Statute of Promises by executor, &c. repealed by a temporary Act, 26 & 27 Vict. c. 105, which has since been continued from time to time by the annual Expiring Laws Continuance Acts. 3. As to purely Statutory Forms. A. Contracts within the Statute of Frauds. To write a commentary on the Statute of Frauds would be quite beyond the scope of this work. It may be convenient however to state as shortly as possible, so far as contracts are concerned, the contents of the statute and some of the leading points established on the construction. of it. The statute (29 Car. 2, c. 3) enacts that no action shall be brought on any of the contracts specified in the 4th section "unless the agreement upon which such action. shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." The peculiar operation of this section as distinguished from the seventeenth will be considered in another place (Chapter XII.). The contracts comprised in it are a. Any special promise by an executor or administrator "to answer damages out of his own estate." No difficulty has arisen on the words of the statute, and the chief observation to be made is the almost self-evident one (which equally applies to the other cases within the statute) that the existence of a written and signed memorandum is made a necessary condition of the agreement being enforceable, but will in no case make an agreement any better than it would have been apart from the statute. A good consideration, a real consent of the parties to the same thing in the same sense, and all other things necessary to make a contract good at common law are still required as much as before (a). B. "Any special promise to answer for the debt default Guaranor miscarriages of another person." On this the principal points are as follows. A promise is not within the statute unless there is a debt &c. of some other person for which that other is to remain liable (though the liability need not be a present one): for there can be no contract of suretyship or guaranty unless and until there is an actual principal debtor. "Take away the foundation of principal contract, the contract of suretyship would fail" (a). Where the liability, present or future, of a third person is assumed as the foundation of a contract, but does not in fact exist, then, independently of the statute, and on the principle of a class of cases to be explained elsewhere, there is no contract. On the other hand a promise to be primarily liable, or to be liable at all events, whether any third person is or shall become liable or not, is not within the statute and need not be in writing. Whether particular spoken words, not in themselves conclusive, e.g. "Go on and do the work and I will see you paid," amount to such a promise or only to a guaranty is a question of fact to be determined by the circumstances of the case (a). Nor is a promise within the statute unless it is made to the principal creditor: "The statute applies only to promises made to the person to whom another is answerable" (b) or is to become so. A mere promise of indemnity is not within the statute (c), though any promise which is in substance within it cannot be taken out of it by being put in the form of an indemnity (d). A contract to give a guaranty at a future time is as much within the statute as the guaranty itself (e). (a) Mountstephen v. Lakeman, L. R. 7 Q. B. 196, 202 (in Ex. Ch.) per Willes, J., affd. L. R. 7 H. L. 17 nom. Lakeman v. Mountstephen. (b) Eastwood v. Kenyon, 11 A. & E. 438, 446; concess. Cripps v. Hartnoll, 4 B. & S. 414, 32 L. J. (c) Cripps v. Hartnoll (last note); (e) Mallet v. Bateman, L. R. 1 ties. Agreements upon con 7. "Any agreement made upon consideration of marriage." A promise to marry is not within these words, the sideration consideration being not marriage, but the other party's reciprocal promise to marry. For further remarks on the effect of this clause see Chapter XII., on Agreements of Imperfect Obligation, infra. of mar riage. Interests in land. In the old books we frequently meet with another sort of difficulty touching agreements of this kind; it was much doubted whether matrimony were not so purely spiritual a matter that all agreements concerning it must be dealt with only by the ecclesiastical courts: the type of these disputed contracts is a promise by A. to B. to pay B. 107. if he will marry A.'s daughter. But this by the way (a). . 8. "Any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them." This clause is usually and conveniently considered as belonging to the topic of Vendors and Purchasers of real estate; and the reader is referred to the well-known works which treat of that subject (b). Questions have arisen, however, whether sales of growing crops and the like were sales of an interest in lands within the 4th section or of goods C. P. 163 (Ex. Ch.). See further on (a) Such promise may be sued on In foro ecclesiastico, ut si ob causam matrimonii pecunia promittatur, licet videatur prima facie quod cognitio super catallis et debitis pertineat ad forum seculare, tamen propter id quod maius est et dignius trahitur cognitio pecuniae promissae et debitae ad forum ecclesiasticum, et ubi [? ibi] locum non habet prohibitio, cum debitum sit de testamento vel matrimonio:" fol. 175 a. (b) As to an agreement collateral to a demise of land not being within the statute, see the cases of Morgan v. Griffith, L. R. 6 Ex. 70, Erskine v. Adeane, 8 Ch. 756, Angell v. Duke, L. R. 10 Q. B. 174. As to the distinction between a demise and a mere licence or agreement for the use of land without any change of possession, Wells v. Kingston-uponHull, L. R. 10 C. P. 402. within the 17th; and these cases are accordingly discussed by Mr. Justice Blackburn and Mr. Benjamin in their expositions of the 17th section (a). A sale of tenant's fixtures, being a sale only of the right to sever the fixtures from the freehold during the term, is not within either. section (b). By the 1st and 2nd sections of the statute leases for Leases. more than three years, or reserving a rent less than twothirds of the improved value, must be in writing and signed by the parties or their agents authorized in writing, and now by 8 & 9 Vict. c. 106, s. 3, they must be made by deed. But an informal lease, though void as a lease, may be good as an agreement for a lease (c). Є. Any agreement that is not to be performed within Agreethe space of one year from the making thereof." ments not to be per within a "Is not to be," not "is not" or "may not be." This formed means an agreement that on the face of it cannot be per- year. formed within a year. An agreement capable of being performed within a year, and not showing any intention to put off the performance till after a year, is not within this clause (d). Nor is an agreement within it which is completely performed by one party within a year (e). An agreement is not excluded from the operation of the clause by being made determinable on a contingency that may happen within a year (ƒ). The seventeenth section of the statute (sixteenth in the As to s. 17 Revised Statutes, but it will probably keep its accustomed name) (g) is extended by Lord Tenterden's Act, 9 Geo. 4, (a) Blackburn on the Contract of Sale, 9-21, Benjamin on Sale, 91-105; Marshall v. Green, 1 C. P. D. 35. And see 1 Wms. Saund. 395. (b) Lee v. Gaskell, 1 Q. B. D. 700. (c) Dart, V. & P. 1, 198. (d) Smith v. Neale, 2 C. B. N. S. 67, 26 L. J. C. P. 143. (e) Cherry v. Heming, 4 Ex. 631. 19 L. J. Ex. 63. See notes to Peter (f) Eley v. Positive Assurance Co. (g) The difference arises from the preamble and the enacting part of s. 13 being separately numbered as 13 and 14 in former. editions. or memo randum." c. 14, s. 7, and as so extended includes all executory sales of goods of the value of 107. and upwards, whether the goods be in existence or not at the time of the contract. Its effect is thoroughly discussed and explained by Lord Blackburn (on the Contract of Sale, 5-119) and in Mr. Benjamin's later work (Book 1, Part 2, 72-226). We will here only refer very briefly to the question of what is a sufficient memorandum of a contract within the Statute. The "note Mr. Benjamin exhibits (pp. 161, 167, sqq.) the curious difference in the judicial interpretation of the " agreement" of which a memorandum or note is required by s. 4, and the "bargain" of which a note or memorandum is required by s. 17. The "agreement" of s. 4 includes the consideration of the contract, so that a writing which omits to mention the consideration does not satisfy the words of that section: but the "bargain" of s. 17 does not. So far as regards guaranties, however, this construction of s. 4 having been found inconvenient is excluded by the Mercantile Law Amendment Act 1856, 19 & 20 Vict. c. 97, s. 3, which makes it no longer necessary that the consideration for a "special promise to answer for the debt default or miscarriage of another person" should appear in writing or by necessary inference from a written document (a). The note or memorandum under the 4th as well as the 17th section must show what is the contract and who are the contracting parties (b), but it need be signed only by the party to be charged, whether under the 4th or the 17th section it is no answer to an action on a contract evidenced by the defendant's signature to say that the plaintiff has not signed and therefore could not be sued, and if (a) See notes to Birkmyr v. Darnell and Wain v. Warlters, in Sm. L. C. (b) Williams v. Byrnes, 1 Moo. P. C. N. S. 154, Newell v. Radford, L. R. 3 C. P. 52, Williams v. Jordan, 6 Ch. D. 517; and as to sufficiency of description otherwise than by name, Sale v. Lambert, 18 Eq. 1, Potter v. Duffield, ib. 4, Commins v. Scott, 20 Eq. 11, Beer v. London & Paris Hotel Co. ib. 412, Rossiter v. Miller, App. Ca. 1124, Catling v. King (C. A.), 5 Ch. D. 660. |