in the foot note, an abstract of the corresponding provisions of the statutes of the various American states. These statutes are of two generic classes. In certain states, the legislation is substantially the

including some not in the English statute, and embracing: 5. Contracts upon consideration of marriage, except mutual promises to marry. 6. Contracts for sale, etc., of lands, except leases for one year. 7. Contracts not to be performed within one year, unless, etc., as in English § 4, but the memorandum must be "signed at the close thereof;" and the consideration need not be expressed in the writing.

MAINE (R. S. 1871), p. 786, ch. 111, § 1. The consideration need not be expressed. MASSACHUSETTS (Gen. Stat. ed. of 1873), p. 527, ch. 105, § 1, same as § 4 of the English statute; § 2, consideration need not be expressed. Ib. p. 558, ch. 113, § 2, confers equity jurisdiction upon the supreme court in **** Suits for the specific performance of written contracts, by and against either party to the contract and his heirs, devisees, executors, administrators, and assigns," ****"and shall have full equity jurisdiction, according to the usage and practice of courts of equity, in all other cases where there is not a plain, adequate, and complete remedy at law."

MISSOURI (Gen. Stat. by Wagner, 1870), vol. 1, p. 656, ch. 62, § 5, the same as §4 of the English statute.

NEW JERSEY (Nixon's Dig. 4th ed. 1868), p. 358, § 14, the same as § 4 of the English statute.

as the

NEW HAMPSHIRE (Gen. Stat. 1867), p. 407, ch. 201, § 12, is the same clause concerning lands in § 4 of the English statute, except the agent must be "by him thereto authorized in writing ;” § 13 is the same as the remaining clauses of the English § 4.

OHIO (R. S. by Swan & Critchfield, 1870), vol. 1, p. 659, ch. 47, § 5, same as § 4 of the English statute.

PENNSYLVANIA (Brightley's Purdon's Dig., 1872), vol. 1, p. 724, § 4, includes only the clauses concerning, 1, promises of executor, etc, to answer for debt of deceased out of his own estate; and 2, promises to answer for the debt or default of another the same as in § 4 of the English statute. The Pennsylvania Legislature has not enacted any provision in relation to the other matters embraced in the general form of the statute of frauds.

TENNESSEE (Stat. of 1871). vol. 1, § 1758, is the same as § 4 of the English statute, except that it reads "unless the promise or agreement," etc., be in writing, and also leases for not more than one year are excepted.

TEXAS (Pasch. Dig.), p. 649, § 3875, the same as the English § 4, with the same variations as in Tennessee.

RHODE ISLAND (Gen. Stat., 1872), p. 443, ch. 193, § 8, same as English § 4. VERMONT (Gen. Stat., ed. of 1870), .p. 452, ch. 66, § 1, is same as the English § 4, except that it commences: "No action at law or in equity shall be," etc.; and in contracts relating to real estate an agent must be authorized in writing.

VIRGINIA (Code, 1849), ch. 143, § 1, includes all the clauses of the English § 4, together with some others, with the following change in the language: “unless the promise, contract, agreement, representation, assurance, or ratification," etc., be in writing, and adds that the consideration need not be expressed in the writing.

WEST VIRGINIA (Code, 1868), p. 535, ch. 98, § 1, same as the Virginia statute as last above described.

same in its language, and identical in its legal effect with the English enactment. In the others, a considerable change has been made in the language, a departure from the original type, which might have

NEW YORK, 2 (R. S.,) p. 135, Tit. 1, “Of fraudulent conveyances and contracts relative to lands:"

"§ 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.

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"§ 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.

"§ 10. Nothing in this title contained shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part performance of such agreements.”

Ib. p. 140, Tit. 2, "Of fraudulent conveyances and contracts relative to goods, chattels and things in action:

"§ 2. In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof [expressing the consideration], be in writing, and subscribed by the party to be charged therewith: 1. Every agreement that, by its terms, is not to be performed within one year from the making thereof. 2. Every special promise to answer for the debt, default, or miscarriage of another person. 3. Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry." (As amended by Laws of 1863, ch. 464, which struck out the words "expressing the consideration," inclosed in brackets, which words had previously been a part of the provision.)

ALABAMA (Rev. Code, 1867), p. 411, § 1862: "In the following cases every agreement is void unless such agreement, or some note or memorandum thereof, expressing the consideration be in writing and subscribed by the party to be charged therewith, or some other person thereunto lawfully authorized: 1. (Not to be performed within one year). (3. Debt, etc., of another). 4. (On consideration of marriage; all as in N. Y.) 6. "Every contract for the sale of lands, tenements or heriditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller."

CALIFORNIA (Civil Code, 187 ), § 1624: "The following contracts, or some memorandum thereof, expressing the parties, their consent, and the object of the contract, must be in writing, subscribed by the party to be charged thereby, or by his agent for the purpose: 1. An agreement that, by its terms, cannot be fully performed within one year. 2. (Agreement upon consideration of marriage, as in N. Y.)"

§ 1741. "No agreement for the sale of real property, or of any estate therein, other than an estate for a term not exceeding one year, is valid unless a memorandum thereof, showing the parties, their consent, and the subject of the sale is made in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing, or unless the contract has been part performed by the party seeking to enforce it, and such part performance has been accepted by the other."

Iowa (Rev. Code, 1873). § 3663: "No evidence of ntracts enumerated

led to a fundamental difference in the interpretation and legal effect. No such difference, however, appears to have arisen, except in reference to minor matters of detail, where the terms of the statutes are

* *

in the next succeeding section is competent, unless it be in writing and signed by the party charged, or by his lawfully authorized agent." § 3664. "Such contracts embrace: 1. (Sales of personal property.) 2. (On consideration of marriage.) 3. (Guaranties, etc.) 4. "Those for the creation or transfer of any interest in lands, except leases for a term not exceeding one year." 5. (Not to be performed within a year.) § 3665. “* Nor do the provisions of the fourth subdivision of the preceeding section apply where the purchase-money, or any part thereof, has been received by the vendor; or where 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 where there is any other circumstance which, by the law heretofore in force, would have taken a case out of the statute of frauds." § 3666. The above regulations, relating merely to the proof of contracts, do not prevent the enforcement of those which are not denied in the pleadings, except when the contract is to be enforced, or damages to be recovered, against some person other than him w o made it."

MICHIGAN (Comp. Laws, 1871), vol. 2, p. 1455, ch. 166, § 8, is the same as N. Y. § 8, concerning leasing or selling lands, except that the words "expressing the consideration" are omitted, and the words "or by some person thereunto by him lawfully authorized by writing” are added in place of the N. Y. § 9.

§ 9. The consideration need not be expressed in the writing. § 10. Is exactly the same as the N. Y. § 10 relating to specific performance.

MINNESOTA (Stat. at Large, 1873), vol. 1, p. 692, § 12, is exactly the same as the N. Y. § 8, concerning leasing or selling lands; § 13 is the same as the N. Y. § 10, concerning specific performance. Ibid., p. 691, § 6: "No action shall be maintainable, 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 to be charged therewith," viz: 1, those not to be performed within a year; 2, guaranties, etc.; 3, those upon consideration of marriage except mutual promises to marry.

NEBRASKA (Gen. Stat., 1873), p. 392, ch. 25, § 5, is the same as the N. Y. § 8, concerning leasing or selling lands, except that "signed" is used instead of “subscribed," and "expressing the consideration" is omitted; §6 is the same as N. Y. § 10, concerning specific performance; § 8 is the same as the N. Y. § 2 of tit. 2, p. 140, except that "expressing the consideration" is omitted; § 24, in all these agreements the consideration need not be expressed; and § 25, every agreement to be subscribed by a party may be subscribed by his agent "authorized by writing."

NORTH CAROLINA (Rev. Code, 1855), p. 300, ch. 50, § 11. "All contracts to sell or convey any lands, tenements, or hereditaments, or any interest in or concerning them; and all leases or contracts for leasing land for the purpose of digging for gold or other minerals, or for the purpose of mining generally, shall be void and of no effect, unless such contract or lease, 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 leases and contracts for leases (other than those above named), not exceeding in duration the term of three years." "In the following

OREGON (Gen. Laws, by Deady, 1872), p. 264, ch. 8, § 775.

peremptory. From the language of the prohibition-"no action shall be brought"-it has long been the settled rule of construction, both in England and in those states which have adopted the same formula, that the statute does not go to the very substance of a contract, and render it a nullity, when not in writing; the statute relates exclusively to the procedure, and simply furnishes a rule of evidence, by which all agreements falling within its scope must be established. This interpretation lies at the foundation of the jurisdiction assumed by courts of equity to enforce verbal contracts in cases of a part performance. In many of the states, as it will be seen from the accompanying abstract, the legislatures have altered the language of this prohibition, and have declared the contracts specified by the statute to be void unless written. Except in one or two of the states, however, this change in the phraseology has produced no important change in the judicial interpretation of the provision. The various doctrines and rules, which had been settled by the English courts, have been generally adopted and enforced by the American tribunals, and especially the equitable principle with respect to the part performance of verbal contracts, has been followed without hesitation in all the states, with a very few exceptions, without any regard to any difference in the formal language employed by the legislatures.

SEC. 71. The controlling motive of the statute is one of expediency and convenience and this motive has always been kept in view by the ablest courts in their work of interpretation. As its primary object is to prevent mistakes, frauds, and perjuries, by substituting written for oral evidence in the most important classes of contracts, the courts of equity have established the principle, which they apply under vari

cases the agreement is void unless the same, or some note or memorandum thereof expressing the consideration, 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," viz: 1, agreements not to be performed within one year; 2, promises to answer for the debt, etc., of another; 3, promises by an executor, etc.; 4, agreements upon the consideration of marriage other than a mutual promise to marry; 5, an agreement for the leasing for a longer period than one year, or for the sale of real property, or of any interest therein; 6, 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."

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WISCONSIN (Taylor's Stat., 1871), vol. 2, p. 1254, ch. 106, § 8, is the same as the N. Y. § 8, concerning lands; § 9, is identical with the N. Y. § 9, relative to the subscription by an agent; § 10, is identical with the N. Y. § 10, concerning the power of equity to enforce contracts in cases of part performance. Ibid., p. 1255, ch. 107, § 2, is the same as the N. Y. § 2 of tit. 2, p. 140, except that the words "expressing the consideration are retained.

ous circumstances, that it shall not be used as an instrument for the accomplishment of fraudulent purposes; designed to prevent fraud it shall not be permitted to work fraud. This principle lies at the basis of the doctrine concerning part performance, but is also enforced wherever it is necessary to secure equitable results.(1)

SEC. 72. As the agreement of the parties-their mental consensus— is always the substantial fact, and as the written memorandum is

(1) Jervis v. Berridge, L. R. 8 Ch. 351, is an example. The plaintiff had agreed to buy an estate from the L. Society, and to pay a deposit on signing the contract. Before signing plaintiff agreed with B. to assign it to him on certain terms. For B's convenience plaintiff gave him a memorandum assigning the contract to him in consideration of his paying the deposit to the L. Society, and agreeing to pay a certain sum to the plaintiff; the other terms of the verbal bargain between the plaintiff and B.-which were favorable to the plaintiff-were, at B's request, omitted from this written memorandum. The contract between the plaintiff and the L. Society was then signed; the counterpart executed by the society was delivered to B., and he paid the deposit. B. afterwards repudiated all the stipulations in plaintiff's favor which had not been inserted in the memorandum. Plaintiff then filed this bill against B. and the L. Society asking to have the memorandum between B. and himself canceled, and that the L. Society should convey the estate to himself on his payment of what was due. Held, by the Lords JJ. affirming the decision of V. C. MALINS, that B's demurrer should be overruled, since the written memorandum was only ancillary to the verbal bargain between B. and the plaintiff, and any use of it by B. for a purpose inconsistent with that bargain was fraudulent and should not be permitted; but as B. had repudiated that bargain plaintiff could fall back on his original rights under his agreement with the L. Society. See, also, Haigh v. Kaye, L. R. 7 Ch. 469. It is not within the scope of this work to discuss the question: What contracts are within the statute of frauds? But I add here a few recent cases in which this subject is considered. Strehl v. D'Evers, 66 Ill. 77 (a verbal contract for the sale of a stock of goods with a verbal agreement to give a lease of the store for three years not enforced); Cole v. Cole, 41 Md. 301 (a verbal contract to give a mortgage; C. having purchased land, borrowed from A. the money with which to pay the price, verbally agreeing to give A. a mortgage on the land as security for the loan. C. then had the conveyance made to his own wife, who knew all the facts, and then refused to give the mortgage. Held, the contract with A. would be enforced by a sale of the land, if necessary.) Wilson v. Chicago, etc., R. R., 41 Iowa, 443 (verbal agreement to convey a certain interest in land, held void); Somerby v. Benton, 118 Mass. 278 (a verbal agreement by an inventor to assign an interest in an expected patent right enforced) ; Moote v. Scriven, 33 Mich. 500 (a verbal agreement to advance money for the purchase of lands, and for the removal of incumbrances on them, which lands were to be conveyed to the promissee on his repayment of the advance, held void); Levy v. Bush, 45 N. Y. 589 (a verbal agreement by which one party promises to bid off certain land in his own name, and enter into a contract of purchase, and advance his own funds, the whole to be done for the joint benefit of himself and the other party, and the other party promises to reimburse onehalf of the price, held void); Henry v. Colby, 3 Brews. (Pa.) 171 (a verbal contract for the sale of an interest in an oil well held within the statute).