a question of fact to be determined by the circumstances of the case (f). 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" (g) or is to become so. A mere promise of indemnity is not within the statute (h), though any promise which is in substance within it cannot be taken out of it by being put in the form of an indemnity (i). A contract to give a guaranty at a future time is as much within the statute as the guaranty itself (j). ments upon con 7. "Any agreement made upon consideration of mar- Agreeriage." A promise to marry is not within these words, the consideration being not marriage, but the other party's sideration reciprocal promise to marry. For further remarks on the riage. effect of this clause see Chapter XII., on Agreements of Imperfect Obligation, infra. 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 (k). (f) See n. (e), supra. (g) Eastwood v. Kenyon, 11 A. & E. 438, 446; concess. Cripps v. Hartnoll, 4 B. & S. 414, 32 L. J. Q. B. 381 (Ex. Ch.). (h) Cripps v. Hartnoll (last note); Wildes v. Dudlow, 19 Eq. 198. (i) Cripps v. Hartnoll. (1) Mallet v. Bateman, L. R. 1 C. P. 163 (Ex. Ch.). See further on this clause, 1 Wms. Saund. 229-235, 1 Sm. L. C. 311, note to Birkmyr v. Darnell, Smith, Merc. Law, 456-9 (8th ed.). (k) Such promise may be sued on in the King's Court if by deed, 22 Ass. 101, pl. 70; otherwise if he In had promised 101. with his daughter of mar Interests in land. Leases. Agree ments not to be performed within a year. S. "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 (k). 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 within the 17th; and these cases are accordingly discussed by Lord Blackburn and Mr. Benjamin in their expositions of the 17th section (1). 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 (m). By the 1st and 2nd sections of the statute leases for 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 (). ε. "Any agreement that is not to be performed within the of one year space from the making thereof." "Is not to be," not "is not " or may not be." This means an agreement that on the face of it cannot be cognitio super catallis et debitis (k) As to an agreement collateral 66 per 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-upon-Hull, L. R. 10 C. P. 402. (1) Blackburn on the Contract of Sale, 9-21, Benjamin on Sale, 106-122; Marshall v. Green, 1 C. P. D. 35. And see 1 Wms. Saund. 395. (m) Lee v. Gaskell, 1 Q. B. D. 700. (n) Dart, V. & P. 1, 198. 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 (o). Nor is an agreement within it which is completely performed by one party within a year (p). An agreement is not excluded from the operation of the clause by being made determinable on a contingency that may happen within a year (q). The seventeenth section of the statute (sixteenth in the As to s. 17. Revised Statutes, but it will probably keep its accustomed name) () is extended by Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 7, and as so extended includes all executory sales of goods of the value of 10% 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, pp. 87-229). We will here only refer very briefly to the question of what is a sufficient memorandum of a contract within the Statute. Mr. Benjamin exhibits (p. 193, sqq.) the curious difference The in the judicial interpretation of the "agreement" of which a memorandum or note is required by s. 4, and the "bar- dum." gain" 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 (0) Smith v. Neale, 2 C. B. N. S. 67, 26 L. J. C. P. 143. (p) Cherry v. Heming, 4 Ex. 631, 19 L. J. Ex. 63. See notes to Peter v. Compton, 1 Sm. L. C. 335. P. (2) Eley v. Positive Assurance Co. 1 Ex. D. 20. (r) The difference arises from the preamble and the enacting part of s. 13 being separately numbered as 13 and 14 in former editions. M "note or memoran 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 (8). 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 (†), 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 written and duly signed proposal is accepted by word of mouth the contract itself is completed by such acceptance and the writing is a sufficient memorandum of it (u). It has also been decided that an acknowledgment of a signature previously made by way of proposal, the document having been altered in the meantime and the party having assented to the alterations, is equivalent to an actual signature of the document as finally settled and as the record of the concluded contract. The signature contemplated by the statute is not the mere act of writing, but the writing coupled with the party's assent to it as a signature to the contract: and the effect of the parol evidence in such a case is not to alter an agreement made between the parties but to show what the condition of the document was when it became an agreement between them (x). Moreover it matters not for what purpose the signature is (s) See also an article by Mr. Justice Stephen and the present writer in the Law Quarterly Review, Jan. 1885, and the notes to Birkmyr v. Darnell and Wain v. Warlters, in Sm. L. C. (t) 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, 3 App. Ca. 1124, Catling v. King (C. A.), 5 Ch. D. 660. As to what is sufficient description of the property sold under 8. 4, Shardlow v. Cotterell, C. A. 20 Ch. D. 90. (u) Smith v. Neale, 2 C. B. N. S. 67, 26 L. J. C. P. 143, Reuss v. Picksley, in Ex. Ch. L. R. 1 Ex. 342. (x) Stewart v. Eddowes, L. R. 9 C. P. 311. added, since it is required only as evidence, not as belonging to the substance of the contract. It is enough that the signature attests the document as that which contains the terms of the contract (y). Nor need the particulars required to make a complete memorandum be all contained in one document: the signed document may incorporate others by reference, but the reference must appear from the writing itself and not have to be made out by oral evidence: for in that case there would be no record of a contract in writing, but only disjointed parts of a record pieced out with unwritten evidence (s). One who is the agent of one party only in the transaction may be also the agent of the other party for the purpose of signature (a). There is considerable authority (though short of an actual decision) for holding that the Statute of Semble, Frauds does not apply to deeds. Signature is unnecessary within the for the validity of a deed at common law, and it is not Statute. likely that the legislature meant to require signature where the higher and more formal solemnity of sealing (as it is in a legal point of view) is already present (b). But as in practice deeds are always signed as well as sealed, and distinctive seals are hardly ever used except by corporations, the absence of a signature would nowadays add considerably to the difficulty of supporting a deed impeached on any other ground. deeds not Sale Acts. The law as to the sale and disposition of personal chattels Bills of is affected, in addition to the Statute of Frauds, by the Bills of Sale Acts, 1878 and (y) Jones v. Victoria Graving Dock Co. 2 Q. B. D. 314, 323. It may be doubted whether this view of the statute does not tend to thrust contracts upon parties by surprise and contrary to their real intention. (z) See Peirce v. Corf, L. R. 9 Q. B. 210, Kronheim v. Johnson, 7 Ch. D. 60, Leather Cloth Co. v. 1882, 41 & 42 Vict. c. 31, Hieronimus, L. R. 10 Q. B. 140. (b) Cherry v. Heming, 4 Ex. 631, |