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what was the method of taking advantage of the statute before the judicature acts.

§ 479. Under the old practice, then, the want of a contract within the statute might, when clearly appearing on the bill, have been taken advantage of by general demurrrer, (e) or by a demurrer alleging the want of such a contract. (f) In this respect, there was held to be a wide difference between the Statute of Frauds and the statute of limitations.(g)

§ 480. The benefit of the statute might also have been had by plea; and, notwithstanding a doubt of Lord Macclesfied, (h) by plea alone and without answer.

§ 481. To a bill alleging a parol contract and part performance, a plea averring that there was no contract in writing, and an answer insisting that the alleged acts did not amount to part performance, was a sufficient defense. (i) Though such a bill could not, it seems, have been met by a plea alone, for a plea in bar to such a bill would contain two distinct points-namely, the denial of the written contract and of the acts of part performance, and would therefore have been multifarious and bad. (j)'

§ 482. The benefit of the statute might also have been obtained by the defendant's answer; and either by an answer denying or not admitting the contract (which was sufficient, without special reference to the statute, to throw upon the plaintiff the whole burthen of proving a valid

(e) Field v. Hutchinson, 1 Beav., 599; cf. Heard v. Pilley, L. R. 4 Ch., 548.

(f) Wood v. Midgley, 5 De G. M. & G., 41; S. C., 2 Sm. & Gif., 115; Barkworth v. Young, 4 Drew, 1. See, also, Howard v. Okeover, 3 Sw., 421 n.

(g) Per Lord Cranworth in Ridgway v. Wharton, 3 De G. M. & G, 691; Heys v. Astley, 4 De G. J. & S., 34.

(h) Child v. Godolphin, 1 Dick, 39. (i) Whitchurch v. Bevis, 2 Bro. C. C., 559; S. C., 2 Dick., 664. See, also, Hosier v. Read,

9 Mod., 86; Moore v. Edwards, 4 Ves., 23; Bowers v. Cator, id., 91; Evans v. Harris, 2 V. & B., 361.

(j) Whitbread v. Brockhurst, 1 Bro. C. C., 404; and see Belt's n. and Redes. Plead., 268. See, also, as to this plea, Child v. Comber, 3 Sw., 423 n.; for a plea to a parol contract varying a written one, Jordan v. Sawkins, 3 Bro. C. C., 388; and for a plea alleging revocation of agency, Mason v. Armitage, 13 Ves., 25.

1 The case of French v. Shotwell, 5 John. Ch., 555, is a somewhat analogous case. There, to a bill for relief against a judgment, on the ground of fraud, a plea of the judgment, and an answer denying the fraud, were held good. A plea must contain a denial of all the facts charged in the bill which would, if true, defeat the plea; and it must reduce the defense to a single point. Bogardus v. Trinity Church, 4 Paige, 178: Saltus v. Tobias, 7 Jolin. Ch., 214. If a plea be double, the plaintiff may demur for duplicity; but, if he reply, he must answer both parts of the plea. Barrett v. Ruill, 3 Ired., 381.

contract capable of being enforced), (k) or by an answer admitting a contract, and expressly pleading the statute.(7)

§ 483. If the benefit of the statute was not claimed in one or other of these ways, it could not be had at the hearing.(m)

§ 484. A great change has been effected by the provisions of the judicature acts in this matter. Order XIX, r. 23, provides that "When a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise." Pleas, it may be added, find no place in the present system of pleading.

§ 485. From these provisions, the following inferences have been or may be drawn, viz.:

(1) That the benefit of the statute can no longer be had by plea..

(2) That where the statement of claim alleges a contract without alleging it to be in writing, a demurrer will not now lie, but the statute must be specially pleaded;(n) and this has been held to apply even to a case in which the statement of claim alleged circumstances in anticipation of an objection grounded on the statute, and these circumstances were traversed by the defense. (o)'

(3) That where the statement of claim itself shows that the contract was not in writing, and does not show any equitable circumstances taking it out of the statute, then the statute may be taken advantage of by demurrer. This point has not yet, it is believed, been the subject of direct decision. (p)

(k) Ridgway v. Wharton, 3 De G. M. & G., 677, S. C. in D. P., 6 H. L. C., 238.

(1) Cooth v. Jackson, 6 Ves., 12; Moore v. Edwards, 4 id., 23; per Lord Eldon in Rowe v. Teed, 15 id., 375; Blagden v. Bradbear, 12 1, 466; per Lord Eldon in ex parte Whitbread, 19 id., 212. See contra, Mussell v. Cooke, Prec Ch., 533

(m) Baskett v. Cafe, 4 De G. & Sm, 388.

(n) Catling v. King,5 Ch D, 66, 663; Towle v. Topham, 37 L T., 308; Shardlow v. Cotterill, W. N. (1881), 2.

(0) Clarke v. Callow, 46 L. J. Q. B., 53. See, also, Johnasson v. Bonhote, 2 Ch. D., 298.

(p) It appears that this may be inferred from the decision in Vale of Neath Colliery Co. v. Furness, 24 W. R., 631.

A defendant in a suit in chancery cannot put in several distinct defenses, by plea, to the whole of the complainant's bill, or to the same part of the bill, without the special leave of the court. Nor can he set up two distinct defenses in the same plea without rendering such plea bad for duplicity. To justify the court in departing from this general rule, the defendant must make out a very special case of hardship and inconvenience to him if he should be required to make his several defenses by answer. Where it would be necessary to set out

(4) That where a pleading states a contract generally, the opposite party's proper mode of claiming the benefit of the statute is to plead it specially in his next pleading.

(5) That to such pleading the old rule applicable to answers applies, viz., that the benefit of the statute must be claimed distinctly and unambiguously. Under the former practice it was held that when the answer alleged that no formal note of the contract was made, and denied that any binding contract ever existed, but did not expressly claim the benefit of the statute, the defendant was not entitled to have that benefit at the hearing. (q) It is not necessary that the defendant should claim the benefit in the very words of the statute, but he must claim it in words equivalent, so as to call the attention of the other party to the circumstance that the benefit of the statute is claimed. (7)

(6) If the plaintiff deliver a statement of claim, and the defendant deliver no defense or demurrer, it appears clear that the defendant cannot set up the statute at the hearing of the plaintiff's motion for judgment, for then the court is to give such judgment as upon the statement of claim the . court shall consider the plaintiff to be entitled to.(s)

(7) If the plaintiff indorse his writ for specific performance of a contract and deliver no statement of claim, and the defendant deliver no defense, it would seem equally clear that the defendant cannot have the benefit of the statute.'

2. What satisfies the statute.'

§ 486. The object of the Statute of Frauds being, as re

(2) See Skinner v. McDowall, 2 De G. & Sm., 265.

(r) Per Wigram, V. C., in Beatson v. Nicholson, 6 Jur., 621. Cf. as to the distinctness

of pleading now required, Byrd v. Nunn, 7 Ch. D., 284.

(8) See Ord. XXIX, r. 10.

very long accounts, and in cases where the discovery sought by the bill would be productive of injury to the defendant in his business, the court will grant its indulgence. Didier v. Davison, 10 Paige, 515.

1 This is clearly the rule. Osborn v. Endicott, 6 Cal, 149; Lingan v. Henderson, 1 Bland, 236; Kinzie v. Penrose, 2 Scam, 520; Thornton v. Henry, id., 218; Talbot v. Bower, 1 A. K. Marsh., 436; Bean v. Valle, 2 Miss., 126; Tarleton v. Vietes, 1 Gilm,, 470; Woods v. Dille, 11 Ohio, 405; Small v. Ownings, 1 Md. Ch Dec., 363; Hollingshead v. McKenzie, 8 Geo., 457.

What the writing must contain to satisfy the statute] It may be informal, but it must contain all the terms of the contract, either expressly or by necessary inference. In it must be found the names of the parties, the consideration, the subject matter, the promise and the signature of the party sought to be charged; nothing must be left open for future negotiation. Laythoarp v. Bryant, 2 Bing. (N. C.), 735; Ogilvie v. Foljambe, 3 Mer., 53; Nichols v. Johnson, 10

gards the contracts now under consideration, to prevent the mischief arising from the resort to parol evidence to prove the existence and the terms of the alleged contract, it is obvious that the mischief is avoided wherever there exists, under the hand of the party sought to be charged, a written statement containing, either expressly or by necessary inference, all the terms of the contract-that is to say, the parties (described either by names or descriptions or reference sufficient to preclude any fair dispute as to their identity),(t) the subject matter of the contract, (u) the consideration and the promise(v)—and leaving nothing open to future treaty.(w)

§ 487. This, therefore, is sufficient to satisfy the statute, and provided this be found, no formality is required, nor does it signify at all what is the nature or character of the document containing such written statement-whether it be a letter written by the party to be charged to the person with whom he contracted, or to any other person, or a deed, or other legal instrument, or an affidavit. (x)'

(1) Potter v. Duffield, L. R. 18 Eq, 4. See, for a further discussion of the mode of description, Part III, chap. iii, § 330 et seq., where the cases are cited.

(u) See Nene Valley Drainage Commis. sioners v. Dunkley, 4 Ch. D., 1, where a plan on which the parties, contemporaneously with their signature of the contract (which

did not refer to any plan), signed a memo-
randum referring to the contract, was held
to be sufficiently incorporated with the con-
tract, and to control the description in it
(v) Laythoarp v. Bryant, 2 Bing. N. C, 735.
(w) Ogilvie v. Foljambe, 3 Mer., 53.
(x) Barkworth v. Young, 4 Drew, 1, 14.

Conn., 192; Doty v. Wilder, 15 Ill., 407; McConnell v. Brillhard, 17 id., 354; Johnson v. Dodge, id., 433; McFarson's App., 11 Pa. St., 503; Sanborne v. Flagler, 9 Allen, 474; Stone v. Browning, 68 N. Y., 598; Helsa v. Helsa, 8 Mo., 393; Huff v. Shepard, 58 id., 242. It need not be sealed nor acknowledged, and words of inheritance need not be employed, where an intention to pass the fee appears. McFarson's App., 11 Pa. St., 503. The writing may be by a pleading, an affidavit or a receipt, and it may be found in one or more letters. It may be in the language of both parties, or either of them. Barkworth v. Young, 4 Drew, 13; Ewing v. Gordon, 49 N. H., 444; Tripp v. Bishop, 56 Pa. St., 424; Joseph v. Holt, 37 Cal., 250; Welford v. Beazely, 3 Atk., 503; Dentson v. McKenzie, 1 Dessau.'s Eq., 289. The entire agreement must be written or printed, and may be in pencil. Cary v. Hyde, 49 Čal., 470; Patton v. Develin's, 2 Phila., 103; Draper v. Pattina, 2 Speers, 292; Merritt v. Clasor, 12 Johns., 484. A contract by parol, or in writing, is presupposed by the statute of frauds. The memorandum, which is necessary to its validity, and the agreement itself, are very different things; one may be made at one time, and the memorandum at some other. If the promise of one of the parties is the consideration for the promise of the other, in such case both must be concurrent, and obligatory upon both at the same time. Lester v. Sennett, 12 Barb., 502; Jones v. Noble, 3 id. (Ky.), 694; Yerger v. Green, 4 Gill, 472; Duvall v. Myers, 2 Md. Ch., 401.

In Barry v. Coombe, 1 Pet., 640, it is said that courts of equity are not rigid with regard to the direct and immediate purpose for which the written evidence of a contract was created: "It is written evidence that the statute of fraud requires, and a note or letter may be sufficient to bring the case within the statute." Thus the following paper was held to be a sufficient memoran

The question of what is necessary to be settled, and therefore what is necessary to be expressed, in order that a writ

dum of the terms of an agreement to sell land within the statute of frauds : Ellsworth, Dec. 15th, 1834. Received of D. B. and C. S. C. $1,000, to be accounted for, if they shall furnish me satisfactory security for certain_lands on the Naraguagas river, say 119,000 acres for $113,000, on or before Friday morning next: otherwise to be forfeited-John Black." Clark v. Burnham, 2 Story, 1. And a receipt in these terms: "Received from A. $20, on account of the purchase of a house and lot, No. 38 Hammond street, at $2,900, subject to a lease to B. for four years from the first of May next: $1,000 may remain by bond and mortgage: the balance the first of May, when the deed will be executed and possession given"-amounts to a valid contract for the sale of land, under the statute in New York. Westervelt v. Matheson, 1 Hoff. Ch, 37. Again, in Hatcher v. Hatcher, 1 McMullan's Ch., 311, land having been sold on execution against A., B. agreed, by parol with A., to advance the money to the purchaser at the sheriff's sale, to take a conveyance to himself, and to reconvey to A. upon being reimbursed for the sum so advanced. Upon a subsequent payment by A., under the agreement, B. gave him a written receipt therefor, as in part payment of the land, describing it, and concluding thus: "This in part payment to redeem the land from B." It was held, that there was a sufficient memorandum of the contract, within the statute of frauds, and that extraneous written evidence was admissible to show the consideration. Thomas v. Todd, 3 Litt., 337. is a case somewhat in point It was there held. that an advertisement describing the situation and quality of land, signed by a vendor, and being the only printed or written memorandum of the contract on his part, was held to contain the particulars with which he was bound to comply; and where he was unable to do so, the contract for a purchase of the land was decreed to be rescinded. See Gray v. James, 4 Dessau., 185; Little v. Peason, 7 Pick., 301, is a case of the same nature There A. paid B. $100, receiving from B. a note payable to A. or order, on demand for $100 and interest. with the following memorandum: "N. B. This note is to be given up when I give him a deed of the land, which I have engaged to give him.' Signed by B. It was held that this was a sufficient memorandum whereby to compel a conveyance. But the following writing, to wit: "4th January, 1808. Received of J. E. $, in part pay of a lot bought of me, in the town of V., it being the cash part of the purchase of said lot. Nathan Deadman. Test., Will. Atwood"-was held not to be a sufficient memorandum to take the agreement out of the statute. Ellis v. Deadman, 4 Bibb, 466. A memorandum must contain, within itself, or by reference to some other writing, the terms of the agreement with reasonable certainty. Parkhurst v. Van Cortland, 1 John. Ch., 274; Coles v. Bowne, 10 Paige, 526. Therefore where A. proposed, in writing, to sell to B., all that piece of property known as the Union Hotel property," it was held not to be a sufficient description to take the case out of the statute of frauds, parol evidence being necessary to show what property was comprehended under the words "Union Hotel property." King v. Wood, 7 Miss.. 389. But the memorandum need contain only the substance of the contract, and not a detail of all particulars; so that if the memorandum recognize that an estate, chargeable with certain annuities, is sold subject to them, by mentioning when the payment of the annuities by the purchaser is to begin, it is sufficient. Ives v. Hazard, 4 R. I., 14; see Kay v. Curd, 6 B. Monr., 100. Handbills and newspaper notices, published at the time of the sale, are not admissible as explanatory evidence, the memorandum containing no reference to them. O'Donnell v. Leman, 43 Me, 158. Whether or not the consideration must be expressed upon the face of the instrument, is subject to different rules in the different States. In England the question has long since been wellsettled. There the leading decision on the subject is Wain v. Warlters, 5 East, 16, decided at law by Lord Ellenborough, who then took occasion to explain the meaning of the word agreement, as used by the Statute of Frauds, defining it to be a mutual contract between two or more parties," and excluding its more loose acceptation of a promise or an undertaking. He said that the statute was never meant to enforce any promise which was before invalid, merely be

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