&c. consideration to support a suit in the Court of Chancery CONTRACTS, for performance of such an agreement. And the consideration is therefore, in practice, seldom inserted. But, per Parker, Ch. Just. in Mitchell v. Reynolds, it is best that a good or sufficient consideration, in an agreement for restraint of trade, should appear upon the face of the contract, because wherever such contract stand sindifferent, and for aught that is known may be good or bad, the law primâ facie presumes it to be bad. And it seems to be the better opinion, that if an express but insufficient consideration appear on the face of the agreement, no other can be implied. V. OF THE REQUISITES TO A VALID CONTRACT IN THE Common law required no other solemnity in passing Contracts, &c. lands or tenements, but that of livery and seisin, which must be in writing. being a transfer of the feud corum paribus curtis, and testified by them, was held an act of sufficient notoriety to direct the lord of whom to demand his services, and strangers against whom to commence their actions"; but now, by the 29 Car. 2, c. 3, it is enacted, that 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 and creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases and 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 &c. с CONTRACTS, estates, or any former usage to the contrary notwithstanding. Except leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts, at the least, of the full improved value of the thing demised. That no leases, estates or interest, 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 or operation of law. That no action shall be brought 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 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, signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. That 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 c Sec. 2. d Sec. 3. • Sec. 4. f See Coster v. Becket, 7 T. R. 201. & Sec. 7: will in writing, else they shall be utterly void and of no CONTRACTS, effect (1). 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 the implication or construction of law, or be transferred or extinguished by an act of, 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 the statute had not been made. i That no contract for the sale of any goods, wares, and merchandizes, for the price of ten pounds 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 of payment; or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged, or their agents thereunto lawfully authorized. In considering this statute we may inquire, 1. What shall be deemed such a note or memorandum as to take the case out of the statute: 2. What has been construed to amount to a signing by the party: and 3. What agreements have been deemed without the statute, and exempt from the necessity of being put into writing. As to the first of these points, it is said, that this writing must not only be in manuscript or in print, but on paper or parchment), " for if it be written on stone, linen, leather, or the like, it is no deed; wood and stone may be more durable, and linen less liable to erasure, but paper j Co. Lit. 229. Sec. 8. i Sec. 17. (1) By 4 Anne, c. 16, s. 15, it is declared, that declarations of uses, trusts, &c. of fines or recoveries, shall be valid and effectual, though the deed of uses be made after the levying or suffering of such fine or recoveries. &c. &c. CONTRACTS, and parchment unite more perfectly than any other both these durable qualities, nothing else being so durable and at the same time so little liable to alteration." The student will probably, however, doubt whether the courts would, if called upon, set aside a formal agreement entered into by the parties, on the sole ground of its not being written on one of these two individual species of manufacture. Hence if in any treaty, the parties come to an agreement, which is never reduced into writing, nor any written proposal made for that purpose, so that the parties rely wholly on their parol agreement; neither party can compel the other to a specific performance, the statute being directly in their way. Thus, where a person, before his intermarriage with his wife, promised that she should enjoy her own estate to her separate use, and agreed to execute a writing to that purpose, which he had instructed counsel to draw; but when they were to be married, the writing not being perfected, he desired this might not delay the match, but engaged, that upon his honour, the lady should have the same advantage of the agreement as if it were in writing drawn in form by counsel, and executed; whereupon the marriage took effect: it was held, on a bill for specific execution, that, there being no fraud, and the plaintiff relying solely upon the honour, word, or promise of the defendant, and the statute making these promises void, equity would not interfere; and that the circumstance of the instruction having been given to counsel for preparing the writings was not material, since, after they had been drawn and engrossed, the parties might have refused to execute them' (1). k 2 Blac. Com. 297. Sir George Maxwell, 1 P. (1) But it seems to have been formerly doubted, whether, if it were charged that the agreement was stipulated to be put in writing, this circumstance would not be a sufficient ground for excluding the statute from attaching upon the agreement. And in a case where a memorandum of the proposed CONTRACTS agreement was actually put into writing, it was nevertheless held to be within the statute, for want of being signed by the party: thus, where a marriage treaty was depending, and the intended husband and the young lady's father went to a counsellor's chambers to have a settlement drawn, in consideration of the portion the father proposed to give, where minutes of the agreement were taken down in writing by the counsel, and given by him to his clerk, to be drawn up in form: the next day the father died, and the day following the marriage was solemnized. This agreement, notwithstanding the preparations, was held, by Lord Cowper, to be within the statute of frauds and perjuries, it being no agreement, but only preparatory heads which were afterwards to be drawn into form. It might therefore have received several alterations or additions, or been entirely broke off upon further inquiry or information of the party's circumstances". And, in a subsequent case, the decision was still stronger as to this point. There the plaintiff agreed with the defendant to sell him a house for 640 l. and, by consent of both parties, an attorney was employed to make a draft of the conveyance ; which the attorney accordingly prepared and sent to the defendant, who made several alterations in his own handwriting, and delivered it back to the attorney to be engrossed. A time was then appointed for the parties to meet at a tavern to execute the writings, and for the defendant to pay the money. The plaintiff and his attorney went to the tavern, and the plaintiff there executed the writings. But although the agreement was actually put into writing in the draft of the conveyance, which had "Bawdes v. Amhurst, Prec. Ch. 402; and see 3 Atk.504. agreement. Seale v. Morris, 1 Cha. Ca. 135; Hollis v. Whiting, 1 Vern. 151. And see 1 Fonb. Eq. b. 1, c. 3, s. 10, n. (l). |