § 75. * Bostwick V. Leach, 3 Day (Conn.), 476; Leinau v. Smart, 11 Humph. (Tenn.) 308 ; Fleming v. Ramsey, 46 Penn. State, 252. But an agreement to open a street adjacent to the promisor's land, has been held to be within the statute ; Richter v. Irwin, 28 Ind. 26. « Preble v. Baldwin, 6 Gush. (Mass.) 549; Brackett u. Evans, 1 Gush. (Mass.) 79. A verbal substitution of appraisors of the value of land 18 274 STATUTE OP FRAUDS. [CH. XII. § 270. 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.^ § 271. 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 conveyance is to consist of labor or services of any kind, or, generally, of whatever the law would regard as a good consideration.* 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.) 611 ; Fuller v. County Commis- sioners of Plymouth, 15 Pick. (Mass.) 81. : Fitch ». Seymour, 9 Met. (Mass.) 462; Smith v. Goulding, 6 Cush. (Mass.) 164; Clement ». Durgin, 5 Greenl. (Me.) 14. ' 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 as affected by the statute ? It has been determined both ways in early Connecticut cases. Mott V. Hurd, 1 Ropt, 73 ; Bradley v. Blodgett, Kirby, 22. The former of these cases, however, was referred to as law by the Supreme Court of In- diana in Green v. Vardiman, 2 Blackf 324. See, also. Dyer v. Graves, 37 Verm. 369 ; and Metcalf ». Putnam, 9 Allen (Mass.), 100. An agree- ment 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. 606. See, also, Garrett v. Malone, 8 Rich . (S. C.) 335 ; Howe v. O'Malley, 1 Murphy (N. C), 287; Fraser w. Child, 4 E. D. Smith (N. Y.), 163. * Ante, § 76 ; Purcell v. Miner, 4 Wall. (Sup. Ct. U. S.) 613. * Burlingame o. Burlingame, 7 Cow. (N. Y.) 92 ; Jack v. McKee, 9 Barr (Pa.), 235 ; Helm v. Logan, 4 Bibb (Ky.), 78. CH. XIII.] AGREEMENTS HEQUIRING A YEAR, ETC. 275 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 under- standing. 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 cer- tain 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 per- formance 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 dura- tion.^ 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 understanding of the construction put upon it by the courts, more careful and exact discrimination than any other clause which we have had or will have to consider. ' 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. Tennell, 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 w. Dake, ISeld. 163, overruling Croswell u. Crane, 7 Barb, 191 ; also Taggard v. Rosevelt, 2 E. D. Smith (N. Y.), 100. See, also, Sobey v. Busbee, 20 Iowa, 105. 276 STATUTE OP FEAUDS. [CH. XIII. § 278. 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 be that the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which i? simply not expected to be performed, within the space of a year from the making ; but that it means to include any agreement which, fairly and .reasonably interpreted, does not admit of a valid execution within that time.^ § 274. 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- iment may he 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 which may occur within a year ; as, for instance, to pay money on the day of the promisor's marriage,^ to leave it by will (the promise of course taking ef- fect iu the event of the promisor's death) ,3 or that his executor shall pay it ; * to pay on the death of a third party ; ^ to pay when a sum of money is received by the promisor from a third ,person, which payment may be made within the year ; ^ to marry ' Post, § 279. " Peter v. Compton, Skin. 353. ' Fenton v. Emblers, 3 Burr. 1278 ; Izard v. Middleton, 1 Dessaus. Ch. (S. C.) 116. Bell V. Hewett's Ex., 24 Ind. 280. The case of Quackenbush D. Ehle, 6 Barb. (N. Y.) 469, so far as it must be taken to assert the contrary, is clearly opposed to prevailing authority. * Wells ». Horton, 4 Bing. 40. = Thompson v. Gordon, 3 Strobh. (S. C.) 196; King «. Hanna, 9 B. Mon. (Ky.) 369. « Artcher ». Zeh, 6 Hill (N. Y.), 200. CH. XIII.J AGREEMENTS REQUIRING A YEAR, ETC. 277 at the end of a Toyage, 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.^ § 276. Secondly. When the promise is to continue to do something until the contingency 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 ; ^ to pay during coverture.^ 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 fefrain altogether from cer- tain acts, are also held to be not within the operation of the statute ; such as an agreement not thereafter to engage in the staging or livery business in a certain town ; ^^ an agreement > Clark V. Pendleton, 20 Conn. 495. See post, § 280. = Blake v. Cole, 22 Pick. (Mass.) 97. ' Wilhelm v. Hardeman, 13 Maryland, 140 ; Hutchinson v. Hutchinson, 46 Maine, 154. See Tolley u. 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. * Gilbert v. Sykes, 16 East, 150; Burney v. Ball, 24 Georgia 605; Wiggins V. Keizer, 6 Ind. 262. * Howard v. Burgen, 4 Dana (Ky.), 137. And see Alderman v. Chester, .34 Geo. 163. " McLees v. Hale, 10 Wend. (N. Y.) 426. ' EUicott V. Turner, 4 Maryland, 476. * Peters v. Inhabitants of Westborough, 19 Pick. (Mass.) 366. See post, § 282 a. ' Houghton V. Houghton, 14 Ind. 606. i» White I'. Hanchett, 21 Wis. 415. " Lyon V. King, 11 Met. (Mass.) 411. See also Doyle v. Dixon, 97 Mass. 207; Worthy v. Jones, 11 Gray, 186. 278 STATUTE OF FRAUDS. [CH. XIII. not thereafter to practise medicine in a certain town ; ^ an agreement not thereafter to sell or aid in selling musical in- struments, except to certain parties.'^ In all such cases, the agreement is, from its nature, completely performed upon the death of the party promising. When the promise is, however, to perform certain positive duties for an indefinite time, which will bind the promisor's representatives, this rule may not apply.3 § 278. And so if, upon the happening of any contingency, the agreement, indefinite as to time, is to be regarded as substan- tially and reasonably performed, then the possibility of that contingency happening within the year will suffice to withdraw the agreement 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 plaintiff's cattle, by run- ning over them with railway cars, was that the plaintiff for a valuable consideration had verbally agreed to build and main- tain a fence along the railroad opposite his land, where his cat- tle escaped at the time of the injury. The Supreme Court decided the contract to be not within the statute, upon a some- what different ground.* But we should say that here the dura- tion of the promise was obviously limited (though no words said to that effect) by the duration of the circumstances of the ' Blanding v. Sargent, 33 N. H. 239. " Hill V. Jamieson, 16 Ind. 125. See also Richardson v. Price, 7 R. I. 330. ' Lyon V. King, supra. See post, § 281 a. * Talmadge v. Rensselaer & Saratoga R. R. 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 «. Long Island R. R. 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 create a negative easement in the property of the R. R. Co., a right which could not pass by parol, and so the case is ex- plained in Talmadge v. Rensselaer & Saratoga R. R. Co., supra. CH. XIII.J AGBEEMENTS REQUIRING A TEAR, ETC. 279 parties which led to the making of it. If the road should cease to be used by the promisee or its assigns for railway pur- poses, it is unreasonable to suppose that the fence was still to be maintained, the reason for maintaining it no longer exist- ing ; and this might well happen within the space of a year, consistently with the understanding and rights of the parties. § 278 a. An agreement, in general terms, to do a particular act, no time being specified, and the act being such as may be performed by the party promising, under the contract, within a year, is also saved from the operation of the statute, on the principles before stated.^ § 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 accident 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 embarrassment to the duties of courts in construing the statute, if 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 difierence at what time the contingeucy ' Adams v. Adams, 26 Ala. 272; Soggins e. Heard, 31 Miss. 426; Sug- gett V. Cason, 26 Missouri, 224. So it was held that an agreement to labor for a year was not within the statute ; for the plaintiff might tender his ser- vices immediately. Russell v. Slade, 12 Conn. 455. " 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. 280 STATUTE OP FRAUDS. [CH. XIII. was expected to occur ; ^ understanding by expectation, the judgment either party may have formed upon the probabilities 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 delivery, 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 applied.^ But in this case, or, at least, in many others which might easily be put, gestation m,ight be completed and the young weaned within the year, notwithstanding the ordinary course of nature would require some months longer. Or sup- pose the case of a contract to erect a certain building, which, ' Roberts v. Rockbottom Company, 7 Met. (Mass.) 46 ; Lockwood v. Barnes, 3 Hill (N. Y.), 128; Clarke. Pendleton, 20 Conn. 495; Randall V. Turner, 17 Ohio State, 262. The suggestion of a different doctrine by Redfield, J., in Hinckley v. Southgate, 11 Verm. 428, seems to stand quite unsupported. « Lockwood V. Barnes, 3 Hill (N. Y.), 128. CH. XIII.J AGREEMENTS EEQUIRING A TEAR, ETC. 281 in the ordinary course of business, 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 difiicult a point the suggestion cannot be made with much con- fidence) it is 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- posed to have intended to abide thereby, and the statute applies. § 281. Where one or either party has a right to put an end ' In Clark v. Pendleton, 20 Conn. 495, the declaration 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 expected, in consideration that the plaintiff had at his request promised to marry him when thereto requested after his return from said voyage, he, etc., undertook, etc., to marry her, etc., alleging defendant's return after about twenty months' absence, request to marry the plaintiff and refusal to do so. The Supreme 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 de- termination 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 parties, and the mental result of their private thoughts, constituted no part of the agreement itself, nor was it connected with it, so as to explain or give a construction 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." See post, §§ 283, 284. 282 STATUTE OP PBATIDS. [CH. XIII. to the contract within the year,^ or when a thing is agreed to be done within a certain number of years, the promisor having the liberty of doing it as soon as he pleases, with a reasonable possibility of doing it within one year,^ the statute obviously will not apply. Nor does it apply where the agreement may be performed within the year, although one of the parties have the right to supersede it afterwards and at a time not within the year.^ § 281 a. In many cases where the promise is to do a thing for, or at the end of, a period of time exceeding a year, the death of the party promising will render further performance of the promise impossible. But they have been held to be not, for that reason, taken out of the statute ; it is said that the per- formance of the contract is not completed, but defeated, upon the occurrence of the contingency.* If the question can be considered as an open one, it may be found to be very difficult to uphold these decisions. For, upon the death of the party promising, if the promise binds his representatives, the per- formance is not defeated or rendered impossible by the death, and if the promise does not bind the representatives, it really seems that it ought to be regarded as performed when the death occurs, although originally expressed as to run for a certain number of years. How can it matter that it was so expressed, if when the promisor dies all obligation ceases ? As to all the time after the time wheu he shall die, the promise ' Birch ». Liverpool, 9 Barn. & Ores. 892 ; Harris «. Porter, 2 Harr. (Del.) 27 ; Souch v. Strawbridge, 2 Man., Gr. & So. 808 ; Sherman «. Champlain Transportation Co., 31 Verm. 162 ; Trustees of First Bap- tist Church w. Brooklyn Fire Ins. Co., 19 N. Y. 305 ; Dobson v. Collis, 1 Hurl. & Norm. 81 ; Acraman, ex parte, 7 L. T. n. s. 84. " Plimpton B. Curtis, 15 Wend. (N. Y.) 336 ; Kent v. Kent, 18 Pick. (Mass.) 669 ; Artcher v. Zeh, 6 Hill (N. Y.), 200 ; Lapham v. Whipple, 8 Met. (Mass.) 59 ; Linscott v. Mclntire, 15 Maine, 201 ; Smith ». Westall, 1 Ld. Raym. 316 ; Saunders v. Kastenbine, 6 B. Men. (Ky.) 17. ' Bennett v. Matson, 41 Illinois, 332. * Shute ». Dorr, 6 Wend. (N. Y.) 204; Roberts «. Tucker, 3 Wels. H. & G. 632 ; Bracegirdle v. Heald, 1 Barn. & Aid. 722 ; Wilkinson v. Hardt, reported in " Boston Daily Advertiser, 28th Nov. 1861 ; " Hill v. Hooper, 1 Gray (Mass.), 131 ; Doyle v. Dixon, 97 Mass. 207. CH. XIII.] AGREEMENTS REQUIRING A TEAR, ETC. 283 is merely a promise in name. If the promise is one which does not bind the representatives, it is in substance a promise to do such and such a thing for such and such a term of years if the promisor lives, or, in other words, to do it for the prom- isor's life, not to exceed that term of years.^ § 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. An agreement, for instance, made in January of one year, to pay ' The view here taken (indicated in § 277, supra) is apparently in the mind of the court in Doyle v. Dixon, 97 Mass. 207. That was a case of an agreement not to engage in a certain business in a certain place for five years. The court held that it was not within the statute, because it was fully performed, if the promisor performed it as long as he lived. The case was doubtless rightly decided. There have been several cases (§ 277, supra), where agreements to refrain, indefinitely as to time, from doing this or that, have been held to be not within the statute. And the fact that in Doyle «. Dixon, the agreement was in terms to. refrain for a specified number of years, did not affect its character as regards the operation of the Statute of Frauds. But the opinion of the court proceeds to say : " An agreement to do a thing for a certain time [as contrasted with an agreement to refrain from doing it] may perhaps bind the promisor's representatives, and at any rate is not performed if he dies within that time." Now is it not performed if he dies within that time, unless it binds the promisor's representatives? The court refer to HiU v. Hooper, 1 Gray (Mass.), 131, as standing on this distinction between a promise to do, and a promise to refrain from doing, a certain thing for a certain number of years ; and it certainly appears to do so. In that case the plaintiffs agreed with the defendants that his son, then a minor between fifteen and six- teen years of age, should work with them in their business till he was twenty-one ; and the court held it to be within the statute. They do not refer to the case of Peters v. Westborough, 19 Pick. (Mass.) 365, where an agreement by the plaintiff to support a pauper (then eleven years old) till she was eighteen, in consideration of her services during the interval, was held to be not within the statute, on the ground that if she died within the first year, the contract would have been fully performed. (And the case of Wiggins V. Keizer, 6 Ind. 252, is to the same effect.) It is difficult to distinguish Hill v. Hooper at all from Peters v. Westborough, and the cases there cited ; and impossible to distinguish it from Doyle v. Dixon, except upon the point that Hill v. Hooper was an agreement to do, and Doyle v. Dixon an agreement not to do, a certain thing for a certain number of years. And this is not a substantial distinction, if in each case the represent- atives were not bound, but all obligation ceased at the death of the promisor. 284 STATUTE OP FRAUDS. [CH. XIII a sum of money in March of the next year, is not capable of exe- cution within the first year. A tender before the March specified 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-rigjit, that he would refund the price paid if the purchaser did not in three years realize the amount of the profits, is manifestly within the statute. The promisee might have realized the amount in less than a year whereby the prom- isor would have beeu discharged from his liability, but his promise would not take efiect, and he be liable to an action for the non-performance, until the expiration of the three years .^ So with a contract to deliver a crop of hemp raised the present year, and that of two succeeding years .^ So with a mort- gagee's promise, at the time of entering to foreclose, that if he shall sell the place he will pay the mortgagor all he receives beyond the mortgage debt ; as he cannot sell in less than three years the statute applies.* An agreement for the payment of money by instalments at less than a year each is not, from that circumstance, saved from the statute. In Hill v. Hooper, a re- cent case in Massachusetts, the Supreme Court held that it applied to an agreement to employ an infant for five years, pay- ing for his services certain sums semi-annually.^ Here the semi-annual payment was but a part-performance of an agree- ment to pay for five years. An agreement to pay a certain sum per annum is manifestly within the statute ; ^ but if it be shown that the payments were to be made in instalments at less than ' Lower v. Winters, 7 Cowen (N. Y.), 263. ' Lapham v. Whipple, 8 Met. (Mass.) 59. See also Curtis v. Sage, 35 Illinois, 22. But if tte agreement be to pay over money as soon as received, and it is not due for two years, but may be received in less than one, the statute applies. Curtis v. Sage, supra. ' HoUoway v. Hampton, 4 B. Men. (Ky.) 415. See, also, Tuttle v. Swett, 31 Maine, 555 ; Lawrence v. Woods, 4 Bosw. (N. Y.) 354. Bart- lett ». Wheeler, 44 Barb. (N. Y.) 162. ' Frary v. Sterling, 99 Mass. 461. * Hill V. Hooper, 1 Gray, 131 . And see post, § 285. « Griraud v. Richmond, 2 Man., Gr. & Sc. 835; Drummond v. Burrell, 13 Wend. (N. Y.) 307. CH. XIII.] AGREEMENTS REQUIRING A TEAR, ETC. 285 a year, and no term fixed during which they were to continue, the statute would not apply.' § 282 a. It need hardly be remarked that an oral agreement to put in writing a contract which will require more than a year to perform, is within the prohibition of the statute, and no action will lie for its non-performance.^ § 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 per- formed 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 such, 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 hav- ing duly laid them aside for him as they came out. The judges ' Moore V. Fox, 10 Johns. (N. Y.) 244, referred to and explained in Drummond 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. " Amburgeru. Marvin, 4 E. D. Smith (N. Y.), 393. And see § 177, supra. 286 STATUTE OP FRAUDS. [CH. XIII. were unanimous in holding that the statute applied to the de- fendant'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 probability, it could have been performed within that time, yet the whole work could not have been obtruded upon the subscribers at once so as to have entitled the publishers to demand payment of the whole subscription from them within the year." Grove, J., said that, considering the nature of the work and of the prospectus, it was " impossible to say that the parties contem- plated that tlie 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 contract itself and see what he was bound to do, and what, according to the terms of the contract, it was the understanding of the parties he should do. Was it the understanding and intention of the parties that the contract might be performed within one year? If not, the case is clearly with the defendant." ^ § 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 ' Boydell v. Drummond, 11 East, 142. See ante, §§ 279, 280. ' Herrin v. Butters, 20 Maine (2 App.), 119; Saunders v. Kastenbine, 6 B. Mon. (Ky.) 17; Peters ti. Inhabitants of Westborough, 19 Pick. (Mass.) 365; Linscott v. Mclntire, 3 Shep. (15 Maine), 201; Hinkley «. Southgate, 11 Verm. 428. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 287 the statute. One thing is well settled and admitted in all cases ; that the contract must be capable of entire and com- plete 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 Common 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 re- duced 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 contract may be performed within the year, an action may be sustained for a breach of those items, thus severing what the contract made continuous.^ § 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-per- formance of the other stipulations. The first intimation of this doctrine 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 ' Mayor v. Pyne, 3 Bing. 285. See ante, § 282, in regard to cases where a sum of money is agreed to be paid in less than annual instalments. ' Boydell v. Drummond, 11 East, 142 ; Holloway v. Hampton, 4 B. Mon. (Ky.) 415. 288 STATUTE OP FRAUDS. [CH. XIII. out of the Statute of Frauds by part execution, and compared it to selling and delivering goods, on thirteen months' credit, without writing, in which case, if no evidence could be given of the terms of payment, as part of the contract, the vendor would not be bound by the stipulated price, and the jury could only give a verdict for the value of the^goods ; but Lord El- lenborough said that there the delivery of the goods would be a complete execution on one part within the year, and the question of consideration only would be reserved for the future. Noth- ing 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 Donnellan v. Read, in the Queen's Bench, in 1832. There a landlord, who had demised premises for a term of years at £50 a year, agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant agi-eeing to pay an increased rent of £5 a year during the re- mainder of the term (fifteen years). It was held that the land- lord 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 performed within the year, we think that as the contract was entirely executed on one side within the year, and as it was the intention of the parties founded on a reasonable ex- pectation that it should be so, the Statute of Frauds does not extend to such a case. In case of a parol sale of goods, it ' Boydell v. Drummond, 11 East, 142. " Bracegirdle v. Heald, 1 Barn. & Aid. 727. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 289 often happens that they are not to be paid for in full till after the expiration 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." 1 § 288. In Sweet v. Lee, in the Court of Exchequer, 1841, the plaintiff, a publisher, sued the defendant upon an agree- ment to prepare a law book for publication, in consideration of which the defendant was by the agreement to have received £80 per annum for five years, and £60 per annum for the re- mainder of his life. It was held that he could not recover, as the only written memorandum between the parties was insuffi- cient, 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, say- ing, 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 years later, where an action was brought for board, lodging, etc., supplied by the plaintiff to a child at the request of the defendant, Tiudal, C. J., remarked that the action was brought for an executed consideration, and the Statute of Frauds did not apply; that it meant only that no action should be brought to recover dam- ages 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 plaintiff 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 difiiculty in saying that the plaintiff might rely on an > Donellan v. Kead, 3 Barn. & Adol. 899. " Sweet V. Lee, 3 Man. & Gr. 462 ; 4 Scott, N. R. 77. 19 290 STATUTE OP FRAUDS. [CH. XHI. 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 consid- ered as settled in England. In a late case upon this subject, however. Cherry v. Hemming, in the Codrt of Exchequer, 1849, that decision was distinctly approved by several of the barons. But there it was held Jthat the memorandum pro- duced 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 V. 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 been 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 was on one occasion apparently admitted to be law, but no judgment was passed or re- quired to be passed upon it; and it has recently been dis- tinctly rejected.* The Southern and Western courts have also generally approved it.^ In New York, on the other hand, the ' Souch V. Strawbridge, Man., Gr. & Sc. 808. ' Cherry v. Hemming, 4 Wels., Hurl. & Gord. 631. And the same in Smith V. Neale, since decided in the Common Pleas, 2 C. B. 67. ' Holbrook v. Armstrong, 10 Maine (1 Fairf.), 31. • Cabot V. Haskins, 3 Pick. (Mass.) 83. Frary v. Sterling, 99 (Mass.) 461. ' Ellicott V. Turner, 4 Maryland, 476 ; Hardesty v. Jones, 10 Gill & Johns. (Md.) 404; Johnson u. Watson, 1 Georgia, 348; Rake v. Pope, 7 Ala. 161; Bates v. Moore, 2 Bailey (S.C), 614; Gully «. Grubbs, 1 J. J. Marsh. (Ky.) 387 ; Holloway v. Hampton, 4 B. Mon. (Ky.) 415 ; Blanton V. Knox, 3 Missouri, 241 ; Suggett v. Cason, 26 lb. 221 ; Miller v. Roberts, 18 Texas, 16 ; Compton v. Martin, 5 Rich. (S. C.) 14 ; Haugh v. Blythe, 20 Ind. 24 ; Curtis v. Sage, 35 111. 22. CH, XIII.] AGREEMENTS REQUIRING A TEAR, ETC. 291 Supreme Court have expressed very strong dissatisfactiou with it, and with great force of reasoning.^ ' Broadwell v. Getman, 2 Denio, 87, the criticism upon which in Tal- ntadge v. Rensselaer & Saratoga R. R. Co., 13 Barb. (N. Y.) 493, seems to be quite unnecessary, the latter case being rightly decided upon another pomt. (^Ante, § 278.) See, also, Bartlett v. Wheeler, 44 Barb. (N. Y.) 162. The Supreme Court of Vermont, in a case decided in 1855, but not pub- lished till after the first edition of this treatise was in print, have come to a conclusion directly opposite to the views expressed in Donellan v. Read, and upon precisidy the grounds upon which Donellan v. Read is criticised in the text. The respectability of the tribunal, and the marked ability of the opinion of the court, delivered by Chief- Justice Redfield, justify, upon a point so important, the transcription here of the entire opinion, in which the facts sufiBciently appear, and which was as follows : — " This is an action of assumpsit upon a promise to pay the plaintiflF the money paid out, and interest, if he would subscribe for fifty shares in the stock' of the Vermont Central Railroad Company, and pay the amount of them, as the assessments fell due, which was within one year, if after one year, the plaintiff should elect not to keep them, but to transfer them to the defendant. And if the plaintiff did then elect to keep them, and they were above par, he was to pay the defendant half the advance. It is claimed, on the part of the defendant, that this is a contract within the Statute of Frauds, as not to be performed within the year from its date, and not being in writing. " And it is replied to this, that, as it was to be performed, upon one side, within the year, that takes it out of the operation of this portion of the statute, and the case of Donellan v. Read, 3 Bam. & Adol. 889, 23 Eng. C. Law, 215, is relied upon. There can be no doubt such a doctrine is declared in this case ; but it is severely questioned by Smith, in his Leading Cases, vol. 1, p. 145, et seq. ; and in the American note it is said, that it has been generally held, in this country, ' that it (the statute) ap- plies in all cases where the obligation or duty sought to be enforced, could- not have been fulfilled within the year, and that an oral promise for the payment of money, or performance of any other act, at a greater distance of time than one year, is consequently invalid, whether made upon an ex- ecuted or executory consideration,' citing Cabot v. Haskins, 3 Pick. 83; Lockwood «. Barnes, 3 Hill, 128; Boardwellu. Getman, 2 Denio, 87. " And the chief difference between the case of Donellan v. Read and the other cases is, that in the former case it is laid down that if one party is to perform and does perform all of his part of the contract, that takes the case out of the statute ; and in the American cases cited, and in one late English case, Souch v. Strawbridge, 2 C. B. 808, by Tindall, C. J., it is said that to entitle the party to recover on his part-performance within the year, when the other party was not bound to perform within the year, it must appear that the performance, on the part of the plaintiff, 292 STATUTE OP FRAUDS. [CH. XIII. § 290. It may well be doubted, indeed, whether this doctrine would ever have been accepted in England, if the question had was accepted on the other side, or that it went to the benefit of the other side. And just here, it seems to us, comes the proper distinction. " If the contract has been performed on one side, in such a manner that the performance goes to the benefit of the other party, whether this was done within the year or not, it undoubtedly lays the foundation of a recovery against the party benefited by such performance. But when the contract, on the part of this party, was not to be performed within one year from the time it was made, the recovery is not upon the contract, but upon the quantum, meruit, or valebat, or upon money counts. It is a recovery back of the consideration of a contract upon which no action will lie, and which has been repudiated by the other party. " And in the present case, if the plaintiff could be treated as the mere agent of the defendant, in making this subscription and payment of money, and the stock as being the defendant's stock, standing in the name of the plaintiff, there would certainly be no difficulty in the plaintiff recovering the money and interest. And this is the view taken of the, plaintiff's case by the learned counsel on his behalf, and it is the only ground upon which, it seems to us, the action can be maintained, consistently with a fair and reasonable construction of the statute. For the statute is explicit, that no action shall be maintained upon any agreement not to be performed within a year. It is that portion of the agreement, or the contract sued upon, which comes within the statute, by not being to be performed within the year, and not that portion of the agreement which constitutes the consider- ation of the promise sued upon. It will make no difference in regard to recovering the price of the consideration, whether it is paid down, or paid within the year, or after the expiration of the year ; or whether it is agreed to be paid at one time or another. If it has been paid, so as to go for the benefit of the other party, at any time, and he does not perform the con- tract on his part, a recovery may be had, but not upon the special contract, if not to be performed in the year, but for the consideration paid or per- formed by the plaintiff, and which came to the use of the defendants, and this recovery may be had upon the common counts, ordinarily, it is pre- sumed. See note to 3 Pick. 95, by Judge Perkins, citing Lane v. Shack- ford, 5 N. H. 133 ; 1 Fairfield, 31, and 1 Pick. 328 ; 3 Wen. 219, and other cases. " But to say that this takes the whole agreement out of the operation of the statute, is virtually disregarding both its terms and all the beneficial objects of its adoption. It is the contract sued upon, which, by its being of older date than one year, exposes to the evils of fraud and perjury. And these evils are none the less because the consideration has been performed within the year. The consideration may be a pepper-corn or a thousand dollars ; it may be money, labor, goods, or a counter-promise, and it may be executed or executory, and the danger of fraud or perjury is CH. XIII.] AGREEMENTS RBQDIKING A YEAR, ETC. 293 not uniformly arisen on cases where the stipulation sought to be enforced related solely to the payment of the money consid- materially increased or diminished. The danger of fraud and perjury is chiefly connected with the proof of that portion of the contract sued, and if that is not to be performed within the year, in our judgment, no action can be sustained upon the contract or agreement, consistently with a fair interpretation of the statute ; and this, we think, is the only consistent result of the decided cases upon this point. " The case Of Donellan v. Read was where improvements upon premises in the occupancy of a tenant had been made at his request, upon a contract to pay an increased rent during the remainder of his term, which was more than one year. He enjoyed the benefit and use of the improvement, and declined to pay for them. The court held the contract not within the stat- ute. This was immaterial to the recovery. The defendant had received the benefit of the improvements, and had agreed to pay £5 for the use annually. This contract was not binding, or could not be sued specially, but a recovery could be had for the use, and that is all this case decides ; the declaration containing the count for use and occupation, and the money counts. It is like the case of a contract to demise premises for five years, without writing. No action can be maintained upon the contract. But if the defendant occupy the premises, a recovery may be had for the use and occupation, and the agreed rent may be adopted as the probable value of use. So the argu- ment of Littledale, J., in this case, which seems to have been regarded by him as quite conclusive, is nothing more than saying, if one party, after having received goods or money on a contract, repudiates the contract, he must answer for the goods or money. It is said that this case has been re- affirmed in a late case in the Exchequer, Cherry v. Hemming, 4 Exch. 631. But as it does not go further than Donellan v. Read, it requires no further answer ; it is,' indeed, far more questionable than Donellan v. Read. And Holbrook v. Armstrong, 1 Fairfield, 31, which is sometimes referred to upon this point, as confirming the case of Donnellan v. Read, is only a recovery for money or goods which came to the defendant's use. " We must then fall back upon the ground quoted from Mr. Wallace's note, and the cases referred to, that no recovery can be had if the contract sued upon was not in writing and not to be performed within one year. And no recovery can be had upon the consideration unless it has come to defendant's use. " To apply this to the present case, no question is made that the defend- ant's portion of the contract was not to be performed within the year, inas- much as one full year was to expire before the plaintiff made his election whether to transfer the stock to the defendant or not, and this was to deter- mine the defendant's obligation. If the plaintiff elected to keep it, he could ; and the profits, for that term, were to be divided. If he elected to transfer, the defendant was to pay him the money he paid out, and interest, and the profits to be divided between them, the defendant to pay, half the advance in 294 STATUTE OP FRAUDS. [CH. XIII. eration. In such cases it is a mere point of form in bringing the action, the plaintiff's right to recover on the indebitatus as- price ; so that clearly the defendant could not know the nature of his obliga- tion till after the year had expired. This is the plaintiff's own version of the facts. The witness Warner finally said he thought the defendant guar- anteed the stock to be good at the end of the year, or that he would then take it and pay the cost and interest, and half the advance in price, if any. But all the testimony gives one full year before the defendant's obligation attached ; if it could be performed within the year. " Upon the point whether the payment of the money came to the defend- ant's use, so that it may be recovered back, it seems very clear to us it did not. The plaintiff himself says that he had an election to keep the stock himself, at the end of the year. The stock was not then to become the defendant's till the end of the year, and there is no pretence it ever did become his, so as to vest any title or use in him, unless a proxy maybe so regarded, and we think this is no use for which any recovery can be had. " In looking in the cases, the leading case of Peter v. Compton is a full authority to show that it makes no difference as to the binding force of a contract, not to be performed within the year, that is performed within the year on one side. In that case the consideration was paid down. And this case is not questioned, except that incidentally it is said to be limited by Donellan v. Bead. But Ch. J. Tindall puts this upon the true ground, in Souch u. Strawbridge, 2 C. B. 808, that there may always be a recovery when there has been full performance on one side, accepted, or which comes to the use of the other. But in the present case nothing came to the de- fendant's use. So, too, in Broadwell v. Getman, 2 Denio, 87, Beardsley, J., fully maintains that if the portion of the contract sutd was not to have been performed within the year, no action can be maintained upon the con- tract, and that to hold the contrary is virtually to disregard the statute. The same is expressly decided in Lapham v. Whipple, 8 Metcalf, 59. Wilde, J., says : ' To support the action, the plaintiff must prove the con- tract, and the object of this part of the statute was to prevent the proof of verbal agreements, when from the lapse of time, the witness might not rec- ollect the precise terms of the agreement.' And in Lockwood v. Barnes, 3 Hill, 131, it is said, and it has been so held by this court, .that a recovery may always be had for performance, or a part-performance, on one side, of a contract, within this or any other section of the Statute of Frauds, if repudiated by the other party. But the payment or performance of the consideration of an agreement of or contract within any section of the Stat- ute of Frauds, never takes it out of the statute; if it were so, no contract upon an executed consideration would come within the statute. But in all cases of contracts within the statute, where the promisee has done some- thing towards the performance of the contract on his part, and the other party declines to perform on his part, a recovery of what is thus done may always be had, and this is all that the performance of such contract on one CH. XIII.] AGREEMENT* REQUIRING A TEAR, ETC. 295 sumpsit (which count is uniformly found to have been inserted in the declaration) being clear.^ • It never has been held in Eng- land that an agreement to do some act after the expiration of a year, in consideration of a payment of money made presently, was binding without writing. And the decision in Peter v. Compton, that an agreement, for one guinea paid down, to pay so many on the day of the defendant's marriage, requires a writing, 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 ap- pears to be furnished why the mere circumstance that the counter stipulation 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 the party repudiating the partially executed contract.* And it is difficult to see why an entire execution by one party of his part of the agreement shall be sufficient to do what is not done by his execution of however large a pro- portion of that part. Moreover, it is proper to observe, that if the English cases which hold that the memorandum of the agree- ment must show the consideration, because the word agreement embraces the stipulations of both sides, are right, those Eng- lish cases can hardly be right which hold that the same word, side will avail at law, and this only when such performance on one side enures to the benefit of the other side." Judgment reversed and case re- manded. Pierce v. Paine's Estate, 28 Verm. 34. See, also, the remarks of the court upon Donellan v. Read, in Wilson v. Ray, 13 Indiana, 1. In New Hampshire, also, the doctrine of Donellan v. Read has been rejected. See Emery ». Smith, 46 N. H. 151. ' Bartlett v. Wheeler, 44 Barb. (N. Y.) 162 ; Emery v. Smith, 46 N. H. 161. ^ Peter v. Compton, Skin. 353. ' Cabot V. Haskins, 3 Pick. (Mass.) 88, Parker, C. J. And see cases referred to in §§ 275, 276. * Post, Chapter XIX. 296 STATUTE OF FRAUDS. [CH. XIII. in the clause just preceding, may embrace only the stipulations of one side.^ § 290 a. But suppose that what the defendant verbally agreed to do, was to be done within the year ; and that what the •plain- tiff, in consideration thereof, verbally agreed to do, was to be done after the expiration of the year ; can the plaintiff main- tain his action for damages for the breach of the defendant's agreement, notwithstanding the statute ? It has been recently decided by the Supreme Court of Vermont that he could ; as- suming the contract to be such that the defendant's breach put an end to it altogether. The case was that the defendant agreed to furnish to the plaintiff a cow at a certain tinje within a month, and allow him the use of the cow for a year from that time ; in consideration whereof the plaintiff agreed, at the end of the year, to buy the cow or pay for the past use of her. The defendant failed to furnish the cow, and the plaintiff sued for damages, and the judgment in his favor was affirmed. The court said, '• The plaintiff had done that by way of adequate consideration which, independently of the statute, would have rendered the undertaking of the defendant valid and enforcible against him. Only that which was undertaken by the defend- ant was to be done within a year. That undertaking is here sued upon. His br^ch of it at once perfected his liability, and the plaintiff's right of action. Looking to the reason of the law, under the statute, this case stands for the same considera- tion as any case in which the cause of action should arise from the breach of an agreement that had no relation to the Statute of Frauds. Upon the occurring of such breach, the right of action would be perfected ; but the party would be at liberty to delay bringing his suit to the last hour allowed by the Statute of Limitations without affecting the right to maintain the ac- tion. The purpose of the Statute of Frauds is to provide for a class of cases in which there can not be an actionable breach within the specified time. That class embraces only agreements that are not to be performed within a year. Such agreements ' Post, §.386, elseq^. CH. XIII.] AGREEMENTS REQUIRING A YEAR, ETC. 297 as may be wholly broken within the year, and thereby give a cause of action for such complete breach, do not fall within either the letter or the reason of the statute. The present case shows the matter in a strong light. The failure of the defend- ant to furnish the cow or the money, as he agreed to do, made an end of the whole arrangement, and left nothing further, either in act or time, to be done by either party toward the per- formance of the agreements on either side. The plaintiff there- upon ceased to have any thing thereafter to do as matter of obligation to the defendant. The defendant had notliing to do but to pay the damage caused by his breach of agreement, and that breach constituted a perfected cause and right of action in the plaintiff. This being so, the reason of the lajv under the statute no more had application and force than it would have had if the time for the performance of the agreement on both sides had been limited to a period short of a year from the making thereof, and the defendant had committed the same breach that he did in this case. It is proper further to remark that in all cases where the agreement has been held to be within the statute, the action was for thi breach of that side of the contract that was not to be performed within the year." ^ § 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 per- formance of the agreement exceeds a year never so little, the statute applies ; for, in the language of Lord Ellenborough, " 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." 2 ' Sheehy u. Adarene, 41 Verm. 541. ^ Bracegirdle v. Heald, 1 Barn. & Aid. 722. And see Nones v. Homer, 2 Hilton (N. Y.), 116 ; Kelly v. Terrell, 26 Georgia, 651 ; Snelling v. Hunt- ingfield, 1 C, M. & R. 20; Shipley*. Patton, 21 Ind. 169. 298 STATUTE OP PEAUDS. [CH. XIV. CHAPTER XIV. SALES OP GOODS, ETC. § 292. The form of the seventeenth section itself suggests a method which will probably 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 oontracts for the sale of goods, etc. 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,^ but it is now settled beyond dispute that it does, and that " Simon V. Metivier, 1 W. Bl. (2d edition) 599 ; Hinde v. WMtehouse, 7 East, 658. CH. XIV.] SALES OP GOODS, ETC. 299 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, etc., 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 explicit, 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 plaintifiF sold a mare to the defendant for £20, with the understanding that if she should prove to be in foal he might have her back again on paying £12, and the mare was delivered to the de- fendant, and afterwards, when she proved to be in foal, the plaintiff tendered the £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 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 ' Sugden on Vend. & Purch. Ch. V. § 6 ; 2 Kent, Com. 540 ; Chitty on Contracts, 272, and cases cited by those authors. » Rondeau v. Wyatt, 2 H. Bl. 68 ; s. c. 3 Bro. Ch. 154 ; Alexander ». Comber, 1 H. Bl. 20 ; Towers v. Osborne, 1 Stra. 506 ; Clayton v. Andrews, 4 Burr. 2101. ' Cooper V. Elston, 7 T. R. 14; Acker v. Campbell, 23 Wend. (N. Y.) 372; Bennett u. Hull, 10 Johns. (N. Y.) 364; Ide v. Stanton, 15 Verm. 690 ; Carman ». Susick, 3 Green (N. J.), 252 ; Newman v. Morris, 4 Harr. & McH. (Md.) 421. ♦ &%epost, § 299-309. * Allen V. Bennett, 3 Taunt. 169. 300 STATUTE OP PBAUDS. [CH. XIV. been taken out of the statute by the delivery of the mare.^ But it may be necessary to distinguish between such a 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 different price, although made contemporaneously with the original sale. It must de-, pend, it seems, upon whether the latter is a complete transac- tion of itself, and, in some degree, upon the language used by the parties. Where a partner upon the formation of the part- nership, sold and delivered a quantity of goods to the firm, soon after which the partnership was dissolved, and it was agreed that his claim. for the goods should be cancelled by his taking them back, but there was no written memorandum on the sub- ject and no act of acceptance ; upon a bill in equity brought by the partner who had sold the goods, alleging the sale and dissolution, and praying for a decree that the other partners should pay their share of the price of the goods, it was held that the arrangement by which the goods were to be taken back was not to be considered as properly a resale of them, or as an independent transaction, but as a mutual rescission of the orig- inal . contract of sale, and therefore the transaction was valid without a written memorandum or act of acceptance, especially against the petitioner, who had alleged the dissolution, which was not in writing, and of which the agreement for the taking back the goods was part.^ § 294. Whether a mortgage of goods, wares, and merchan- dise is within the scope of the Statute of Frauds is, appar- ently, 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 payment and the vendee the goods purchased. But the mort- . • Williams v. Burgess, 10 Adol. & Ell. 499. The case was likened by Littledale, .J., to a delivery on trial; but it must be observed that the stipu- lation was to return, not to receive back, and was made in favor of the ven- dor, not of the vendee. " Dickinson v. Dickinson, 29 Conn. 600. CH. XIT.] SALES OF GOODS, ETC. 301 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 delivery is expected, we are not prepared to say that it comes within the statute." 1 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 mortagee of personal property may, and as a general rule OM^Ai, to take possession. Such a mortgage is simply a con- 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 one ; for that a defeasible sale 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. § 294 a. An agreement between two parties to be partners in a sale of goods, has been held to be not within the statute.^ § 295. In the next place, we have 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 ' Gleason v. Drew, 9 Greenl. (Me.) 79, where A. took fromB. a chattel mortgage, which was not recorded, and B. sold the mortgaged property to C. and took his note lor the price, and C. and A. then agreed orally that if A. would take up C's note and return it to him, C. would deliver the prop- erty to A., and A. took up the note and tendered it to C, who relused to deliver the property, it was held, on suit by A. against C. for the value of the property, that the agreement between A. and U. was not a contract of sale, but an agreement by C to waive his claim and allow A.'s mortgage to take effect; and was not within the statute of Irauds. Clark v. Dutfey, 24 Ind. 271. ' Buckner v. Kies, 34 Missouri, 367. 302 STATUa?B OF FRAUDS. [CH. XIV. 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. § 296. The most difficult class of cases under this head has grown out of contracts for the sale of shares or stocks, notes, checks, bonds, and generally evidences of value as distin- guished from palpable personal property having an intrinsic value. In the early case of Pickering v. Appleby, the question was submitted, as appears by Comyn's report, to all the judges of England, whether a contract for the purchase of shares in the stock of a copper company was affected by the seventeenth section of the statute, and they were divided in opinion.^ Sub- sequently Lord-Chancellor King, in Qolt v. Netterville, upon the ground of that division, declined to take the responsibility of deciding the point.^ But within comparatively a few years, and notwithstanding the intervention of several cases in which a disposition was shown to hold otherwise,^ 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 Den- man 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. ' Pickering v. Appleby, 1 Com. 354. ' Colt V. Netterville, 2 P. Wms. 304. 3 MusseU V. Cooke, Prec. Ch. 533 ; Crull v. Dodson, Sel. Cas. Ch. 41. " Duncuft V. Albrecht, 12 Sim. 189, affirmed by the Chancellor ; Humble V. Mitchell, 11 Adol. & EU. 205 ; s. c. 3 Per. & Dav. 141 ; Hesseltine v. Sig- gers, 1 Wels., Hurl. & Gord. 856 ; Tempest v. Kilner, 3 Mann., Gr. & So. 249; Bowlby v. Bell, lb. 284; Bradley v. Holdaworth, 3 Mees. & Wels. 422; Watson v. Spratley, 10 Exch. 222. See Pawle v. Gunn, 4 Bing. N. R. 446. CH. XIV.] SALES OP GOODS, ETC. 803 § 296 a. The Supreme Court of Massachusetts have taken a different view of .the question. In Tisdale v. Harris, they decided that shares in a manufacturing corporation were to be deemed included by the words, " goods, wares, and merchan- dise." The opinion of the court, delivered by Shaw, C. J., places the decision on two grounds, first, that by correct legal definition " goods " and " merchandise " were both sufficiently 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 re- strictions designed by the statute to prevent frauds in the sale of other commodities. On the contrary, these companies 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 extending the pro- vision of the statute to them." He does not consider the cir- cumstance that shares cannot be 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, etc., 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 general prohibition. The provision extends to a great variety of objects, and the ex- ception 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 con- curred.2 § 297. It has subsequently been still farther extended in ' Tisdale v. Harris, 20 Pick. (Mass.) 13. ' North V. Forest, 15 Conn. 404. An early case in Maryland, also, seems to be fo the same effect. Calvin v. Williams, 3 Harr. & Johns. 38. 304 STATUTE OP FRAUDS. [CH. XIV. 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 promissory notes ; applying the defi- nition merx est quicquid vendi potest.^ § 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 iu the statute be taken abstractly or in connection with the context. Of the word " merchandise," Judge Story says, " it is usually if not universally limited to things that are ordinarily hon^t and sold, or are ordinarily the subjects of commerce or traffic. The fact that a thing is some- times 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 defini- tion 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 ' Baldwin v. Williams, 3 Met. (Mass.) 367. The learned judge refers, in support of this judgment, to two prior decisions of the same court. Mills V. Gore, 20 Pick. 28, and Clapp v. Shephard, 23 Pick. 228, to the effect that a bill in equity might be maintained to compel the redelivery of a deed and note of hand on the provision in the Massachusetts Revised Statutes (c. 81, § 8)> g'viig tlie court jurisdiction in all suits to coflipel the redelivery of any goods or chattels whatsoever taken and detained from the owner thereof and secreted or withheld 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 repre- sented 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 (Riggs «. Ma^ruder), to the elfect 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. * Clark V. Burnham, 2 Story, 16. And see Sewall v. Allen, 6 Wend. (N. y.) 335. CH. XIV.] SALES OP GOODS, ETC. 305 be embraced by it. Moreovei', it appears by the reports of those cases in which first the collected judges of England, and after- wards Lord-Chancellor King, failed to determine the applicar tion of the statute to sales of shares, that in both the same definition was urged by counsel. 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 seven- teenth section, " In the civil law it is a term that embraces all things over which a man may exercise private dominion, di- vided into goods movable and immovable. 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 meaning of the word goods to such personal property, other than wares or merchandise, as is usu- ally transferred by sale and delivery." ^ This view, which, as we have seen, nearly corresponds to that taken hj 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 in- tended by the statute must be such as are capable of acceptance and receipt by the purchaser, it is true that there are many cases ^ in which sales of articles not in existence at the time of ' Beers v. Crowell, Dudley, 28. " In Florida, the expression used to describe the subject-matter of the seventeenth section is "personal property," which has of course been held to include shares. So Life Ins. & Trust Co. v. Cole, 4 Flor. 360. In New York, choses in action are expressly specified as requiring a writing for their sale, and the following cases may be referred to as illustrative of that enact- ment. Allen V. Aguirre, 3 Seld. 543 ; s. c. 10 Barb. 74 ; People v. Beebe, 1 Barb. 379 ; Thompson v. Alger, 12 Met. (Mass.) 436, which arose on the New York statute. 3 deepest, §§ 299-309. 20 306 STATUTE OF FRAUDS. [CH. XIV. 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 re- ceived 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, etc., may become in the course of commercial development so much the subject of ordinary traffic, that the construction of the statute must be expanded so as to make it reach them, as being one kind of merchandise.^ And there is another and rapidly en- larging class of traijisactions to which it may be a very impor- tant 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 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. § 299. 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. > Gadsden v. Lance, 1 M'MuU. Eq. (S. C.) 87. Since the publication of the first edition of this treatise, it has been decided in Maine that sales of promissory notes were within the statute, and in New Hampshire that they were not. The Supreme Court of Alabama seem to hold the former opinion. Gooch V. Holmes, 41 Maine, 523 ; Whittemore v. Gibbs, 4 Fost. (N. H.) 484 ; Hudson v. Weir, 292 Ala. 294. ' Chanter v. Dickinson, 5 Mann. & Gra. 263. CH. XIV.] SALES OP GOODS, ETC. 307 § 300. In Clayton v. Andrews, a case early decided in the Queen's Bench, the defendant agreed verbally to deliver to the plaintiff 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 unfit 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 immedi- ately.^ 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 labor are required to be performed upon the article sold, in 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 pres- ently made, is not a tenable doctrine. § 301. 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 ; ' Towers v. Osborne, 1 Stra. 506. " Clayton v. Andrews, 4 Burr. 2101. 308 STATUTE OP FRAUDS. [CH. XIV. namely, the distinction which regards the condition of the article at the time of the bargain. It will be perceived that Towers v. Osborne 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 in rerum naturd ; it was incapable of delivery and part acceptance ; and when that was the case the contract had been considered as not within the statute.' § 302. In the late New York cases, this distinction be- tween 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 labor, 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 matter of great nicety whether the labor to be applied to the article really amounts to constructing it or only to preparing it ; as, for in- stance, where articles are kept on hand by manufacturers, in ' Groves V. Buck, 3 Maule & S. 178. 2 Downs V. Ross, 23 Wend. 270 ; Sewall u. Fitch, 8 Cow. 219 ; Crook- shank V. Burrell, 18 Johns. 68 ; Robertson v. Vaughan, 5 Sandf. 1 ; Bronson V. Wiman, 10 Barb. 406 ; Donovan v. Wilson, 26 Barb. (N. Y.) 138 ; Ben- nett ». Hull, 10 Johns. (N. Y.) 364. Parsons v. Loucks, 4 Rob. (N. Y.) 216. See also Reutch ». Long, 27 Maryland, 188. The delivery to be made of goods purchased has never been, considered as work and labor done upon them. Waterman v. Meigs, 4 Cush. (Mass.) 499 ; Jackson v. Covert, 5 Wend. (N. Y.) 139 ; Downs v. Ross, 23 Wend. (N. Y.) 270 ; Houghtaling «. Ball, 19 Missouri, 84 ; Ellison v. Brigham, 38 Verm. 66. CH. XIV.] . SALES OP GOODS, ETC. 309 parts or pieces ready to be put togother.i 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 accord- ing to the contract ; it is as much so when incomplete as when not existing. § 303. The great body of authority, both English and Ameri- can, has of late proceeded upon principles entirely independent of this distinction. In a case occurring only a year after Groves V. Buck, where the contract was to sell and deliver 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 illustrates the fallacy of the distinction referred to. " A baker agrees to produce me a loaf to-morrow. He has not the bi-ead, but he has the flour and is to make it into bread and deliver it. How often does a butcher contract to deliver meat when he 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 merchan- dise." ^ 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 according to good common sense this must be considered as substantially a contract for goods and chattels, for the thing agreed to be delivered would at the time of the delivery be a personal chattel.^ And to the same effect, it will be remembered, is the case of Smith v. Sur- nam, which, like that last quoted, was examined in another chapter in connection with the subject of contracts for land.* ' See the case of Mixer ». 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. " " Wilks u. Atkinson, 6 Taunt. 11. ' Watts V. Friend, 10 Bam. & Ores. 446. See Bowman «. Conn, 8 Ind. 68. ^ Smith V. Sumam, 9 Bam. & Ores. 561. See, also, Northern v. State, 1 Carter (Ind.), 112 ; Ellison v. Brigham, 38 Verm. 67. 310 STATUTE OP FRAUDS. [CH. XIV, These authorities, with many others to be presently referred to, conclusively show that so far as the English courts are con- cerned, the mere circumstance that the article is not existing at the time of the bargain will not prevent the application of the statute.^ § 304. There is, however, a distinction taken in many re- cent 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 business, 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 plaintiffs, 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- 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 plaintiffs were proceeding to grind the flour for the purposes of general sale, and sold this quantity to the defendant as a part of their general sale. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case and ought not to be carried far- ther." 2 § 305. In Massachusetts a similar view has repeatedly been expressed. In Mixer v. Howarth, the facts were that the defendant went to the plaintiff's shop, where the plaintiff had the unfinished body of a carriage, and gave directions to him to finish the carriage, putting in a certain lining which the de- fendant selected. The carriage was to be finished in about ' 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. Stan- ton, 15 Verm. 689. « Garbutt V. Watson, 5 Barn. & Aid. 613. CH. XIV.] SALES OF GOODS, ETC. 311 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 rate, 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 contract, as well where it is to.be executed at a future time as where it is to be executed immediately. But where it is an agreement with a workman to put 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 constructive delivery or acceptance, and the 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 another to furnish him 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 (Chief-Justice Shaw) said : " The distinction we be- lieve 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 labor. Otherwise, where the article is made pursuant to the agreement." ^ § 306. This distinction has not been recognized in the courts of New York, which have preferred to abide by the rule as- serted in the earlier English cases, but, as we have seen, more ' Mixer «. Howarth, 21 Pick. (Mass.) 207. 2 Lamb u. Crafts, 12 Met; 366 ; Atwater v. Hough, 29 Conn 508. O'Neil ». Mining Co., 3 Nevada, 141 ; Edwards v. Grand Trunk R. R., 54 Maine, 105 ; Finney ». Apgar, 2 Vroom (N. J.), 266. 312 STATUTE OP FRAUDS. [CH. XIV. lately repudiated, particularly in Garbutt v. Watson ; namely, that if the goods, etc., do not at the time of making the bar- gain exist in solido the statute cannot apply. Thus in Sewall V. Pitch, the plaintiffs by their agent Contracted with the de- fendants 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 made, or " knocked off," and be obtained from the manufactory at Norwich 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 labor 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 mahe and deliver the articles, the same court decided that the statute did not apply, proceeding, however, simply on the au- thority of Sewall V. Fitch, and very strongly and forcibly con- demning the doctrine on which that case rested .^ § 307. But, reverting to the distinction between the 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 man- ifestly 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 plaintiff 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- ' Sewall V. Fitch, 8 Cow. 219. ' Robertson 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 by the seller from fanners and refined before delivery, the decision in Garbutt V. Watson was cited as law. Seymour v. Davis, 2 Sand. 239. But see Bron- son 17. Wiman, 10 Barb. (N. Y.) 406. CH. XIV.] SALES OP GOODS, ETC. 813 tract ■wB.s 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 manufact- ured was stated as an indication of the time of delivery, which was otherwise left uncertain." ^ Here, although the agreement was in terms, as in Eobertson 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 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 found 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, labor, 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 that, in contracting with him for the production of it, the purchaser contemplates getting by his bargain the work, labor, and skill of the other.* Another circumstance from which the same intention in the minds of ' Gardner v. Joy, 9 Met. 179. « Eichelberger v. McCauley, 6 Hair. & Johns. (Md.) 213. ' Spencer v. Cone, 1 Met. (Mass.) 283 (affirming Mixer v. Howarth) ; Mattison v. Westcott, 13 Verm. 261 ; Alien o. Jarvis, 20 Conn. 38. * 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 me- chanic [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." 314 STATUTE OF FRAUDS. [CH. XIT. 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 Nisbet, 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 labor, and with the material of the vendor, and which when made may reasonably be presumed to be unsuited to the general market, such as contracts for the man- ufacture 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 labor and material constitute the prime con- sideration. They are for work and labor, and are, by author- ity and upon principle, without the influence of the statute. Ux cequo et bono, a man who agrees to bestow his labor 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 pur- chaser from 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 labor. If the purchaser does not take the goods, others will. The work and labor bestowed are in the line of his business, and his work and labor would have been bestowed in the pro- duction of such goods had the contract not been made. The goods and their price are the consideration of the contract, and not the work and labor 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 di- ' Cason V. Cheely, 6 Georgia, 654, approving Bird v. MuhUnbrink, 1 Rich. (S. C.) 197. See, also, Buxton v. Bedall, 3 East, 303. CH. XIV.] SALES OP GOODS, ETC. 815 minished price, was to be considered as a contract for the man- ufacture and delivery and not for the mere sale of the articles, and so not within the statute. The opinion of the court con- tains the following important suggestion 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 another and not made for him. It is the peculiar skill and labor 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 agreement, 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, discov- ering it to be libellous, he refused to print) brought his action for what he had done, in the form of worh, labor, and mate- rials supplied. A verdict was obtained for the plaintiff, and in support 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 essence of the contract consisted in the work and labor, or in the materials that were to be supplied ; and his impression was, that in cases of works of art, which were ap- plications of labor of the highest description, the material was of no sort of importance as compared with the labor.^ § 308 a. Perhaps it might not be always correct to say that ' Right V. Ripley, 19 Maine (1 App.), 139 ; Mead v. Case, 33 Barb. (N. Y.) 202 ; Parker v. Schenck, 28 lb. 88 ; Abbott v. Gilchrist, 38 Maine, 260 ; kinship V. Buzzard, 9 Rich. (S. C.) 103. ' Clay V. Yates, 1 Hurl. & Norm. 73. The mere fact that the particular article contracted for is to be adapted, in the ^manufacture, to the personal use of the purchaser, as in the case of custom-made clothing, etc., does not, it seems, prevent the statute from applying. Lee v. Griffin, 4 L. T. n. s. 546 ; per Lord Abinger, in Scott v. Eastern Counties R. R., 12 M. & W. 33. 316 STATUTE OF FRAUDS. [CH. XIV. 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 labor of the seller to be applied upon his materials, or the product itself as an article of trade ; and that in determining this question, the peculiarity of the article ordered, and the seller's not commonly dealing in such articles, 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 article is not ; either expression, however, as used by the parties, be- ing liable to such an interpretation as the circumstances of the transaction show to be that intended by them. § 309. The statute 9 Geo. IV. c. 14, 7, 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 j£10 sterling and upwards, not- withstanding 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 deliv- ery, or some act may be requisite for the making or complet- ing thereof, or rendering 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 con- struction 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, labor, and materials found in printing a book. Lord Chief Baron Pol- lock 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, and a CH. XIV.] SALES OP GOODS, ETC. 317 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 plaintiffs 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 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. Gifford remarked that if no coals could be found at the port specified, it was clear that the plain- tiff 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 would sell them to the plaintiff.^ § 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 con- tracts must be proved by writing, when the subject-matter of them is of the price of ten pounds sterling and upwards ; and this limitation as to the amount has been generally adopted in the American States. Of course the price is not to be pre- sumed 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 afi&rmatively show that it does reach it.^ But it does not prevent the apphcation of the statute that the price of the goods has been enhanced by the vendor's being bound to deliver them, there being no sep- arate charge for their delivery .^ In cases where, at the time of making the bargain, it is uncertain what the amount of the ' Cobbold V. Caston, 8 Moo. 456. And see Bird v. Muhlinbrink, X Rich. (S. C.) 199; Abbott v. Gilchrist, 38 Maine, 260; Atwater ». Hough, 29 Conn. 508. ' Crookshank v. Burrell, 18 Johns. (N. Y.J 58. 3 Astey V. Emery, 4 Maule & S. 262. 318 STATUTE OF FRAUDS. [CH. XIV. price to be paid will be, there seems to arise some embarrass- ment. Ill Watts V. Friend (which has been already examined under another head), the defendant agreed to supply the plain- tiff with a quantity of turnip-seed, and the plaintiff agreed to sow it on his own land, and sell the crop of seed produced therefrom to the defendant at j61 Is. the Winchester bushel; and the seed so produced at the price agreed upon exceeded in value the sum of £10 ; 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.^ § 312. 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 agreement may by possibility be so performed, the seventeenth section must be differently 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 consist- ently 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 in- demnity might, and in fact did exceed, twenty pounds, and that the undertaking was therefore affected by a certain statute re- quiring an agreement stamp where the matter of the agreement was of the value of twenty pounds or upwards, 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 perjury in the proof of com- mercial transactions of a certain magnitude, we should incline to follow the authority of Watts v. Friend ; for if a bargain ' Watts V. Friend, 10 Barn. & Ores. 446. See Bowman v. Conn, 8 Ind". 58. " Cox V. Bailey, 6 Mann. & Gr. 193. CH. XIV.] SALES OP GOODS, ETC. 319 may, by the understanding of the parties, attain that magni- tude, it seems but reasonable that they should defer to the pro- visions of the law and put their bargain 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 stat- ute 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 mem- orandum to that effect, but without fixing any price. Evidence being introduced of what it was fairly worth, the Court of Com- mon Pleas held the defendant bound to pay that sum, though it exceeded ten pounds, there being nothing to the contrary in the memorandum. The case involved to a certain extent the consideration of Lord Tenterden's Act before referred to, and Chief-Justice Tindal remarked upon the substitution 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 accu- racy of mind, and that, by force of that substitution, where the parties had omitted to fix a price, it was open to a jury to ascer- tain 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 suffi- cient though silent as to price, the jury being of course called upon to determine the value of the article which the memoran- dum 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 stat- ute which, as we have before remarked, is to prevent the fraud- ulent assertion of commercial bargains of a certain magnitude, ' Hoadley v. McLaine, 10 Bing. 482. And see Harman v. Reeve, 37 Eng. Law & Eq. 302. 320 STATUTE OP FRAUDS. [CH. XIV. 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 contract for a fair price, which is capa- ble 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.^ ' Baldey v. Parker, 2 Barn. & Cress. 37. See the authorities cited to the corresponding point under the head of acceptance and receipt. Post, Chap. XV. ; also Gilman v. Hill, 36 N. H. 311. But see Boots v. Dormer, 4 Barn. & Adol. 77. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 321 CHAPTER XV. ACCEPTANCE AND RECEIPT OP THE GOODS, ETC. § 315. It has been repeatedly observed that the primary in- tention of the framers of the seventeenth section of the statute was, that contracts for the sale of goods, wares, and merchan- dise 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 suflScient. And while, as if in deference to the exigencies of trade, so incessant and sudden as they must be, the legislature saw fit to provide other formalities 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 intended to be such, and so strictly observed, as to supply as far as possible the place of a written memorandum. They were, as we shall have occasion to see, fully hereafter, to be performed in pur- suance of the contract, and to a certain extent to afford evi- dence of it.2 § 316. In the presicnt chapter we have to deal only with that mode of concluding the contract which consists in the acceptance and actual receipt, by the buyer, of part of the goods purchased.^ Prom the words used we see that the con- firmatory and binding act is to proceed from one party only, ' Per Denman, C. J., in Bushel v. Wheeler, reported in note to 15 Adol. & Ell. N. s. 442. Per Bayley, J., in Smith v. Surnam, 9 Barn. & Cres. 669. = See post, §326 a. ' See the subject of the memorandum in writing separately treated, in Chapters XVII. and XVIU. 21 322 STATUTE OP PEAUDS. [CH. XV. the buyer. In regard to the antecedent act of delivery by the seller, the statute is silent. What was a good delivery at com- mon law is a good delivery still. But, whereas at common law delivery 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 altogether 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 consummation of the transaction, that we have to consider. It is very common in judicial decisions, 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 desirable carefully to avoid using that form of language. § 317. 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 wofds, and has often been judicially affirmed.^ And, as bear- ing 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 ac- ceptance by him, are to be so regarded. Thus, if by the terms ' Howard v. Borden, 13 Allen (Mass.), 299 ; Boardman ». Spooner, Ibid. 357 ; Bradley v. Wheeler, 4 Rob. (N. Y.) 18. But this means a delivery of the goods acceptance and receipt of which is relied upon. There need not be a delivery, any more than an acceptance and receipt of the whole of the goods purchased. Richardson v. Squires, 37 Verm. 640. ' See cases cited in next note. The question whether the delivery, which must precede acceptance and receipt under the statute, must be such as would support an action for goods sold and delivered, is well discussed in Smith's Mercantile Law (Ed. 1855), pp. 472 et seq. note. It has been lately decided in the Exchequer of Pleas, in a case where goods were sent to a purchaser by railway and lost in the transit, that there having been no ac- ceptance and receipt suflScient to bind the bargain within the statute, the purchaser (consignee) c^buld not sue thjB carriers for the loss. Coombs t>. Bristol & Exeter Rail Road Company, 3 Hurl. & Norm. 510. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 323 of the contract, the sale is to be for cash, or any other condi- tion 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 re- main 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 parties.^ There must be first a delivery by the seller, with intent 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 re- mains, 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- traj3t. 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 purchases 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 ' Maberley v. Sbeppard, 10 Bing. 99 ; Proctor v. Jones, 2 Carr. & Pa. 632 ; Agraman v. Morrice, 8 Man., Gr. & Sc. 449 ; Phillips v. BistoUi, 2 Bam. & Ores. 511 ; Bill v. Bament, 9 Mees. & Wels. 36 ; Leven v. Smith, 1 Denio (N. Y.), 671; Ralph v. Stuart, 4 E. D. Smith (N. Y.), 627; Zachrisson v. Poppe,-3 Bosw. (N. Y.) 171 ; Tayler v. Wakefield, 37 E. L. & E. 101 ; Saunders «. Topp, 4 Wels., Hurl. & Gord. 390, overruling ap- parently the case of Anderson v. Scott, 1 Camp. 185, n., so far as the latter is opposed to the rule laid down in the text. ^ Carter v. Toussaint, 5 Bam. & Aid. 856 ; Baldey v. Parker, 2 Bam. & Ores. 37; Phillips v. Bistolli, supra; Smith v. Surnam, 9 Barn. & Cres. 569 ; Proctor ». 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, 9 W. H. & G. 753 ; Wright, J., in Shindler u. Houston, 1 Comst. (N. Y.) 261, where, the judgment of the Supreme Court of New York (1 Denio, 48) was reversed. Contra, Sigerson v. Hahmann, 39 Missouri, 206. 324 STATUTE OP FRAUDS. [CH. XV. 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 defendant g 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 paid for by him. Consistently with this, however, the plaintiflF had, not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but im- properly, caied 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 plaintiff, and after leaving it for a few days in the plain- tiff'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 ac- ceptance and receipt of the carriage, and Maule, J., remarked that " assuming that the man who drove it was the plaintiff's servant and had directions from the plaintiff to bring back the carriage, still that which passed clearly amounted to an accept- ance, sufyect to a contract on the defendant's part to send the carriage back to the plaintiff 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.^ § 318. In order to work an acceptance and receipt of goods ' Dodsley v. Varley, 12 Adol. & Ell. 632. And see Green v. Merriam, 28 Verm. 801, * Beaumont v. Brengeri, 5 Man., Gr. & Sc. 301. ' Boynton v. Veazie, 24 Maine (11 Shep.), 286. OH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 325 purchased, it is not necessary that there should be an actual manual possession 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 may be transferred 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 delivery and acceptance of the bill of sale or the bill of lading will suffice to perfect 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 acceptance and receipt of inaccessible or ponderous and bulky articles, is that it may be accomplished by the performance of any act ' Wilkes V. Ferris, 5 Johns. (N. Y.) 344 ; Chappel v. Marvin, 2 Aik. (Verm.) 79. Benford v. Schell, 55 Penn. 393. ' Harman v. Anderson, 2 Camp. 243 ; Proctor v. Jones, 2 Carr. & Pa. 532 ; Baylis v. Lundy, 4 L. T. n. s. 176. ' Badlam v. Tucker, 1 Pick. (Mass.) 389 ; Gardner v. Rowland, 2 lb. 599; Higgins v. Chessman, 9 lb. 6; Turner v. Coolidge, 2 Met. (Mass.) 350 ; Tucker v. Buffington, 15 Mass. 477 ; Brinley v. Spring, 7 Greenl. (Me.) 241; Peters v. Ballistier, 3 Pick. (Mass.) 495; Hodges v. Harris, 6 lb. 359 ; Gallop v. Newman, 7 lb. 282 ; Pratt v. Parkman, 24 lb. 42. ■* Compare the cases of Wilkes v. Ferris, 5 Johns. (N. Y.) 335 ; Searle V. Keeves, 2 Esp. 598 ; Withers a. Lyss, 4 Camp. 237 ; Tucker v. Ruston, 2 Carr. & Pa. 86, with those next cited. » Farina u. Home, 16 Mees. & Wels. 119 ; Bentall v. Burn, 3 Barn. & Cres. 423 ; Lackington v. Atherton, 7 Man. & Gr. 360 ; Lucas v. Dorrien, 7 Taunt. 278 ; Stanton v. Small, 3 Sand. (N. Y.) 230 ; Franklin v. Long, 7 Gill & Johns. (Md.) 407 ; Williams v. Evans, 39 Missouri, 201 ; Boardman V. Spooner, 13 Allen (Mass.), 363 ; Gushing v. Breed, 14 Allen (Mass.), 376. The subject of delivery of warehouse receipts, etc., is discussed at length in Burton V. Curyea, 40 Illinois, 320. 326 STATUTE OP FRAUDS. [CH. XV. which shows that the seller has parted with the right and claim to control the property, and that the purchaser has acquired that right.^ § 319. 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 other delivery or acceptance.^ This illustration, thus used by 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 inspectors' 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 submitted 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 judg- ment, said : " Delivery in a sale may be either real, by putting the thing sold into the possession or under the power of the purchaser, or it may be symbolical, 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 ' Boynton v. Veazie, 24 Maine (11 Shep.) , 286. Delivery and acceptance of the export entry of goods in store is insufficient. Bailey v. Ogden, 3 Johns. (N. Y.) 420; Johnson v. Smith, Anthon (N. Y.), 60. " 4 Kent, Com. 600. And see Calkins v. Lockwood, 17 Conn. 174; Leonard v. Davis, 1 Black (U. S.), 476. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 327 the nature of the case admits." ^ The Court of Appeals re- versed this decision,^ not objecting to the rule as stated by Jewett, J., but holding that there had not been any synabolical delivery and acceptance of the lumber ; and the opinions of some of the judges most clearly and forcibly draw the impor- tant line of distinction 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 and ac- ceptance 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-pay- ment, 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 asBume as already exist- ing." While admitting the decisions to the effect that the de- livery and acceptance of a key, for instance, will work a transfer of the stored articles, he says : " To aid the plaintiif, an author- ity must be shown that a stipulation in the contract of sale for* the delivery of the key will constitute a delivery and accept- ance within the statute. No such case can be found." Wright, J., says : " Par 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 Eng- ' Shindler v. Houstoti, 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 question 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. 2 1 Comst. 261. 328 STATUTE OP FRAUDS. [CH. XV. land 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 observing that the most extreme of the English cases do not furnish authority for the doctrine that words unaccompanied ly acts are sufficient to satisfy the statute, he remarks that if such doctrine should prevail, " for all bene- ficial purposes the law might as well be stricken from our statute book." ^ § 320. 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 defend- ant 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 him- self 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 stat- ute. Lord Denman, C. J., delivered judgment, and upon the objection to the admission of the parol evidence as defeating the policy of the statute, he says : " No case warrants the hold- ing 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." ^ ' See Bailey v. Ogden, 3 Johns. (N. Y.) 420, where Chief-Justice Kent himself strongly upholds the same view. See, also, Sharon «.. Shaw, 2 Ne- vada, 289; Harvey v. Butchers, etc. Ass'n, 39 Missouri, 211. " Edan v. Dudfield, 1 Adol. & Ell. n. 8. 302. And see Lillywhite v. Devereux, 15 Mees. & Wels. 283, and Shindler v. Houston, 1 Comst. (N. Y.) 265. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. • 329 § 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 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 slightest 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.^ § 322. 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. Chaplin 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 stat- ute. 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 delivery 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 ' Chaplain v. Rogers, 1 East, 192 ; Blenkinsop v. Clayton, 7 Taunt. 697 ; Hunt V. Hecht, 8 W. H. & G. 814 ; Edan v. Dudfield, 1 Adol. & Ell. n. s. 302 ; Lillywhite v. Devereux, 15 Mees. & Wels. 283 ; Houghtaling ». Ball, 19 Missouri, 84; Williams v. Evans, 39 Missouri, 201; Wylie o. Kelly, 41 Barb. (N. Y.) 594. ' Norman v. Phillips, 14 Mees. & Wels. 277 ; Bushel v. Wheeler, re- ported in note to 15 Adol. & Ell. N. s. 442. 330 STATUTE OP PBAUDS. [CH. XV. possession, for he sold part of it to another person." ^ In this case, the plaintiff objected to the hay being taken away by the person who bought it from the defendant, and in the subsequent cases of Blenkinsop v. Clayton and Baines v. Jevons, the buyer merely offered to sell to a third party, and it was held to be 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 off, thus treating the bargain as complete and the cattle as his own, was held in New York to amount to an acceptance.* It is, there- fore, the mere fact of the buyer's assuming to dispose of the article or treating it as his own, which constitutes the accept- ance. In the case of Smith v. Surnam, the defendant oifered 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 plaintiff'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 when the acts relied on were done; admitting, how- ever, that if, after it was completed and ready for delivery, the defendant had sent a workman of his own to perform additional work upon it, such conduct, as being an assertion of ownership, might have amounted to an acceptance.^ Here, also, the deci- ' Chaplin v. Rogers, 1 East, 192. See, also, Marshall v. Ferguson, 23 Cal. 65. ' Blenkinsop v. Clayton, 7 Taunt. 597 ; Baines v. Jevons, 7 Carr. & Pa. 288. And see Parker v. Wallis, 37 Eng. Law & Eq. 26. ' Vincent v. Geomond, 11 Johns. 283. And see Carpenter v. Clark, 2 Nevada, 243. * Smith V. Surnam, 9 Barn. & Cres. 661. See ante, § 317 ; and Beau- mont V. Brengeri, 6 Man., Gr. & Sc. 301. ' Maberley v. Sheppard, 10 Bing. 99. CH. XV.J ACCEPTANCE AND RECEIPT OP GOODS, ETC. 331 sion stands upon the ground that there never had been, because the article was not in fact ready for, a delivery. And so, in Tempest v. Fitzgerald, where the buyer of a horse ordered him to be taken out of the stable, and he and his servant rode him, and his servant cleaned him, and he gave directions for his treatment,! and in Holmes v. Hoskins, where the horse, though remaining in the seller's field, was fed by the buyer's hay,^ the inference of acceptance arising from these acts indicative of own- ership, 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.^ § 324. The case of Elmore v. Stone deserves especial consid- eration. 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 for the plaintiff, 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. They were in fact put into another stable, hut that is wholly immaterial. It was afterwards agreed that tjhis was not a sufiicient delivery, but upon consideration we think that the horses were completely the horses of the defendant, and that when they stood in the plaintiff's stables th^ 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 defend- • Tempest v. Pitzgerald, 3 Barn. & Aid. 380. See Doak v. Brubaker, 1 Nevada, 218. 2 Holmes v. Hoskins, 9 W., H. & G. 7S3. ' See, also, Carter v. Toussaint, 6 Barn. & Aid. 855. 332 STATUTE OP FRAUDS, [CH. XV. ant 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 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 situation of the article. And accordingly the courts have generally admitted that this deci- sion was to be sustained only on that feature which Lord Mans- field 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 con- sist 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 lailee of them for the buyer. But where the defendant 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 and set apart in his granary and ordered to be delivered to the defend- ant 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, holding that the defend- ant had not accepted the tares within the meaning of the stat- ute. The case appeared to be distinguished 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 Hot 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 had di- ' Elmore ». Stone, 1 Taunt. 457. ' ^ See Green ». Merriam, 28 Verm. 801; Gilman v. HiU, 86 N. H. 311. » Bee post, § 330. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 333 rected expense to he incurred, and added : " The case goes as far as any case ought to go, and I think we ought not to go one step beyond it. I must say I doubt the authority of that deci- sion." 1 On the whole this case seems to show very clearly, that the mere measuring out and setting apart of the articles, by the seller, cannot be regarded as conclusive of the bargain as against the buyer .^ 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, afterwards, and, as it was suggested, in the capacity of agent for the plaintiff, and on his account, under- took to sell them again ; pending the execution of which al- leged agency, the horses were attached in suits against the alleged agent, and the plaintiff sued the attaching officer to re- cover their value ; the Supreme Court considered that no prop- erty 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, ' Howe V. Palmer, 3 Barn. & Aid. 321. See, however, the late case of Marvin v. Wallace, 37 Eng. Law & Eq. 6, where the Court of Queen's Bench went even beyond the latitude of Elmore v. Stone. A complete verbal bargain having been made for the sale of a horse by the plaintiff to the de- fendant, the plaintiff, before there had been an actual delivery of the horse, asked the delendant to lend it to him for a short time, as he had two or three journeys to make. The defendant said, " I will lend him to you if you will take care of him." The plaintiff kept and used the horse a fortnight ; then sent him to the defendant, who refused to receive him. In an action- for the price, the jury found that the loan of the horse was made by the defendant as ovmer, and after the verbal bargain was complete. It was held that there was a sufficient acceptance within the statute. It may be well to refer to the case of Phillips v. Hunnewell, 4 Greenl. (Me.) 376, where, on an exactly analogous state of facts, there was held to be no acceptance by the buyer. ^ See Southwestern Co. v. Stanard, 44 Missouri, 71. 334 STATUTE OP FRAUDS. ' [CH. XV. shown only by oral proof, would not be sufi&cient to establish an acceptance and receipt by him.^ § 326. In the early cases of Hodgson v. Le Bret, and Anderson v. Scott, it was held by Lord EUenborough 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, 0. 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 trans- mitted to the buyer, he acts merely as the warehouseman of the latter. § 326. It is of course essential to the efficacy of the acts ' Ely V. Ormsby, 12 Barb. 670, 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 ad- mitted to show that he had done so as purchaser and owner, not as agent, which he had previously been. In Ely «. Ormsby there was no act to ex- plain ; the parol evidence was offered simply to show that the seller was holding as the agent of the buyer. See, farther, BaUey v. Ogden, 3 Johns. (N. Y.) 420, and Johnson v. Smith, Anthon (N. Y.), 60. ^ Hodgson V. Le Bret, 1 Camp. 233 ; Anderson v. Scott, cited in note to Hodgson V. Le Bret. ' Proctor V. Jones, 2 Carr. & Pa. 632. And so with Hodgson v. Le Bret, which was declared in Elliott v. Thomas, 3 Mees. & Wels, 170, to have been overruled, but this was upon another point. See next note. ■■ Boulter v. Arnott, 1 Cro. & Mees. 333, where Bayley, B., spoke of Hodgson J). 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. See, also, Byassee V. Reese, 4 Met. (Ky.) 372 ; Walden v. Murdook, 23 Cal. 640. * As was the case in Bill v. Bament, and Proctor v. Jones, supra. See § 317, supra. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 335 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 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.^ § 326 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, ' German v. Boddy, 2 Carr. & Kir. 145. ' Kent V. Huskinson, 3 Bos. & Pull. 233 ; Baylis v. Lundy, 4 L. T. n. s. 176. ' Curtis B. Pugh, 10 Adol. & Ell. Ill ; Elliott v. Thomas, 3 Mees. & Wels. 170. As to the presumption of acceptance arising from an unreason- ably long detention of the article, see post, § 333. < Ward V. Shaw, 7 Wend. (N. Y.) 404. But see Gray v. Payne, 16 Barb. (N. Y.) 277. s Baker v. Cuyler, 12 Barb. (N. Y.) 667. In Tempest v. FitzgeraM, however (3 Barn. & Aid. 680), Abbott, C. J., disclaimed committing him- self to the opinion " that if the buyer were to take away the goods without the assent of the seller, that would not be sufficient to bind him.'" STATUTE OP PEAUDS. [CH. XV. 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 only recently been ju- dicially considered. This was in a case before the Court of Common Pleas, where the plaintifi" delivered to the defendant a piano at the price of £15, and it was accepted and re- ceived by him. In an action for the price it was proved that when the piano was delivered, the plaintifi" asked ready money for it, but the defendant said he was entitled to keep it as security for the payment of certain bills, and refused to deliver it up again to the plaintifi". Parol evidence was heard at the trial as to what the agreement really was, and the jury having found for the plaintifi", the defendant on leave moved to set it aside and enter a nonsuit. In support 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 acceptance 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 fol- lowing extracts from the opinions of the judges. Jervis, 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 goods for £10 or more, there must be either a writ- ing, or a part-payment, or a delivery and acceptance of the goods ' so sold.' I think those words mean an acceptance of goods sold at a price of £iO or more. In this case, there is no doubt that there was a delivery of that wliich the plaintifi's say was sold for more than £10 ; and there is no doubt there was an acceptance, as the defendant says that he accepted on CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 337 certain terms. It is just as if the defendant had said he ac- cepted on six months' credit. The terms of the contract as to the time when the money is to be paid, would then be the ques- tion in dispute, there being no doubt about the acceptance. The jury has found the acceptance, and the terms set up by the plaintiffs. This case really does not differ from the ordi- nary 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 stat- ute. I think, in this case, the defendant is precluded 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 difficulty in saying that any proof could be offered, in lieu of writing, which amounted, in- stead 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 consistent 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 thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the acceptance is to establish the broad fact of the relation of vendor and vendee. Here the relation of vendor and vendee was established, and that was sufficient to satisfy the statute." Crowder, J. : "I think there was an acceptance within the Statute of Frauds. The jury having found the acceptance, there is no doubt there was a de- livery and acceptance, and that enables the plaintiff to lay before the jury evidence of the terms of the contract. It seems to me, 22 338 STATUTE OP FRAUDS. [CH. XV. that all that was necessary under the statute was, that there should have been a contract of sale, and that, under that con- tract, the vendee should have accepted ; it being a question for the jury on the parol evidence, what were the precise nature and terms of the contract." ^ § 327. 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 at nisi prius, 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 defendant by the same vessel, and the defendant had always received them ; it was held that under those circumstances the defendant must be considered as having constituted the master of the vessel 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 con- tract followed from the goods being delivered to a carrier des- ignated by the buyer for that purpose.^ But as to the latter ' Tomkinson v. Staight, 17 C. B. 245. See Danforth v. Walker, 40 Verm. 267 ; Atwood v. Lucas, 63 Maine, 508 ; Bass v. Walsh, 89 Missouri, 192 ; South Western Co. v. Stanard, 44 Missouri, 71. 2 Snow V. Warner, 10 Met. (Mass.) 133 ; Cutwater v. Dodge, 6 Wend. (N. Y.) 400 ; Barney v. Brown, 2 Verm. 674 ; Howe v. Palmer, 3 Barn. & Aid. 321 ; Astey v. Emery, 4 Maule & S. 262. An acceptance by a mere shop-boy, out of the scope of his duty, is of course not sufficient. Smith v Mason, Anthon (N. Y.), 164. 3 Clarke. Tucker, 2 Sand. (N. Y.) 157; Howard v. Borden, 13 Allen, (Mass.) 299. But qumre, if the agent of the seller may be the agent of the buyer for this purpose. Howe v. Palnjer, supra, remarks of Holroyd, J. " Hart V. Sattley, 3 Camp. 628. '" Dawes v. Peck, 8 T. K. 330. And see Spencer v. Hale, 30 Verm. 314. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 339 class of cases it is obvious that, as was remarked by an em- inent judge, the very fact of such designation of the mode of conveyance, being part of the contract itself, cannot be estab- lished by oral proof; ^ and moreover the buyer may well appoint an agent 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. reception 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.^ § 328. 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 purcliased 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 from the place where it tlien 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 tliat day by the same sample. The carrier conveyed the wheat by order of the defendant, who had never seen it, to the sub-veadee, who re- ' Alderson, B., in Norman v. Phillips, 14 Mees. & Wels. 277 ; Rogers v. PhUlips, 40 N. Y. 519. ' Astey V. Emery, 4 Maule & S. 262; How* v. Palmer, 3 Barn. & Aid. 321, per Holroyd, J. Rogers v. Phillips, supra. ' Hanson v. Armitage, 5 Barn. & Aid. 557 ; Howe v. Palmer, 3 Barn. & Aid. 321 ; Acebal v. Levy, 10 Bing. 376 ; NichoUe v. Plume, 1 Carr. «fe Pa. 272 ; Norman v. Phillips, 14 Mees. & Wels. 277 ; Bushel v. Wheeler, re- ported in 16 Adol. & Ell. N. s. 442, u. ; Smith v. Surnam, 9 Barn. & Cres. 661 ; Coats v. Chapliii, 3 Adol. & Ell. n. s. 483 ; Jordan v. Norton, 4 Mees. & Wels. 165 ; and see, to the same effect, Shindler v. Houston, 1 Comst. (N. y.) 261 ; Outwater v. Dodge, 6 Wend. (N. Y.) 400; Lloyd v. Wright, 25 Georgia, 216 ; Spencer v. Hale, 30 Verm. 314 ; Maxwell v. Brown, 39 Maine, 98 ; Shepherd v. Pressy, 32 N. H. 49 ; Coombs v. Bristol & Exeter Railway Co., 3 Hurl. & Norm. 610. Rogers v. Phillips, supra. 340 STATUTE OP FRAUDS. [CH. XV. jected it as not corresponding with the siample ; 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 aud enter a nonsuit on the ground 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 language of the seventeenth section, and proceeds to say : " It is remarkable that, notwithstanding the importance of having a written memorandum of the bargain, the legislature ap- pears to have been willing that this might have been dispensed with, where by mutual consent there has be^ part-performance. Hence the payment of any sum in earnest, to bind the bargain or in partrpayment, 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 suflficient, 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 precede, or, at any rate, to be con- temporaneous with, the actual receipt of the goods, and is not to be a subsequent act, after the goods have been actually re- CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 341 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 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 that, whether or not a delivery of the goods sold to a car- rier or any agent of the buyer is sufficient, still there may be 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 affords 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 could such a resale and order take place with- out his having accepted the commodity ? Does it lie in his mouth to say that he has not accepted that which he has resold 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 ' Morton V. Tibbett, 15 Adol. & Ell. n. s. 428. 342 STATUTE OP FRAUDS. [CH. XV. which have followed the case now under consideration.^ Lord Campbell simply says that there may be such an acceptance and receipt of the goods without the 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- prives the buyer of that locus penitentice which would other- wise be allowed him between the delivery to the carrier and inspection 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.^ § 830. 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 not 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 ' Hunt V. Hecht, 8 W., H. & G. 814. And see, also, Meredith v. Meigh, 2 Ell. & Bl. 364, where Lord Campbell himself said that Hart v. Sattley, holding acceptance by the customary carrier to be sufficient, was no longer law. In the case of The Frostburg 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 Supreme Court removes all doubt 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. ' Hunt V. Hecht, supra. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 343 difficult, in the face of his reasoning, to maintain, — that the acceptance by the purchaser must be that final acceptance, which, following upon the receipt and inspection of the goods, " precludes the buyer from contending that they do not corre- spond 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 the 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 otlier 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 plaintifif, a bone merchant, for the pur- pose of buying bones. He there saw a heap containing a 344 STATUTE OF FRAUDS. [CH. XV. 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 tlie bones and ship them by a certain lighter, the order containing a mem- orandum 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 discliarged. 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." ^ § 332. As was before remarked, however, there may be an ' See, also, what is said by Bolland, B., in Jordan v. Norton, 4 Mees. & Wels. 165. Also Gorham ». Roberts, 30 Verm. 428. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 345 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, reselling 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 transitd remained.^ § 333. But the locus penitenticB of the buyer remains 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 circumstan- ces, a question for the jury.^ Such appears to be the clear efiFect 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 of five 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 ' Bushel V. Wheeler, reported in note to 15 Adol. & Ell. n. s. 442. ' Coleman v. Gibson, 1 Mood. & Rob. 168 ; Percival v. Blake, 2 Carr. & Pa. 514; Curtis v. Pugh, 10 Adol. & Ell. n. s. Ill ; Bushel v. Wheeler, supra; Meredith v. Meigh, 2 Ell. & Bl. 364 ; Cunlyffe v. Harrison, 6 Wels., Hurl. & Gor. 903 ; Bayles v. Lundy, 4 L. T. n. s. 176 ; Cusack v. Robin- son, lb. 606 ; Castle v. Sworder, lb. 866 ; Borrowscale v. Bosworth, 99 Mass. 381. See, however, NichoUe v. Plume, 1 Carr. & Pa. 272; Spencer V. Hale, 30 Verm. 314. 346 STATUTE OP FRAUDS. [CH. XT. goods were seat 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 plaintiff 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.^ § 334. 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 ac- ceptance and receipt, so as to make the contract binding. But if the sample taken make part of the goods, etc., 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 sometimes, 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 heldj even though it were understood that, in case the bargain was carried out, the quantity taken by way of sample should be deducted from the bulk to be delivered. ' Norman v. Phillips, 14 Mees. & Wels. 277. ' Meredith v. Meigh, supra. ' Talver v. West, Holt, 178 ; Hinde v. Whitehouse, 7 East, 558 ; Klinitz o. Surry, 5 Esp. 267; Gardner v. Grout, 2 C. B. n. s. 340; Davis v. Eastman, 1 Allen (Mass.), 422; Carver «. Lane, 4 E. D. Smith (N. Y.), 168 ; Danforth ». Walker, 40 Verm. 257 ; Atwood v. Lucas, 63 Maine, 508. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 347 § 334 a. Nor, in a case where the sale of goods together with other matters, such as the performance of services, consti- tute one indivisible contract, will it be sufficient that the ser- vices have been performed, and the benefit of them accepted and received.! § 335. 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 made at the same time, or so connected as to show the transaction to be one and the same. And in like manner, the 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 pixrchases 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 memo- randum or bill of the whole made out and presented, and as- sented to by the buyer, to which fact much weight was allowed, as showing that the parties regarded the transaction as one and entire. Perhaps as safe a general test as any will be, ' Harman v. Reeve, 37 Eng. Law & Eq. 302. " Elliott V. Thomas, 3 Mees. & Wels. 170 (in which Hodgson v. Lebret, 1 Camp. 233, so far as it is opposed to the rule stated in the text was de- clared 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. 3 Mills V. Hunt, 17 Wend. (N. Y.) 333 ; affirmed, on error, 20 Wend. 431. * Biggs V. Whiskmg, 14 C. B. 195. 348 STATUTE OP FRAUDS. [CH. XV. whether either party can be made to take or part with any less than the whole lot. Where the defendant gave the plaintiff's 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 question 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 ' Price V. Lea, 1 Barn. & Cres. 156. ' Scott V. Eastern Co. R. R., 12 Mees. & Wels. 33. CH. XV.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 349 that rule is to the effect that the inference of acceptance, aris- ing 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, how- ever, is peculiar in respect that so much as was accepted was, in fact, delivered, and that valid acceptance was made effectual prospectively as to the unfinished article, by virtue of the con- nection 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 and acceptance of part of one parcel is sufficient as to the whole.^ § 3t57. 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 agree- ment.* The grounds upon which the opinion is supported are presented with great clearpess, 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 mterpretation of the whole section under consideration, as to justify an extended quotation from it. " There is nothing in the statute which fixes or limits ' Ante, § 323. ^ Several eases which at first sight create embarrassment on this point may be here referred to ; e. g. Rugg v. Minet, 11 East, 210 ; Khgde v. Thwaites, 6 Barn. & Ores. 388, and Logan v. Mesurier, 6 Moo. P. C. 116. The two Ibrmer, however, were determined belore the passage of Lord Tenterden's Act ; and the latter was determined, the report seems to show, upon the old French law prevailing 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 j McKnight V. Dunlop, 1 Seld. (N. Y.) 642; Davis v. Moore, 13 Maine (1 Shep.), 427 ; Sprague v. Blake, 20 Wend. (N. Y.) 61. And see Whitwell V. Wyer, 11 Mass. 6; Damon v. Osborne, 1 Fick. (Mass.) 481. 350 STATUTE OF FRAUDS. [CH. XV. 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 eflfected 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 render a contract operative, is not contemporaneous with the verbal agreement. A memorandum in writing will be as effect- ual 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 ):\e as efficacious to secure parties against false swearing, as if delivery had ac- companied 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 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 bargain, the verbal agreement of the parties must be proved. CH. XT.] ACCEPTANCE AND RECEIPT OP GOODS, ETC. 351 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 offered 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 effect 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, therefore, 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 de- livery in pursuance of it is shown, the requisites of the stat- ute are fulfilled." i ' Marsh v. Hyde, 3 Gray, 331. See, also. Sale v. Darragh, 2 ffilton (N. y.), 184; Chapin v. Potter, 1 lb. 366. 352 STATUTE OP FRAUDS. [CH. XV. § 338. It -was suggested by Chief-Justice Tindal, in a recent case, that acceptance and receipt after action brought might be sufBcient, considering the statute in this particular as merely affecting 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 partrpayment, or the making of a written memorandum, is not " allowed to be good," or, in other words, not recognized as a valid contract 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 mean while, shall the pur- chaser pay the full value ? This question seems to have been decided by the Supreme Court of New York in the afl&rmative. The defendant verbally purchased four oxen, and left them in 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 ' Pricker n. Tomlinson, 1 Man. & Gr. 772. * Fost, §-348 a. ' Vincent v. Germond, 11 Johns. 283. CH. XV.] ACCEPTANCE AND RECEIPT OF GOODS, ETC. 353 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.^ ' Jackson v. Watts, 1 McCord (s! C), 288. 23 354 STATUTE OP FRAUDS. [CH. XVI. CHAPTER XVI. EARNEST AND PART-PATMENT. § 341. 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 sliall also liave 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 law, and the statute simply permits it as still valid for that purpose, though the bargain be by word of mouth.^ As at common law, however, so under the statute, its only effect is to make the bargain ob- ligatory 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 sufiBce.* Nor is it enough that one party has tendered to the other (the party to be charged) payment or part-payment, if the latter declines to receive it.^ § 342. 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 ' See Glanvil, Cap. XIV., an interesting reference to show how closely the seventeenth section of the statute pursues the rules of the common law. " Langfort v. Tyler, 1 Salk. 113 ; 2 Bl. Com. 447 ; 2 Kent, Com. 389 ; 3 Camp. 426. ' Artcher v. Zeh, 6 Hill (N. Y.), 200. * Blenkinsop v. Clayton, 7 Taunt. 597. * Edgerton'u. Hodge, 41 Verm. 676. CH. XVI.] EARNEST AND PAB1>-PAYMENT. 355 sum of money to a third party, who owed the plaintiff a larger sum upon a promissory note, and all three agreed that the defendant should pay 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 error, 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 not sufficient to take the contract out of the statute, because no indorsement or receipt was ever actually made. Cowen, 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." ^ § 342 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 ' Artcher v.. Zeh, 5 HUl (N. Y.), 200; Brabin v. Hyde, 30 Barb. N. Y. 265 ; Mattice v. Allen, 33 lb. 648. That the note of a thu-d person given as payment will take a bargain for goods out of the statute is clear. See Combs V. Bateman, 10 Barb. (N. Y.) 573. Qucere, how it may be in Massachusetts as to the purchaser's own note, which is there regarded as payment if given with that intention. " Ely V. Ormsby, 12 Barb. 570; Brand v. Brand, 49 Barb. 846; Brabin V. Hyde, 32 N. Y. 519 ; Teed v. Teed, 44 Barb. 96. And see Gilman v. Hill, 36 N. H. 311. 356 STATUTE OF FRAUDS. [OH. XVI. a case which has somewhat lately come before the Court of Exchequer, the plaintiff, then owing the defendant four pounds and odd, sold him a lot of leather, the price of which exceeded ten pounds, and agreed that the defendant might deduct or set off 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 pro tanto 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 thQ old debt might be waived or released by way of part-payment ; ' Walker v. Mussey, 16 Mees. & Wels. 302. This case is recognized in Dow V. Worthen, 37 Verm. 112, where, however, the facts do not seem to differ substantially from those in Walker v. Mussey, and yet the statute was held not to apply. CH. XVI.] EARNEST AND PAET-PATMENT. 357 would that have been sufiBcient, without any receipt or other act showing the release ? § 343. 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-payment also, that it is not considered necessary to refer to them here.^ » Ante, §§ 337, 338. And see Thompson v. Alger, 12 Met. (Mass.) 435. Contra (apparently), Chapin v. Potter, 1 Hilton (N. Y.), 366. 358 STATUTE OP FRAUDS. [CH. XVII. CHAPTER XVII. THE FORM, ETC., OF 'THE MEMORANDUM. § 344. 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, etc., 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 chapter. § 345. The fourth section of the statute provides that no action shall be brought upon any of the contracts there enu- merated, " 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 provi^on 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." i A note or memorandum, then, is all that is required ; not a solemn or for- mal agreement. § 346. 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 immaterial, a letter, properly signed and containing the neces- ' See^osi, § 365. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 859 sary particulars of the agreement, is a suflScient memorandum.* And so several letters, or other writings, may be taken together to make the memorandum.^ And a letter, or other instrument, signed by the proper party, may for this purpose be taken in connection with a previotis writing not signed ; ^ but it cannot be taken in connection with a writing referred to in it as to be subsequently prepared.^ In all cases the mutual relation of the several writings relied on must appear upon their face, and cannot be established by parol evidence.^ But an offer by let- ter of the party to be charged may, it seems, be proved by parol to have been accepted by the plaintiff, ^ and where the defendant wrote a letter agreeing to give a marriage portion, .' 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. & Pull. 238 ; Brettelu. Williams, 4 Wels., Hurl. & Gord. 623 ; Allen v. Ben- nett, 3 Taunt. 169. = Allen V. Bennett, 3 Taunt. 169 ; Brettel v. Williams, 4 Wels., Hurl. & Gord. 623 ; Jackson v. Lowe, 1 Bing. 8 ; Owen v. Thomas, 3 Myl. & Keen, 353 ; Verlander v. Codd, Tur. & B,uss. 352 ; Salmon Falls Man'g Co. v. Goddard, 14 How. (S. C.) 447 ; Parkhurst v. Van Cortlandt, 14 Johns. (N. T.) 15; Tallman v. Franklin, 14 N. Y. 584; Lerned v. Wannemacher, 9 Allen (Mass.) 416; Huddlestone v. Briscoe, 11 Ves. 583; Howard v. Okeover, cited 3 Swanst. 421 ; Forster ». Hale, 6 Ves. 308 ; Felthouse v. Bindley, 7 L. T. n. s. 836. 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. 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. * Wood V. Midgley, 5 De G., M. & G. 41. 5 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.) 888 ; 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. 690 ; Adams v. McMillan, 7 Port. (Ala.) 73 ; Waul v. Kirkman, 5 Cush. (Miss.) 823 ; O'Donnell v. Leeman, 43 Maine, 168; Blair v. Snodgrass, 1 Sneed (Tenn.), 1 ; Willey w. Roberts, 27 Missouri, 388; Boardman v. Spooner, 13 Allen (Mass.), 868; Stocker v. Partridge, 2 Rob. Sup. Ct. (N. Y.) 193 ; Wilkinson v. Evans, Law R. 1 Com. Vt. 407. It seems that fastening two or more papers to- gether, after they have been separately prepared, is not sufficient. Tallman V. Franklin, 3 Duer (N. Y.), 396. " Watts V. Ainsworth, 6 L. T. n. s. 252. 360 STATUTE OP FRAUDS. [CH. XVH. and aftersrards wrote another retracting it, and ended by agree- ing orally to stand by his first letter, it was held that his first letter was set up by the oral agreement and made binding upon him.^ § 347. Although one writing refer specifically 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 referred 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 parties had signed an agreement referring to another paper as containing the terms and conditions ; but this paper contained other terms and con- ditions besides those which were to be embraced in the pro- posed lease, the latter embracing only such among them as the defendant had, on the previous occasion read to the plaintifi". The court rejected parol testimony to show what passages had been so read, as manifestly against the Statute of Frauds.^ § 348. Boydell v. Drummond is a conspicuous case, bearing upon the general rule above laid down.^ The Messrs. Boydell, being about to publish an illustrated Shakespeare, prepared two prospectuses containing the terms, etc., on which the num- bers were to be furnished ; and had them, and also a book en- titled simply " Shakespeare subscribers, their signatures " (but not referred to in the prospectuses, nor referring to them), lying about the shop. The defendant put his name down in the book among the subscribers ; but it was held in the Court, of Queen's Bench that he was not liable on his subscription, there being no such connection between the prospectuses and the book, on their face, as to enable the court to consider them together as constituting one complete memorandum. There was also in the case a letter from the defendant, in reply to one from the plaintiff calling upon him to take and pay for his numbers, wherein he said that he ceased taking the num- bers of the Boydell Shakespeare many years before, in conse- ' Bird V. Blosee, 2 Vent. 361. ' Brodie v. St. Paul, 1 Ves. Jr. 326. But see McDonald v. Longbottom, 2 L. T. N. s. 607. 5 Boydell v. Drummond, 11 East, 142. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 361 qucnce of the engagement not being fulfilled on the part of the proprietors, etc.; but notwithstanding it was urged by the counsel that no other engagement between the parties was s'aown to have existed', beyond what was contained in the pro- spectus, the court held the letter insufficient ; Lord Ellenbo- rouffh remarking that the engagement could not be shown to be ftiat of the particular prospectus, without parol evidence, whicii the statute would exclude ; but if there had been a plain refereiice to the particular prospectus, that might have helped the plaintiff. § 34&. 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 cas«s state the rule, in general terms, to that effect. 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 to- bacco, 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 immediately for- warded, 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. Dodgson, in the Court of Exchequer, the memorandum of a bargain 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 1038. ; 4 pockets, Selme, Beckley, at 95s. The bulk to answer the sam- ple," etc. The defendant, on the same day, wrote to the plain- tiffs requesting them to deliver " the 27 pockets Playsted, and the 4 pockets Selme, 1836, Sussex," to a third party. It was insisted that the defendant's letter and the previous memoran- dum should not be read together ; that parol evidence must be ' Allen V. Bennet, 3 Taunt. 173. 862 STATUTE OP FRAUDS. [CH. XVII. introduced to show that there was only one such contract ; i. e., for hops of a certain description. To that Lord Abinger said : " The statute does not absolutely exclude parol evidence. It only requires that there shall be a note of the contract in writ- ing, in order to exclude fraud or mistake in its terms." It was not found necessary in the decision to pass upon this point, but the opinion of the majority of the court appears to Tiave 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 ques- tion as to the recognition of the contract by the letter, there might have been some doubt, although even \ipon thai I should have thought the reference to the only contract proved in the cfse sufRcient." BoUand, 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.^ § 350. It appears also to have been decided by the Supreme Court of the United States, in a recent case, that a memo- randum 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. ^ § 351. The memorandum may also be in the form of a receipt ' Johnson v. Dodgson, 2 Mees. & Wels. 663. It was said in the argu- ment of this case, upon the authority of Kennett v. Milbank, 1 Moo. & So. 102, that a letter from a debtor, to save against the Statute of Limitations, must refer specifically to the debt in question; but Parke, B., remarked that that was questionable, and cited Lechmere v. Fletcher, 1 Cro. & Mees. 623. ^ Salmon Falls Man. Co. v. Goddard, 14 How. 446. CH. XVII. J THE FORM, ETC., OP THE MEMORANDUM. 363 for the purchase-money of land ; ^ or of a bill of parcels ; ^ or of a stated account, in which the vendor of land charges him- self with the price ; ^ or' of an order,* or of the return of a sheriff upon an execution.^ A vote of a corporation entered on their records, signed by their clerk, is a sufficient memorandum.® In cases of sales by auction, the entry of the purchaser's name with the price, etc., in the sales book of the auctioneer, com- pletes 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 memorandum, though the broker make no entry in his book.^ But for this purpose, the rule is, they must ' Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ; Ellis v. Deadman, 4 Bibb (Ky.), 467 ; Evans v. Prothero, 13 Eng. Law & Eq. 163. 2 Salmon Falls Manufacturing Co. v. Goddard, 14 How. (S. C.) 447 ; Batturs v. Sellers, 5 Harr. & Johns. (Md.) 117; Hawkins v. Cljace, 19 Pick. (Mass.) 502. ^ Barry v. Coombe, 1 Pet. (S. C.) 640 ; Parker v. Mclver, 1 Desaus. Ch. (S. C.) 289; Bourland v. County of Peoria, 16 111. 688. " Lerned v. Wannemacher, 9 Allen (Mass.), 416. ^ Hanson u. Barnes, 3 Gill & Johns. (Md.) 359 ; Fenwicki). Floyd, 1 Harr. & Gill (Md.), 172; Barney«. Patterson, 6 Harr. & Johns. (Md.) 205; Elfeu. Gadsden, 2 Rich. (S. C.) 373 ; Nichol v. Ridley, 5 Yerg. (Tenn.) 63. « Tufts V. Plymouth Gold Mining Co., 14 Allen (Mass.), 407 ; Johnson V. Trinity Ch. Soc, 11 Ibid. 123; Chase v. Lowell, 7 Gray (Mass.), 33; Rhoades v. Castner, 12 Allen, 130. ' See the cases cited in note to § 369, post., A copy of such entry, how- ever, is not admissible to bind the parties. Davis v. Robertson, 3 Cons. (S. C.) 71. * Gill V. Bicknell, 2 Cush. (Mass.) 368 ; First Baptist Church of Ithaca V. Bigelow, 16 Wend. (N. Y.) 28. The Revised Statutes of New York and the statutes of some other States 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. ' Hawes v. Forster, 1 Moo. & Rob. 868 ; Rucker ». Cammeyer, 1 Esp. 105 ; Hicks v. Hankin, 4 lb. 114 ; Chapman v. Partridge, 5 lb. 266 ; Dick- 364 STATUTE OP FRAUDS. . [CH. XVII. agree in their terms.^ When they do not agree, or when they both state a contract different from that entered in the book, tlie question is presented, which is the memorandum ; and on this point there is unquestionable conflict in the decisions. In the latest of the English cases, however, it was determined by a majority of the judges of the Queen's Bench, that if the bought and sold liotes 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 two shall govern when the notes state a different contract from the book entry, is the more direct and essential question, and it seems to be still un- decided ; though Brie, J., in the case in the Queen's Bench, intimates that, in the absence of any commercial usage to rely exclusively on the notes, the parties, by accepting and acquies- cing 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, in- deed, 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.* erson v. Lilwal, 1 Stark. 128 ; Soames v. Spencer, 1 Dow. & Ry. 32 ; Short V. Spackman, 2 Barn. & Adol. 962 ; Grant v. Fletcher, 5 Barn. & Ores. 436 ; Goom V. Aflalo, 6 lb. 117 ; Truman v. Loder, 11 Adol. & Ell. 589 ; Sive- wright V. Archibald, 17 Adol. & Ell. n. 8. 103. • Gumming v. Roebuck, Holt, 172 ; Thornton v. Kempster, 6 Taunt. 786 ; Gregson v. Ruck, 4 Adol. & Ell. n. s. 737 ; Grant v. Fletcher, and Sive- wright V. Archibald, supra ; Peltier v. Collins, 3 Wend. (N. Y.) 459 ; Davis V. Shields, 26 lb. 841 ; Suydam v. Clark, 2 Sand. (N. Y.) 133. ' Sivewright v. Archibald, supra. And see Hawes v. Forster, supra Hinde v. Whitehouse, 7 East, 558 ; Pitts v. Beckett, 13 Mees. & Wels. 743 Heyman v. Neale, 2 Camp. 337; Thornton v. Meux, Moo. & Mai. 43 Thornton v. Charles, 9 Mees. & Wels. 802 ; Townend v. Drakeford, 1 Car. & Kir. 20; Toomer v. Dawson, Cheves (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. ' Grant V. Fletcher, 6 Barn. & Cres. 436; Sivewright v. Archibald, supra. * Erie, J., in Sivewright v. Archibald, supra. In this case the judges, being divided, delivered opinions seriaiim, and the whole subject of broker's CH. XVII. J THE POEM, ETC., OP THE MEMORANDUM. 365 § 352. 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.^ § 352 a. As to the time when it must be executed, it is set- tled 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 meant 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.* § 353. In the case of auctioneers, the general rule just stated seems not to apply. In Buckmaster v. Harrop, Lord Chancellor Brskine decided (the point being directly presented on the facts) that an auctioneer's entry, to be valid as a mem- notes and 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. & Rob. 221 ; Pitts u. Beckett, 13 Mees. & Wels. 743 ; Geary v. Physic, 6 Barn. & Ores. 234 ; Clason v. Bailey, 14 Johns. (N. Y.) 484; Vielie v. Osgood, 8 Barb. (N. Y.) 132; M'Dowell t. Chambers, 1 Strobh. Eq. (S. C.) 347 ; Draper v. Pattina, 2 Speers (S. C), 292. As to signature by printing, see post, § 356. And by telegraph, see Hazard v. Day, 14 Allen, 494. ' See ante, § 346, and cases there cited, where letters of the defendant recognizing the contract were held sufficient to charge him. Also, Williams V. Bacon, 2 Gray (Mass.), 387; Sivewright v. Archibald, 17 Ad. & Ell. N. s. 107, 114. ' Fricker v. Thomlinson, 1 Man. & Gr. 772. And see Nelson v. Dubois, 13 Johns. (N. Y.) 176. •• Bill V. Bament, 9 Mees. & Wels. 36. Erie, J., in Sivewright v. Archi- bald, 17 Adol. & Ell. s. a. 103. See ante, § 338. In Rose v. Cunynghame, 11 Ves. 650, before Lord Eldon, where it was necessary for the plaintiff to show a binding contract for the purchase of land, existing prior to the exe- cution 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. 366 STATUTE OP FRAUDS. [CH. XVII. orandum, must be made contemporaneously with the sale ; ^ and the language of many of the cases, apparently uncontradicted, is, that the name of the purchaser must be written down by him immediately after the announcement of the bid and the descent of his hammer ; by which we should understand, be- fore proceeding to put up another article. Mr. Justice Story, referring to this rule as to auctioneers, puts it on the ground that men are not to be " 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 imder 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 fol- low, the transaction, any more than if made by the party him- self. No such exception appears to have been suggested by those judges who have had occasion to lay down the general rule, that the memorandum may be made at any time before action brought ; and we do sometimes find that rule laid down with more or less distinct 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 pre- vious book entry made by him, constitute a binding memoran- dum ; for such notes imply a legal contract antecedently made and concluded. And if the exception should be admitted in cases of agency generally, 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, coiild not fail to present ' Buckmaster v. Harrop, 13 Ves. 456. And see Mews v. Carr, 38 E. L. & E. 368. " Smith v. Arnold, 5 Mas. (C. C.) 419. , ^ See, in particular, Sivewright v. Archibald, supra, per Erie, J., and Ibid. p. 293, per Patteson, J. CH. XVII.] THE POEM, ETC., OP THE MEMORANDUM. 367 much difficulty. It is at all times in the power of the princi- pal to revoke the agent's authority to sign, before he has exe- cuted it ; and, on the whole, we may be well justified in hesi- tating to accept a casual remark, even of such an eminent jurist, as a binding statement of the law on this point. § 353 a. The cases since Buckmaster v. Harrop, however, appear to rest on the distinction between the auctioneer's agency for the seller and his agency for the buyer. The former, they seem to concede (against the decision of that case) may continue so as to authorize the auctioneer to sign the memorandum at some time after the sale ; but the latter, it is held, must be exercised at the time of the sale.^ § 354. We shall presently see that whether a memorandum 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 » Mews V. Carr, 1 Hurl. & Norm. 484 ; Gill ». Bicknall, 2 Cush. 366 ; Horton V. McCarty, 53 Maine, 394. « Cooke V. Tombs, 2 Anst. 420 ; Pipkin v. James, 1 Humph. (Tenn.) 326. And see Whitchurch v. Bevis, 2 Bro. C. C. 669 ; Thynne v. Glengall, 2 CI. & Fin. N. s. 131 ; Montacute v. Maxwell, Stra. 236 ; Rose v. Cunyng- hame, 11 Ves. 550 ; Glengall v. Barnard, 1 Keen, 769. " Grant v. Levan, 4 Barr (Pa.), 393; Johnson v. Brook, 31 Miss. 17; Sanborn v. Sanborn, 7 Gray (Mass.), 142. But see Bowles v. Woodson, 6 Grat. (Va.) 178. 368 STATUTE OP FRAUDS. [CH. XVII. 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. Letters addressed to a third party, for instance, stating and affirming a contract, may be used against the writer as a memorandum of it.^ And an instru- ment intended to operate as of a higher nature, but insufficient for that purpose, as, for instance, a deed of land which is de- fective 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 memoran- dum prepared and intended to bind the parties is not deprived of its effect, because it is preliminary to the preparation of a more solemn and formal instrument.^ § 355. Whatever be the form of the memorandum, the statute requires that it be signed. Though it should be all written out with the party's own hand, there must still be a signature.^ Sealing does not appear ever to have been consid- ' Ellis V. Deadman, 4 Bibb (Ky.). 467 ; Smith v. Arnold, 6 Mas. (C. C.) 416; Shippey v. Derrison, 6 Esp. 190; Evans v. Prothero, 13 E. L. & E. 163 ; Howe v. Dewing, 2 Gray (Mass.) 476 ; Durrell v. Evans, 7 L. T. n. s. 97. And see Dobell v. Hutchinson, 3 Add. & Ell. 856 ; Sugden, Ven- dors and Purchasers, 114. = Barry ». Coombe, 1 Pet. (S. C.) 640. ' Moore v. Hart, 1 Vern. 110; Ayliffe v. Tracy, 2 P. Wms. 65; Fugate V. Hanford, 3 Litt. (Ky.) 262. And see Neal ». Cox, Peck (Tenn.), 443. A suggestion is apparently made to the contrary, though not acted upon, in Buck V. Pickwell, 1 Will. (Verm.) 167 ; Clark v. Tucker, 2 Sand. (N. Y.) 157; Kinloch v. Savage, 1 Speers, Ch. (S. C.) 470; Wright v. Cobb, 5 Sneed (Tenn.), 143. * Reeves v. Pye, 1 Cranch (C. C), 219; Argenbright v. Campbell, 3 Hen. & Mun. (Va.) 144; Gibson v. Holland, Law B. 1 Com. PI. 1. ' Fowle u. Freeman, 9 Ves. 361. See, however. Wood v. Midgley, 5 De G., M. & G. 41. « Bawdes v. Amhurst, Prec. in Ch. 402 ; Hawkins v. Holmes, 1 P. Wms. 770 ; and Ithel v. Potter, there cited ; Selby ». Selby, 3 Meriv. 2 ; Hubert CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 369 ered necessary under the fourth section.^ But whether sealing amounts to, and may take 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, ruled that sealing d, will was a signing within the Statute of Frauds and Perjuries.^ And still later, as appears in the re- port of Atkyns, Lord Hardwicke " seemed to think that seal- ing 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 testa- tor's hand ; " and they said that if the same thing should come in question again, they should not hold that sealing a will only was a sufficient signing within the statute.® More lately. Lord Eldon, in tlie 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 V. Moreau, 12 Moo. 216 ; Hubert v. Turner, 4 Scott (N. R.), 486 ; Bailey v. Ogden, 3 Johns. (N. Y.) 899 ; Anderson v. Harrold, 10 Ohio, 31)9 ; Barry V. Law, 1 Cranch (C. C), 77. ' Wheeler v. Newton, Free, in Ch. 16 ; s. c, more fully reported in 2 Eq. Cas. 44, c. 5 ; Worrall v. Munn, 1 Seld. (N. Y.) 233 ; Farris v. Martin, and Martin v. Farris, 10 Humph. (Tenn.) 495. ' Lemayne v. Stanley, 3 Lev. 1. ' Warneford v. Wameford, Stra. 764. * Gryle v. Gryle, 2 Atk. 177. But see Grayson v. Atkinson, 2 Ves. Sen. 454. ' Smith v. Evaps, 1 Wils. 313. 24 370 STATUTE OP FRAUDS. [CH. XVII. signing that it is determined that sealing is not necessary." ^ But his Lordship refers to no cases in support of his remarli. § 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 butnot signed. There was a subsequent written notice signed by the defendant, referring to this writing so as in tlie opinion of the court to make a complete memorandum, and to render a deci- sion as to the sufficiency of sealing unnecessary ; but notwith- standing that, each of the barons expressed his unqualified 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 autlientic. 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." ^ ' Wright V. Wakeford, 17 Ves. 454. With submission, however, it may be said to be quite obvious that although sealing may not be precisely equiv- alent to, it may be something higher and more solemn than, mere signature ; 60 that the inference that it was insufficient would not follow from its being unnecessary. See, also, Morrison v. Tournour, 18 Ves. 175. Si 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. XTII.] THE FORM, ETC., OP THE MEMORANDUM. 371 § 355 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 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 liis authority, so that the printed name had been unappropriated to the particular contract, it might have affijrded 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 > 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. & Per. 228 ; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144 ; In re Field, 3 Curt. (Prer.) 762. " Saunderson v. Jackson, 3 Esp. 181. And see Commonwealth v. Ray, 3 Gray (Mass.), 447; Lemed v. Wannemacher, 9 Allen, 417. ' 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. 372 STATUTE OP FRAUDS. [CH. XVII. man's stamping or impressing his name himself on the mem- orandum is a good signature.^ j § 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 mem- orandum as well as at the foot. It was held in a very early case that an instrument in a testator's handwriting, commencing "I, A. B., do make," etc., was sufficiently signed as a will;^ and the same rule has been applied in many cases of mem- oranda 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 witliin 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 fartlier 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- ' Pitts V. Beckett, 13 Mees. & "Wels. 743. Qucere, if this would not satisfy the New York statute cited in the last note ? ' Lemayne v. Stanley, 3 Lev. 1 ; Freem. 538. ' Knight V. Ci'ockford, 1 Esp. 188 ; Ogilvie u. Foljambe, 3 Mrriv. 53 ; Morrison v. Tournour, 18 Ves. 176 ; Propert v. Parker, 1 Russ. & My. 625 ; Western v. llussell, 3 Ves. & Bea. 187 ; Penniman v. Hartshorn, 13 Mass. 87; Hawkins u. Chace, 19 Pick. (Mass.) 502; Yerby v. Grigsby, 9 Leigh (Va.), 387 ; Bleakley v. Smith, 11 Simons, 150; Holmes v. Mackerel, 3 C. B. (n. s.) 789. The New York Court of Appeals have decided (reversing the judgment of the Supreme Court), that since their Revised Statutes re- quiring the memorandum to be subscribed, the signature must be at the foot. James v. Patten, 2 Seld. 9. * See cases cited in last note. The Supreme Court of Maryland has re- pudiated this doctrine. Higdon v. Thomas, 1 Harr. & Gill, 139. " Stokes V. Moore, 1 Cox, 219 ; Hubert v. Turner, 4 Scott, n. k. 486 ; Cabot V. Haskins, 3 Pick. (Mass.) 95. But see Higdon v. Thomas, supra. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 373 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 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 criticised by Lord Eldon, it is true, in Saun- derson v.- Jackson, where he said that if a man make a mem- orandum commencing, " I, A. B.," etc., it is held sufficient, though it is manifest he intends a farther signature.^ But it may be, with diSidence, questioned whether this broad observa- tion is justified by the authorities. Where instruments com- mencing 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 showing that he regarded the instrument as complete, as to re- pel the presumption of an intention to make a farther execu- tion ; * in cases of instruments commencing in the third person, as " Mr. A. B. agrees," etc., such a presumption does not arise. ' Walker v. Walker, 1 Meriv. 503. ' Hubert v. Turner, 4 Scott, N. B. 486 ; Hawkins v. Chace, 19 Pick. (Mass.) 502 ; Barry v. Coombe, 1 Pet. (S. C.) 640. And see Parker ». Smith, 1 Coll. 608 ; McConnell v. Brillhart, 17 111. 354 ; Wise v. Kay, 3 Iowa, 430; M'Millen.K. Terrell, 23 Ind. 163. Also, the valuable remarks of Mr. Fell, Merc. Guar. Appendix, No. V. ' Saunderson v. Jackson, 2 Bos. & Pull. 238. * See the remark of L. C. B. Skinner, in Stokes v. Moore, 1 Cox, 219. In Knight v. Crockford, 1 Esp. 188, the defendant drew up a paper in the first person, and the plaintiflf, after approving of its terms, required the fol- lowing to be added : ' ' That the parties bound themselves to its performance under a penalty of £100 ; " and tile defendant added it with his own hand, and it was signed by the plaintiff and attested by a witness ; and the defend- ant, 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, recognized it as perfectly executed by him beforehand. 374 STATUTE OP FRAUDS. [CH. XVII. Actual delivery of a memorandum of the former class as the agreement of the party, and perhaps the res gestee, the circum- stances attending the writing of it, would be taken into con- sideration to determine whether it was signed within the intent and meaning of the law.^ § 358. In an early case in Massachusetts,'' the memorandum was as follows : " Hartshorn Sf Arnold, of Providence, Bee. 13, 1813. I 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 ^ Arnold, Warden ^ Billings, and Andrew Taylor." Tiie words in italics were written by the defendant Hartshorn, the residue by the plaintiff; and it appeared (parol evidence being admitted for that purpose) that the plaintiff read the memoran- dum to Hartshorn. It was objected that it was not properly signed, the names of the defendants being above, and not below, the body of the paper. This objection the court overruled ; but there was another point, not taken at the argument or noticed in the decision, which seems worthy of consideration. The paper was actually signed by Penniman, the plaintiff, and, from its whole structure, seems to have been intended for his signature ; and this feature, on the principle stated in the pre- ceding section, should ordinarily have deprived of its eflScacy 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 words which follow the signature of Peu- ' Hawkins v. Chace, supra; Evans u. Ashley, 8 Missouri, 177. With further reference to the question of place of signature, see Sanborn v. San- born, 7 Gray (Mass.), 142 ; Schneider v. Norris, 2 Maule & S. 286 ; John- son «. Dodgson, 2 M. & W. 653 ; Durrell v. Evans, 7 L. T. n. s. 97. ' Penniman ». Hartshorn, 13 Mass. 87. ' Evans v. Ashley, 8 Missouri, 177. * See Bluck v. Gbmpertz, 7 W., H. & G. 862; Knight v. Crockford, 1 Esp. 188 ; Johnson v. Dodgson, 2 Mees. & Wels. 663. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 375 niman 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 tlie 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 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 verbally promised to give the plaintiff ^61,000 as a marriage portion, 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's 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 auc- tioneer 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 signature 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 suflScient; and this qualification appears to apply to the case before Lord > Gosbell V. Archer, 2 Adol. & Ell. 508. ' Welford V. Beazley, 1 Wila. 118. ^ Coles V. Trecothick, 9 Ves. 234. See Hill v. Johnston, 3 Ired. Eq. (N. C.) ,132. In Parks v. Brinkerhofif, 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. 376 STATUTE OF PEAUDS. [CH. XVII. Denman, where the signature (in the witness's place) was by one who was proved aliunde to be the clerk of the auctioneer, 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. § 360. 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 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 au- thenticate, or bind the party signing to an admission of, what is afterwards inserted ; and the court say : " There is a mate- rial difference between authorizing an agent to sign a contract already written, or make and sign an agreement, and author- izing an agent to reduce to writing a contract already made. Where an agent has been authorized to sign a contract reduced to writing, 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 his authority and signature are proved the writing itself becomes evidence of the contract ; and although the principal may deny the authority and signature of the agent, he would not be permitted to in- troduce evidence 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 ' Ulen V. Kittredge, 7 Mass. 235. See, also, Underwood v. Hossack, 38 HI. 208 ; Blacknall v. Parish, Jones' Eq. (N. C.) 70. From the manner in which Ulen v. Kittredge was afterwards referred to in Packard v. Richard- son, 17 Mass. 122, the court do not seem altogether to approve it. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 377 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 signature of the principal a contract already made, it is not enough to prove the signature of the principal, and the authority 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 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 in- troduced 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 authenti- cated, 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 singular, 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 £200, and part for £150, and the defendant undertook to procure two bills, one for each of those sums, to be accepted by O'Connell 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 for £200 and £146 respectively, he would get them accepted by the de- fendant and see them paid. It also appeared that afterwards, ' Hodgkins v. Bond, 1 N. H. 284. See also Jackson v. Titus, 2 Johns. (N. Y.) 432, the decision of Chief-Justice Kent {ante, § 12), and Wood v. Midgley, 6 De G., M. & G. 41. « Bluck V. Gompertz, 7 W., H. & G. 862. 378 STATUTE OP FRAUDS. [CH. XVII. 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 in his own hand : " I have received the two drafts (one being for £150 instead of £146, there being an error in the invoice of £4), both accepted by Mr. O'Connell ; " and the plaintiff signed this memorandum, but the defendant did not. It was held that the defendant's undertaking was rightly described as an under- taking to see the two bills of £200 and £150 respectively paid by O'Connell, and that the original signature covered and au- thenticated the subsequent correction, as to the amount of the smaller bill, within the Statute of Frauds, although it was in form signed, not by the defendant, but by the plaintiff. The view taken by the barons, who confessed great difficulty in com- ing 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 doubt, would be sufficient without re-signing. Then the effect of this memo- randum, 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 has been drawn for £150 instead of £146, there being an error in the invoice,' and then for the plaintiff to have written underneath 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." § 362. 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 affec- tionate Mother," was not signed; so as to constitute a binding agreement on the part of the mother, within the intent of the CH. XVII.] THE FORM, KTC, OP THE MEMORANDUM. 379 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 answer the pur- pose 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 judicial 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 communi- cation ? In cases where the initials only of the party are signed, it is quite clear that, with the aid of parol evidence, which is admitted to apply to them, the signature is to be held valid .^ There certainly seems to be some difficulty in distin- guishing 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- foi'mly rejected such notion, and with manifest reason.^ It is not enough that there is evidence that the party sought to be charged upon the contract regarded it as concluded by him ; the statute specifies actual signature as the proper proof of that fact. § 364. As regards more especially the manner of signing by an agent, it seems now quite well settled, as a rule applicable 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 ' Selby V. Selby, 3 Meriv. 2. ' Phillimore v. Barry, 1 Camp. 613 ; Salmon Falls Manuf. Co. v. Goddard, 14 How. (S. C.) 447 ; Barry v. Coombe, 1 Pet. (S. C.) 640 ; Sanborn v. Flagler, 9 Allen (Mass.), 474. See, however. Sweet v. Lee, 3 Man. & Gr. 452. ' Champion v. Plummer, 6 Esp. 240; Graham v. Musson, 5 Bing. n. r. 603 ; Graham v. Fretwell, 3 Man. & Gr. 368 ; Barry v. Law, 1 Cranch (C. C), 77. 380 STATUTE OP FRAUDS. [CH. XVII. the instrument, it appear that the party signing acts as agent in so doing, and witli intent to bind the third party as his prin- cipal.^ 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 prin- cipal be at the time unknown, if it does not appear that ex- clusive 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 down in the case of Higgins v. Senior, where Baron Parke remarks, of the admission of parol evidence for such a purpose, that it " in no way contradicts the written agreement. It does 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 agent, in signing the agreement in pursuance of the authority, is iu 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 ; remarking that to allow evidence to be given that the party, who appears on the face of the in- strument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement ; which cannot be done.^ The doctrine of Higgins v. Senior is supported by the strong approbation of our own great jurist, Judge Story ,3 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 de- ' Stackpole v. Arnold, 11 Mass. 27 ; Rice ». Gove, 22 Pick. (Mass.) 168; Minard u. Mead, 7 Wend. (N. Y.) 68; Spencer v. Field, 10 lb. 87; Pentz V. Stanton, lb. 271 ; Phillips v. Hooker, Phillips Eq. (N. C.) 193. " Higgins V. Senior, 8 Mees. & Wels. 834. ' Story on Agency, § 160 a. * Salmon Falls Manuf. Co. o. Goddard, 14 How. 447. See, also, Lerned V. Johns, 9 Allen (Mass.), 421 ; Huntington v. Knox, 7 Gush. (Mass.) 371 ; Williams v. Bacon, 2 Gray (Mass.), 387 ; Hunter v. Giddings, 97 Mass. 41 ; Hood V. Barrington, Law R. 6 Eq. 218. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 381 cisions upon which the doctrine is supposed to rest are very closely and carefully examined, and it is denied that it is sup- ported by them, while it is forcibly attacked on grounds of principle. The court say : " It requires very nice powers of discrimination to perceive how the introduction of a new party into the contract is not a contradiction of the written instru- ment, as well as the striking out of a party already in." ^ § 365. The requisition of the statute in the fourth section is that tlie memorandum be signed hy 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 hereafter, it is necessary, in another view, that the plaintiff, or party in whose favor the engagement is made, be designated in the memorandum.^ In the seventeentli section, relating to sales of goods, etc., the word parties, in the plural, is used; and from this difference it appears to have been once considered that botli must sign a memorandum to be binding under that section.^ Later decisions, however, reject the distinction and place botli sections under the same construction ; * and, indeed, ' Fenly v. Stewart, 6 Sand. 101. And see Stackpole v. Arnold, supra; Pentz V. Stanton, 10 Wend. (N. Y.) 271 ; Newcomb v. Clark, 1 Denio (N. Y.), 226. ^ Laythoarp v. Bryant, 2 Bing. N. C. 735 ; Huddlestone v. Briscoe, 11 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. Bailey, 14 Johns. (N. Y.) 484 ; McCrea v. Purmort, 16 Wend. (N. Y.) 460 ; Penniman v. Hartshorn, 13 Mass. 87 ; Shirley v. Shirley, 7 Blackf. (Ind.) 462 ; Barstow v. Gray, 3 Greenl. (Me.) 409 ; Douglass v. Spears, 2 Nott & McC. (S. C.) 207 ; Morin v. Martz, 13 Minn. 191 ; Reuss V. Kicksley, Law R. 1 Exch. 342. But see Justice v. Land, 2 Rob. Sup. Ct. N. Y. 333; Marcus v. Barnard, 4 Ibid. 219. It has been held in Ten- nessee, that the memorandum of contract for the sale of an interest in land must be signed, in all cases, by the vendor. Frazer v. Ford, 2 Head, 464. ^ Champion v. Pluramer, 6 Esp. 240. * Egerton v. Mathews, 6 East, 307 ; Stapp v. Lill, 1 Camp. 242. In New York, the Revised Statutes (see Appendix) provide that iii contracts for the sale of land the vendor shall always sign. Coles u. Bowne, 10 Paige, 526; McWhorter v. McMahan, lb. 386; Champlin v. Parish, 11 lb. 406; 382 STATUTE OP FRAUDS. [CH. XVII. as we have taken the liberty to remark once or twice before, it would be manifestly unsafe, even if it were possible with con- sistency, to base broad rules of interpretation upon mere literal variations in the language of different parts of an enactment so incoherently drawn as the Statute of Frauds and Perjuries. That the singular and plural of the word in question were in- tended 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 redundant, 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 could 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 National Fire Ins. Co. v. Loorais, lb. 431 ; Worrall v. Munn, 1 Seld. 229 ; Sari V. Bourdillon, 1 C. B. (n. s.) 196 ; Mizell v. Burnett, 4 Jones (N. C), 249 ; Ezmay v. Groton, 18 Bl. 483 ; Smith v. Neale, 2 C. B. (n. s.) 66. It has been suggested, that, possibly, the legislature of that State, by simply providing that the vendor shall sign, and being silent as to the purchaser, have left the law in such position that the latter may be bound by an agreement which he has not, though the former has, signed. Miller v. Pelletier, 4 Edw. Ch. 102. ' Lawrenson v. Butler, 1 Sch. & Lef. 13, per Lord Redesdale. And see Armiger v. Clark, Bunb. Ill ; Troughton v. Troughton, 1 Ves. 86 ; Park- hurst u. Van Cordlandt, IJohns. Ch. (N.Y.) 282; Benedict «. Lynch, lb. 373. ^ Hatton V. Gray, 2 Cas. Ch. 164; Coleman v. Upcot, 6 Vin. Ab! 528, pi. 17 ; Flight v. BoUand, 4 Buss. 298 ; Seton v. Slade, and Hunter b. Seton, CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 383 which it is treated as an open question, whether a memorandum signed by one party and delivered to and accepted by the other, as the statement of the agreement between them, might not be binding upon tlie latter. ^ In none of them, however, is it found necessary to pass upon it, nor is the reasoning given upon which the proposed rule would be sustained. Witli 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. •§ 367. The statute does not require the party's own signa- ture 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 un- der 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 seventeenth sections, that neither party can be the other's agent to bind him by signing the memorandum.* And it makes no difference that the pretended agent has not himself any beneficial interest in the contract, but stands in a fiduciary relation to third persons, so long as he is, in a legal 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. & Walk. 413; Palmer v. Scott, 1 Russ. & My. 391 ; Sugd. Vendors and Purchasers, 112, 113 ; BuUard v. Walker, 3 Johns. Cas. (N. T.) 60 ; Shirley v. Shirley, 7 Blackf. (Ind.) 452 ; Roget v. Merritt, 2 Caines (N. Y.), 120; Parish v. Koons, 1 Pars. Eq. (Pa.) 79 ; Lowry v. Mehaflfy, 10 Watts (Pa.), 887; Clason v. Bailey, 14 Johns. (N. Y.) 484; Ives v. Hazard, 4 R. I. 14 ; Sains v. Fripp, 10 Rich. Eq. (S. C.) 447 ; Old Colony K. R. V. Evans, 6 Gray (Mass.), 25. ' 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 Parish, 2 Gill & Johns. (Md.) 227. ^ Kyle V. Roberts, 6 Leigh (Va.), 495; Sanborn v. Flagler, 9 Allen (Mass.), 474. * Wright V. Dannah, 2 Camp. 203 ; Farebrother v. Simmons, 5 Barn. & Aid. 833 ; Bayner v. Linthorne, 2 Car. & Pa. 124 ; Bailey v. Ogdens, 3 Johns. (N. Y.) 417 ; Boardman v. Spooner, 13 Allen (Mass.), 358. 384 STATUTE OP FRAUDS, [CH. XVII. point of view, the real party to, and the proper one to sue upon, the contract.^ § 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, decided 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 tlie statute.^ In a later case. Bird v. Boulter, in the same court, the facts proved respecting the proceedings at the auction sale were somewhat peculiar. The auctioneer (who was the plaintiff, as in Farebrother v. Sim- mons) 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 tlie defend- ant as> purcliaser 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 ver- dict obtained for the plaintiff, it was urged, upon a motion for nonsuit, that signature by the auctioneer's clerk was the same as signature by the auctioneer, and the rule insisted upon that one of the contracting parties coul^d not be agent for tlie other, and Farebrother v. Simmons cited, but the verdict was sustained.^ The several judges, in their opin- ions, while fully admitting tlie autliority of that case, strongly dwelt upon a distinction to the effect that, under the peculiar circumstances o^ 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 ' Buckmaster v. Harrop, 13 Ves. 456 ; Smith v. Arnold, 5 Mas. (C. C.) 417 ; Bent v. Cobb, 9 Gray (Mass.), 897. " Farebrother v. Simmons, supra ; B,obinson v. Garth, 6 Ala. 204. But see Ennis V. Walker, 3 Blackf. (Ind.) 472. 3 Bird V. Boulter, 4 Barn. & Adol. 443. CH. XVII.] THE FORM, ETC., OF THE MEMORANDUM. 385 constituted such for the same purpose by acquiescing in his proceedings. But some of the judges placed their decision upon tlie farther ground that the party who signed the memo- randum was not the plaintiff of record. And this seems to dis- tinguish the case satisfactorily from Parebrother v. Simmons, while it suggests an important consideration in connection 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 con- tract, it would be hard to admit the signature of his clerk as competent evidence, his own not being so. But there is a clear difference between the invalidity of a memorandum as signed by one who had no power to sign it, and its inadmissi- bility in evidence as signed by a party to the record. The latter objection is of a technical cliaracter, not affecting the writing, but only the remedy upon it. Where that is escaped by the form of the memorandum, there seems no good reason why the party entitled to sue upon it should not recover. The Court of Appeals of Virginia have fully upheld this distinc- tion, in a case where they allowed an action by a sheriff upon a memorandum signed by his deputy.^ ' Brent b. Green, 6 Leigh (Va.), 16, overruling Carrington v. Anderson, 5 Munf. (Va.) 32. The doctrine stated in the text is also supported by the recent case of Bent v. Cobb, 9 Gray (Mass.), 397. That was an action of contract by guardians on a sale by auction of land of their ward, pursuant to a license of the judge of probate. One of the plaintiffs was auctioneer at the sale, and made a memorandum thereof in writing, and signed it with his own name, as "guardian and auctioneer;" but the defendants refused to accept a deed or pay the price. It was held that the memorandum was insufficient, as being not signed by the defendant or by "any person by him thereunto lawfully authorized." Bigelow, J., delivering the opinion of the court, says, — " The chief reason in support of the rule, that an auctioneer, acting solely as such, may be the agent of both parties to bind them by his memorandum, is that he is supposed to be a disinterested person, having no motive to mis- state the bargain, and entitled equally to the confidence of both parties.. But this reason fails when he is the party to the contract and the party in 26 386 STATUTE OP FRAUDS. [CH. XVII. § 369. The same person may act as agent for both parties. This is shown by the familiar cases of entries by brokers and auctioneers, in addition to which others will be referred to presently. In regard to brokers, we have already had occasion to see that they bind both the buyer and the seller, between whom they complete a bargain, by their bought and sold notes, or by their written book entry .^ And in England, where the broker is a known legal public officer, governed by statute, and cannot act as principal without subjecting himself to a penalty, those who deal with him are bound to find out who his principals are ; whereas, in this country, he must be known by the party dealing with him to be a broker, and acting in that capacity and not as principal, or his memorandum will not bind such party to the bargain with his employer.^ As to auctioneers, though the rule was once denied, and its expedi- ency has not always been admitted, it is fully settled by author- ity that where at public sale, either of real estate or of goods interest also. The purpose of the statute was, that a contract should not fee binding unless it was in writing and signed by the party himself to be charged thereby, or by some third person in his behalf, not a party to the contract, who might impartially note its contents. " Nor can it make any difference as to the power of the vendor to make a memorandum binding on the vendee, that th'e sale is made by the former in a representative or fiduciary character as an executor, administrator, guardian, or trustee. He is still the party to the contract, the price is to be paid to him, he is to deal with the purchase-money ; his interest and bias would naturally be in favor of those whom he represented, and, what is more material, in case of dispute or doubt as to the terms of the contract, his duties and interest would be adverse to those of the vendee. He would stand in a relation which would necessarily disqualify him from acting as agent of both parties. We do not mean to say that a contract would not be bind- ing made by an auctioneer, where, from the form in which it was written, an action might be brought to enforce the contract in his name. In such case, if he was only the nominal party to the contract and the record, not being himself the vendor, and having no interest in the sale except as auctioneer, his memorandum might be sufficient to bind both parties to the contract. But we confine our opinion to the case at bar, where the auctioneer was the vendor and a party having interest, greater or less, in the contract, as well as a party to it in terms." ' Ante, § 347. ' Shaw V. Finney, 11 Met. (Mass.) 456. See Davis v. Shields, 26 Wend. (N. Y.) 341. CH. XVII.J THE FORM, ETC., OF THE MEMORANDUM. 387 and chattels, the auctioneer knocks down the property to the highest bidder, he becomes his agent, as he was previously that of the seller, to conclude the contract, and does conclude it by. immediately entering the buyer's name as such in his sales book, or upon his catalogue.^ The rule applies equally to public officers not professedly auctioneers, but selling property at public auction ; such as sheriffs and their deputies,^ admin- istrators ,3 commissioners acting under order of court,* land commissioners,^ etc. It seems, however, that the powers of an auctioneer, in this particular, are confined to such persons as act, either professionally or by authority, in that capacity ; •and do not extend to a mere private agent of the vendor, as- suming to sell property at auction.^ Nor is a commission mer- chant regarded as either auctioneer or broker, so as to enable him to bind the buyer of goods by his memorandum.^ In re- • Simon v. Motivos, or Metivier, 1 W. Bl. 599 ; 3 Burr. 1921 ; ffinde v. Whitehouse, 7 East, 658 ; Coles v. Trecothick, 9 Ves. 234 ; Buckmaster ». Harrop, 7 Ves. 341 ; Blagden v. Bradbear, 12 lb. 466 ; Stansfield v. John- son, 1 Esp. 101 ; Walker v. Constable, 1 Bos. & Pull. 306 ; Emerson ». Heelis, 2 Taunt. 38 ; White v. Proctor, 4 lb. 209 ; Kenworthy v. Scofield, 2 Barn. & Ores. 945; Morton v. Dean, 13 Met. (Mass.) 388; Gill v. Bick- nell, 2 Cush. (Mass.) 858 ; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659 ; Cleaves v. Foss, 4 Greenl. (Me.) 1 ; Inhabitants of Alna ». Plummer, lb. 258 ; Singstack i'. Harding, 4 Harr. & Johns. (Md.) 186 ; Smith v. Jones, 7 Leigh (Va.), 165; Adams v. M'Millan, 7 Port. (Ala.) 73; Gordon v. Sims, 2 McCord, Ch. (S. C.) 164; Endicott v. Perry, 14 Sm. & Marsh. (Miss.) 167 ; Anderson v. Chick, Bail. Eq. (S. C.) 118 ; Muggleton v. Bur- nett, 38 Eng. Law & Eq. 361. Parton v. Crofts, HI Eng. Com. Law, 11. " Christie v. Simpson, 1 Rich. (S. C.) 401 ; Endicott v. Perry, 14 Sm. & Marsh. (Miss.) 157; Robinson v. Garth, 6 Ala. 204; Ennis v. Walker, 3 Blackf. (Lid.) 472; Brent u. Green, 6 Leigh (Va.), 16; Carrington ». An- derson, 6 Munf. (Va.) 32. ^ Smith V. Arnold, 5 Mas. (C. C.) 417. * Jenkins v. Hogg, 2 Cons. (S. C.) 821 ; Gordon ». Sims, 2 McCord, Ch. (S. C.) 164 ; Hutton v. Williams, 36 Ala. 603. ° Hart V. Woods, 7 Blackf. (Ind.) 668. The clerk, entering a release of record in open court, by verbal direction, is considered the agent of both parties for so doing. Boykins v. Smith, 3 Munf. (Va.) 102. 8 Anderson v. Chick, Bailey, Eq. (S. C.) 118. '' Sewall V. Fitch, 8 Cow. (N. Y.) 218 ; Batturs v. Sellers, 6 Harr. & Johns. (Md.) 117. 388 STATUTE OP FRAUDS. [OH. XVII. gard to the clerk of an auctioneer, writing down the name of - the buyer under his principal's direction, there has been much conflict of opinion ; but the clear preponderance of the later au- thorities is in favor of regarding him in such cases as clothed with the same powers as his master, the auctioneer.^ It has been decided that the rule did not embrace the clerk of a broker ; ^ but even this seems now to be open to question. ^ It may be doubted whether there is any sound analogy between auctioneers and brokers' clerks, in this particular. In the case of the former, the authority to sign for the buyer is, by his bidding and allowing the property to be knocked down, openly given to the auctioneer, who on his part merely uses the hand of his clerk immediately and under his own eye and direction, to insert the name in the sales book or catalogue. In the case of the latter, there seems to be a plain delegation of authority by the broker, such as the law does not allow in cases of agencies of that description.^ § 370. The agent must be " thereunto lawfully authorized." It has been held that one who was acting at the time as legal attorney for the party in whose behalf he signed the memoran- dum, did not necessarily have power so to sign, by virtue of that relation.^ At the same time, the court by their emphatic reference to the words " thereunto lawfully authorized," might seem to imply that the agency for the purpose of signing an ' Coles V. Trecothick, 9 Ves. 234 ; Gosbell v. Archer, 2 Adol. & EU. 600 ; Bird V. Boulter, 4 Barn. & Adol. 443 ; Henderson v. Barnewall, 1 Yo. & Jerv. 387 ; Gill v. Bicknell, 2 Gush. (Mass.) 358 ; Smith ii. Jones, 7 Leigh (Va.), 165 ; First Baptist Church of Ithaca v. Bigelow, 16 Wend. (N. Y.) 28 ; Frost v. HiU, 3 lb. 386 ; Doty v. Wilder, 15 111. 407 ; Alna v. Plummer, 4 Greenl. (Me.) 263 ; Adams v. M'Millan, 7 Port. (Ala.) 73 ; Brent v. Green, 6 Leigh (Va.), 16 ; Hart i>. Woods, 7 Blackf. (Ind.) 568 ; Contra, Meadows v. Meadows, 3 McCord (S. C), 458; Entz v. Mills, 1 McMuU. (S. C.) 453; Christie v. Simpson, 1 Rich. (S. C.) 407. " Henderson v. Barnewall, 4 Yo. & Jerv. 387 ; Johnson v. Mulrey, 4 Rob. Sup. C. (N. Y.) 401. And see Boardman v. Spooner, 13 Allen (Mass.), 362. ' Townend v. Drakeford, 1 Carr. & Kir. 20. * Story on Agency, §§ 13, 109 ; Blore w. Sutton, 3 Meriv. 237. * Bushel V. Beavan, 1 Bing. N. C. 103. CH. XVII.] THE FORM, ETC., OP THE MEMORANDUM. 389 agreement under the statute, must in all cases be specifically given ; but, in the absence of any decision to that effect, we may well doubt whether a general agency sufficiently compre- hensive in its terms would not be sufficient ; though, of course, even an actual signature by the agent in such a case might be controlled by circumstances showing that it was not intended by the principals that it should bind them ; as in Hubert v. Trehome, where the instrument was signed by an agent whose general authority embraced his so doing, but the signature was followed by the words, " as witness our hands," on which the court held the defendants intended themselves to sign, and that they were not bound.^ Of course, the power must embrace the act of signature ; if it extend only to settling the terms of the contract,^ or taking notes, or writing out the agreement,^ or doing any thing else merely preliminary to the signature, it is insufficient. § 370 a. The agent for signing inay, in all the cases enumer- ated in the fourth section, be appointed without writing,* unless, of course, the memorandum to be signed is to be also sealed, in which case the power must be conferred by an instrument ' Hubert v. Trehome or Turner, 4 Scott, N. R. 486. ' Coleman v. Garrigues, 18 Barb. (N. Y.) 60 ; Rice v. Rawlings, Meigs (Tenn.), 496. ' Earl of Glengall v. Barnard, 1 Keen, 769. See, also, Dixon v. Broom- field, 2 Chit. 205. " Coles V. Trecothick, 9 Ves. 250; Mortlock v. BuUer, 10 Ves. 292; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Graham v. Musson, 7 Scott, 769 ; Rucker v. Cammeyer, 1 Esp. 106 ; Wright v. Dannah, 2 Camp. 203 ; Greene V. Cramer, 2 Con. & Law. 54 ; Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258 ; McWhorter v. McMahan, 10 Paige (N. Y.), 386 ; Lawrence v. Taylor, 5 Hill (N. Y.), 107; Worrall ». Munn, 1 Seld. (N. Y.) 229; Hawkins ». Chace, 19 Pick. (Mass.) 505 ; Ulen b. Kittredge, 7 Mas*. 236 ; Yerby v. Grigsby, 9 Leigh (Va.), 387 ; Johnson v. McGruder, 15 Mo. 366 ; Talbot V. Bowen, 1 A. K. Marsh. (Ky.) 436 ; Coleman v. Bailey, 4 Bibb (Ky.), 297; Curtis v. Blair, 4 Cush. (Miss.) .309; Johnson v. Dodge, 17 111. 433. But see Caperton v. Gray, 4 Yerg. (Tenn.) 663. Mr. Fell (Merc. Guar., Appendix, No. VI.) argues very forcibly against the propriety of this rule, but admits it to be settled. '390 STATUTE OP FRAUDS. [CH. XVII. of equal dignity.^ The authority in cases of contracts, however, may be given subseqiiently to the signature, by parol ratifica- tion of it.2 § 370 b. The agent's signature may be in his own name, no principal's name or fact of agency appearing in the memoran- dum ; and parol proof will be admitted to show the agency and hold the real principal.^ ' Blood V. Hardy, 15 Maine (3 Shep.), 61 ; ante, § 14. In a late case of appeal from the Exchequer, the plaintiff, a hop grower, having sent samples of hops for sale to N., his factor, with instructions as to price, the defend- ants, who were hop merchants, called at N.'s office to see the samples, but could not agree as to price. Subsequently, on the same day, the defendants met the plaintiff, and, after a conversation about the hops, they went vrith him to N.'s office, and there, in N.'s presence, made the plaintiff an offer for the hops, which, in the presence and hearing of the defendants, the plain- tiff asked N. whether he should accept, and was advised by him so to do. Thereupon N. wrote out in his book a sale note in duplicate, each part of which was dated "19th October." At the request of the defendants, the date in each part was, with the ^aintiff's consent, altered by N. to the " 20th October," in order to give defendant a longer time for payment, and then one part so altered was torn from the book by N. and handed to de- fendants, who took it away and kept it. In an action by plaintiffs against defendants for not accepting the hops, it was held, reversing the decision of the Court of Exchequer (4 L. T. n. 8. 265), that there was evidence for the jury of the intention of the parties that N. should be their agent for the purpose of making a written record of a contract binding upon both of them. Durrell v. Evans, 7 L. T. ir. s. 97. ' Maclean v. Dunn, 4 Bing. 722 ; 1 Moo. & P. 761 ; Gosbell v. Archer, 2 Adol. & Ell. 600 ; Sugden, Vendors and Purchasers, 134 ; Holland v. Hoyt, 14 Mich. 238. ' Wilson V. Hunter, 7 Taunt. 295 ; Dykers v. Townsend, 24 New York, 67. CH. XVIII.J THE CONTENTS OP THE MEMORANDUM. 391 CHAPTER XVIII. THE CONTENTS OP THE MEMORANDUM. § 371. Having, in the last chapter, inquired into those mat- ters which concern the form of the memorandum required by the Statute of Frauds in cases of contracts, we come now to the question, w^at the memorandum must contain. Upon this the general rule is that it must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.^ It is proposed in the present chapter to consider in detail the several matters which it has been determined the writing must contain, observing, as we proceed, the degree of certainty or fulness required in their statement, and the extent to which parol evidence is admitted to aid in the interpretation of the memorandum ; and also to inquire how far the statute allows effect to oral agreements of parties made subsequently to the execution of a memorandum, for the purpose of modifying or discharging the contract. § 371 a. In the first place the note or memorandum must import an agreement made. If it show only a treaty pending and not a contract concluded,^ or if, referring to the alleged agree- ment, it repudiate it and declare it not binding,^ or, referring to ' 2 Kent, Com. 511 ; Abeet v. Radcliflfe, 13 Johns. (N. Y.) 300. The ordinary incidents only of an agreement, as for instance, the usual covenants and. other ingredients of a complete transfer in the case of a sale of land, will be supplied by the court. Barry v. Coombe, 1 Pet. (S. C.) 650 ; Symes V. Hutley, 2 L. T. n. s. 609. 2 Whaley v. Bagnel, 1 Bro. P. C. 845 ; Gaunt v. Hill, 1 Stark. 10 ; Strat- ford V. Bosworth, 2 Ves. & Bea. 341 ; Roberts v. Tucker, 3 Wels., Hurl. & Gord. 632 ; Barry v. Coombe, 1 Pet. (S. C.) 640 ; Ballingall v. Bradley, 16 Illinois, 373 ; Hazard v. Day, 14 Allen, 494. ^ Cooper V. Smith, 15 East, 103 ; Richards v. Porter, 6 Bam. & Cres. 437 ; Houghton v. Morton, Irish, 2 B. Mich. 1, 1855 ; Archer v. Baynes, 5 392 STATUTE OP FRAUDS. [CH. XVIII. it annex conditions, or otherwise make variations,^ it has no effect as a memorandum to bind the party from whom it pro- ceeds. But where the defendant wrote a letter declining to sign a prepared draft of agreement, saying that his word should be as good as his bond, the letter was held to be a binding memorandum.^ And where one party, in his letter, disputed the binding existence of the agreement, his letter may be taken in connection with a subsequent one from the other party, in- sisting 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.^ § 372. It is necessary that the written memorandum contain the names of both the contracting parties ; although, as we have seen, it need only be signed by him who is to be charged upon it. Upon this point the leading case is Champion v. Plum- mer, decided in the Exchequer Chamber, in 1805, where the memorandum was duly signed by the vendor, defendant, but the name of the purchaser nowhere appeared; The plaintiff being nonsuited below, a rule was obtained to set the nonsuit aside and for a new trial. Sir James Mansfield, C. J., said : " How can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties ? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person, as well as to the plaintiff. There cannot be a contract without two parties, and it is customary in the course of business to state the name of the purchaser as well as the seller, in every bill of parcels. This note does not appear to me to amount to any memoran- Wels., Hurl. & Gord. 625 ; Wood v. Midgely, 5 De G., M. & G. 41 ; Fyson V. Kitton, 3 Com. L. 705 ; Goodman v. Griffiths, 38 Eng. Law & Eq. 491. ' Smith V. Surnam, 9 B. & C. 661 ; Williams v. Bacon, 2 Gray, 387 ; Jenness v. Mount Hope Co., 53 Maine, 20. » Tawney u. Crowther, 3 Bro. C. C. 318. ^ Jackson v. Lowe, 1 Bing. 8 ; Dobell v. Hutchinson, 3 Adol. & Ell. 355. And see Saunderson v. Jackson, 2 Bos. & Pull. 238 ; Allen u. Burnett, 3 Taunt. 169 ; FitzmaUrice v. Bayley, 38 Eng. Law & Eq. 136 ; Bailey v. Sweeting, 30 L. J. C. P. 150 ; McClean v. NichoUe, 4 L. T. n. s. 863. CH. XVm.] THE CONTENTS OF THE MEMORANDUM. 398 dum in writing of a bargain." And, the rest of the court con- curring, the rule was discharged.^ On the same principle, it is held that a memorandum of guaranty is not sufficient, unless the name of the party whose debt is to be answered for is in- serted therein.^ § 373. This principle has uniformly been assented to by the courts both of England and our own country.^ No formality in this particular, however, is required by the statute ; it is sufficient if, upon the memorandum, in addition to its having the signature of the party to be charged, it appear with reason- able certainty who the other party is. Thus, a letter addressed by the defendant to, or received by him from, the plaintiff, and sufficiently connected in meaning with the other writings re- lied upon as constituting the memorandum, may be evidence to show the plaintiff to be a party to the contract.* And the fact that the person to whom such a letter was addressed was the agent of the plaintiff, and received it in that character, may be proved by parol evidence, to show the plaintiff to be the real promisee.^ Where the particulars of an auction sale, upon which the memorandum charging the purchaser was indorsed, • Champion v. Plummer, 1 Bos. & Pull. N. R. 252. " Williams v. Lake, 1 L. T. n. s. 57. ' Jacob V. Kirk, 2 Moo. & Rob. 221 ; Wheeler v. Collier, Moo. & Mai. 123 ; Allen v. Bennet, 3 Taunt. 169 ; Waterman v. Meigs, 4 Cush. (Mass.) 497 ; Nichols v. Johnson, 10 Conn. 192 ; Sherburne v. Shaw, 1 N. H. 157 ; Webster v. Ela, 6 lb. 540 ; Farwell v. Lowther, 18 111. 262 ; Sheid v. Stumps, 2 Sneed, 172 ; Williams v. Byrnes, 8 L. T. N. s. 69. But a promise in writing, signed, to pay one unnamed whp shall furnish goods to the writer, or to a third person, will become a binding contract with any one, whosoever he may be, who shall accept the promise in vyriting and furnish the goods. lb. * Jacob V. Kirk, 2 Moo. & Rob. 221 ; Allen v. Bennet, 3 Taunt. 169. And see ante, § 347. * Bateman v. Phillips, 15 East, 270; ante, 370 6. And see Williams «. Bacon, 2 Gray (Mass.), 387. But where a letter of credit was addressed by mistake to John and Joseph, and delivered to John and Jeremiah, it was held that John and Jeremiah could not sustain an action upon it for goods furnished by them to the bearer on the strength of it ; for there was no am- biguity, patent or latent, in the case, nor any fraud upon the plaintiffs, nor (as they had observed the misdirection and taken the risk of its materiality) any mistake on their part. Grant v. Naylor, 4 Cranch (S. C), 224. 394 STATUTE OP FRAUDS. [CH. XVIII. stated that the sale was " by order of Mr. W. Laythoarp, the proprietor," this was held a sufficient indication of the plaintiff.^ And in a case where an order for goods was written and signed by the seller's agent in a book belonging to the buyer, Mansfield, C. J., said, if it were " a regular order-book, and supposing that the person to whom it belonged, the place in which it was kept, and the purpose for which it was employed were consonant, it would be no great stretch to say, this was a ground for inferring that these entries were made by the authority of the owner of the book, for the purpose of eviden- cing the sale ; " but there was other evidence in the case that the plaintiff was the buyer.'-^ § 374. It would seem to be very clear that the mere ap- pearance of the plaintiff's name in the memorandum is not suflBcient, if it does not appear as that of the promisee, or party to whom the defendant is bound, and that such character cannot be af&xed by parol evidence to an otherwise ambiguous insertion of the name.^ This point, among others, was ex- pressly held by Mr. Justice Kent, in an action on the follow- ing memorandum : " J. Ogden & Co. Bailey & Bogart. Brown, 12|-; White, 16J, 60 and 90 days. Debenture part pay;" one of his objections to its sufficiency being that no person could ascertain from it which of the parties was buyer and which was seller.* § 375. A late decision of much consideration by the Su- preme Court of the United States, however, seems to stand opposed to this rule. The memorandum there relied upon was ' Laythoarp v. Bryant, 2 Bing. N. C. 735. ' Alien V. Bennet, 3 Taunt. 169. Where the names of the plaintiffs (vendors) appeared upon the title-page of their order-book in which the de- fendant's order was written, and signed by him, held sufficient in Sari v. Bourdillon, 37 Eng. Law. & Eq. 415. See, also, Newell o. Kadford, Law R. 3, Com. PL 62. ' Champion v. Plummer, 1 Bos. & Pul. N. R. 262 ; Sherburne «. Shaw, 1 N. H. 167 ; Nichols v. Johnson, 10 Conn. 198 ; Osborne ». Phelps, 19 lb. 73. " Bailey ». Ogden, 3 Johns. (N. Y.) 399. See, also, Vanderbergh v. Spooner, Law R. 1 Exch. 316. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 395 as follows : " Sept. 19, W. W. Goddard, 12 mos. 300 bales. S. F. drills, 7^. 100 cases blue drills, 8f . Cr. to commence," etc., and signed " R. M. M. ; W. W. G." The former initials appeared by parol evidence to be those of the agent of the plaintiffs. In the opinion delivered on behalf of the majority of the court, in favor of the sufficiency of the memorandum, no attention appears to be paid to the uncertainty upon the face of the writing as to who was buyer and who was seller in the transaction ; a point which Mr. Justice Curtis, in his dis- senting opinion, urges with great force of reasoning and a full citation of the autborities. But it appeared in the propf that subsequently a bill of parcels detailing the purchase was made out and sent to the purchaser and accepted as such by him, which circumstance is referred to in the principal opinion as to be considered in aid of any ambiguity that might exist in the former memorandum ; and on that ground the case may perhaps be saved from conflict with the general rule.^ § 375 a. Where the names of both parties appear in the memorandum, but it does not show which is buyer and which is seller, parol evidence of the occupation of each party may be taken in aid of the interpretation of the memorandum in this respect.^ § 376. Again, the memorandum should show the price agreed to be paid for the property sold, where the contract is one of sale.^ Where a price is stipulated by the parties, it ' Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446. 2 Newell V. Kadford, Law R. 3 Com. PI. 62. 3 Blagden v. Bradbear, 12 Ves. 466 ; Clerk v. Wright, 1 Atk. 12 ; Bromley V. Jefferies, 2 Vem. 415 ; Elmore v. Kingacote, 6 Barn. & Cres. 583 ; Ida V. Stanton, 15 Verm. 691 ; Smith v. Arnold, 6 Mas. (C. C.) 416 ; Buck v. PickweU, 1 Will. (Verm.) 167 ; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ; M'Farson's Appeal, 11 Penn. (1 Jones) 503 ; Soles v. Hickman, 20 Penn. (8 Harr.) 180 ; Kay v. Curd, 6 B. Mon. (Ky.) 103 ; Parker v. Bod- ley, 4 Bibb (Ky.), 102; Ellis v. Deadman, lb. 467; Kinloch v. Savage, 1 Speers, Eq. (S. C.) 470 ; Goodman v. Griffiths, 1 Hurl. & Norm. 574 ; PoweU V. Lovegrove, 39 E. L. & E. 427 ; Wright v. Cobb, 5 Sneed, 143 ; Farwell v. Lowther, 18 111. 252 ; Sheid v. Stumps, 2 Sneed, 172 ; Ives v. Hazard, 4 R. I. 14. The records of a corporation, showing the plaintiff's appointment as their engineer, to serve a year from a future day, has been 396 STATUTE OP FRAUDS. [CH. XWII. is manifestly an essential part of their agreement ; its omission from the memorandum, therefore, is fatal. Nor can a differ- ent price be proved by parol evidence, where one is stated Bean v. Valle, 2 Mo. 103 ; Halsa v. Halsa, 8 lb. 305. CH. XVni.] THE CONTENTS OF THE MEMORANDUM. 409 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 difference.^" §. 392. It is important to observe that the American decisions which stand opposed to Wain v. Warlters, have almost exclu- sively considered that case as depending upon the force attrib- uted by the judges to the word '^ agreement," and the case of Bgerton 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 be sus- > Neelson v. Sanbom, 2 N. H. 414 ; Underwood t>. Campbell, 14 lb. 393. * 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 Ap- pendix. Sackett V. Palmer, 25 Barb. (N. Y.) 179. ' Buckley v. Beardslee, 2 South. 672 ; Laing v. Lee, Spencer, 337. * Sloan V. Wilson, 4 Harr. & Johns. 322 ; Elliott v. Giese, lb. 457 ; Wyman v. Gray, lb. 409 ; Edelen v. Gough, 5 Gill, 103 ; Hutton v. Padgett, 26 Md. 228. But see Brooks v. Dent, 1 Md. Ch. Dec. 530. ' Stephens v. Winn, 2 Nott & McC. 372, note o ; though it was afterwards treated as an open question in Lecat v. Tavel, 3 McCord, 158. ' Henderson v. Johnson, 6 Georgia, 890 ; Hargroves ». Cooke, 15 lb. 321. ' Gregory v. Logan, 7 Black. 112. This was before the present Re- vised Statutes, which provide that the consideration may be proved by parol. See Appendix. ' Jones V. Palmer, 1 Doug. 379. " Reynolds v. Carpenter, 3 Chand. 31 ; Taylor v. Pratt, 3 Wis. 674. '" Thus, in Virginia, Yiolett v. Patton, 5 Cranch (S. C), 151; Missis- sippi, 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. 204 ; Rigby v. Norwood, 34 Ala. 129 ; Kentucky, RatlifF v. Trout, 6 J. J. Marsh. 606 ; Florida, Dorman v. Bige- low, 1 Flor. 281 ; California, Baker v. Cornwall, 4 Cal. 15 ; Evoy v. Tewks- bury, 5 Cal. 285 ; Ellison v. Jackson, 12 Cal. 542. In Louisiana, the civil law prevails, and by that law no consideration is necessary to be stated or proved. Ringgold ». Newkirk, 3 Ark. 97. See /los^, § 393, as to the mate- riality of such change in the phraseology. 410 STATUTE OF FRAUDS. [CH. XVHI. tained, 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 Ellenborough from Oomyns, 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. § 393. 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, etc., upon any special promise," etc., and in the last clause provides that " the agreement upon which such action is brought," etc., 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 should be read as a word of reference, as if all the precedent words were incorporated in it, and then the section would stand thus : " Unless the agreement, special promise, contract, or sale, upon which such action is brought, shall be ' See Mr. Fell's Treatise on Mercantile Guaranties (Appeddix, No. IV.), where this definition is examined with much research and critical skill. * Vide, Introduction to this Treatise. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 411 in writing," etc.^ But again, in the seventeenth section, which we may certainly compare with the fourth, as in pari materid to ascertain the force intended to be given to sucli 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, etc., shall be allowed to be good, unless some note or memorandum of the said bargain," etc. 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 con- struction.^ § 394. 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, reasserted 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 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 ' Saunders v. Wakefield, 4 Bam. & Aid. 695. " In Thompson v. Blanchard, 3 Comst. (N. Y.) 337, it was held that an undertaking required by statute to be entered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal. 412 STATUTE OP FRAUDS. [CH. XVIII. 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 may be either past or future, and must be proved by parol evidence. If that were allowed, all the danger which the Statute of Frauds was in- tended 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 admis- sible 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 contracts made directly bet<7een 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 the statute has distinguished between the two classes of parol contracts", and has created an independent class, i. e., con- tracts in writing, and has included in, and made amenable to the rules of, that class the various engagements which it enumer- ates. The question, therefore, must be, in the end, whether a contract is put in writing, where no consideration appears for its support, and where, if the writing is taken by itself, the contract is a nullity for want of such consideration. ' Saunders v. Wakefield, 4 Bam. & Aid. 695. ^ Morley v. Boothby, 3 Bing. 112. ' See Sage v. Wilcox, 6 Conn. 81, and Miller v. Irvine, 1 Dev. & Bat. (N. C.) 103. CH, XVIII.] THE CONTENTS OP THE MEMORANDUM. 413 § 396. It is farther urged against the rule in Wain v. Warlters, that the statute only requires some " note or memo- randum." But it seems to be overlooked that these words are put in apposition with " agreement," and that the inten- tion manifestly is to dispense only with the mere formal parts, and not with any of the essential parts, of a binding agree- ment. 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 difference 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. § 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 learn- ing, have felt bound to hold that the character of the consid- eration, 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. § 399. But in those courts where the doctrine of Wain v. Warlters^as been received as law, it is not held necessary that the consideration should be formally and precisely expressed in ' Jenkins v. Reynolds, 3 Brod. & Bing. 14. ' Roberts on Frauds, 117 note. 414 STATUTE OF FRAUDS. [CH. XVIII. the memorandum. The rule is sometimes stated to be, that it is sufficient if it appear by " necessary implication " 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 implication 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 Tindal : " 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 undertak- ing 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 collected from the terms of the memorandum, that the consid- eration stated in the declaration, and no other consideration, was intended by the parties to be 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 P. N." was held by the Court of Queen's Bench, only four years after the de- cision of Wain v. Warlters, and in affirmance of the ruling of Lord Bllenborough (by whom, it will be remembered, that case was originally determined at nisi prius), to import iipon its face a sufficient consideration ; namely, the stipulated deliv- ery of the goods.* For, as we have had occasion to see in an ' Kaikea v. Todd, 8 Adol. & Ell. 846. And see Powers v. Fowler, 4 Ell. & Bl. 511. ' Caballero v. Slater, 25 Eng. Law & Eq. 285. ' Hawes v. Armstrong, 1 Bing. N. C. 761. * Stadt V. Lill, 9 East, 348 ; S. C. at nisi pnm, nom. Stapp v. Lill, 1 Camp. 242 ; Church v. Brown, 21 N. Y. 315 ; Benedict v. Sherrall, Hill & Denio, 219 ; Williams v. Ketchum, 19 Wis. 231. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 415 earlier part of this treatise, where a guaranty is made contem- poraneously with, and in order to procure, the giving of credit to the principal debtor, the consideration of the latter's engage- ment 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 that they import either a debt al- ready incurred or a credit to be thereafter allowed, the mem- orandum 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 mutuality, the contract was not 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, men- tioning 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 plaintiff'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 do hereby agree to become surety for E. 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 ' Ante, §191. ' Price ». Kichardson, 16 Mees. & Wels. 689. ' Newbury v. Armstrong, Moo. & Mai. 389. See, also, Kennaway ». Treleavan, 5 Mees. & Wels. 498. 416 STATUTE OP FRAUDS. [CH. XVIII. dficlaration averring the consideration to be that the plaintiflF would keep and continue the traveller in his service.^ § 401. But a memorandum, " I hereby agree to remain •with Mrs. Lees, etc., for two years from the date hereof,.for the purpose of learning the business of a dress-maker," 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 ; the writing was held insuflBcient. In the latter case,' it was urged that an agree- ment on the master's part to pay might be inferred as the con- sideration ; but Lord Denman, C, J., said : " I do not see how we can infer that as a consideration for his confining himself to 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 plaintiff'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 pre-existing 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 • Ryde v. Curtis, 8 Dow. & Ry. 62. ' Lees V. Whitcomb, 5 Bing. 34. ' Sykes v. Dixon, 9 Adol. & Ell. 693. ' Morris v. Stacy, Holt, 168 ; Pace v. Marsh, 1 Bing. 216. CH. XVm.] THE CONTENTS OP THE MEMORANDUM. 417 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.," etc. ; 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 plaintiff 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 implied 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 memorandum 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," etc. It appeared that the release was in fact 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, etc., within one month, in consideration of your having then released," etc.* So also in the same court, where the words were, " In consid- eration of your having advanced," etc., 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 ' Haigh V. Brooks (and Brooks v. Haigh), 10 Adol. & Ell. 309. 2 Allnutt ». Ashenden, 6 Mann. & Gr. 392. ' Walrath ». Thompson, 4 HiU (N. Y.), 201. But see Weed v. Clark, 4 Sand. (N. Y.) 31. • Butcher ». Steuart, 11 Mees. & Wels. 867. s Goldshede v. Swan, 1 Wels., Hurl. & Gor. 154. 27 418 STATUTE OP FRAUDS. [CH. XVIII. brought upon a memorandum containing this expression : " Entertaining the highest opinion of P. C.'s integrity, etc., 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 memorandum 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."^ § 404. 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 creditor 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 engagement was the plaintiff's giving the third person credit ' Lysaght v. Walker, 5 Bligh, N. K. 1. See, farther, in illustration of the same rule, Thornton v. Jenyns, 1 Man. & Gr. 166 ; Steele v. Hoe, 14 Adol. & Ell. N. 8. 431 ; Edwards v. Jevona, 8 Man., Gr. & Sc. 436 ; Bain- bridge V. Wade, 16 Adol. & Ell. nr. s. 89 ; Shortrede v. Cheek, 1 Adol. & EU. 57 ; Eabaud v. D'Wolf, 1 Pet. (S. C.) 499. " Powers V. Fowler, 4 Ell. & Bl. 611 ; Emmott v. Kearns, 6 Bing. IT. C. 559 ; Patchin v. Swift, 21 Verm. 297. 3 Wain V. Warlters, 6 East, 16 ; Clancy v. Piggott, 2 Adol. & EU. 473 ; Cole V. Dyer, 1 Cro. & Jer. 461 ; s. c. 1 Tyrw. 304 ; James v. WiUiams, 5 Barn. & Adol. 1109 ; Smith v. Ives, 15 Wend. (N. Y.) 183. But see Keel- son V. Sanborne, 2 N. H. 415. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 419 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 declaration setting out the mem- orandum, and alleging forbearance as the consideration, will be sustained.^ § 405. 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 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 inducement 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 plaintiff.^ 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.^ ' Hawes v. Armstrong, 1 Bing. N. C. 761, which in this respect appears to overrule Boehm v. Campbell, 8 Taunt. 679. ' The rule is derived from the various cases previously cited and ex- plained 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. 14 ; Coe v. DuflSeld, 7 Moore, 252 ; Peate v. Dickens, 1 Cro., Mees. & Eos. 422 ; Colbum v. Dawson, 4 Eng. Law & Eq. 378 ; Rogers v. Kneeland, 10 Wend. (N. Y.) 252 ; Marquand v. 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 ex- pressed 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 iuvolve no important modification of the principle stated in the text. See the cases. Packer u. Willson, 16 Wend. 346 ; Smith v. Ives, lb. 183 ; Bennett v. Pratt, 4 Denio, 275 ; Staats v. Hewlett, lb. 659 ; Douglas v. Howland, 24 Wend. 35 ; Union Bank of Louisiana v. Coster, 1 Sand. 563 ; Gates v. McKee, 3 Keman, 232. ^ White V. Woodward, 6 Man., Gr. & Sc. 810; Wood v. Benson, supra; Russell V. Mosely, 3 Brod. & Bing. 211 ; Gates v. McKee, supra. Also Raikes v. Todd, 8 Adol. & Ell. 846, which is explained in Caballero v. Slater, 25 Eng. Law & Eq. 285. .420 STATUTE OF FRAUDS. [Ctt. XVIII. § 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 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 consideration of the guaranty will in like manner be held to appear : namely, the plaintiff's becoming a party to the principal agreement; and the fact 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, ' Caballero v. Slater, 25 Eng. Law & Eq. 285. = Stead V. Liddard, 1 Bing. 196; Coldham v. Showier, 3 Man., Gr. & Sc. 312 ; Adams v. Bean, 12 Mass. 139 ; Bailey v. Freeman, 11 Johns. (N. Y.) 221; Douglas v. Rowland, 24 Wend. (N. Y.) 36.; Lecat ». Tavel, 3 McCord (S. C), 168 ; Dorman v. Bigelow, 1 Florida,: 281,; Simons ®. Steele, 86 K. H. 73. See, however. Draper v. Snow, 20 N. Y, 331 ; Otis «. Hasel- tine, 27 Cal. 80. But an indorsement, etc., subsequently to the making and delivery of the principal obligation is not sufficient, without itself sho-?ying the consideration.- Hall v. Farmer, 2 Comst. (N, Y-) 667, affirming on error the judgment of the Supreme Court, in 6 Denio, 584 ; Br^jrslier v. Silence, 4 Seld. (N. Y.) 207, affirming the" judgment of the- Supreme Court, in 11 Barb. 144; ?.igby «. Norwood, 34 Ala. 1^9; GroulcJ ». Moring,.28 Barb. (N. Y.) 444; Wood v. Wheelock, 25 Barb. (N. Y.) 625. Or even at the same time, if the principal obligation is made in payment of a pre-existing debt. Hall v. Farmer, supra. The cases of Jiuqueer v. Prosser, 1 Hill , 256; and Manrp^n u. Dqrhani,, 3 Jb. 684, seem^tp have been overruled by the two just cited. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 421 the words, " I guaranty the ahove." The facts were that the maker of the note had applied to the plaintiff for certain goods upon credit, but the plaintiff had refused to furnish them to him without security ; whereupon the note was made, with the de- fendant's guaranty appended, the whole delivered to the plain- tiff, and the goods furnished as desired. At the trial, the plaintiff offered parol testimony to show this connection be- tween the making of the note and the giving of the guaranty ; 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- 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 plaintiff offered to show, there was no necessity for, nor was there in fact, any consideration passing directly between 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." ^ ' Leonard ». Vredenburgh, 8 Johns. (N. Y.) 37 j Union Bank of Louisi- ana V. Coster, 3 Comst. (N. Y.) 203 ; Kabaud «. D'Wolf, 1 Pet. (S. C.) 499. The first of these cases is sometimes said to have decided that the rule in Wain v. Warlters did not apply to guaranties made contemporaneously with, and for the purpose of, procuring the credit to be given to the third party. See Smith ». Ide, 3 Verm. 298 ; Lecat v. Tavel, 3 McCord (S. C), 168. But this appears to be a misapprehension of that case, which really- decided, not that the memorandum of such guaranties need not show any 422 STATUTE OF FEAUDS. [CH. XVIII. § 408. It will be observed that such a case as the above differs from those in which a guaranty is on its face expressed to be 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 that 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 manifest if they 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 ^ote " 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 guaranteed 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 to 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 ? The whole tenor of the opinion seems to show that the case was not determined upon that reasoning, and we may 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 would be suppdrted 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 considera- tion? Suppose the case of an engagement from A. to B., which would be |ood by parol, but is in fact rfeduced to writ- consideration, but that it need not show a separate one from that which sup- ported the third party's obligation. The decision has lately been disap- proved, but it would seem unnecessarily, in the K. Y. Court of Appeals. Brewster v. Silence, 4 Seld. 207. ' See ante, p. 416, note. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 423 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, 0. writes a guaranty that it shall he 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 parol ; and consequently the acceptance of it by B. is a valid inducement to support C.'s guaranty that it shall be performed.^ § 408 a. A memorandum expressed to be for " value re- ceived " is held to be sufficient for the purposes of the statute.^ Or the consideration expressed may be a fictitious oue.^ If the memorandum is under seal, the implication of consideration therefrom is sufficient.* § 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 affect 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. And this is so, a fortiori, 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- * The view which is here attempted to be controverted seems to be that entertained, however, by an American author of much consideration. See Parsons on Contracts, Vol. II. p. 297. ^ Cooper V. Dedrick, 22 Barb. (N. Y.) 616 ; Day ». Elmore, 4 "Wis. 190 ; Miller V. Cook, 23 N. Y. 495. ' Happe v. Stout, 2 Cal. 460. * McKenzie v. Farrell, 4 Bosw. (N. Y.) 192 ; Rosenbaum v. Gunter, 2 E. D. Smith (N. Y.), 416. 424 STATUTE OP FRAUDS. [CH. XVIII. mejit, with a view to fix its application to the subject-matter which they had in 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 caiinot, 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 did before the statute." " It does not say that a written agree- ment shall bind, but that an unwritten agreement shall not bind.»i § 409 b. There is, however, a farther rule, prevailing at common law, in regard to which it is a matter of some diffi- culty to ascertain how far, if at all, it applies to contracts re- quired to be in writing, by the provisions of the statute. This rule is that a contract reduced to writing may, by oral agree- ment 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 parties. ^ § 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 enforcible 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. ' Clinan v. Cooke, 1 Sch. & Lef. 39. " Goss V. Lord Nugent, 2 Nev. & Man. 33, 34; 6 Barn. & Adol. 65 ; 1 Greenl. Ev. § 34; 1 PhilUps Ev. (Cow. & HiU'a ed.) p. 663, n. 987. CH. XTIII.] THE CONTENTS OF THE MEMORANDUM. 425 § 411. It seems to be well established as the general rule under this head, that no action can be brought upon any agreement, of those which are embraced by the provisions of the 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 from the report the point does not seem to have been distinctly in the mind of the court, the whole stress of the opinion bear- ing upon another position ; and later English authorities have conclusively settled the rule as above laid down.^ § 412. But, this rule being admitted as correct, there re- 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 ' Cuff w. Penn, 1 Maule & S. 21. In the judgment of the Supreme Court of Massachusetts in Steams v. Hall, 9 Cush. 35, this case appears to be mis- apprehended 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 contained three counts, the first upon that contract, and the second and third on the contract as afterwards varied hy parol ; and it was on these latter counts that the plaintiff's verdict was rendered and sustained. ° See the cases referred to hereafter, § 414. The Supreme Court of Massachusetts fully admit the truth of this proposition in Cummings v. Arnold, 3 Met. 486. See, farther, Jordan «. Sawkins, 1 Ves. Jr. 402; Parteriche v. Powlet, 2 Atk. 383 ; Blood v. Goodrich, 9 Wend. (N. T.) 68 ; Rogers v. Atkinson, 1 Kelly (Ga.), 12; Bryan v. Hunt, 4 Sneed (Tenn.), 543 ; Dana v. Hancock, 30 Verm. 616 ; Whittier v. Dana, 10 Allen (Mass.), 326 ; Noble v. Ward, Law R. 1 Exch. 117. 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, that " a subsequent parol agreement not contradicting the terms of the original contract but merely in continuance thereof, and in dispensation of the performance of its terms, as in prolon- gation of the time of execution, is good even in the case of a contract re- duced into writing under the Statute of Frauds.'' In neither of those cases, however, was it found necessary to apply this doctrine judicially, the con- tracts in question not being within the statute ; and it does not seem to have been reasserted in the later editions of that esteemed author. See 9th Amer. from 5th Lend. ed. 426 STATUTE OF PEAUDS. [CH. XVIII. agreement in some respect, the original contract substantially remains ; so that an action could be brought upon the written agreement as so varied, without 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 re- mained," notwithstanding the verbal stipulation for a " substi- tuted performance." The distinction here suggested between the contract itself, as being alone that which the statute re- quires 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 undiscrim- inating 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 ar- rangement 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 agreement, in order to charge him upon it, must be wholly in writing ; and the court sustained the objection, and set aside the verdict which the plaintiff had obtained below.^ So in Harvey v. ' Goss V. Lord Nugent, 2 ¥ev. & Man. 33, 34 ; 5 Bam. & Adol. 65. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 427 Grabham, 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.i So in Stead v. Dawber, a decision of the Queen's Bench, where the oral variation was, as in CufiF v. Penn, sim- ply 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.* § 415. The ground upon which the cases just cited were all decided is this : that the plaintiff 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 al- though 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. § 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. § 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 dis- tinction finds no countenance in any other of the cases referred to, whether prior or subsequent to itself. Thus in Goss v. ' Harvey v. Grabham, 5 Adol. & Ell. 61, 73. « Stead V. Dawber, 10 Adol. & Ell. 57. See, also, Noble v. Ward, Law K. 1 Exch. 117. ' Marshall v. Lynn, 6 Mees. & Wels. 109. * Stead V. Dawber, 10 Adol. & Ell. 67. 428 STATUTE OF PBAUDS. [CH. XVIII. Lord Nugent, the Chief Justice Lord Denman said, alluding to the suggestion that the waiver of title as to one of the num- ber 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 purchase, he distinctly says that the opinion of the court is not formed upon that view, but " upon the general effect and meaning 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. Lynn, where the oral variation was in respect of the time fixed 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 that 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." ^ § 419. 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 ' Goss v. Lord Nugent, 2 Nev. & Man. 33, 84 ; 6 Barn. & Adol. 65. * Marshall v. Lynn, 6 Mees. & Wels. 109. CH. XVIII.] THE CONTENTS OP THE MEMORANDUM. 429 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- 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 pre- vent." 1 § 420. 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 plain- tiff cannot recover upon the former engagement, if his decW ration be framed upon the whole, as it must be where the sev- eral engagements are in their nature interdependent, and have not been in; fact severed by the anterior execution of so much as would have been affected by the statute.^ By applying this pripeiple to the cases in question, it is perhaps more clearly seen why an oral variation of a written agreement within the Stat- ute pf I'rauds, though made in respect of a particular which might, if standing alone, be good by parol, cannot be avail- a,ble^ soiong as the whole contract, embracing that which is required to be in writing as well as that which is not, remains exeouiory. § 421, If, however, the case should arise of an action to ' Harvey v. Grabham, 5 Adol. & Ell. 61. ^ Ante, Chapter IX. 430 STATUTE OP FRAUDS. [CH. XVIII. 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 Harvfiy 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 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. § 422. 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 ingrafted upon it. Such a case ha,s arisen in England within a few years, and Lord Chan- cellor Truro held the rule to be entirely applicable, in the ab- sence 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 «. 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 subsequently ingrafted 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 • Emmet u. Dewhirst, 3 McN. & G. 587. ' 1 Greenl. Ev. § 804, and cases there cited. CH. XVIII.] THE CONTENTS OP THE MEMORANBUM. 431- 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, which is thus, so to speak, dissociated from the contract itself. And in this sense, and for this purpose, there is no difi&culty in accepting the distinction asserted, between the contract, which is within the purview of the statute, and the perform- ance, which is not. § 424. Thiis, where the plaintiff has brought his action upon the original contract (as he must do), alleging non-perform- ance by the defendant, the latter may answer that he has per- formed 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. § 42.5. 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 ' Cummings v. Arnold, 3 Met. (Mass.) 489 ; Neil v. Cheves, 1 Bailey (S. C), 537; Lerned «. Wannemacher, 9 Allen (Mass.), 418; Whittier v. Dana, 10 Allen (Mass.), 326. " Stearns v. Hall, 9 Cush. (Mass.) 31. •' Warren v. Stagg, cited in Littler v. Holland, 3 T. R. 591, as having been decided in 1787, by Mr. Justice Buller. Thresh v. Rake, 1 Esp. 53. See the remarks of the court in Emerson v. Slater, 22 How. (U. S.) 42 ; also Miles v. Roberts, 34 Maine, 246. 432 STATUTE OF PEAUDS. [CH. XVIII. 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 plaintiflF 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 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 plaintiff 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 plaintiff 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 hind 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 he 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. Prom the report of this case, it nowhere appears Stowell V. Robinson, 3 Bing. N. R. 928 ; 6 Scott, 196. CH. XVIII.] THE CONTENTS OF THE MEMORANDUM. 433 that the distinction between relying upon the oral variation " so as to bind the parties," and relying upon readiness to perform according to its tenor as a defence in the nature of accord and satisfaction, was brought to the notice of the court ; nor is there, iu the decision itself, any allusion to the English cases antecedent to Cuff v. Penn, where this distinction appears to be recognized. It is to be remarked, also, that in neither Stead V. Dawber nor Marshall v. Lynn, both 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. Tlie Supreme Coart 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 contract 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 ' 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 de- liver an abstract of title, a case which it was said might be raised by an amendment of that actually before the court. ' The court also say, " We are aware that the principle on which Stowell V. Robinson was decided is supported by other English cases." But the ad- mission was, as we have seen, unnecessary. 28 434 STATUTE OP PEAUDS. [CH. XVIII. contract once put in writing in obedience to the requirements of the Statute of Frauds. § 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. § 431. 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. § 432. In Gorman 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 discharge was binding and the bill was dismissed.* Afterwards, when this case was cited upon a similar one before Lord Hardwicke, ' Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 429, 430. ' Eq. Cas. Abr. 33 ; BeU v. Howard, 9 Mod. 302. ' Ante, § 229. * Gorman v. Salisbury, 1 Vern. 240. CH. XVm.] THE CONTENTS OF THE MEMORANDUM. 435 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 furnish- ing such proof, the plaintiff had a decree.^ In another case he said it was certain that an interest in land could not be parted witli or waived- by naked parol without writing ; yet articles might by parol be so far waived that if the party came into equity 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 discharge 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.* § 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 ill 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 prevent either party from recovering in an action on the con- tract' which was in writing.^ ' Buukhouse v. Crosby, 2 Eq. Cas. A'br. 32, pi. 44. = Bell I'. Howard, 9 Mod. 302. 8 Sugden, Vendors and Purchasers, 173 ; Roberts on Frauds, 89. ' Robinson u.Page, 3 Russ. 119. ■'• Goss V. Lord Nugent, 5 Barn. & Adol. 65 ; 2 Nev. & Man. 34. 436 " STATUTE OP FRAUDS. [CH. XVIII. § 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 iipon 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.^ ' Ante, § 131, et seq. ' Sugden, Vendors & Purchasers, 171, 172. » Ibid. 178, 174. See, also, Noble v. Ward, Law R. 1 Exch. 117, affirmed in the Exchequer Chamber, 2 Exch. 135. * 2 Phillips, 363, Cowan & Hill's ed. 1849. 6 1 Greenl. Ev. § 302. See, also, Phil. & Am. Ev. 776 ; Lawrence v. Dole, 11 Verm. 549 ; Raffensberger v. CuUison, 28 Penn. 426 ; Boyce v. McCullough, 3 Watts & S. (Penn.) 429 ; Morse v. Copeland, 2 Gray (Mass.), 302. « Fleming v. Gilbert, 3 Johns. (N. Y.) 631. Li 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. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. '437 CHAPTER XIX. VERBAL CONTRACTS ENFORCED IN EQUITY. § 437. We now come to consider the doctrines which courts of eqiiity maintain and apply in cases where verbal con- tracts, such as the Statute of Frauds has required to be put in writing, come before them. 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 ingrafting 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 which was never made, whereas the fraud against which courts 438 STATUTE OP FRAUDS. [CH. XIX. of equity, in the cases we liave to consider, afford 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 affords 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. Tiie 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 statute, 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 honor, 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 mind, it would seem, as one which must be regarded, or courts of equity be deemed not at all bound by the Statute of Frauds. ' Montacute v. Maxwell, 1 P. Wms. 618 ; s. c. 1 Stra. 236, nom. Mount- acue V. Maxwell ; s. c. 1 Eq. Gas. Abr. 19 ; s. c. Prec. Ch. 526, nom. Max- well V. Montacute 5 Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 1€2 ; Kinard v. Hiers, 3 lb. 423 ; Whitridge v. Earkhurst, 20 Md. 62, CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 439 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 before him ; and, notwithstanding there are in some late cases ^ expressions from which the question seems to be considered in some degree an open one, at least where the contract is one of marriage settle- meat, 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 Iiave been the first instance in which any equitable exception to the statute appears. Tliere was a verbal agreement for an absolute con- veyance of land, and for a defeasance to be executed by the grantee ; but 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 merely in refusing to do what he agreed, but in deceiving the plaintiif out of his property. And the case is quite analogous ' In Jenkins v. Eldridge, 3 Story, 181, quoted ante, p. 112, note. ' InDe Biel v. Thompson, 3 Beav. 476, Lord Langdale, M. R., passed it by as a question -which it was unnecessary to decide ; and in Surcome v. Pinniger, 3 De G., M. & G. &71, Lord Justice Enight Bruce said that it was probably true that marriage only would not suffice. ' 5 Vin. Ab. 623, 624. And see Sir George Maxwell's case, in 1 Bro. C. •C. 408 ; Crocker v. Higgins, 7 Conn. 342. ' So in Wiilker 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 ? " See, also, Arnoia v. Cord, 16 Ind. 177 ; McBurney v. Wellman, 42 Barb. (N. Y.) 890. 440 STATUTE OF FRAUDS. [CH. XIX. 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. § 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 out, equity would enforce such promise against them, as a trust in favor of a 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 contriv- ance 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.^ § 443. Thus, in Cookes v. Mascall, a marriage was about to be celebrated 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 mean while a disagreement arose as to the articles, but the plaintiff was still allowed to come to the defendant's hoiise, 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 > Ante, § 94. " Lester ». Foxcrofl, Colles, P. C. 108; cited 2 Vern. 456; Gilb. 4, 11 Free. Ch. 519, 526 ; Story, Eq. Jur. § 768. See, also, Chamberlaine « Chamberlaine, Freem. Ch. 34; s. c. 2 Eq. Cas. Ab. 43, Prec. Ch. 4 Chamberlain v. Agar, 2 Ves. & Bea. 262; Mestaer v.. Gillespie, 11 Ves 638; Stickland v. Aldridge, 9 Ves. 519; Dixon v. Olmius, 1 Cox, 414 Reech v. Kennegal, 1 Ves. Sen. 123 ; Sellack v. Harris, 5 Vin. Ab. 521. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 441 upon their return to his house at night ; he was decreed to exe- cute the agreement according to what had been drawn up by the solicitor, though it had not received his signature.^ This case lias been considered hard to be reconciled with another decided by the same judges at the same 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.'* Bu,t tliere seems to be no suggestion, in the latter case, of fraud or artifice on the part of the uncle ; whereas 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 com- pletion thereof the woman is drawn in, by the assurances and promises of the man to perform it, to marry without a settle- 4 ment. § 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 ' Cookes V. Mascall, 2 Vern. 200. And see Bawdes v. Amhurst, Free. Ch. 404. = Douglas V. Vincent, 2 Vern. 202. ' 1 Eq. Cas. Abr. 19. " Free. Ch. 628. 442 STATUTE OP FRAUDS. [CH. XIX. and get loose from his agreement, ordered his daughter to put on a good humor and get the plaintiff to deliver up the writ- ing and then to marry him, which was accordingly done, the Master of the EoUs decreed the execution of the agreement.^ § 445 a. And it appears to be a general rule that where the verbal promise of the defendant to make a certain disposition of lands was the means of his obtaining to himself the legail title to lands, so that in fact he practises a deception upon his grantor, by so obtaining the lands and then holding and deal- ing with them as his own, a court of equity will compel him to perform his verbal engagement.^ On this principle the cases rest, which hold that a conveyance of land absolute on its face may be shown by parol testimony to have been intended at the time as a mortgage.^ But where there is no deception prac- tised in obtaining the title, but a mere verbal promise to make a certain disposition of land already acquired, the promisor will not be held as a trustee.* § 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 ' Mallet V. Halfpenny, 1 Eq. Cas. Abr. 20, pi. 6 ; 2 Vern. 373. This case is related very graphically by Lord Chancellor Oowper, in Bawdes ». 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 Bolls observe the statute, which he humor- ously said, ' I do, I do.' " * Jones «. McDougal, 32 Miss. 179 ; Cousins ». Wall, 3 Jones, Eq. (N. C.) 43 ; Eraser «. Child, 4 E. D. Smith, N. Y. 153 ; Cameron v. Ward, 8 Geo. 245 ; Arnold v. Cord, 16 Ind. 177 ; Martin v. Martin, 16 B. Mon. (Ky.) 8; Hodges ». Howard, 6 R. I. 149; ante, § 94, et seq., and § 129; Hunt V. Roberts, 40 Maine, 1&7 ; Nelson v. Worrall, 20 Iowa, 470 ; Hidden V. Jordan, 21 Cal. 92 ; Coyle v. Davis, 20 Wis. 564. ^ Babcock v. Wyman, 19 How. (U. S.) 289, and cases there cited. Jones V. Jones, 1 Head (Tenn.), 105. A declared trust, however, in regard to lands cannot be set up by parol against an absolute deed importing a valu- able considera:tion on its face. Miller v. Blackburn, 14 Ind. 62 ; Moore v. Moore, 38 N. H. 382 ; Collins v. Tilton, 26 Conn. 368 ; Sturtevant v. Sburte- vant, 20 N. Y. 39. * Ante, § 94, et seq. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 443 if a plaintiff laid in his bill that it was part of the agreement that the agreement ehould 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 ta:ke 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 question might stand upon a view of the early authorities, the doctrine referred to has clearly not been recognized in tliose of later years. Indeed, as is remarked by an acute writer on equity pleaduigs, " If an allegation that it was part of the agreement that the contract should be put in writing could prevent a plea of the statute, t;he 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 ' HoUis V. Whiteing, 1 Vera. 151. = Leak v. Morrice, 2 Cas. Ch. 135. ' Whitchurch v. Bevis, 3 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 counter- part for the residue of the term. The lessee pleaded the Statute of Frauds and Perjuries, which in argument was overlooked, and the agreement in part carried into execution." ■* Beame's Elements of Pleas in Equity, 181, 182. See, also. Box v. Stanford, 13 Sm. & Marsih. (Miss.) 93 ; Wilson v. Kay, 13 Ind. 1. 444 STATUTE OP FRAUDS. [CH. XIX. 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 subdi- vision 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 verbal 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 siich cases is, that where an agreement has been so far executed by one party, with the tacit encourageiiient of the other, and relying upon his fulfilment of it, that for the latter to repudiate it and shelter himself under the provisions of the statute, 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 been considered presented the feature of ' Whether the plaintiff can ever rely on acts of part-performance done by the defendant, qacere, § 471, post. " Seagood v. Meale, Free. Ch. 660 ; Savage v. Foster, 9 Mod. 37 ; Mor- phett V. Jonea, 1 Swanst. 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, 225; Moore v. Small, 19 Penn. (7 Harr.) 461; Church of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378 ; Sites v. Kellar. 6 Hamm. (O.) 207 ; Anthony v. Leftwych, 3 Rand. (Va.) 266 ; Hamilton v. Jones, 3 Gill. & J. (Md.) 127 ; Meach v. Stone, 1 Chip. (Verm.) 189 ; Underhill v. Williams, 7 Black. (Ind.) 126 ; Eyre ». Eyre, 4 Green (N. J.), 102 ; Caton v, Caton, Law Rep. 1 Ch. App. 187 ; Ford «. Finney, 35 Geo. 268 ; Feusar v. Sneath, 3 Nevada, 120. The equitable doctrine of part-perform- ance 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 ; Bea- man v. Buck, 9 Sm. & Marsh. (Miss.) 210; Box ». Stanford, 13 lb. 93; Ridley v. McNairy, 2 Humph. (Tenn.) 174 ; Patton v. McClure, Martin & Yer. (Tenn.) 833. So in Massachusetts ; see Jacobs v. Peterborough and Shirley K. R. Co., 8 Cush. 224, and cases there cited. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 445 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-per- formance is no less fraud because not asserted to have been, and not, in fact, premeditated at the inception of the transac- tion. 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 im- portant 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 ver- bally 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 afterwards tendered the price and requested a conveyance, which was refused, whereupon a bill was filed praying that the defendant might be compelled to perform his agreement, or pay the value of the house, and that he be restrained from obstructing the plaintiffs in their occupation of it, and from bringing suits against them on account of it. In the opinion of the court it is said, that if it was intrusted with a general jurisdiction in equity, there might be no diffi- culty in decreeing a specific execution of the agreement on the ground of part-performance ; but that its jurisdiction was limited in such cases. It is then remarked, that it had been decided that the original statute law of the State did not authorize the court to compel a specific performance of a con- ' Maine Rev. Stat. chap. 96, § 10. 446 STATUTE OP FRAUDS. [CH. XIX. tract in writing, and the opinion proceeds to say : " By the Eevised Statutes such power is given, but is limited to con- tracts in writings made since February 10, 1818. It is con- tended, however, by the counsel for the plaintiffs, that a specific performance of a verbal contract may be decreed by virtue of the statute giving jurisdiction in all cases of fraud. If the court were to decree the specifia performance on the ground that after part-performance, it was a fraud upon one party for the other to refuse to execute a conveyance, the effect would be to assume, under that clause of the statute, the very jurisdiction denied under another and more appropriate clause. During the revision of the statutes, the law relating to the specific per- formance of contracts not in writing, after they had been par- tially executed, was doubtless noticed and considered ; and it appears to have been the intention not to authorize, under any circumstances, a decree for the specific performance of contracts not made in writing. It is also contended that the defendant should in equity be enjoined from claiming and asserting a title to the lot, after having been instrumental in causing the plain- tiffs to expend their money in building upon it under the promise of a title. It is true that one who hears another bar- gain with a third person for an estate, and sees such third per- son pay for it, or expend money upon it without making known his own title, will not be permitted in equity to disturb him in the enjoyment of the estate, because, by so doing, he knowingly abets or aids the seller to deceive and injure him. The essen- tial ingredient which destroys his own title, is the knowledge that the purchaser is deceived with respect to the title, and that he must suffer by it, and the neglect, when he has an oppor- tunity to do so, to undeceive him and save him from injury. But this rule cannot be applied to cases of contract, where all the parties to the contract fully understand the true state of the title and one of them seeks relief from another. The plaintiffs in this case were not' ignorant that the title to the lot was in the defendant, and that they must rely upon his verbal contract to obtain a title to it. If the defendant, after having author- CH. XIX.] VERBAL CONTRACTS ENPOROBD IN EQUITY. 447 ized the plaintiff to place the building upon his land, had by any act converted it to his own use, their proper remedy to recover the value of it would have been an action of trover, and not a suit in equity. It is not, therefore, necessary to consider, whether the testimony presented would have entitled them to maintain such an action. It is not perceived that under this process the court has any power to relieve the plaintiffs from the inconvenience or loss which they may sus- tain by having inconsiderately placed too great confidence in the verbal promise of the defendant." The bill was dismissed without costs.^ § 450. In Massachusetts, also, the equity powers of the Supreme Court are specifically defined, the Revised Statutes having given it power to enforce contracts in writing,^ and an act passed in 1855 having given it "jurisdiction in equity in all cases of fraud." ^ The latter statute does not appear to have received a judicial construction in reference to cases of part-performance ;* but it may- be anticipated that wlien the question shall arise, whether it enables the court to take cog- nizance of them on the ground of the constructive fraud which they involve, the decision in Maine will receive the approbation of the court ; more especially, as it has already been decided in Massachusetts, that a clause of the Revised Statutes giving the court jurisdiction of all suits concerning waste, etc.,^ ex- tended only to cases of technical waste, and not to cases of ' Wilton B. Harwood, 23 Maine (10 Shep.), 134. ' Mass. Rev. Stat. cap. 81, § 8. ^ Stat. 1855, cap. 194, § 1. ■* In the case of Sanborn v. Sanborn, argued at October term, 1856, of the Massachusetts Supreme Court, the point was raised and discussed, but as the suit was commenced before ' the passage of the statute of 1855, the court gave no opinion upon it, being clear that they had no jurisdiction of the suit, it being for specific execution of a verbal contract, though acts of part-performance were alleged. The bill was dismissed without prejudice to the complainants' right to file a new bill framed upon the hypothesis that the statute of 1855 would give the court jurisdiction as of the fraud arising upon the alleged part-performance. And I learn that a new bill has been filed accordingly. ° Mass. Rev. Stat. cap. 81, § 8. 448 STATUTE OP FRAUDS. [CH. XIX. mere trespass where there is no priority of title, in which courts of equity having full powers had sometimes granted injunctions to stay irreparable damage to the inheritance.^ § 451. It is settled by a long series of authorities, that a part execution of a verbal contract within the Statute of Frauds has no effect at law to take the case out of its provisions.^ Mr. Justice BuUer did on one occasion lay it down, that as there could be but one construction of the statute, and that construc- tion should hold equally in courts of law and equity, the equi- table rules in regard to part-performance should apply in law.^ Lord Redesdale says, however, that he remembers, when Mr. Justice Buller was pressed with the consequences of that opin- ion, in the case of a demurrer to evidence, he was obliged to abandon the position ; and he adds that " the ground on which a court of equity goes, in cases of part-performance, is that sort of fraud which is cognizable in equity only." * § 452. The right of a party yho has done acts in part exe- cution of a verbal contract, to call upon a court of equity to enforce it against the other, is subject to the same general restrictions as that of any other plaintiff in equity. He must of course show that he is himself ready to perform the contract on his part. It must also appear that his position is such that ■ Attaquin v. Fish, 5 Met. 140. = O'Herlihy v. Hedges', 1 Sch. & Lef. 123 ; Kelley v. Webster, 12 C. B. 283 ; Lane v. Shackford, 5 N. H. 132 ; Freeport v. Bartol, 3 Greenl. (Me.) 345 ; Patterson v. Cunningham, 2 Fairf. (Me.) 512 ; Norton v. Preston, 3 Shep. (15 Maine) 16; Newell v. Newell, 13 Verm. 24; Thompsons. Gould, 20 Pick. (Mass.) 138; Kidder v. Hunt, 1 Pick. (Mass.) 331; Adams v. Townsend, 1 Met. (Mass.) 485 ; Eaton v. Whitaker, 18 Conn. 231 ; Thomas V. Dickinson, 14 Barb. (N. Y.) 90 ; Abbott v. Draper, 4 Denio (N. Y.), 62 ; Jackson v. Pierce, 2 Johns. (N. Y.) 223 ; Seymour e. Davis, 2 Sand. (N. Y.) 245 ; Walter v. Walter, 1 Whar. (Pa.) 292 ; Henderson v. Hays, 2 Watts (Pa.), 148; Sailors v. Gambril, 1 Smith (Ind.), 82; Johnson v. Hanson, 6 Ala. 351 ; Allen v. Booker, 2 Stew. (Ala.) 21 ; Meredith v. Nalsh, 4 Stew. & Por. (Ala.) 59 ; Payson v. West, Walker (Miss.), 515 ; Davis v. Moore, 9 Rich. (S. C.) 216 ; Wentworth v. Buhler, 3 E. D. Smith (N. Y.), 305 ; Pike V. Morey, 32 Verm. 37 ; Boutwell v. O'Keefe, 32 Barb. (N. Y.) 434 ; Downey V. Hotchkiss, 2 Day, (Conn.) 225; Hunt v. Coe, 15 Iowa, 197. ' Brodie v. St. Paul, 1 Ves. Jr. 326. * O'Herlihy v. Hedges, supra. CH. XIX.] VERBAL CONTRACTS ENS'ORCBD IN EQUITY, 449 an action at law for damages will not afford him adequate relief.^ And, as will be hereafter discussed more at length, he must furnish clear and full proof of the contract, so that it may be enforced finally, and with due regard to the rights of all parties concerned.^ § 453. Again, the acts of part-performance relied upon by the plaintiff must be acts done by himself. This appears to have, been first declared in the case of .Buckmaster v. Harrop, where the Master of the Rolls, Sir William Grant, said that acts done by the defendant, where there was no prejudice to the 'plaintiff, amounted only to proof of the existence of an agreement, but that the objection upon the statute, that the agreement was not in writing, remained ; adding, that the court did not profess to execute a verbal agreement merely be- cause it was satisfactorily proved.^ In support of this propo- sition, he cited the case of Whaley v. Bagnel, in the House of Lords, which, however, does not appear to have involved an adjudication upon it.* But it cannot require many authorities for its support, being founded in manifest reason and justice. If the defendant chooses to waive the benefit of his own acts of part-performance, which would entitle him to allege a fraud on the part of the plaintiff, it cannot be that the plaintiff may force him to rely upon them, thus, in effect, himself setting up his own fraud.^ The decision in Buckmaster v. Harrop has indeed been attacked in Pennsylvania, but entirely without necessity ; the court having to determine simply in that case, whether delivery of possession of land could be asserted by the vendor plaintiff as an act of part-performance done by himself ; apparently losing sight of the distinction, which is more par- ' Frame v. Dawson, 14 Ves. 386 ; Pembroke ». Thorpe, cited 3 Swanst. 437 ; Eckert v. Eckert, 3 Penn. 332 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. Cas. 273; Townsend v. Sharp, 2 Overton (Tenn.), 192; Armstrong v. Kattenhorn, 11 Ohio, 266. " Post, § 493, et seq. ' Buckmaster v. Harrop, 7 Ves. 841. " "Whaley v. Bagnel, 1 Bro. P. C. 345. * Rathbun v. Rathbun, 6 Barb. (N. Y.) 98. 29 450 STATUTE OP FRAUDS. [CH. XIX. tioularly noted hereafter, ^ between his so asserting it, and bis asserting the purchaser's tahing possession, an act which, by the rule in Buckmaster v. Harrop, could only be relied on by the purchaser, or those claiming under him.^ With the excep- tion of this case, there appears to be no dissent to that rule, on the part of any judicial or other authority.* § 454. Another gesneral rule in regard to the acts relied upon is, that they must appear to have been done in pursuance of the contract alleged. To use the language of Lord Hardwieke, " It must be such a^ act done as appears to the court would not have been done except on account of the agreement ; " * or, as it is expressed by Sir William Grant, it must be " an act unequivocally referring to, and resulting from, the agree- ment." ^ This rule is laid down in many cases, and will be foiind fully illustrated hereafter, when we come to consider in detail the different classes of acts which are commonly relied upon as part-performance. § 455. It has been sometimes laid down that the acts of part- performance, in order to avail a plaintiff seeking relief by specific execution, must be such as unequivocally prove the con- tract alleged. And, upon this view, it has been remarked by Mr. Eoberts, that the entire doctrine of enforcing a contract in ' Post, § 468, et seq. ' Pugh V. Good, 3 Watts & S. (Pa.) 56. ' See Sugden, Vendors and Purchasers, 147; Roberts on' Frauds, 139; Luckett V. "Williamson, 37 Mo. 388. * Lacon v. Mertins, 3 Atk. 8, 4. ^ Frame v. Dawson, 14 Ves. 386. See, upon this rule, the following cases : Buckmaster v. Harrop, 7 Ves. 341 ; Lindsay v. Lynch, 2 Sch. & Lef. 1 ; O'Reilly v. Thompson, 2 Cox, 271 ; Parker v. Smith, 1 Coll. Ch. 624 Morphett v. Jones, 1 Swanst. 172 ; Brennan v. Bolton, 2 Dru. & War. 349 Cooth V. Jackson, 6 Ves. 12 ; Rathbun v. Rathbun, 6 Barb. (N. Y.) 98 North V. Forest, 15 Conn. 406 ; Osborn v. Phelps, 19 Conn. 74, 76 ; Moore o. Small, 19 Penn. (7 Harr.) 461 ; Eckert v. Eckert, 3 Penn. 332 ; Frye v. Shepler, 7 Barr (Pa.), 91; Moale v. Buchanan, 11 Gill & J. (Md.) 314; Hamilton v. Jones, 3 lb. 127 ; Shepherd v. Shepherd, 1 Maryland, Ch. Dec. 244; Owings v. Baldwin, 8 Gill (Md.), 337; Shepherd v. Bevin, 9 Gill (Md.), 32; Hall v. Hall, 2 MoCord, Ch. (S. C.) 274; Townsend v. Sharp, 2 Over. (Tenn.) 192; Armstrong v. Kattenhorn, 11 Ohio, 266; Cole v. Potts, 2 Stock. (N. J.) 67 ; Jervis v. Smith, Hofif. Ch. (N. Y.) 470. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 451 equity on the groTind of part-performance proceeds in a circu- lating course of reasoning ; that it assumes the existence of the contract, inasmuch as the acts must have been done with a direct view to perform a particular agreement, and that thus the acts relied on prove and are proved from the agreement at the same time ; and he adds that, " to call ai^ thing a part- performance, before the existence of the thing whereof it is said to be the part-performance is established, is an anticipa- tion of proof by assumption, and gets rid of the statute by jumping over it ; for the statute requires proof, and prescribes the medium of proof." ^ So far as this view tends only to prove general unsoundness in the equitable doctrine of part- performance, it would be of little practical importance to discuss it, now that the doctrine is so firmly rooted in the juris- prudence of both England and our own country. But it seems to confound two branches of that doctrine which are, and it is most material should be, kept entirely distinct ; namely, the use of parol evidence to prove the terms of the contract, and the use of parol evidence to prove part-performance. The latter evidence is that which, in such cases, is required to be first introduced. It is manifest that the two classes of evidence cannot be required for proving precisely the same thing. If the acts of part-performance prove the whole contract, there is no occasion for any parol evidence of its terms, and no diffi- culty whatever arises under the Statute of Frauds. It is true, the acts relied on must ultimately appear to have been done in pursuance of the contract sought to be enforced, or the whole equity of the plaintiff fails. But they are not put in evidence to prove what that contract is, that being the office of the parol evidence to which the proof of them opens the door. They are put in evidence, in the first instance, to show that the par- ties have entered into some contract, and they must be such as clearly to show that fact. Vice-Chancellor Sir Lancelot Shad- well says : " It is in general of the essence of such an act that the court shall by reason of the act itself, without knowing ' Roberts on Frauds, 135, 136. 452 STATUTE OP FRAUDS. [CH. XIX. whether there was an agreement or not, find the parties une- quivocally in a position different from that which, according to their legal rights, they would be in if there were no contract. Of this a common example is the delivery of possession. One man, without being amenable to a charge of trespass, is found in the possesion of another man's land. Such a state of things is considered as showing unequivocally that some eon- tract has taken. place between the litigant parties. And it has, therefore, on that specific ground been admitted to be an act of part-performance. But an act which, though in truth done in pursuance of a contract, admits of explanation without suppos- ing a contract, is not in general admitted to constitute an act of part-performance to take the case out of the Statute of Frauds ; as, for example, the payment of a sum of money, alleged to be purchase-money. The fraud, in a moral point of view, may be as great in one case as in the other, but in the latter case the court does not in general grant relief." ^ § 456. These remarks, though they may somewhat antici- pate the discussion, which it has been thought best to defer to a later page, of what acts are or are not deemed sufiicient as part-performance, are valuable at this point, as embodying, in singularly clear and forcible phrase, the correct rule as to the extent to which acts of part-performance may be said them- selves to afford, or to be required to afford, proof of the con- tract alleged. There are indeed some cases ^ in which it is" broadly laid down that they must themselves furnish unequiv- ocal evidence of the contract alleged, but this leaves the whole doctrine exposed to the criticism of Mr. Roberts, by confound- ing the offices and degrees of the two classes of parol evidence ; the first, to prove some contract existing ; the second, to prove the terms of that contract ; the first, to sustain the allegation of fraud so as to let in the second ; the second to satisfy the ' Dale «. Hamilton, 6 Hare, Ch. 869. » Phillips V. Thompson, 1 Johns. Ch. (N. T.) 181 ; Beard v. Linthicnm, 1 Maryland, Ch. Dec. 345 ; Grant v. Craigmiles, 1 Bibb (Ky.), 203 ; Chesa- peake and Ohio Canal Co. v. Young, 3 Maryland, 480 ; Goodhue v. Barn- well, Rice, Eq. (S. C.) 198. ' CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 453 court of all the terms of that contract which it is called upon to enforce. And these cases, to this extent, are opposed to the clear preponderance of judicial opinion.^ They would seem to have proceeded upon an imperfect apprehension of the force of Sir William Grant's language, that the acts of part-performance must " unequivocally refer to the agreement ; " which means that they must appear to have been done in pursuance of it, but not that they must themselves, and without any suppletory evi- dence, prove the terms of it. § 457. Another rule, and the last which seems to require notice as laid down upon this subject, is that the acts of part- performance must have been done in execution of the contract, or, as Mr. Roberts well expresses it, " must appear to be done with a direct view to perform the agreement, and tend incep- tively towards its accomplishment." ^ This rule seems to be suggested by the very words, " part-performance ; " and if it did not prevail, and any act, however disconnected with the agreement, which a plaintiff might proceed to do upon the faith of the agreement, were to be regarded as a reason for the interposition of equity, because prejudical to him, known to the defendant, and incapable of adequate compensation in damages, the inconvenience would be serious and manifest. Great danger of fraud and perjury would be incurred in ad- mitting proof that the plaintiff had in fact been induced by the agreement to do the acts relied upon ; and moreover, the im- portant characteristic of an act of part-performance, that it shows of itself an agreement of some sort concluded between the parties, could scarcely be said to exist in such a case. § 458. We proceed now to the illustration of the several ' Allan «. Bower, 3 Bro. C. C. 149 ; Morphett ». Jones, 1 Swanst. 172 ; Frame v. Dawson, 14 Ves. 386 ; Sutherland b. Briggs, 1 Hare, 27 ; Savage V. Carroll, 1 Ball & B. 266 ; Toole «. Medlicott, lb. 319 ; Church ». Ster- ling, 16 Conn. 402 ; Harris ». Knickerbacker, 5 Wend. (N. Y.) 638 ; Park- hurst V. Van Cortlandt, 14 Johns. (N. Y.) 15 ; Jones v. Peterman, 3 Serg. & B. (Pa.) 643. ' Roberts on Frauds, 140 ; Gunter «. Halsey, Ambl. 686 ; Buckmaster v. Harrop, 7 Ves. 341. 454 STATUTE OP FRAUDS. [CH. XIX. rules which, as we have seen, contribute to make up the doc- trine of part-performance, by referring to the various classes of acts which courts of equity have held, or refused to hold, sufficient to bring a case within that doctrine. § 459. It would seem that where a party, to whom a mar- riage portion has been promised, actually enters into the mar- riage upon the faith of the promise, this is such an act in execution of the agreement as answers all the requirements of courts in decreeing specific performance. But it appears to be firmly settled that the mere marriage will not be sufficient, and the reason assigned is that, until the marriage, the prom- ise (being in consideration of the marriage) is not within the statute at all,^ or, as Lord Thurlow says, " because the statute is expressed in that manner." ^ Where, however, there is not only marriage but also a farther act done, of a character which courts of equity consider to be part-performance of the promise sued upon, then, 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 knowledge 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, and the petition of the administrator of the 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 ' Montacute v. Maxwell, 1 P. Wms. 618 ; Taylor v. Beech, 1 Ves. Sen. 297, 298; Dundas v. Dutens, 1 Ves. Jun. 196, 199; s. c. 2 Cox, 235; Redding v. Wilks, 3 Bro. C. C. 400, 401 ; Story, Eq. Jur. § 768 ; Finch v. Finch, 10 Ohio State, 501 ; Caton v. Caton, Law Rep. 1 Ch. App. 147. " Dundas v. Dutens, supra. ' Taylor v. Beech, supra. * Suroome v. Pinniger, 3 De G., M. & G. 671, in which Lassence v. Tier- nej, 1 Mac. & G. 551, is explained. CH. XIX.J VEBBAL CONTRACTS ENFORCED IN EQUITY. 455 jointure \ipou her, which he did before the marriage took place, both Lord Oottenham and afterwards Lord Campbell and Lord Chancellor Lyndhurst, strongly inclined to hold it a sufficient part-performance, though the marriage which had ensued was of itself not sufficient. Upon this point, however, no decision was passed, the case being determined upon a distinct ground.^ § 460. It is settled that acts which are merely preparatory or ancillary to the agreement alleged are not to be considered as part-performance. Of this nature are the following: de- livering abstracts and giving directions for the preparation of conveyances, or even the solicitor'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, imder 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 prociire • Hammersly v. Baron De Biel, 12 Clark & Fin. 65; Ibid. p. 61, where Lord Cottenham's opinion, on appeal from the Rolls, is reported ; s. c. at the Rolls, nom. De Biel v. Thomson, 3 Beav. 476. See, also, Caton v. Caton, Law Rep. 1 Ch. App. 147. " Earl of Glengall v. Barnard, 1 Keen, 769 ; Cooth v. Jackson, 6 Ves. 12 ; Clerk V. Wright, 1 Atk. 12 ; Pembroke v. Thorpe, cited in 8 Swanst. 437 ; Thynne v. Earl of Glengall, 2 Clark & Ein. N. s. 131 ; Gratz v. Gratz, 4 Rawle (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. 569; Redding v. Wilkes, 3 Bro. C. C. 401; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 171; Reeves v. Pye, 1 Cranch (C. C), 219. ' Whitchurch v. Bevis, supra. 456 STATUTE OP FRAUDS. [CH. XIX. 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 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.^ § 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 enti- tled the party making it to a decree for the specific execution 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, however, gen- erally conceded. The objections to it are stated, with his cus- tomary 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 ' O'Reilly V. Thompson, 2 Cox, 271. Post, § 463. « Parker v. Smith, 1 Coll. Ch. 608. 5 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 «. 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. H. XIX.] TERBAL CONTRACTS ENFORCED IN EQUITY. 457 it to be judged of upon a mere ^atement of the sum paid, without reference to the amount of the purchase-money ? If so, what is the sum that must be given to call for the interfer- ence of the court ? What is the limit of the amount at which it ceases to be trifling, and begins to be substantial ? 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, running 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 par- ticularity the grounds on which these authorities rest. One reason which is assigned, and that which was said by Lord Redesdale to be tlie 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 ' Treatise on Vendors and Purchasers, 146. And see Booth, Cas. & Opin. 136'; Story, Eq. Jur. § 760. " Clinan v. Cooke, 1 Sch. & Lef. 40, 41 ; O'Herlihy v. Hedges, lb. 129 ; Leak v. Morrice, 2 Ch. Cas. 135 ; Allsopp v. Patten, 1 Vern. 472 ; Seagood V. Meale, Prec. Ch. 560; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46, pL 12 ; Buckmaster v. Harrop, 7 Ves. 341 ; Coles v. Trecothick, 9 Ves. 284 ; Frame V. Dawson, 14 Ves. 388. See, also, the following cases in the United States : Johnston v. Glancy, 4 Black. (Ind.) 94 ; Allen's Estate, 1 Watts & S. (Pa.) 383 ; McKee v. Phillips, 9 Watts (Pa.), 85 ; Parker v. WeUs, 6 Whart. (Pa.) 153 ; Gangwer v. Fry, 17 Penn. (5 Harr.) 491 ; Thompson v. Tod, Pet. (C. C.) 380 ; Jackson v. Cutright, 6 Munf. (Va.) 308 ; Mialhi v. Lassabe, 4 Ala. 712 ; Anderson v. Chick, Bailey, Eq. (S. C.) 118 ; Church of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378 ; Givens, «. Calder, 2 Dessaus. Ch. (S. C.) 174 ; Letcher v. Crosby, 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 ; Kidder v. Barr, 36 N. H. 236 ; Cole v. Potts, 2 Stock. (N. J.) 67 ; Underbill v. Allen, 35 N. H. 235 ; Parke v. Leewright, 20 Mo. 85 ; Hyde V. Cooper, 13 So. Car. (Eq.) 260; Hart v. McClellan, 41 Ala. 251; contra, Fairbrother v. Shaw, 4 Iowa, 570. 458 STATUTE OP FRAUDS. [CH. XIX. of contracts for lands, no such provision in favor of the latter occurring in the statute.^ And upon this view, among others, the Court of Appeals of Delaware have decreed execution of a verbal contract for land, where part of the purchase-money has been paid ; the Statute of Frauds in that State not, as it then stood, presenting any such difference between the two sec- tions.^ But it may be remarked that by the seventeenth section of the English statute, part-payment is made a substitute for the written memorandum ; whereas courts of equity, as we have before noticed, never regard acts of part-performance in that light, but as demanding from them the application of cer- tain rules which are of paramount force in their jurisdiction, and which override the statute altogether. § 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 enforced. 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 dis- ease, 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 applied to a money consideration only, and ,that where, as h^re, the services were of such a peculiar character that it was impossible to estimate their value to the recipient by any pecuniary standard, and where it was evident that they were not intended to be so ' Clinan v. Cooke, 1 Sch. & Lef. 22 ; Lord Pengall o. Koss, 2 Eq. Caa. Ab. 46, 47 ; Lane v. Shaokford, 5 N. H. 132-134. ' Townsend v. Houston, 1 Harr. (Del.) 532. ' Story, Eq. Jur. § 761. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 459 measured, it was out of the power of any court, after the per- formance of the services, to restore the complainant to the sit- uation in whicli he was before the contract was made, or to compensate him in damages.^ And so, also, where the com- plainant has not paid his money, but has involved himself in transactions including the contract in question, and upon the strength of it, from which he cannot retire without a damage, which would not be compensated by mere repayment, the high- est court in the same State has decreed the contract to be specifically executed.^ § 464. In such cases as these, it will be observed, the con- tract is originally so made that the payment provided for can- not be satisfactorily returned ; and so it is, in effect, a fraud in the defendant to repudiate the contract. The case seems to be different 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 afford ground for a degree of specific execution. Where, for instance, it is accompanied 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.* • Rhodes V. Bhodes, 3 Sand. Ch. 279. A similar point was raised in argument by Sir Samuel Bomilly, as early as the case of Buokmaster v. Har- rop, 13 Ves. 465. The payment there, however, was of the auction duty, and Lord Chancellor Erskine, admitting that the duty could not be recov- ered back, held that the payment was not to be taken as an act of part-per- formance, because it was required to be made, whether there was any effectual contract or not. ' Malins v. Brown, 4 Comst. (N. Y.) 407; German v. Machin, 6 Paige, Ch. 288. See, also, Dugan v. Gittings, 3 Gill (Md.), 138; Gosden v. Tucker, 6 Munf. (Va.) 1. Ante, § 460. » On this point compare §§ 760 and 761 of Story Eq. Jur. * See, in addition to those cited hereafter under the head of taking or giving possession, the following cases : Wilkinson v. Scott, 17 Mass. 251 j 460 STATUTE OP FRAUDS. [CH. XIX. And this leads us to some important considerations upon the taking or delivering of possession as an element of such a case. § 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 Sutton V. Sutton, 13 Verm. 79 ; Davis v. Townsend, 10 Barb. (N. Y.) 347 ; Gilday v. Watson, 2 Serg. & R. (PJ.) 407 ; Greenswalt ». Homer, 6 lb. 71 ; Billington ».-Welsh, 5 Binn. (Pa.) 129 ; Dugan v. 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 v. Barker, 1 Black. Ind. 68 ; Williams v. Pope, Wright (Ohio), 406 ; Kelley v. Stanbery, 13 Ohio, 408 ; Shirley v. Spen- cer, 4 Gilm. (111.) 683, 601 ; Thornton v. Vaughan, 2 Scam. (111.) 218 ; Hawkins v. King, 2 A. K. Marsh. (Ky.) 648 ; Brewer v. Brewer, 19 Ala. 481 ; Wible v. Wible, 1 Grant (Penn.), 406 ; Jones «. Pease, 21 Wis. 644 ; Fitzsimmons v. Allen, 39 111. 440. ' M'Kee v. Phillips, 9 Watts (Pa.), 85; M'Farland v. Hall, 3 lb. 37; Peifer v. Landis, 1 lb. 392 ; Ackerman v. Fisher, 57 Penn. 457. ' Hollis V. Edwards (and Deane v. Izard), 1 Vern. 159 ; Mundy v. Jolliflfe, 5 Myl. & Cr. 167. ' 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. Staply, 1 Vern. 363 ; Seagood v. Meale, Prec. Ch. 560 ; Lacon v. Mertins, 3 Atk. 3, 4 ; Boardman v. Mostyn, 6 Ves. 467 ; Eaton v. Whitaker, 18 Conn. 229, 230; Harris D.Crenshaw, 3 Band. (Va.) 14; Murray «. Jayne, 8, Barb. (N. Y.) 612 ; Anderson v. Simpson, 21 Iowa, 399 ; Ante, §§ 74, 76. Qucere as to this, however, in Maryland. Shepherd v. Shepherd, 1 Maryland, Ch. Dec. 244 ; Owings v. Baldwin, 8 Gill, 337 ; Morris v. Harris, 9 lb. 19 ; Rey- nolds I). Johnston, 13 Texas, 214 ; Danforth v. Laney, 28 Ala. 274 ; Catlett V. Bacon, 33 Miss. 269. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 461 the omission from its legislation [until 18] of the fourth sec- tion of the statute of Charles.^ In the case of a parol gift of land, however, 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.^ § 468. The subject of possession under a verbal contract for land is to be regarded 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 delivered by him, in pursu- ance 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 agreement 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 ' Pugh B. Good, 3 Watts & S. 56, a decision of great fulness and learn- ing. See, also, Ebert v. Wood, 1 Binn. 216 ; Bassler v. Niesly, 2 Serg. & K. 362 ; Jones v. Peterman, 3 Serg. & E. 543 ; Miller v. Power, 2 Rawle, 63; Stewart ». Stewart, 3 Watts, 263; Rhodes v. Frick, 6 Watts, 316; Johnston ». Johnston, 6 Watts, 370 ; Woods v. Farmare, 10 Watts, 196 ; Reed v. Reed, 12 Penn. (2 Jones) 117. ' Stewart v. Stewart, supra. And see Young v. Glendenning, 6 Watts (Pa.), 609 ; Syler v. Eckhart, 1 Binn. (Pa.) 378 ; Bright v. Bright, 41 111. 97. . ' Lockey ». Lockey, Prec. Oh. 519 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Lord Pengall v. Ross, 2 Eq. Gas. Abr. 46, pi. 12 ; Underhill o. Williams, 7 Black. (Ind.) 126; Smith v. Smith, 1 Rich. Eq. (S. C.) 130; Story, Eq. Jur. § 761 ; Ham v. Goodrich, 33 N. H. 32. * Story, Eq. Jur. § 761. 462 STATUTE OP FRAUDS. [CH. SIX. 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 trespass. To apply the forcible reasoning of one of our judges : " Seeing that the English act gave to the party put into possession 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 ven- dor entered upon him and gave him notice to quit, it is difficult to imagine why it should have been deemed necessary 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." ^ § 471. Prom the fact that the purchaser, when he has taken possession of the land, may on that ground enforce the contract of sale against the vendor, it seems to follow, upon equitable 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 doc- trine depends), it is held that he may enforce upon that ground, as an act done by himself in part-performance of the contract.^ § 472. 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 the rules of equity in such cases will be briefly considered in detail. ' Kennedy, J., in Allen's Estate, 1 Watts & S. (Pa.) 383. » Earl of Aylesford's case, Stra. 783 ; Pyke v. Williams, 2 Vera. 455 ; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638 ; Pugh v. Good, 3 Watts & S. (Pa.) 66 ; Reed v. Reed, 12 Penn. (2 Jones) 117 ; Moore v. Small, 19 Penn. (7 Harr.) 461 ; White v. Crew, 16 Georgia, 416. In Caton v. Caton, Law Rep. 1 Ch. App. 148, Cranworth, L. C, says: " I presume it will not be argued that any consequence can be attached to acts of part-performance by the party sought to be charged.'''' CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 463 § 473. First, it must be notorious. To allow a mere techni- cal possession, not open to the observation of the neighborhood, 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 a court of equity in enforcing a contract ; and that, at any rate 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,3 it has been held that possession, as an act of parl^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 nec- essarily 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 against the opera- ' Brawdy v. Brawdy, 7 Barr (Pa.), 157. And see Johnston v. Glancy, 4 Blackf. (Ind.) 94 ; Moore v. Small, 19 Penn. (7 Harr.) 461 ; Haslet v. Haslet, 6 Watts (Pa.), 464; Frye ». Shepler, 7 Barr (Pa.), 91. ' Frye v. Shepler, supj'a. ' Haslet V. Haslet, supra. See, also, Moore v. Small, supra; Davis v. Moore, 9 Rich. (S. C.) 215 ; Zimmerman v. Wengert, U Penn. State, 401. 464 STATUTE OP FRAUDS. [CH. SIX. tion of the statute, as to any but that particular lot.^ He leaves 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 several parcels was an entire contract, and a gross price to be paid for the whole, a conclusive circumstance against 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 criticised, 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 than other courts would be disposed to adopt. Possession of a tract of land must generally be, from 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 nowise dependent upon the extent of his possession. So long, therefore, as the con- tract under which possession is claimed to have been taken or delivered is an entire contract, though the land consist of sev- eral parcels, it would seem more reasonable to hold that pos- session of one of such parcels was equivalent to possession of ' Buckmaster v. Harrop, 7 Ves. 341. And see Sugden, Vendors and Purchasers, 147. '^ Smith V. Underdunk, 1 Sand. Ch. 579. So in Wisconsin, Jones ». Pease, 21 Wis. 644. ' Allen's Estate, 1 Watts & S. 884, 389. See, also, McClure v. McClure, 1 Barr (Pa.), 374, 379 ; Pugh v. Good, 3 Watts & Serg. (Pa.) 56. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 465 the whole. This view is illustrated and confirmed by what we have heretofore seen to be the settled rule in cases of sales of goods consisting of several parcels ; namely, that an acceptance of one, or a part of one, of such parcels was sufficient to with- draw the whole contract from the operation of the seventeenth section.^ § 476. Fourthly, the possession must appear to have been delivered or assumed in pursuance of the contract alleged. And this is but a particular application of the general rule heretofore noticed, that the acts relied on as part-performance must be such as would not ordinarily have been done, unless a contract had been entered into between the parties. § 477. Thus, it is abundantly settled, that if one who is already in possession of land as tenant, verbally contract with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of part- performance within the meaning of the rule, so as to justify a decree for a lease according to the contract.^ In such a case, the continued holding is naturally and properly referable to the old tenancy, and does not necessarily imply any new agreement between the parties. The same reasoning ap- plies, of course, where the contract set up is the sale of the estate to the defendant by the owner of the fee. And, in like mariner, where the tenant's old term has expired and he holds over, such holding will not be decreed an act of part-performance of an alleged contract for the purchase of the estate, but is more naturally referable to his landlord's ' Ante, § 355. ' Seagood v. Meale, Prec. Ch. 560 ; Morphett ». Jones, 1 Swanst. 172 ; Wais V. Stradling, 3 Ves. 378 ; Gregory v. Mighell, 18 Ves. 328 ; Savage V. Carroll, 1 Ball & B. 265, 648 ; Kine v. Balfe, 2 lb. 343 ; Christy v. Barn- hart, 14 Penn. (2 Harr.) 260 ; Aitkin v. Young, 12 Penn. (2 Jones) 15 ; Greenlee v. Greenlee, 22 Penn. 226 ; Johnston v. Glancy, 4 Blackf. (Ind.) 94 ; Wilde v. Pox, 1 Rand. (Va.) 165 ; Armstrong v. Eattenhorn, 11 Ohio, 266 ; Cole ». Potts, 2 Stockt. (N. J.) 67 ; Rosenthal v. Freeburger, 26 Md. 75 ; Mahana v. Blunt, 20 Iowa, 142 ; Anderson v. Simpson, 21 lb. 399 ; Car- roll ». Cox, 16 Iowa, 465. 30 466 STATUTE OP FRAUDS. [CH. XIX. permission to continue in possession upon the terms of the old holding.^ § 478. The rule which controls all cases where possession is relied upon is, that merely taking or holding possession is of itself nothing. The question is, quo animo it is taken or held, and this is not allowed to be answered by parol proof of the agreement between the parties.^ But in cases where a tenant continues in possession under an alleged agreement for a new tenancy, it is answered by proof of any act on his own part, done with the privity of the owner of the fee, which is incon- sistent with the previous holding, and is such as clearly indi- cates a change in the relation of the parties. § 479. The payment of an additional rent is in itself an equivocal circumstance, where a claim is set up of a positive agreement for a new lease, inasmuch as it may be attributed to a mere holding from year to year, after the expiration of the old lease, or there may be other inducements to its pay- ment. But where "the bill to enforce such an agreement alleged that the landlord had accepted the additional rent upon the foot of the agreement. Lord Loughborough would not allow a plea of the statute, but required the landlord to answer to the allegation.^ § 480. Where the tenant, continuing in possession, makes improvements upon the premises, this fact is of great weight to show a change in the holding.* But they must, of course, be of such a marked and important character as to be not naturally reconcilable with the continuance of the old relation. In a case where the improvements which were made, and the alleged expenditure by the tenant were no more than what ' Jones V. Peterman, 3 Serg. & R. (Pa.) 643, per Tilghman, C. J. ; Sug- den, Vendors and Purchasers, 141 ; Danforth v. Laney, 28 Ala. 274. » Wills V. Stradling, 3 Ves. 378 ; Sugden, Vendors and Purchasers, 141. " Wills ». Stradling, supra. Wilde u. Fox, 1 Kand. (Va.) 165 ; Williams V. Landman, 8 Watts & S. (Pa.) 65 ; Spear v. Orendorf, 26 Md. 37 ; Nunn v. Fabian, Law Rep. 1 Ch. App. 36 ; Lincoln v. Wright, 4 De G. & J. 16. * Savage v. Carroll, 1 Ball & B. 119 ; Sutherland e. Briggs, 1 Hare, Ch. 27 ; Dowell ». Dew, 1 Yo. & Coll. C. C. 345. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 467 would take place in the ordinary course of husbandry, Lord Chancellor Sugden said that it would be against all authority to say that such acts amounted to part-performance.^ § 481. Where the party alleging the contract, however, was previously a stranger to the estate, the question, quo animo,' is generally answered, without farther " proof, by the mere fact of his being in possession with the knowledge of the owner of the fee, and without objection by him ; a natural presumption arising from this fact, that some contract has been entered into between the parties. This presumption, however, it is said, does not arise where a son enters upon land pre- viously owned by his father, even though he make valuable improvements thereon ; such a transaction generally resulting from the confidence which exists between father and son, that the father will provide for the son in his will, which is perfectly consistent with the father's salutary retention of the title to the land .2 § 482. Prom the very terms of the rule that the possession must be taken or delivered in pursuance of the contract, it seems to follow that it must be subsequent to it in time. And it was so held in Pennsylvania, in a case where the plaintiff had taken possession, and made improvements upon the land in anticipation of the contract.^ § 483. In all cases the entry of the purchaser must be with the knowledge of the vendor. Otherwise he cannot be said to enter under the contract at all, but is a mere trespasser, and can derive no benefit from his trespass, for the purpose of obtaining a specific execution of any contract he may have for the purchase of the land ; nor, on the other hand, can the ven- dor be charged with fraud in respect of a transaction to which ' Brennan v. Bolton, 2 Dru. & War. 349. And see Frame v. Dawson, 14 "Ves. 385. * Eckert v. Eckert, 3 Penn. 332. See, also, Haines v. Haines, 6 Md. 435. ' Eckert V. Eckert, supra. See, also, Inman v. Stamp, 1 Stark. 12 ; Reynolds v. Hewett, 27 Penn. State, 176; Myers v. Byerly, 46 Penn. 468 STATUTE OP FRAUDS. [CH. XIX. he was not privy and consenting.^ To use the expressive phrase of Mr. Justice Grier, " a scambling and litigious pos- session " will not suffice to make a case for relief in equity .^ At the same time, it would seem that where possession has been long continued under the eye of the vendor, he would be held estopped to deny that the entry was without his consent.^ Permitting the party to occupy thfe property for a few months, however, where it was of trifling value as to profits, and no improvements put upon it in the mean time, has. been con- sidered insufficient for this purpose.* § 484. 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 stipulated 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 retained. Where a purchaser takes possession under the contract, and afterwards attorns to the vendor as landlord, it has been held that he yields his equity, and his possession is referable to his new agreement;® § 486. 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 ' Cole V. White, cited in 1 Bro. C. C. 409, as determined by Lord Cam- den in 1767 ; Gregory v. Mighell, 18 Ves. 328 ; Goucher v. Martin, 9 Watts (Pa.), 106 ; Gratz v. Gratz, 4 Rawle (Pa.), 411 ; Sage v. McGuire, 4 Watts .& S. (Pa.) 228 ; Johnston v. Glancy, 4 Black. (Ind.) 94 ; Thomson v. Scott, 1 McCord, Ch. (S. C.) 32; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 174; Ash «. Daggy, 6 Porter (Ind.), 269 ; Jarvis v. Smith, Hoff. Ch. 470 ; Carroll s. Cox, 15 Iowa, 456. » Purcell v. Miner, 4 Wall. 613. " Thomson v. Scott, supra; Harris v. Knickerbacker, 6 Wend. (N. Y.) 646. ■• Jervis v. Smith, Hoff. Ch. (N. Y.) 470." ° Harris v. Knickerbacker, supra; Smith v. Underdunk, 1 Sands. Ch. (N. Y.) 679. And see Gregory v. Mighell, supra; Chambliss v. Smith, 30 Ala. 366. « Rankin v. Simpson, 19 Penn. (7 Harr.) 471 ; Dougan v. Blocher, 24 Penn. State, 28. , CH. XIX.J VERBAL CONTRACTS ENFORCED IN EQUITY. 469 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. § 487. It is always regarded as strongly confirmatory of the right of a plaintiff seeking the specific execution of a ver- bal contract for an estate in land, that he has proceeded, upon the faith of the contract, and with the knowledge of the ven- dor, to expend money in improving the land.* In cases of purchasers who were, before and at the time of the contract, tenants of the same land, as we have just s^n, it is often con- clusive of the nature and animus of their continued possession ; thus serving to explain and define one act of part-performance, to which it is itself a superadded and corroboratory act. The propriety of admitting this expenditure of money in improve- ' Christy V. Barnhart, 14 Penn. (2 Harr.) 260 (explaining Lee v. Lee, 9 Barr. 117). * Gangwer v. Fry, 17 Penn. (5 Harr.) 491. But see Borrett v. Gomes- erra, Bunb. 94. ' Savage v. Foster, 9 Mod. 37 ; Wetmore v. White, 2 Caines, Gas. Err. 87; Adams v. Kockwell, 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. Har- rison, 1 Maryland, Ch. Dec. 331 ; Harder v. Harder, 2 Sand. Ch. 17 ; More- land V. LeMasters, 4 Black. (Ind.) 383 ; Martin v. McCord, 5 Watts (Pa.), 493 ; Parkhurst v. Van Cortlandt, 14 Johns. (N. Y.) 15 ; Ridley v. McNairy, 2 Humph. (Tenn.) 174 ; Kowton v. Rowton, 1 Hen. & Mun. (Va.) 92 ; Sur- come V. Pinniger, 3 De G., M. & G. 571 ; Syler v. Eckhart, 1 Binn. (Pa.) 378 ; Shepherd v. Bevin, 9 Gill (Md.), 32 ; Byrd v. Odem, 9 Ala. 755 ; Brock V. Cook, 3 Port. (Ala.) 464 ; Toole v. Medlicott, 1 Ball & B. 393 ; Under- bill V. Williams, 7 Black. (Ind.) 125 ; Wilton ». 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 ; Miller v. Tobie, 41 N. H. 84 ; School Dist. No. 3 v. McLoon. 4 Wis. 79 ; Morin v. Martz, 13 Minn. 191. 470 STATUTE OP FEAtTDS. [CH. XIX. ments as a reason for enforcing the contract, is perhaps 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 compensated 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 enterprise 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- ance, the improvements relied upon must be of a kind perma- nently beneficial to the estate, and involving a sacrifice to the purchaser who has made them.^ Thus, the cutting of a ditch through an adjoining estate, in order to supply the plaintiff's mill with water, tlfough 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 must 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 ' Whether the making of improvements not amounting to occupation of the land will suffice, see Ackerman v. Fisher, 57 Penn. 457. » HoUis V. Edwards, 1 Vern. 159 ; Deane ». Izard, lb. ; Hamilton ». Jones, 2 Gill & J. (Md.) 127 ; Davenport ». Mason, 15 Mass. 92 ; Wolfe v. Frost, 4 Sand. Ch. (N. Y.) 72 ; Wack v. Sorber, 2 Whart. (Pa.) 387. " Hamilton ». Jones, supra. " Byrne ». Romaine, 2 Edw. Ch. (N. Y.) 445 ; Farley v. Stokes, 1 Sel Eq. Cas. (Pa.) 422. CH. XIX.J VERBAL CONTRACTS ENFORCED IN EQUITY. 471 has been well or ill laid out is indifferent; the fraud is the same." ^ § 490. It must appear, however, that the loss of his im- pi'ovements would be a sacrifice to the purchaser. If therefore he has gained more 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 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 pur- chaser 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. Eoberts to be hardly reconcilable 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 ' Whitbread v. Brockhurst, 1 Bro. C. C. 417. 2 Wack V. Sorber, 2 Whart. (Pa.) 387. » Eckert. ». Eckert, 3 Penn. 832 ; Ash ». Daggy, 6 Porter (Ind.), 259. * Lord Pengall v. Ross, 2 Eq. Cas. Ab. 46, pi. 12 ; Parkhurst v. Van Cort- landt, 1 Johns. Ch. Cas. (N. Y.) 372 ; Wack v. Sorber, supra ; Harden v. Hays, 9 Barr (Pa.), 161 ; Heft v. McGill, 3 lb. 256 ; Dunn v. Moore, 3 Ired. Eq. (N. C.) 364 ; Goodwin v. Lyon, 4 Port. (Ala.) 297. In Anthony V. Leftwich, 3 Rand. (Va.) 265, the rule of compensation in such cases is instructively discussed. In North Carolina, where the doctrine of part-per- formance 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. .6 Roberts on Frauds, p. 136. 472 STATUTE OP FRAUDS. [CH. XIX. seems to be no reason why the making of the improvements should not stand upon the same ground as the delivery 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. § 491 a. . The principle upon which taking possession of, and making improvements upon, the land claimed, protect the claimant from the operation of the Statute of Frauds in courts of equity, is not confined to purchases of lauds, but applies equally to charitable gifts upon the faith of which such posses- sion has been taken and such improvements made.^ § 492. It should be remarked, in conclusion of this topic, that the decided inclination of the judicial mind appears to be 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 Eedesdale remarks : " The statute was made for the purpose of preventing perjuries and frauds ; and nothing 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 obliged 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, ' M'Lain v. School Directors, 61 Penn. State, 196. CH. XIX.] VEBBAL CONTRACTS ENFORCED IN EQUITY. 473 absolutely necessary for courts of equity to make a staud, and not carry the decisions farther." ^ § 493. But in all cases where the plaintiff seeks relief 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 en- force it.2 § 494. 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 proofs, if they can, what the terms of the agreement really are.^ § 495. In some of the earlier «ases, this principle was ap- plied with extreme liberality. In an anonymous case reported by Viner, where a man entered and built upon certain land ' Lindsay v. Lynch, 2 Sch. & Lef. 4, 6, 7. See, also, Harnett v. Yield- ing, lb. 549 ; Forster v. Hale, 3 Ves. 712, 713, per Lord Alvanley ; O'Reilly V. Thompson, 2 Cox, 271 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. (N. Y.) 284, 285 ; PhiUips v. Thompson, lb. 149. ' Pilling V. Armitage, 12 Ves. 78 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. Cas. (N. Y.) 273 ; s. c. 14 Johns. 16 ; PhilHps v. Thompson, 1 Johns. Ch. Gas. 131 ; Sage v. McGuire, 4 Watts & S. (Pa.) 228 ; Frye v. Shepler, 7 Barr (Pa.), 91 ; Greenlee v. Greenlee, 22 Penn. State, 226 ; Kankin v. Simp- son, 7 Harr. (Pa.) 471 ; Moore v. Small, lb. 461 ; Burns v. Sutherland, 7 Barr (Pa.), 103 ; Hugus v. Walker, 2 Jones (Pa.), 173 ; Charnley v. Hans- bury, 1 Harr. (Pa.) 16 ; Shepherd v. Bevin, 9 Gill (Md.), 82 ; Owings v. Baldwin, 1 Maryland, Ch. Dec. 120 ; Shepherd v. Shepherd, lb. 244 ; Beard V. Linthioum, lb. 345 ; Chesapeake and Ohio Canal Co. v. Young, 3 Maryland, 480 ; Wingate o. Dail, 2 Harr. & J. (Md.) 76 ; Rowton v. Rowton, 1 Hen. & Munf. (Va.) 91 ; Thompson v. Scott, 1 McCord, Ch. (S. C.) 32 ; Church of the Advent v. Farrow, 7 Rich. Eq. (S. C.) 378 ; Goodwin v. Lyon, 4 Port. (Ala.) 297 ; Kay v. Cord, 6 B. Mon. (Ky.) 100 ; Newman v. Carroll, 3 Yerg. (Tenn.) 18 ; Shirley v. Spencer, 4 Gilman (111.), 683-601 ; Eyre v. Eyre, 4 Green (ST. J.), 102 ; Petrick ». Ashcroft, lb. 339 j Force v. Butcher, 3 Green (N. J.), 401 ; Purcell ». Miner, 4 Wall. 613. » Mundy v. JoUiffe, 6 Myl. & Cr. 177 ; Boardman v. Mostyn, 6 Ves. 467 ; Burns v. Sutherland, supra; Rhodes v. Rhodes, 3 Sandf. Ch. (K. Y.) 279. 474 STATUTE OP FRAUDS. [CH. XIX. 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 I'eceived his own from the landlord, but the terms of the lease to be given were not proved, it appears that Lord-Chancellor Jefifries decreed a lease to the plaintiff, 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 mquo et bono, where he found none." ^ § 496. Again, it would seem to have been formerly quite an approved rule, where there was no proof or insufficient proof of the contract before the court, to send the case to a Master to ascertain what the terms of the contract were. Lord Eldon mentions a case as hai'ing occurred before Lord Thur- low, where " possession having been delivered 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 ' 5 Vin. Ab. 623, pi. 40. = Story, Eq. Jur. § 764. ' Lord Loughborough, afterwards created Earl of Rosslyn. * Per Lord Eldon, 6 Ves. 470. CH. XIX.J VERBAL CONTRACTS ENFORCED IN EQUITY. 476 tenant was to acquire vinder 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 Eedesdale, 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 di- rected a farther inquiry, the bill not suggesting any specific ■ term of lease, and the pleadings and evidence being both silent on that point.^ § 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 issue 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 • Allan V. Bower, 3 Pro. C. C. 149. ' Clinan v. Cooke, 1 Sch. & Lef. 22. ' Savage v. Carroll, 1 Ball & B. 265, 650, 661. See, also, Boardman v. Mostyn, 6 Ves. 470 ; Reynolds v. Waring, You. 346 ; Story, Eq. Jur. § 764 ; Sugden, Vendors and Purchasers, 150. 476 STATUTE OP FEAUDS. [CH. ZIX. the Statute of Frauds, is where the agreement, fully set forth in the bill, is confessed by the answer.^ The reason upon which this rule is generally said to rest is, that the statute is only intended to prevent fraud and perjury, the danger of which is wholly removed by 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 agi-eement; a rule with which the reason just alluded to does not seem to be alto- gather 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 view that Lord Bathurst held that, though admitted by the defendant, a verbal agreement within the statute could not be 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 ' Attorney General v. Day, 1 Ves. Sen. 221 ; Croyston ». Banes, 1 Eq. Cas. Abr. 19; s. c. Prec. Ch. 208; Symondson v. Tweed, Prec. Ch. 374; Lacon v. Mertins, 3 Atk. 3 ; Cottington v. Fletcher, 2 lb'. 155 ; Gunter v. Halsey, Ambler, 586 ; Child v. Godolphin, 1 Dick. 39 ; Whitchurch v. Bevis, 2 Bro. C. C. 566, 567 ; Spurrier v. Fitzgerald, 6 Ves. 648, 556 ; Cooth v. Jackson, lb. 12 ; Attorney-General v. Sitwell, 1 Yo. & Coll. (Exch.) 583 ; Harris v. Knickerbacker, 6 Wend. (N. Y.) 638 ; Argenbright v. Campbell, 3 Hen. & Munf. (Va.) 144 ; HoUingshead v. McKenzie, 8 Georgia, 467 ; Ellis V. Ellis, 1 Dev. Eq. (N. C.) 341 ; Switzer v. Skiles, 3 Gilm. (HI.) 629'; Dyer v. Martin, 4 Scam. (111.) 146 ; Woods v. Dille, 11 Ohio, 455 ; Mc- Gowen v. West, 7 Missouri, 569 ; Artz v. Grove, 21 Md. 456 ; Burt v. Wil- son, 28 Cal. 182. In Pennsylvania, it has been held, on the strength of the principle of this rule, that a mortgagee could not, in an action at law, avail himself of the Statute of Frauds to resist the enforcement of a prior trust agreement concerning the land,' which was acknowledged by the owner of the reversion. Houser v. Lament, 55 Penn. State, 311. ^ Popham V. Eyre, Lofft, 808, 809. CH. XIX.] VERBAL CONTRACTS ENFORCED IN EQUITY. 477 the party, which was a complete compliance with the terms of the statute.^ In a late case in Maryland, it was urged that an answer filed hy 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 statute, is taken to renounce the benefit of it; the maxim, quisque renwntiare potest juri pro se introducto, being appli- 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 amounted 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 plain tifi" 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 ' Story, Eq. Jur. § 755. ^ Winn K.^Albert, 2 Maryland, Ch. Dec. 169. Affirmed on appeal, nom. Albert v. Winn, 5 Maryland, 66. ' 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. * Newton v. Swazey, 8 N. H. 9. See James ». Kice, 1 Kay, Ch. 231 ; Whiting V. Gould, 2 Wis. 552 ; Esmay v. Groton, 18 111. 483. ' Spurrier v. Fitzgerald, supra. ' Patterson"©. Ware, 10 Ala. 444. 478 STATUTE OF FRAUDS. [CH. XIX. be decreed ; for the principle goes throughout, and binds the representative as well as the ancestor.^ § 500. An important qiiestion, 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 admitted 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, aften reforming the agreement by parol evidence admitted for that purpose. But 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 [?] within the statute, and no issue taken upon the agree^ ment by the plea ; 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 dieta 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 must appear to be, in all its essential terms, the same with that charged in the bill ; ^ although an immar 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 bis filing ' Attorney General v. Day, 1 Ves. Sen. 221 ; Lacon ». Mertins, 3 Atk. 3. ' Attorney General v. Sitwell, 1 Yo. & Coll. (Exch.) 559. ' 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. CH. XIX.J VERBAL CONTRACTS ENFORCED IN EQUITY. 479 a new bill adapted to such admitted agreement.^ And it has been held by Sir William Grant, at the EoUs, 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 ten- dency from that laid, was not infringed by allowing the plaintiff, who alleged a written agreement, the benefit of the defendant's admission that such an agreement was made, though by parol ; remarking that the difference between a written and a parol 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 an exception to the general rule above referred to. In Mortimer v. Orchard, where the bill 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 difiiculty, and the doctrine of the case appears to conflict with the established rule 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 ' Lindsay v. Lynch, 2 Sch. & Lef. ; and Harris v. Knickerbacker, 6 Wend. (N. Y.) 638 ; Willis, v. Evans, 2 Ball & Beat. 228 ; Deniston v. Little, de- cided 1803 by Lord Redesdale ; see note to Lindsay v. Lynch, supra. ' Spurrier v. Fitzgerald, 6 Ves. 648. ' Mortimer v. Orchard, 2 Ves. 243. ' Lindsay v. Lynch, supra. 480 STATUTE OP FEAUDS. [CH. XIX. 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, that 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 Eedesdale said, that if there had been acts of considerable ex- penditure, he could do no more than was done in the case be- fore 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 Eedesdale, 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. 481 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 wiU 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 plaintiff is 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 plaintiff declares, as he might at common law, upon the agreement generally, 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 ' Ante, § 124. « Babcock ». Bryant, 12 Pick. (Mass.) 134; Quin j>. Hanford, 1 Hill (N. Y.), 82; Beers v. Culver, lb. 689; Elder v. Warfield, 7 Harr. & Johns. (Md.) 391 ; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257. 31 482 STATUTE OP FRAUDS. [CH. XX. • 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 memorandum, 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 ob- ligation to allege a writing, between the cases where the con- ' Spurrier v. Fitzgerald, 6 Ves. 548 ; Rist v. Hobson, 1 Sim. & Stu. 543 ; Cleaves v. Foss, 4 Greenl. (Me.) 1; Clark ». Brown, 1 Root (Conn.), 78;, Seymour ». Mitchel, 2 lb. 145 ; Miller v. Drake, 1 Caines (N. T.) 46 ; Hil-' liard v. Austin, 17 Barb. (N. Y.) 141 ; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638 ; Coles v. Bowne, 10 Paige, Ch. (N. Y.) 626 ; Champlin v. Parish, 11 lb. 405; Cozine e. Graham, 2 lb. 177; Gibbs v. Nash, 4 Barb. (N. Y.) 449; Brown v. Barnes, 6 Ala. 694; Brown v. Adams, 1 Stew. (Ala.) 61 ; Perrine v. Leachman, 10 Ala. 140 ; Martin v. McFadin, 4 Litt. (Ky.) 240 ; Baker v. Jameson, 2 J. J. Marsh. (Ky.) 647 ; 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, 126 ; Miller v. Upton, 6 Ind. 53; Robinson v. Tipton, 31 Ala. 695; Walker v. Richards, 39 N. H. 269 ; Stern v. Drinker, 2 E. D. Smith (N. Y.), 401 ; Piercy V. Adams, 22 Geo. 109 ; Walsh v. Kattenberg, 8 Minn. 127 ; Harper v. Miller, 27 Ind. 277 ; Auter v. Miller, 18 Iowa, 405. But see Smith v. Fah, 15 B. Mon. (Ky.) 443 ; Byassee v. Reese, 4 Met. (Ky.) 372. But where the memorandum of a purchase of merchandise is the bought note of a broker, the declaration must so allege. Rayner v. Linthorne, Ry. & Moo. 326. * Long V. Lewis, 16 Georgia, 164. 3 Elting V. Vanderlyn, 4 Johns. (N. Y.) 237. See Rann v. Hughes, 7 T. R. 350, note a. • ' Middleton v. Brewer, Peake, 15. ' 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.] PLEABING. 483 tract is declared on by the plaintiff and where it is pleaded by the defendant. In the Qaeen'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 pouit 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 courts were against him on that point, and observed that assignments of terms of years were commonly pleaded vidthout 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 df the statute.^ According to the system of pleading which formerly prevailed, it would have been sufiicient for the plaintiff to allege the ' Case 9. Barber, T. Baym. 461. ' Peacock v. Purvis, 2 Brod. & Bing. 362. 3 Small V. Owings, 1 Md. Ch. Dec. 363 ; Meach ». Stone, 1 Chip. (Verm.) 189 ; Underbill v. Allen, 18 Ark. 466 ; Rigly v. Norwood, 34 Ala. 129 ; Hart V. McClellan, 41 Ala. 251. 484 STATUTE OP FRAUDS. [CH. XX. agreement, and then, if the defendant pleaded the statute, he might specially reply the equitable circumstances to meet that plea. Now that special replications 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 ex- pressly alleged to have been so done ; but such is the common and probably safer course.^ § 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 capa- ble 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 ' See post, § 616. 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 ? » Meach v. Stone, 1 Chip. (Verm.) 189. ' Vaupell i). Woodward,- 2 Sand. Ch. (N. Y.) 143 ; Harrison v. Harrison, 1 Md. Ch. Dec. 331 ; Thornton v. Vaughan, 2 Scam. (111.) 218 ; Burke v. Haley, 2 Gilm. (HI.) 614; Talbot i>. Bowen, 1 A. K. Marsh. (Ky.) 436; Trustees, etc. v. Wright, 12 111. 432 ; Switzer v. Skilee, 3 Gilm. (El.) 629 ; Tarleton v. Vietes, 1 lb. 470 ; Osborne v. Endicott, 6 Cal. 149 ; Adams v. Patrick, 30 Verm. (1 Shaw) 516 ; Amburger v. Marvin, 4 E. D. Smith (N. Y.), 393; Lear v. Chouteau, 23 111. 39; Huffman v. Ackley, 34 Mo. 277; Rabsuhl v. Lack, 35 Mo. 35. The statute need not be pleaded unless the contract [to which it is set up as a defence is that on which the relief prayed is founded. Force v. Dutcher, 3 Green (N. J.), 401. CH. XX.] PLEADING. 485 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 where 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 no decision passed upon the point.^ Shortly afterwards, before Lord Thurlow, 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 ex- ecution of the agreement, which were Insufiicient to justify the decree, his Lordship overruled the plea as double, and remarked 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 ' Ash v. Abd7, 3 Swanst. 664, decided 1678. In the case of Child ». Godolphin, 1 Dick. 39, Lord Macclesfield is reported to have said that where a biU 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 an answer denying any agreement. The former observation, if correctly reported in the first instance, is not now law. See ante, § 505. ' Howard v. Okeover, 3 Swanst. 421. n. 486 STATUTE OP FRAUDS. [CH. XX. statute.^ And again, where the bill made substantially the same case, and the defendant pleaded the statute, Lord Thur- low remarked plainly that there 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 insuflBicient part execution by the plain- tiff.3 By this judgment, and that of the Master of the Rolls more recently, the propriety of demurring in such cases ap- pears to be established in England ; * in our own country it has been generally conceded.^ And it would seem that where the defendant might thus demur, a plea of the statute must ' Whitbread v. Brockhurst, 1 Bro. C. C. 404. ' Whitchurch v. Bevis, 2 Bro. C. C. 659. ' Redding v. Wilkes, 3 Bro. C. C. 400. * Field V. Hutchinson, 1 Beav. 599, Lord Langdale, M. R. See, also. Lord Loughborough's remarks in Rondeau v. Wyatt, 2 H. Bl. 68, that "if a parol agreement were stated in a court of law and there was a demurrer, 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 purchase 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 defence 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 admitted, 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. Law & Eq. 210. ' Cozine v. Graham, 2 Paige, Ch. (N. Y.) 182 ; Green v. Armstrong, 1 Denio ($r. Y.), 652, 553 ; Meach ». Stone, 1 Chip. (Verm.) 188 ; Black v. Black, 15 Georgia, 446 ; Switzer v. Skiles, 8 Gilm. (HI.) 529. Where a bill in equity alleged that A. C. of T. sold land and directed the trustee to con- vey, to which biU the defendant demurred, it seems to have been considered, in the Supreme Court of Massachusetts, that the demurrer admitted that there was an agreement in writing for the sale and conveyance of the land. Richards v. Richards, 9 Gray, 313. CH. XX.J PLEADING. 487 ' now be held irregular and be overruled ; for it would not go to set up any matter not appearing upon the face of the biU 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 put 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 defendant's reliance upon the statute, as is now ■well settled, depriving the plaintiff of the benefit of the admission.^ In the case of a de- murrer to a bill or declaration, there is, it is true, no separate and express reliance upon the Statute of Frauds ; but the asser- tion of all legal objections to the plaintiff's recovering upon the case shown is implied in the very nature of a demurrer. § 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, the bill, in ' See Lord Thurlow's remarks in Whitchurch v. Bevis, 2 Bro. C. C. 569 ; Green v. Armstrong, 1 Denio (N. Y.), 562; Black v. Black, 16 Georgia, 445. ' Post, § 515. ^ Buttemere v. Hayes, 5 Mees. & Wels. 456 ; Johnson v. Dodgson, 2 lb. 653 ; Eastwood v. Kenyon, 11 Adol. & Ell. 438 ; Leaf v. Tuton, 10 Mees. & Wels. 393 ; Reade v. Lamb, 6 Wels., Hurl. & Gor. 130; Cozine v. Gra- ham, 2 Paige, Ch. (N. Y.) 181 ; Ontario Bank v. Root, 3 lb. 478 ; Small v. Owings, 1 Md. Ch. Dec. 363 ; Givens v. Calder, 2 Dessaus. Ch. (S. C.) 174; Kay ». Curd, 6 B. Mon. (Ky.) 100; Fowler v. Lewis, 3 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 ». Jackson, 6 Ves. 12 ; Allen V. Chambers, 4 Ired. Eq. (N. C.) 126 ; Dunn v. Moore, 3 Ired. Eq. (N. C.) 364; Mahana v. Blunt, 20 Iowa, 142. 488 STATUTE OP 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 plaintiff's recovery on the mere verbal agreement.^ And this brings us to the most important class of cases upon the subject of the present chapter. § 512. A defendant may, by special plea or by answer, expressly interpose the statute in bar of the plaintiff'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 agreement 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 an 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 is no agreement in writing has been considered improper, be- ing no more than so much of an answer.'' § 515. It was formerly held that if the defendant, by his answer in chancery, admitted the fact of the agreement, he ' Post, § 618. « Per Lord Eldon in Morison v. Tumour, 18 Ves. 182. And see Story, Eq. Jur. § 762, note. CH. XX.] PLEADING. 489 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.^ It is hardly necessary to say that the defendant is not debarred from thus insisting upon the statute, by the bill's alleging that the agreement has been in part performed ; for the part-per- ' Chad V. Godolphin, 1 Dick. 89 ; 8. 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 Lough- borough 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 misstatement. It appears by Lord Hardwicke's own notes that it was upon the agreement having been in part executed that he determined the case." ' See his dictum in Lacon v. Mertins, 3 Atk. 3. * Eyre v. Ivison, and Stewart v. Careless, cited 2 Bro. C. C. 663, 564 ; Walters ». Morgan, 2 Cox, 369 ; Whitbread v. Brockhurst, 1 Bro. C. C. 416 ; Whitchurch v. Beyis, 2 lb. 559, 568, 569 ; Rondeau v. Wyatt, 2 H. Bl. 68 ; Moore v. Edwards, 4 Ves. 23 ; Cooth v. Jackson, 6 Ves. 17, 37 ; Eowe V. Teed, 15 Ves. 375 ; Blagden v. Bradbear, 12 Ves. 466, 471 ; Kine V. Balfe, 2 Ball & Beat. 343 ; Luckett v. Williamson, 37 Mo. 388 ; Burt v. Wilson, 28 Cal. 632. * Blagden v. Bradbear, supra. ' Thompson v. Tod, Pet. C. C. 388 ; Stearns, v. Hubbard, 8 Greenl. (Me.) 322 ; Argenbright v. Campbell, 3 Hen. & Munf. (Va.) 144 ; Winn v. Albert, 2 Md. Ch. Deo. 169 ; s. c. nom. Albert v. Winn. 5 Md. 66 ; Hol- lingshead v. McKenzie, 8 Geo. 467 ; Barnes v. Teague, 1 Jones, Eq. (N. C.) 277; Thompson v. Jamesson, 1 Cranch, C. C. 296. 490 STATUTE OP PEAUD8. [CH. XX. formauce can have no other effect 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- cumstances 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.^ § 516 a. Whether the rule that a defendant may insist upon the statute, though admitting the agreement charged, applies 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- ' Thompson v. Tod, Peters, C. C. 380. ' Whitbread ». Brockhurst, 1 Bro. C. C. 404. ^ Beames's Elements of Pleas in Equity, 174. Sndi, 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, 267), 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 the 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 what had been the rule, deferring, apparently with some reluctance, to Lord Thurlow's decision in Whitbread v. Brockhurst. See ante, § 507, as to this difficulty in regard to the manner of pleading having grown out of the dis- use of special replications. * Mitf; Eq. PI. 268. CH. XX.] PLEADING. 491 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 tliat it is difficult to see why the defendant should not be allowed to insist upon the statute, notwithstanding such admission, in one case 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.^ § 617. 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 nisiprius, 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 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 siich 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 ' Ibid. ; Story, Eq. PI. § 766. "Ibid. ^ Ante, ^ 498. * Ante, % 155. 492 STATUTE OP FRAUDS, [CH. XX. 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 an^d 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 remarkable, 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.^ It would appear from his Lordship's account of the case that the Statute of Frauds was insisted upon by 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 ' Rex ». Dunston, Ry. & Moo. 109. ' Bartlett ». Pickersgill, Trin. T. 32 & 33 Geo. 11. cited in Abrahams v. Bunn, 4 Burr. 2265, and 4 East, 677, in notis. ^ 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. CH. XX.] PLEADING. 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, 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 559 ; Van Heythuysen'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. Free. 197, 198. ' Mitf. Eq. PI. 265 ; Welf. Eq. PL 326 ; Stewart v. Careless, cited 2 Bro. C. C. 566 ; Dick. 42 ; Moore v. Edwards, 4 Ves. 23 ; Bowers v. Cator, lb. 91 ; Evans v. Harris, 2 Ves. & Bea. 364 ; Mussell v. Cooke, Free. Ch. 533 ; Bean v. Valle, 2 Mo. 126 ; Dinkel v. Gundelfinger, 85 Mo. 172. " Taylor v. Beech, 1 Vea. Sen. 297; Bowers v. Cator, supra; Rowe V. Teed, 15 lb. 378; Evans v. Harris, supra; Cooth v. Jackson, 6 Ves. 12 ; Hall v. Hall, 1 Gill (Md.), 383 ; Cozine u-Graham, 2 Paige, Ch. (N. Y.) 177 ; Champlin v. Parish, 11 Paige. Ch. (N. Y.) 406 ; Harris v. Knicker- backer, 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. Cotten, 5' Geo. 341; Tarleton v. Vietes, 1 Gihn. (HI.) 470. But see ante, § 516. " Evans v. Harris, supra; and see Jones v. Davis, 16 Ves. 262. 494 STATUTE OP FRAUDS. [OH. XX. 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 Tenterden, in the House of Lords, where a similar plea was presented, said he inclined to think it bad ; but he did not find it necessary 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 express contract or promise alleged, or of the matters of fact from which the con- tract or promise alleged is implied by law.* It was soon settled that under the general issue, as thus restricted, the defence of want of written memorandum might still be taken ,^ and thereby the case of Maggs v. Ames is 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 defendant by his. answer formally alleged that no formal note of the agreement charged was made, and denied that any bind- ing 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 de- ■ Lilley v. Hewitt, H Price, 494. ' Maggs V. Ames, 4 Bing. 470. The form there sustained is inserted hj Mr. Chitty in his volume of Precedents. 2 Chit. PI. 909. ^ Lysaght v. Walker, 6 Bligh, K. K. 1. * Hil. T. 4 Will. IV. * Johnson v. Dodgson, 2 Mees. & Wels. 653; Buttemere v. Hayes, 5 Mees. & Wels. 456 ; Eastwood v. Kenyon, H Adol. & Ell. 438. 8 Leaf ». Tuton, 10 Mees. & Wels. 393 ; Eeade v. Lamb, 6 Wels., Hurl. & Gord. 130. ' Skinner v. McDouall, 2 De Gex & S. 265. CH, XX.] PLEADING. 495 fendant 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 con- veyance claimed," etc., the Supreme Court of the United States doubted whether it was a suflScient setting up of the statute, though they did not find it necessary to determine the point.2 § 520. Next, as to the extent of the protection afforded the defendant by his plea or answer setting up the statute. This presents the inquiry, whether he is thereby protected from dis- covery as to the fact of the making of the agreement ; and it is a question the most difBcult 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. § 521. 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 eminent 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 confessed by the defend- ' Vaupell V. Woodward, 2 Sandf. Ch. (N. T.) 143. See, also, Rhodes V. Rhodes, 3 lb. 283. " Bany v. Coombe, 1 Pet. (S. C.) 640. See, farther, on this subject, Small V. Owings, 1 Md. Ch. Dec. 363 ; Harrison v. Harrison, lb. 331 ; Edelin v. Clarkson, 3 B. Men. (Ky.) 31. 496 STATUTE OP FRAUDS. [CH. XX. ant, and the statute not insisted on, is evidently consistent with such object ; nam quisque renuntiare potest juri pro se intro- ducto. But if the defendant be bound to confess or deny the parol agreement, his answer must be either liable to contradic- tion 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 evidence aliunde, the rule would furnish a temptation to perjury, by giving the defendant a certain interest in denying the agreement ; since if he confessed it, he would be bound to perform it. If the de- fendant be bound to confess or deny the parol agreement in- sisted on by the plaintiff, one of the above consequences would necessarily ensue ; which of the two is likely to prove the most mischievous, were, perhaps, difficult to decide ; for though the perjury which may take place if contradictory evidence were allowed, is an evil of considerable 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 occasions on which a case presenting this question was argued before him, remarked that the court had laid down two exceptions, 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 rriight 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 ' Ponbl. Eq. Book I. Chap. HL § 8, note d. CH. XX.] PLEADING. 497 will become of the statute ? The agreement will 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.^ § 523. 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 agreement by answer the court will enforce it, although the defendant insist upon the benefit of "the statute. Thus, Lord Thurlow 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 appearing 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, for 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 entirely nugatory. ' Whitchurch v. Bevis, 2 Bro. C. C. 566, 667. Such seems to be the con- clusion 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. Belt's note to page 667 of the report. » Ibid. 560. ' Ibid. 661. " Child v. Godolphin, 1 Dick. 39. 32 498 STATUTE OP FRAUDS, [CH. XX. § 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 judica- ture in Virginia, 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 per- formance of tliem, whereby the actual state of the parties, or one of them, is materially affected, they ought to be considered as imperfect and incomplete, so as to be incapable of supporting a 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 confeis or deny it, but may protect himself from such an'swer 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." ^ § 525. The first case in which this question appears to have been raised was that of Child v. Godolphin, decided by Lord Macclesfield, in 1723, 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.^ § 526. In Cottington v. Fletcher, 1740, 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 ' Argenbright v. Campbell, 8 Hen. & Munf. 161, 162. ' Child «. Godolphin, 1 Dick. 39. But see the case of Hollis v. White- ing, 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, it would possibly require an answer. 1 Vem. 161. CH. XX.] PLEADING. 499 his answer admitted that the advowson was assigaed 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 sufiBcient plea ; but as coupled with an answer admit- ting the facts, it was overruled.^ § 627. Again, in Taylor v. Beech, 1749, 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 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." ^ § 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 and relief. The plea having been allowed by the Lord Chancellor of Ireland, an appeal was taken to the House of Lords and was there dis- missed.^ § 529. The case of Whitchurch v. Bevis, before Lord Thur- low, 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 • Cottington v. Fletcher, 2 Atk. 155. » Taylor v. Beech, 1 Ves. Sen. 297. ' Whaley v. Bagnel, 1 Bro. P. C. 345, Tomlins's ed. The report fur- nishes no opinions in the case ; only a brief note of judgment at the end of the arguments. 600 STATUTE OP FKATJDS. [CH. XX. 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 appearing 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 discoyery, for the ■ discovery was only an incident to the natural justice, of per- forming the unwritten agreement.^ At a subsequent hearing, his Lordship overruled the plea, and ordered it to stand for an 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 alread^ been referred to,^ he says, " I am aware that exc^t the^^se determined by Lord Mac- clesfield, there is no othe^jJ^Rie opinion I give is, that if nothing had been stated y^^e bMl but a parol agreement, if the defendant pleads he rm^^ support his plea by an answer denying the parol l^^i^tt|^>^the only effect of the statute being that it shall no^^j^J^^^i aliunde. If he answers and says there was no par^a^^pient, I think tliat no evidence that can be given will siu^i|nK|he suit. If this doctrine be not maintainable, the judgm^t T 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, ' Whitchurch v. Bevis, 2 Bro. C. C. 561. ^ Ante, § 522. ' Child «. Godolphin, 1 Dick. 89. His Lordship's attention does not seem to have been called to the various dicla before referred to in the text. * 2 Bro. C. C. 566, 667. = 2 Bro. C. C. 567-569. CH. XX.] PLEADING. 601 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 defendant's 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 right, and added, " saving the benefit 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." 1 § 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 .^ § 532. 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 of 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.^ § 583. In our own country, the weight of judicial author- ity may be said to be in favor of allowing the bar to the dis- ' Moore v. Edwards, 4 Ves. 23. « Kowe V. Teed, 15 Ves. 372. ' Post, § 534 * Mitf. PI. (6th Amer. from 5th Lend, ed.) 309-812. I » Cpoper, Eq. PI. 256 ; Story, Eq. PI. § 763. 502 STATUTE OP FRAUDS. [CH. XX. coTcry, 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 to coincide in this view, when he lays it down that if the bUl 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 discovery 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 consid- eration. The cases where a discovery has been required as to trusts alleged to be imperfectly declared, or illegal or fraudu- lent, are not applicable ; as there the answer is made evidence not to set up the trust, but to defeat the defendant's apparent title, and to found a decree for a resulting trust to the heir.* ' Meach v. Stone, 1 Chip. 186-188. ' Argenbright v. Campbell, 3 Hen. & Mun. 144. ^ Cozine v. Graham, 2 Paige, Ch. 177. * Ante, § 103. APPENDIX. STATUTE 29 CAR. H. Caf. 3. Sections 1, 2, 3, 4, 7, 8, 9, 17. Section 1. All leases, estates, interests of freehold, or terms 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 law- fully authorized by writing, shall have the force and eflFect 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 notwithstanding. 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 con- cerning them ; 5, or upon any agreement that is not to be performed within the space of one year from the making thereof; 6, unless the 504 APPENDIX. agreement upon which such action shall be brought, or some mem- orandum or note thereof shall be in writing, and signed by the party to be charged therewith, or 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 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 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 same, 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 mer- chandises 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. STATUTE 9 GEO. IV. Cap. 14. Sbctigns 5, 6, 7. Sec. 5. No action shall be maintained whereby to charge any per- son 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 rati- fication 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 v. Massey, 5 Bam. & Adol. 902 ; Hartley v. Wharton, 11 Adol. & Ell. 934; Hyde v. Johnson, 2 Bing. N. E. 776. APPENDIX. 605 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 Character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon,* unless such representation or 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, 1677, no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling or upwards, shall be allowed to be good unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized ; And whereas a similar enactment is contained in an act passed in Ireland in the seventh 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 mischief thereby intended to be remedied ; and it is expedient to extend the said enactments to such executory contracts ; Be it enacted, that the said 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 to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. MERCANTILE LAW AMENDMENT ACT, 19 & 20 Vict. 1856. III. No special promise to be made by any person after the passing of this Act to answer for the debt, default, or miscarriage of another 1 See ante, in the text, § 181. 2 See Swann v. Phillips, 8 Adol. & Ell. 457 ; Tumley v. Macgregor, 6 Man. & G. 46 ; Devaux v. Steinkeller, 6 Bing. N. R. 84 ; Haslock v. Fergusson, 7 Adol. & Ell. 86. 506 APPENDIX. person, being in writing, and signed by the party to be charged there- with or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document. 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 extinguished 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. Sec. 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 the 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 consider- ation of marriage, except mutual promises to marry. 6. 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 heredita- ments, or of any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be APPENDIX. 507 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, tenements, or hereditaments, sold or leased at public auction, and the auctioneer, his clerk, or agent, makes a memorandum of the property, and price thereof at which it is sold or leased, the terms of sale, the name of the purchaser, or lessee, and the name of the person on whose account the sale or lease is made, such memorandum is a note of the contract within the meaning of the preceding section. Sec. 1553. No action can be maintained to charge any person, by reason of any representation or assurance made, concerning the character, conduct, ability, trade, or dealings of any other person, when such action is brought by the person to whom such representa- tion or assurance 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, 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. English's Digest. CttiPTEK 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 damage 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 consideration of marriage ; fourth, to charge any person upon any con- tract for the sale of lands, tenements, or hereditaments, or any inter- est 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 thereof 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. 508 APPENDIX. 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. Sec. 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 leases for a term not exceeding one year, shall at any time hereafter be assigned, granted, or surrendered, unless it be by deed or notice in writing signed by the party so assigning, granting, or sur- rendering 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 lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void ; and all grants or assignments of any trusts or confidences shall be in writ- ing 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 implica- tion of law, such trust or confidence shall not be affected by any thing contained in' this act. CALIFORNIA. Act passed April 19, 1850. Chapter 47. Sections 6, 7, 8, 9, 10, 12, 13, 14, 19, 21, 26. 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, APPENDIX. 509 granted, assigned, surrendered, or declared, unless by act or opera- tion 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 aris- ing 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 ex- pressing 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. 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, un- less such agreement, or some note or memorandum thereof, express- ing the consideration, be in writing, and subscribed by the party charged therewith : 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 an- other. 3. Every agreement, 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, un- less 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 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. 19. Every instrument required by any of the provisions of 510 APPENDIX. 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, sub- scribed by the person making the same, or by his agent lawfully au- thorized, shall be void. Sec. 25. The term " lands," as used in this act, shall be construed as coextensive 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 con- tingent, in lands, as above defined. CONNECTICUT. Reviskd Statutes, 1849. Title 29. Chapter 1. Sections 8, 14. Sec. 8. All grants, bargains, and mortgages of land, shall be in writing, 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, by his lawful 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 whatsoever but the lessor or lessors, and their heirs, unless such lease shall be in writing, subscribed by the lessor, attested by two subscrib- ing witnesses, acknowledged before some authority empowered to take the acknowledgment of deeds of land, and recorded at length in the records of the town where such estate lies. T1TI.E 19. Sections 1, 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 administrator, upon any special promise, to answer damages out of his own estate ; or whereby to charge the defendant upon any special APPENDIX. 611 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 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 agree- ment upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or by some other person thereunto by him law- fully 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 act- ually receive the same, or give something in earnest to bind the bar- gain, or in 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 their agents, thereunto lawfully authorized. DELAWAEE. Revised Codb, 1852. Chapter 63. Sections 5, 6, 7. Sec. 5. All promises and assumptions, whereby any person shall undertake to atiswer or pay for the default, debt, or miscarriage of another, any sum under five dollars, being proved by the oath or affirmation of the persons to whom such promise and assumption shall be made, are good and available in law to charge the party making such promise or assumption. Sec. d. No action shall be brought, whereby to charge any execu- tor or administrator, upon any 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, defa<, or miscarriage of another person, of the value of five'doUars, 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 there- with. Sec. 7. No action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, or upon 512 APPENDIX. 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 aiSrmation 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. 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 messuages, lands, tenements, or hereditaments, shall be created, made, granted, conveyed, transferred, or released, in any other manner than by deed in writing, sealed and delivered in the presence of at least two witnesses, by the party or parties creating, making, granting, conveying, transferring, or releasing such estate, interest, or term of years, or by his, her, or their agent thereunto lawfully authorized, unless by last will an^ testament, or other testamentary appointment duly made according to law ; and that from and after the day and year aforesaid, no estate or interest, either of freehold or term of years, other than terms of years for not more than two years, or any uncertain interest of, in, to, or out of any lands, tenements, messuages, or hereditaments, shall be assigned or surrendered, unless it be by deed sealed and delivered in the presence of at least two witnesses, by the party or parties so assigning or surrendering, or by his, her, or APPENDIX. 513 their agent thereto lawfully authorized, or hy 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 author- ized by law to declare or create such trust or confidence, or by his or her last will and testament, or else they shall be utterly void, and of none effect : Provided, always, that where any 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 transferred or extinguished by the act or operation of law, then, and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made, any thing herein contained to the contrary thereof in any wise notwithstanding. Sec. 3. All grants, conveyances, or assignments of trust or confi- dence 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 as- signing 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. Second Division. Tit. 4. Cap. 3. Sections 1, 2. Sec. 1. No action shall be brought whereby to charge any exec- utor or administrator upon any special promise to answer or pay any debt or damages out of his own estate, or whereby to charge the defendant Upon any special promise to answer for the debt, default, or miscarriage of another person,, or to charge any person upon any agreement made upon consideration of marriage, or upon any con- tract 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 agree- ment 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 there- unto lawfully authorized. ' Sec. 2. No contract for the sale of any personal property, goods, 514 APPENDIX. 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 III. 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 bis own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscar- riage of another person ; or to charge any person upon any agree- ment made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, for a longer term than one year ; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some note or memoran- dum 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. APPENDIX. 515 INDIANA. Revised Statutes, 1852. Chapter 42. Sections 1, 2, 3, 4, 6, 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 promise, to answer damages out of his own estate ; or Second. To charge any person, upon any special promise, to an- swer for the debt, default, or miscarriage of another ; or Third. To charge any person upon any agreement or promise made in consideration of marriage ; or Fourth. Upon any contract for the sale of lauds ; 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 memo- randum or note thereof, shall be in writing and signed by the party to be charged therewith, or by some person thereunto by him law- fully authorized ; excepting, however, leases not exceeding the term of three years. Sec. 2. The consideration of any such promise, contract, or agree- ment need not be set forth iu 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 iti 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 con- strued 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 construed to abridge the powers of courts to compel the specific performance of agreements in cases of part-performance of sucii 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 au- 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 516 APPENDIX. part of such property, or shall give something . in earnest to bind the bargain, or in part-payment, 'Or unless some note or memoran- dum 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 1206, 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 operation 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 includ- ing 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, except 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, but labor, skill, or money are necessarily to be expended in producing or procuring the same ; nor do those of the fourth sub- division of said section apply where the purchase-money or any por- tion 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 would have taken a case out of the Statute of Frauds. APPENDIX. 517 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 enforced, or damages to be recovered for the breach thereof, against some person other than him who made it. KANSAS. Compiled Laws, 1862. Chapter 102. Sections 4, 5. Skc. 4. No leases, estates, or interests, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, exceeding ten years in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writ- ing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized, by writing, or by act and opera- tion of law. Sec. 5. No action shall be brought, whereby to charge the defend- ant, upon any special promise, to answer for the debt, default, or mis- carriage of another person, or to charge any executor or administrator, upon any special promise, to answer damages out of his own estate, or to charge any person, upon any agreement made upon considera- tion of marriage, or upon any contract, or sale of lands, tenements, or hereditaments, or any interest in oi 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. KENTUCKY. Revised Statutes, 1852. Chaptek 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 wUl ; and no gift of a slave shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. 518 APPENDIX. 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, conduct, credit, ability, trade, or dealings of another, made with in- tent 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 mis- doing 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 Seventhly. Upon any agreement which is not to be performed within one year from the making thereof; unless the promise, contract, agreement, representation, assurance, or ratification, or some memo- randum 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 consideration 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 efficacy for every purpose as if a seal were affixed thereto ; and all writings so executed shall stand upon the same footing with sealed writings, having the same force and effect, and upon which the same actions may be founded. But this section shall not apply to an assignment by indorsement on a bond, note, or bill. MAINE. Revised Statutes, 1840. Chaptek 91. Sections 30, 31. Sec. 30. No estate or interests 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 writing signed as aforesaid, or by operation of law. APPENDIX. 619 Sec. 31. All trusts concerning lands, excepting thoge which arise or result by impli cation 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 following 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. 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 ac- tion 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 writ- ing, of the said bargain, be made and signed by the party to be chai-ged by such contract, or by his agent, thereunto by him lawfully au- thorized. 620 APPENDIX. 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 English Statutes, p. 242. MASSACHUSETTS. General Statutes, 1860. Part n. TiTM 1. Chapter 89. Sec. 2. Estates or interests in lands, created or conveyed without 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. Title 4. Chapter 100. Sec. 19. 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 declar- ing the same, or by his attorney. Title 6. Chapter 105. Sec. 1. No action shall be brought in any of the following cases ; that is to say, — First. To charge an executor or administrator, or assignee under any insolvent law of this Commonwealth, upon a special promise, to answer damages out of his own estate ; Second. To charge any person, upon any special promise, to an- swer for the debt, default, or misdoings of another ; Third. Upon an agreement made upon consideration of marriage ; Fourth. Upon any contract for the sale of lands, tenements, or hereditaments, 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; 1 In General Statutes, chapter 3, section 7, clause 20, it is provided that, in the construction of all statutes, "the words 'written' and in 'writing' may include printing, engraving, lithographing, and any other mode of representing words and letters ; but when the written signature of a 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." APPENDIX. 521 Unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing, and signed ^ by the party to be charged therewith, or by some person there- unto by him lawfully authorized. Sec. 2. The consideration of such promise, contract, or agreement 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 promise for the payment of any debt made by an in- solvent debtor who has obtained his discharge from said debt under proceedings in bankruptcy or insolvency, shall be evidence of a new or continuing contract, whereiby to deprive a party of the benefit of relying upon such discharge in bar of the recovery of a judgment upon such debt, unless such promise is made by or contained in some writ- ing signed by the party sought to be charged, or by some person there- unto by him lawfully authorized ; but this section shall not apply to such promise made prior to the fifteenth day of March, in the year eighteen hundred and fifty-six. Sec. 4. 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 is made in writ- ing and signed ^ by the party to be charged thereby, or by some per- son thereunto by him lawfully authorized. Sec. 5. No contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part-payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. MICHIGAU. Revised Statutes, 1846. TiTU! 19. Chapter 80. 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, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party 1 See preceedmg page, note. 522 APPENDIX. creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing. Sec. 7. The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate, by a last will and testament ; nor to prevent any trust from arising, or being extinguished, by implication or operation of law. Sec. 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him 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 agreements. 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, 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 debt, default, or mis- doings of another person. 3. Every agreement, promise, or undertaking made upon considera- tion of marriage, except mutual promises to marry. 4. Every special promise made by an expcuior 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 something in earnest to bind the bargain, or in part-payment, or un- less 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. APPENDIX. 523 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 mem- orandum 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 favorable representation or assurance made concern- ing 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 memo- randum thereof, but may be proved by any other legal evidence. MINNESOTA. Revised Statutes, 1866. Chapter 41. TiTtE 2. Sections 6, 7, 8, 9, 10, 11, 12, 13. Sec. 6. No action shall be maintained in either of the following cases upon any agreement, unless such agreement or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith, — First. Every agreement that by its terms is not to be performed within one year from the making thereof ; Second. Every special promise to answer for the debt, default, or doings of another ; Third. Every agreement, promise, or undertaking, made upon con- sideration of marriage, except mutual promise to marry ; Sec. 7. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless : First. A note or memorandum of such contract, is made in writ- ing, and subscribed by the parties to be charged therewith ; or Second. Unless the buyer accepts and receives part of such goods, or the evidences, or some of them, of such things in action;, or . Third. Unless the buyer at the time pays some part of the purchase- money. 624 APPENDIX. Sec. 8. Whenever goods are sold at public auction, and the auc- tioneer at the time of sale, enters into a sale-book, a memorandum specifying the nature and price of the property sold, the terms of the sale, name of the purchaser, and the name of the person on whose account the sale is made ; such memorandum shall be deemed a note of the contract of sale within the meaning of the last section. Sec. 9. Every grant or assignment of any existing trust, in goods, or things in action, unless the same is in writing, subscribed by the party making the same, or by his agent, lawfully authorized, shall be void. Sec. 10. No estate or interest in lands, other than leases for a term not exceeding one yefir, nor any trust or power over or concern- ing lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or opera- tion of law, or by deed or conveyance in writing, subscribed by the parties creating, granting, assigning, surrendering, or declaring the same, or by their lawful agent thereunto authorized by writing. Sec. 11. The preceding section shall not be construed to affect in any manner, the power of a testator, in the disposition of his real estate by a last will and testament ; nor to prevent any trust from arising or being extinguished by implication or operation of law. Sec. 12. 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 is in writing, and subscribed by the party by whom the lease or sale is to be made, or by his authorized agent. Sec. 13. Nothing in this chapter contained shall be construed to abridge the power of courts of equity to compel the specific performance ■ of agreements in cases of part-performance of such agreements. MISSISSIPPI. Hutchinson's Code. Chapter 47. Art. 1. Section 1. Sec. 1. No action shall be brought whereby to charge any execu- tor 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 promise, to answer for the debt, default, or mis- carriage of another person, or to charge any person upon any agree- ment made upon consideration of marriage, or upon any contract for APPENDIX. 525 the sale of lands, tenements, and hereditaments, or the making any lease thereof for a longer term than one year, or upon any agree- ment that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized. MISSOURI. Revised 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, 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 lawfully authorized by writing, shall have the force and eflFect 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 as- signed, granted, or surrendered, unless it be by deed or note in writ- ing, signed by the party so assigning, granting, or surrendering the same, or their agents lawfully authorized by writing, or by operation of law. 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, tene- ments, or hereditaments, by which a trust or confidence may arise, or result by implication of law, such trust or confidence shall be of like force as the same would have been if the act had not been made. Sec. 5. No action shall be brought to charge any executor or ad- ministrator, upon any special promise, to answer for any debt or 526 APPENDIX. damages out 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 marriage, or upon any contract for the sale of lands, tenements, or hereditaments, 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 performed 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 therewith, 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-payment, 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 per- son, 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. NEVADA. Laws, 1861. Chapter 9. Sections 65, 56, 57, 68, 59, 61, 62, 63, 70. Sec. 55. No estate, or interest in lands, other than for leases for a term not exceeding one year, nor any trust or power over or concern- ing lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or opera- tion of law, or by deed or conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his agent thereunto authorized in writing. Sec. 56. The preceding section shall not be construed to affect in any manner the power of a testator, in the disposition of his real estate, by a last will and testament, nor to prevent any trust from aris- ing, or being extinguished by implication, or operation of law. APPENDIX. 527 Sec. 57. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. Sec. 58. 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. Sec. 59. Nothing contained in this act shall be construed to abridge the powers of courts to compel the specific performance of agreements in cases of part-performance of such agi-eements. Sec. 61. In the following cases every agreement shall be void, un- less such agreement, or some note, or memorandum thereof, express- ing the consideration, be in writing, and subscribed by the party charged therewith, — First. Every agreement that, by the terms, is not to be performed within one year from the making thereof ; Second. Every special promise to answer for the debt, default, or miscarriage of another ; Third. Every agreement, promise, or undertaking, made upon con- sideration of marriage, except mutual promises to marry. Sec. 62. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars, or over, shall be void, unless, — First. A note, or memorandum, of such contract, be made in writ- ing, and be subscribed by the parties to be charged therewith ; or Second. Unless the buyer shall accept, or receive, part of such goods, or the evidences, or some of them, of such things in action ; or Third. Unless the buyer, shall at the time, pay some part of the purchase-money. Sec. 63. Whenever goods shall be sold at auction, and the auction- eer shall, at the time of sale, enter in a sale-book, a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the last section. Sec. 70. Every grant, or assignment of any existing trust in land, goods, or things in action, unless the same shall be in writing, sub- scribed by the person making the same, or by his agent lawfully au- thorized, shall be void. 528 APPENDIX. 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, signed 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 aforesaid, or by operation of law. Sec. 13. No trust concerning lands, except such as may arise or re- sult by implication of law, shall be created or declared, unless by an instrument 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, 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 an- swer for the debt, default, or miscarriage of another person ; Third. To charge any person upon an agreement made upon con- sideration 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 person thereunto by him lawfully authorized. Sec. 9. No action shall be brought upon any contract for the sale of any goodsf wares, or merchandise for the 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 memorapdum 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. APPENDIX. 629 NEW JERSEY. Revised Statutes, 1847. Title 17. Chaptkr 1. Sections 9, 10; pakt of 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, tenements, or hereditaments, made or created, or hereafter to be 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 efiFect 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 not- withstanding ; 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. 10. No leases, estates, or interests, or term or terms of year or years, or any uncertain interests 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 en- abled 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 implication of l^vf, or be transferred or extinguished by act or opera- tion 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 34 530 APPENDIX. the same, or by his or her last will in writing, or else shall likewise be utterly void and of no effect. Sec. 14. No action shall be brought, whereby to charge any exec- utor or administrator, 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 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 hereditaments, or any interest in or concerning them ; or upon any agreement, that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. Sec. 15. No contract for the sale of any goods, wares, or merchan- dise 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 bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. NEW YORK. Revised Statutes, 1830. Pakt II. Chaptbb 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, assigned, 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 effect, in any manner, the power of a testator in the disposition of his real es- tate by a last will and testament ; nor to prevent any trust from aris- ing, 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. APPENDIX. 531 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, ex- pressing 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. Sec. 10. Nothing in this title contained shall be construed to abridge the powers of Courts of Equity, to compel the specific per- formance of agreements, in cases of part-performance of such agree- ments. 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, express- ing the consideration, be in writing, and subscribed by the party to be charged therewiih : — 1. Every agreement that by its terms is not to be performed within one year from the making thereof ; 2. Every special promise to answer for the debt, default, or mis- carriage of another person ; 3. Every agreement, promise, or undertaking made upon 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, — 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 pur- chase-money. 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 memoran- dum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of 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. 532 APPENDIX. NORTH CAROLINA. Revised Statutes. Vol. I. Chapter 50. Sections 8, 10. Sec. 8. All contracts to sell or convey atiy lands, tenements, or hereditaments, 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 ex- ceeding in duration the term of three years. Sec. 10. No action shall be brought whereby to charge any execu- tor 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 th6 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. OHIO. Revised Statutes. Swan's Edition, 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 hereditaments, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assign- ing or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law. Sec. 5. No action shall be brought whereby to charge the defend- ant, upon any special promise, to answer for the debt, default, or mis- carriage, of another person ; or to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or 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 APPENDIX. 533 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 acts of parliament made in aid of the common law, prior to the fourth year of the reign of Eing 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, etc., or disapproved of by Congress. See Chase, 218, 238, 293, 484, 512. A like statute was passed February 14, 1805, and which took effect June 1, 1805 (Chase, 512), and was repealed January 2, 1806 (Chase, 528). See Lindsley v. Coates, 1 Hammond, 115. OREGON. Civil Code. Title 8. Chapter 8. Sections 771, 772, 776, 776. Sec. 771. No estate or interest in real property other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writ- ing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law. Sec. 772. The last section shall not be construed to affect the power of a testator, in the distribution of his property by a last will and testament, nor to prevent a trust from arising, or being extin- guished by implication or operation of law, nor to affect the power of a court to compel specific performance of an agreement in relation to such property. Sec. 775. In the following cases the agreement is void, unless the same, or some note or memorandum thereof, expressing the consid- eration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent ; evidence therefore of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law : 1 . An agreement that, by its terms, is not to be performed within a year from the making thereof; 534 APPENDIX. 2. An agreement to answer for the debt, default, or miscarriage of another ; 3. An agreement by an executor or administrator to pay the debts of his testator or intestate out of his own estate ; 4. An agreement made upon consideration of marriage, other than a mutual promise to marry ; 5. An agreement for the sale of personal property, at a price not less than fifty dollars, unless the buyer accept and receive some part of such personal property, or pay at the time some part of the pur- chase-money ; but when the sale is made by auction, an entry by the auctioneer, in his sale-book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum. 6.,vAn agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein ; 7. An agreement concerning real property, made by an agent of the party sought to be charged, unless the authority of the agent be in writing. Sec. 776. No evidence is admissible to charge a person upon a rep- resentation as to the credit, skill, or character of a third person, un- less such representation, or some memorandum thereof in writing, and either subscribed by, or in the handwriting of the party to be charged. PENNSYLVANIA. Dunlap's Laws. Cap. 69. 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, 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 con- sideration 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. And, moreover, that no leases, estates, or interests, either of freehold APPENDIX. 636 or terms of yeai's, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be as- signed, granted, or surrendered, unless it be by deed or note in writ- ing, 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. Fradds and Perjuries. Brightlky's Purdon. 497. 1. All leases, estates, interest of freehold or term of years, or any uncertain interest of, in, or out of, any messuages, manors, 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 mak- ing 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 mak- ing any such parol leases or estates, or any former law or usage, to the contrary notwithstanding ; except, nevertheless, all leases not exceeding "the term of three years from the making thereof. 2. And, moreover, no leases, estates, or interests, either of free- hold or terms of years, or any uncertain interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments shall at any time be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surren- dering the same, or their agents, 'thereto lawfully authorized by writ- ing, or by act and operation of law. 3. All declarations or creations of trusts or confidences of* any lands, tenements, or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void : Provided, that where any conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise or result by implication or construction of law, or be transferred or extinguished by act OF operation of law, then and in every such case, such trust or confidence shall be of the like force and effect as if this act had not been passed. 4. No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or 536 APPENDIX. note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized. 5. This act shall not go into affect until the first day of January next ; or apply to, or effect any contract made, or responsibility in- curred, prior to that time ; or for any contract the consideration of which shall be a less sum than twenty dollars. / 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 per- son ; or to charge any person upon any agreement made upon consid- eration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer time than one year ; 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 note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other per- son 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 exceed- ing one year, in lands or tenements, shall be conveyed from one to another by deed, unless the same be in writing, signed, sealed, and de- livered by the party making the same, and acknowledged before a senator, judge, justice of the peace, notary public, or town clerk, by the party or parties who shall have sealed or delivered it, and recorded or lodged to be recorded in the office of town clerk of the town where the said lands or tenements do lie. 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 Rev. Stat.) APPENDIX. 58T 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 Edition of Laws, Vol I. Chapter 26. Section 1. No action shall be brought whereby to charge any executor or ad- ministrator, 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 hereditaments, 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 stnswer any debt or damage out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscar- riage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract for the sale of lands, slaves, tenements, 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 memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him thereunto lawfully authorized. 538 APPENDIX. VERMONT. Kevisbd Statutes, 1839. Title 14. Chapter 60. Sections 21, 22, 23, 24. Sec. 21. All estates or interests in lands, created or conveyed with- out any instrument in writing, signed by the grantor or his attorney, shall have the force and e£Fect of estates at will only ; and no estate or interests in lands shall be assigned, granted, or surrendered, unless by a writing signed as aforesaid, or by the operation of law. Sec. 22. No trusts concerning lands, except such as may arise or result by implication of law, shall be created or declared, unless by an instrument in writing, signed by the party creating or 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, other- wise executed, shaU 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 es- tate or interest therein,- made by virtue of a power of attorney, shall be of any effect, or admissible in evidence, unless such power of at- torney 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 Second. To charge any person, upon any special promise, to an- swer 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 hereditaments, 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- APPENDIX. 539 ing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; and if the contract or agree- ment 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 merchan- dise, for the price of forty dollars or more, shall be good or valid, un- less 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-pay- ment, or unless some note or memorandum of the bargain be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. 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, abOity, trade, or dealings of any other per- son, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person there- unto by him lawfully authorized. VrRGINIA. Code (by Patton and Robinson), 1849. Chapter 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 dealings of another, to the intent or purpose that such other may obtain thereby credit, money, or goods ; or. Secondly. To charge any person upon a promise made, after full age, to pay a debt contracted during infancy, or upon a ratification after full age of a promise or simple contract made during infancy ; or. Thirdly. To charge a personal representative upon a promise to answer any debt or damages out of his own estate ; or, Fourthly. To charge any person upon a promise to answer for the debt, default, or misdoings of another ; or, Fifthly. Upon any agreement made upon consideration of mar- riage ; or. Sixthly. Upon any contract for the sale of real estate, or the lease thereof for more than a year ; or, Seventhly. Upon any agreement that is not to be performed within a year ; 640 APPENDIX. 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 consideration 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. Kevised 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, assigned, surrendered, or declared, unless by act or opera- tion 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 aflfect in any manner the power of a testator, in the disposition of his real es- tate, by a last will and testament ; nor to prevent any trust from aris- ing or being extinguished, by implication or operiCtion 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. Sec. 10. Nothing in this chapter contained shall be construed to abridge the powers of Courts of Equity, to compel the specific per- formance of agreements in cases of part-performance of such agree- ments. 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 APPENDIX. 541 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 miscarriage of another person. Third. Every agreement, promise, or undertaking, made upon con- sideration 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 purchase-money. 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 instrument 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. [bEFBBENCES are to TBI: SECTlbNB.] ACCEPTANCE, of bill of exchange, verbal, 172, 174. See Ouaranties. 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, 499- 502. must be of the agreement charged, 601, 502. of mistake, qa., 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. in cases of contracts, 364, 367-370 a. who may be, 367-369. how appointed, 370, 370 a. signature by, 364. AGREEMENT, force of the word. 387. 544 INDEX. ALTERATION, of memorandum after signature, 361. of written agreement by subsequent parol stipulation, 409 6-428. See CanceUaiionj Parol Evidence, etc. ALTERNATIVE. See Contracts. ANSWER EST 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 invalid, 41. See Act of Law ; Mortgages ; Surrenders. 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, 353, 353 a, 369. his clerk, 369. B. BAIL, verbal promise to become, 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. BROKER, his entry, a sufficient memorandum, 347. bought and sold notes, 347. as agent for signing the memorandum, 369. his clerk, 369. c. CANCELLATION, &c. of title deeds, does not devest corporeal estate, 69. INDEX. 545 CANCELLATION, &o.,-. continued. 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, 117-127. See Contracts ; Payment. in cases of guaranty. See Quaranties. statement of, in memorandum of agreement, 887-408. See Memorandum. in declaration of trust, 12. in case of marriage settlements, 216. See Marriage, Agreements in consideration of. CONTRACTS, verbal, how far valid or available notwithstanding statute, 115, 152. 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, 181-134, 435. not available in any form of action as contracts, 131-184. may be used in justification as licenses, 183. valid as to third parties, 135. perjury by falsely swearing to them, 135. conflict of laws, 136. verbal, how far valid or available, nothwithstanding statute, 115, 152. Statute of Limitations, 137. enforced against attorneys by summary jurisdiction of courts, 138. after execiition 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, ''.28. 85 546 INDEX. CONTRACTS, — continued. 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 Admission; Equity; Fraud; Goods, etc.. Sales of; Guaranties; Land, Contracts for ; Marriage, Agreements in consideration of; Mem- orandum ; Part-Performance; Year, Agreements not to he performed in a. 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, qu., if it must appear in memorandum of sale, 382, 383. CROPS, &c., 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. DATE, of bargain for goods, 339. DEBT, of another, within the statute, definition of, 166. See ^Guaranties. DECLARATION 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 re-delivering, 69-61. mortgage in equity from deposit of, 62-64. where required at common law, required still, 42. See Seal. INDEX. 547 DEFAULT, of another, within the statute, definition of, 155, 196. See Ouaranties. DEFENCE, upon a verbal contract within the statute, not allowed at law, 122, 122 a, 126, 131-134, 436. 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 Evidence. or mortgage, 267. DISCOVERY, whether statute may be pleaded in bar of, 620-534. DOWER, assignment of. See Act of Law. contract to release, etc., requires writing, 230. right of, whether controlled by husband's contract of sale, 135 n. E. EARNEST, 341-343. See Goods, etc., Sales of. EASEMENT, contract for, requires writing, 232. ENTIRE CONTRACT. See Contracts. 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. 548 INDEX. EXECUTORS, — continued. statute applies to executors' promises made at any time after testator'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 discharged, 193, n. See Quaranties. FACTOR, guaranty of, not within the statute, 202, n., 213. See Quaranties. 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 convey- ance procured, 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 enforced, 442. cases of fraud, when contract enforced, 443-446. 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, &c., SALES OF, natwe 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. INDEX. 649 GOODS, &c., — continued. mortgage, 294. contract to manufacture, etc., 800. et seg. 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 contract 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 made, 311, 312. when none stipulated, 311, 312. when each item of lot is less than statutory sum, 314. acceptance and receipt, 315-340. 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 gestce to explain accept- ance, 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, 323. seller's measuring out and setting apart with buyer's consent, 324, 325. distinction between acceptance to bind the bargain, and acceptance 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, 344. 550 ' INDEX. GOODS &c., — continued. 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, &c., contract for, 235-257.. See Land, Contracts for. GUARANTIES, executors' and administrators' promises, 153. what are " debts, defaults or miscarriages," 155-162. torts of third party included, 155. third party's liability must be clear, ascertained, and enforceable 166, 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 pre-existing obligation to pay, statute does not apply, 164. nor where promise is indirectly to pay his own debt, 165-172. 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 receiptor 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. INDEX. 551 GUARANTIES, — continued. to indemnify against third person's neglect of duty, 158-161. to insure, 161, n. promisor's debiting himself with amount owing by another, 178. promise on new and distinct consideration, 168, 172, 200-213. trilateral liability, 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. must be on sufficient consideration, 189-191. 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 residence, 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 in- terim, 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 surrender of lien or security, 201. such lien must enure to the promisor, 203-206. promise in consideration of releasing goods as a fund for payment, 206-209, 211. purchase of debt, 210. guaranty of factor del credere, 201, n., 213. statute embraces only what is essentially and distinctively a guar- anty, 212. the question when the statute does not apply, although original debtor remain liable discussed generally, 214r-214 e. 652 INDEX. I. IMPLIED OBLIGATION, of third party promise to answer for, 168-161. See Quaranties. IMPLIED PROMISE, not within the statute, 124-163. See Ouaranties. action upon, in case of land conveyed, 124. IMPROVEMENTS, on land orally purchased, compensation for, 119, 120. as ground for specific performance, 487-492. See Part-Performance. qu., if contract for requires writing, 233. mCORPOREAL 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 Quaranties. 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 con- veyances, 226. 1. Subject-matter, what is an interest in land, 228-262. same as in cases of conveyances and trust, 228. " uncertain interest," 228. equitable estates, 229. interest in contract for land, 229. equity of redemption, 229. dower, 230. board and lodging, 230. incorporeal estates, 230. short leases, 230. INDEX. 653 LAND, CONTRACTS IPOU, — coniimied. possession of land, 231. easements, 232. improvements on the land, qu., 233. fixtures not included, 234, 236. trees, crops, grass, fruit, etc., 235, 257. mere chattels when severed from the land, 236. title to them while growing cannot be orally proved, 237. but they may be orally contracted for as chattels in prospect of severance, 237, 255. examination of the cases, 238-244. immaterial that purchaser has liberty to enter and gather, 245, 265. what is their state of growth, 246. immaterial that they derive nourishment from the soil in the mean time, 247. whether sale is by the tract of land or quantity of product, 240. if benefit of land is part of thing purchased, statute applies, 248, 249. rule that fruetus industriales are not and prima vesiura 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. 554 INDEX. LAND, CONTRACTS 'FOR, — continued. 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. in consideration of other land, etc., 271. auction sales, 264. sheriff's 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-Performarux. 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. seciis 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. secus in New York, 37. LETTERS, sufficient writing for lease, 360, n. for memorandum of contract, 346, 850. 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, 201-206. See Guaranties. " whether created on land by payment of price, 120. LIMITATIONS, statute o , 137. INDEX. 556 LIVERY OF SEISIN, degeneration of ceremony previous to statute, 1. but nevertheless a legal method of conveyance, 1. M. MARRIAGE, AGREEMENTS IN CONSIDERATION OF, statute embraces marriage settlements, 215. 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 promise, 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, 360. receipt for purchase-money, 347 . bill of parcels, 851. account stated, 351. sheriff's return, 351. vote of corporation, 361. auctioneer's entry, 351. broker's entry, 351. bought and sold notes, 351. 656 ■ INDEX. MEMORANDUM, —cowimwed. material with which and on which it may be written, 348. time when it may be written, 348 a. in cases of auctioneers or other agents, 349. need not be comprised in one paper, 360. correspondence by letter, 350. instrument signed recognizing previous one not signed, 350. connection between the several papers cannot be shown by parol, 360. certainty with which they must refer to each other, 360-353. 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 hapd, 365. by mark sufficient, 355 &. may be printed or stamped, 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., if name of party must be signed, 362. not sufficient to insert minute of contract in plaintiff's book at de- fendant's,request, 363. by agent, 364. by party to be charged sufficient, 366, 366. sealing not necessary, 355. qu., if sufficient without signing, 355, 355 6. J gent for signing, 867-370 o. 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, 882. time and place of delivery of goods, 884. warranty of quality of goods, 384. description of property contracted for, 386. consideration, 887-408. INDEX. 657 MEMORANDUM, — continued. Wain V. Warlters, 887. force of word " agreement," 387. " promise," 387. " bargain," 889. American decisions, 391. argument upon principle in favor of Wain v. Warlters, 392-398. what is sufficient statement of consideration, 399-408. when consideration of guaranty appears to be the same as that of the original promise, 400-402, 405-408. where forbearance appears, 404. when guaranty made contemporaneously with incurrring debt, 406-408. parol evidence admitted to explain technical expressions, 680. on the question of the consideration, 403. See Pai-ol Evidence. MISCARRIAGE, of another, within the statute, definition of, 166, 196. See Ouaranties. MORTGAGE, qu., if a conveyance within the statute, 65, 66. gift of, not good by parol, 66. in equity, by deposit of title deeds, 62-64. contract to execute requires writing, 267. foreclose requires writing, 267. revive when defunct, 267. release or discharge, 267. extend to other liabilities, 267. qu., of chattels, if it is within the statute, 294. N. NAME, whether signature to memorandum must express, 362. of both parties must appear in memorandum, 372, 373. 0. ORDER, for goods, a contract of purchase, 293. P. PAROL, force of the term as used in the statute, 6, n., 14. See Parol Evidence. 558 INDEX. PAROL EVIDENCE, admissible to prove facts to raise resulting trust, 93. to aid defective declaration of trust, 111. to repel inference of a trust, 111. its admissibility in connection with the memorandum, 409-436. how far the same rules apply as at common law, 409 a. subsequent oral variation of memorandum, 409 6-428. no action on the writing as so varied, 411-422. same as to all contracts within the statute, 416. and whether the variation be in a material particular or not, 417, 418. or in a particular not embraced by the statute, 419, 420. gu., where such particular alone remains executory, 421. performance according to orally substituted terms, how far available, 423-428. to show discharge of written agreement, 429-436. See Memorandum. PART-PERFORMANCE, of verbal contract, as ground for its specific execution,' 447-492. ground of the doctrine is fraud, 448. it has no existence at law, 451. whether it applies where court has general jurisdiction of fraud by statute, 449-460. party relying upon, must show his own readiness to perform the con- tract on his part," 452. also that remedy at law in damages is insuflScient, 452. must prove the terms of the contract, 493-497. degree of proof, 494. reference to master to ascertain, 496, 497. acts of, must be done by the plaintiff, 453. must be in pursuance of the contract, 454. must suffice to show some contract existing, 455, 456. must be in execution of the contract, 457. in cases of marriage settlement, the marriage is not sufficient, 459. acts merely preparatory or ancillary to the agreement not sufficient, 460. payment of purchase-money not sufficient of itself, 461. ground of this doctrine, 462. secus, if not capable of reimbursement, 463, 464. it is corroboratory of other acts, 465. possession, of land purchased, as an act of part-performance, 465-486. gu., if always indispensable, 466. sufficient of itself, 467. as idken by the purchaser plaintiff, 468-470. as delivered by the vendor plaintiff, 471. general rules in regard to, 472. it must be notorious, 473. INDEX. 559 " PART-PERFORMANCE, — continued. exclusive, 474. of the land claimed, 475. in pursuance of the contract alleged, 476-482. continuance in possession, by old tenant, not suflScient, 477-480. secus if additional rent paid, 479. or improvements made, 480. See Improvements. must be subsequent to the contract, 482. with knowledge and consent of vendor, 483. need not be expressly stipulated for, 484. must be retained in pursuance of the contract, 485. not sufficient merely because an act of ownership, 486. improvements made on the faith of a verbal contract for land, 487-492. must be permanently beneficial to the estate, 488. must be subsequent to the contract, 488. not material whether judiciously made or not, 489. loss of value of, must work a sacrifice to the purchaser, 490. qu., if they must be by the contract stipulated to be made, 491. possession coupled with improvements, by a son upon land of his par- ent, 481. courts indisposed to extend doctrine of part-performance farther, 492. PARTITIONS, verbal, between tenants in common, whether valid to sever possession, 68, 75. not valid to give title, 70. valid in equity, when followed by possession in severalty, 74. See Part-Performance. PARTNERSHIP, lands of, when treated as stock in trade, 259-262. PATENT-RIGHTS, whether contract for sale of requires writing, 298. PAUPER, settlement may be gained under oral contract, 135. PAYMENT, of price, in bargains for goods, etc., 341-343. See Goods, etc.. Sales of. as an act of part-performance of a contract for land, 461-465. See Part-Performance. PENCIL, writing in, sufficient under the statute, 348. PERJURY, by false .swearing to oral contract, 135, 517. denial of oral contract, 617. PLEADING, declaration must be on special contract, 504. 560 INDEX. PLEADING, — continued. need not aver memorandum, 505. replication need not set out memorandum, 505. special, effect of disuse of, 507. plea of agreement within the statute must aver writing, 506. bill in equity should allege equitable circumstances relied on to remove the bar of the statute, 607. defendant must rely on the statute by some regular pleading, 608. by demurrer, 609, 510. by plea of general issue or answer denying agreement, 511. effect of subsequent conviction for perjury, 517. by special plea in bar or by answer, 612. notwithstanding defendant admits agreement, 615. gu., in cases of trusts, 516 a. where equitable circumstances are charged, 616. form, etc., of such plea or answer, 518, 519. whether statute may be pleaded in bar to discovery of fact of agree- ment, 520-633. in cases of trusts, 634. by whom statute may be pleaded, 128, 136. priOe, in cases of contracts for goods, etc., 311-314. See Goods, etc.. Sales of; Earnest; Payment. must appear in memorandum, 376-381 a. PRIMA VESTUKA, contract for, 235-257. PRINTING, as substitute for writing, in cases within the statute, 98, 347, 348, 366. "PROMISE," force of word, 387. PROMISSORY NOTES, whether contract for sale of, requires writing, 297. E. RECEIPT, for purchase-money, a good memorandum, 347, of goods purchased, 347. See Acceptance and Beceipt. RECITAL, in a deed, good declaration of trust, 100. in second lease, not surrender of former, 43. REFORMING CONTRACT, whether court will both reform and enforce where mistake admitted by defendant's answer, 600. INDEX. 561 RELEASE, from oral contract, not good consideration, 134. oral, of written contract, 134. See Parol Evidence. mortgage, 267. land damages, 270. S. SALES, judicial, 264, 265. by auctioneers, etc., 264, 265. SAMPLE. See Acceptance and Receipt. SEAL, whether sufficient for lease without signature, 9. not necessary to memorandum of agreement, 355. gw., if sufficient execution of memorandum, 356, 355 I not necessary to declaration of trust, 105. See Deed. SEISIN. See'iwery of Seisin. SET-OFF. See Contracts. SHARES OR STOCKS, not interests in land, 258. qu. if goods, wares, or merchandise, 296, 297. SHERIFF, his return on execution, a good memorandum, 347. as agent for signing, 369. his deputy, 369. SHERIFFS' SALES, of land, covered by the statute, 264. ) goods, etc., covered by the statute, 293. See Shei-iff. SIGNATURE, . what is sufficient, in cases of conveyances, 10-12. of a conveyance, in blank, 12. by another's hand, 10-12. by agent, 13. by whom, in declarations of trust, 106. See Memorandum. SOLVENCY, representations in regard to a third person's, 181-185. See Guaranties. SPECIAL PROMISE, meaning of, as used in the statute, 163. action must be upon, 504. 562 INDEX. SPECIAL TROMIS^ — continued. how far admissible in evidence, in action on tlie implied promise to pay for land, etc., received, 124-127. SPECIFIC EXECUTION. See Fraud; Part-Performance. STOCKS OR SHARES, not interests in land, 258. qu., if goods, wares, or merchandise, 296, 297. SURRENDERS, 42-57. 1. By act of parties, need not be by deed, where deed not necessary at common law, 42. special form of words not necessary, 43. cancelling or redelivering title deed not necessary, 43. not of itself sufficient as surrender, 44. See Conveyances. recital in second lease of surrender of prior one, not sufficient, 43. may require writing, where creation of estate did not, 45, 46. of estate for years, may be to take effect infuturo, 47. 2. By act and operation of law, definitions of, 49, 51. by accepting second lease of same premises, 49-52. by actual change of tenancy, 53-57. TAXES, contract in reference to payment of, 269. TENTERDEN'S ACT, 181, 309. See Ouaranties ; Sales of Goods. TIME AND PLACE, of delivery of goods need not appear in the memorandum, 384. TITLE, to land or chattels, in trespass or de'tinue, cannot be sjiown by oral con- tract, 131. contract to establish or break down, or to release covenant of warranty of, 268. TORTS, of third person, promise to answer for, 155. See Ouaranties. TREES, Etc., growing, contract for, 235-257. TRESPASS, oral license a good defence to action of, 133. TRILATERAL LIABILITY, 176, n. See Ouaranties. INDEX. 563 TRUSTS, 1. Express trusts, declaration or manifestation of, 79-82, 97-112. how far the statute provisions in regard to contracts and convey- ances may supply the place of those in regard to trusts, 79-81. includes uses, 82. trusts of chattels real, 82. not trusts of personalty, 82. nor secret trusts to defraud creditors, 82. manifestation or proof of, alone required to be in writing, 97, 104. requisites of the written manifestation, 97-112. time when it may be made, 97. may be in the form of a letter of trustee, 98, 99. printed pamphlet, 98. entry in trustee's books, 98, 109. recital in deed, 100. deposition, 100. answer in chancery admitting the trust, 100-103. any instrument showing the trust relation, 109, 110. need not be sealed, 106. not comprised in a single paper, 105. by whom to be signed, 106. need not show consideration, 112. will to prove trust must be executed as a will, 107. forms of words immaterial, 108, 109. expressions "our," "your," etc., not sufficient, 108. whether equity will compel a discovery of the trust, 108. See Pleading. enforced in equity when partly executed, 108. See Part-Performance. parol evidence, for what purposes admitted, 96, 111, 112. 2. Implied or resulting trusts, 83-96. not affected by the statute, 83. sustained on common-law principles, 84. different kinds, 84. by c. q. t. paying purchase-money of the land, 85-93. may be pro tanto in proportion to amount paid, 85. must be payment of an aliquot part of the whole, 86. proportion paid must appear with certainty, 86. payment need not be in money, 87. must be at the time of purchase, 89. and out of c. q. t.^s own funds, 90. of the evidence to prove pajTnent and the ownership of the funds, 91-93. parol evidence admitted for this purpose, 93. or to rebut presumption of resulting trust, 92. j in cases of fraud, 94-96. 564 INDEX. TRUSTS — continued. mere breach of contract not sufficient, 94. legal title must have been obtained through deceit, 94, 95. fraud must be distinctly alleged and proved, 96. See Fraud. U. " UNCERTAIN INTEREST," in land, force of the term, 228. See Lands, Contracts far. USE. See Trusts. USE AND OCCUPATION, action for, in case of invalid verbal lease, 124. V. VOID AND ILLEGAL. See Contracts; Leases. W. WAIVER, of defence upon the statute, 135. , oral, of written contract, 429-436. "WARRANTY, of quality of goods need not appear in the memorandum, 384. of title, release, etc., of. See Title. WILL, agreement to leave land by, requires -writing, 263. to be used as declaration of trust, must be executed as will, 107. WITNESS, signature as, 359. " See Memorandum. WRITING. See Memorandum. Y. YEAR, AGREEMENTS NOT TO BE PERFORMED IN A, includes agreements of whatever subject-matter, 272. " to be performed," meaning of words to be, 274-283. if upon a contingency which may happen in a year, the agreement is to be performed, statute does not apply, 274-282. promise to do something on the happening of a certain event, 275. continue to do something until it happens, 276. continue to do something for an indefinite time, 278. refrain from doing " " " " " 277. INDEX. 565 YEAR, AGREEMENTS NOT TO BE PERFORMED IN A,—c