(1) Any executor or administrator upon any special promise to answer damages out of his own estate.

(2) Or to charge the defendant upon any specia. promise to answer for the debt, default or miscarriage of another person.

(3) Or to charge any person upon any agreement made upon consideration of marriage.

(4) Or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them.

(5) Or upon any agreement that is not to be performed within the space of one year from the making thereof.

Unless the agreement or some memorandum thereof in writing should be signed as above required.

The seventeenth section provides that no contract for the sale of any goods, wares and merchandise for the price of ten pounds sterling (fifty dollars) 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 payment, unless some note or memorandum of the bargain in writing be made and signed, as required in the fourth section.

Let us consider the contracts affected by the statute, in the order in which they are mentioned in the statute itself.

§ 262. Promises of executors and administrators. -An executor or an administrator coming into possession of the estate of the testator or decedent, is only liable to pay the debts of the estate in the order. required by law and so far as the assets of the estate

properly administered will enable him to discharge such debts. This legal obligation and no other rests upon him, unless he sees fit to assume and incur a personal liability for the debts of the estate. If he does this in a writing, signed by him or his agent, he is bound, but no oral agreement on his part can create such a liability. The statute applies only to debts existing against the estate. If the executor

agrees with an heir to pay a sum of money if he will abstain from bringing suit to contest the will or the probate of it, this is a personal undertaking of his own, and one which does not fall within the statute.

§ 263. Debt, default and miscarriage.—What is meant by the terms "debt," "default" and "miscarriage" of another, for which one shall not be answerable upon his oral promise? It may be said, generally, that under these terms are included every form of liability or obligation which rests upon one, whether it grows out of tort or contract, or from whatever cause. There are three persons to be considered: (1) The person who owes the debt or has incurred the liability. (2) The person to whom the debt is owing or who is entitled to enforce the existing liability. (3) The stranger to the transaction, against whom no liability exists, and whom it is sought to charge with the liability of the debtor or wrong-doer.

§ 264. Pre-existing obligation.-The debt or liability must be a pre-existing one. A promise by one to become a guarantor or surety for another is within the statute. But if, at the time of the original agreement by which one contracts a debt or incurs a liability, another becomes surety or guarantor for the

performance of the contract, he is bound, and such agreement and is not within the statute. The promise upon which an action is barred by this statute relates only to a promise to become responsible for another in a matter where that person's liability has previously been fixed.

§ 265. Agreements in consideration of marriage. -It is hardly necessary to say that this clause of the statute does not refer to the mutual promises of marriage. It has sole reference to promises collateral to the marriage which are made upon condition that the marriage shall take place, as where a man agrees to make a settlement or pay a sum of money if a marriage is consummated. An antenuptial agreement by which, before marriage, a woman agrees to relinquish her marital rights in her husband's property, in consideration of the payment to her of a sum certain, is within the statute and must be in writing to make it binding. Nor is the subsequent marriage of the parties such a part performance of the contract as will take the contract out of the statute.

§ 266. Contracts for sale of lands.-The word land as it is used in this statute has been held to include not only the land itself, but every claim of a permanent right to hold lands of another for a particular purpose, and to enter upon them at all times without his consent. A mere verbal license to enter upon land for a temporary purpose is revocable. Difficulties arise as to what things annexed to land are covered by the term as it is used in the statute. A ripened crop ready to be gathered, and a sale of any growing produce, raised by labor and expense, in actual existence at the time of the contract, may be

the subject of a binding parol contract. And it has even been held that where timber or other produce of land, or any other thing annexed to the land is specifically sold, whether the buyer or seller is to sever it, under a special license to enter for that purpose, it is a sale of goods and not a sale of an interest in land. By statutes of some of the states, it is enacted that leases of land for short terms are valid, though resting in parol.

§ 267. Agreements not to be performed within a year. The agreement must be impossible of performance within the year, and the parties to it must contemplate that it shall not be performed within the year. The mere fact that it may not be, or is not in fact performed within the year, does not bring it within the statute. Illustrating these rules, it has been held that an agreement to do something upon the happening of a marriage, or upon the return of a ship, or to pay a certain sum of money from time to time during the life of another, is not within the statute. But if it can not be fully performed within the year, the fact that it may be terminated, or that further performance may be excused, is not sufficient to take it out of the statute. In most of the states it is held that the statute applies only to contracts which are not to be performed on either side within a year; and that if the parol contract is to be fully performed on one side within the year, it will be good under the statute of frauds even though the other side can not be performed within the year. Other states hold the contrary doctrine.

§ 268. The note or memorandum.-The statute requires that to make any of the contracts or agree

ments just enumerated as within the fourth section of the statute of frauds enforceable, the agreement, or some note or memorandum thereof, shall be in writing and signed by, or by the authority of, the person sought to be charged thereby. It becomes important to know what sort of a note or memorandum is here meant. The statute relates to a parol contract, the evidence of which must be supplied by a written note or memorandum. This memorandum may be gathered from correspondence or embodied in a single letter, and it is not necessary that it be made at the time of the agreement. It is rather the acknowledgment of the fact that a contract has been made. than a written contract itself, which is an instrument entered into and signed at the time it is made. The memorandum may be made by a broker who is the agent of both parties; it may be made by an auctioneer who is agent for buyer and seller; it may be made by one of the parties and not delivered to the other, or the fact that it has been made may be unknown to the party who seeks to enforce it until long after it has been made; it may be made at any time before the action is commenced. It must show agreement on the part of the party sought to be charged; it must show clearly the subject-matter and all the terms of the agreement, the parties to it, and some courts hold that it must show what the consideration is. Some of the states in their laws adopting the provisions of the statute expressly state either that the consideration must appear in the memorandum or that it is unnecessary.