his written name (o). This doubt may, perhaps, be resolved by considering another Case which has an analogy. The Act 33 Hen. 8, c. 21, enables the King to give his assent to Bills by Letters Patent under his Great Seal, signed with his own hand, &c. but King William, in the last public act of his glorious life, stamped his name to Letters Patent of that description, and their validity was not questioned.

With respect to the signing of an Agreement, by an Agent lawfully authorized, it has been holden, that the authority of the Agent need not be in writing (p); but the authorized Agent must sign the Agreement; his Clerk's signature is not sufficient (g).

An Auctioneer, on the Sale of Estates by Auction, being considered as the Agent of both Parties, the Seller and the Buyer, his receipt, if it contains in itself, or by reference to something else, shows what the Agreement is, has been considered as a note or memorandum sufficient to satisfy the requisition of the Statute (r).

There are, however, Cases, where, though an Agreement as to Lands is not in Writing, it will be decreed to be performed; as where a parol Agreement has been partly performed, and is admitted, or proved (s), as it may be in such cases by parol Evi

(0) Saunderson v. Jackson, 2 Bos. & Pull. 239.

(p) Waller v. Cox, Vin. Abr. tit. Contract and Agreement, (H.) Ca. 45. Coles v. Trecothick, 9 Ves. 250. Clinan v. Cooke, 1 Sch. & Lefr. 31. The note in 7 East, 565, stating that the Agent's Authority must be in writing, is a mistake.

(q) Blore v. Sutton, 3 Meriv. 237.

(r) Coles v. Trecothick, g Ves. 252. S. C. MS. Emmerson v. Heelis, 2 Taunt. 38. White v. Procter, 4 Taunt. 212. Keymis v. Procter, 3 Ves. & Bea. 57.

(s) See Daniel v. Davidson, 16 Ves. 249.

dence produced on the hearing of the cause (t), or, on some occasions, before the Master (u); but where parol Evidence is admitted it must clearly appear that that very Agreement was in part executed (x).

In these cases, relief is administered on the ground of Fraud (y), in suffering the Party to proceed on the Agreement, and then, unconscientiously, insisting on its not being in Writing; and is a species of Fraud cognizable only in Equity (z). It is true, Mr. Justice Buller observed, in one or two Equity cases (a), that part performance takes a Case out of the Statute, at Law as well as in Equity; but he afterwards abandoned so untenable a position (b).

The first Case in which relief was given on the ground of part-performance, is frequently said (c) to have been Farcraft v. Lyster (d); but from some Reports of that Case (e), it rather seems to have proceeded on another, and a very indisputable ground; on the Fraud of the Heir, in preventing the Lessor, who was dying, executing a Lease.

(t) 1 Ves. 221.

(u) Allan v. Bower, 3 Bro. C. C. 149. S. C. noticed 1 Sch. & Lefr. 37. Boardman v. Mostyn, 6 Ves. 467 ; but see 3 Bro. Č. C. 149, and 1 Ball & Bea. 265, and Savage v. Carroll, 1 Ball. & Bea. 551, in which case it is laid down that an Inquiry or Issue is only directed, where, from contradictory Evidence, a doubt arises in the mind of the Court, or from the circumstance of Witnesses being discredited after the case has been proved.

(x) Lindsay v. Lynch, 2 Sch. & Lefr. 8.

Certain it is,

35. 1 Sch. & Lefr. 130. Blore v. Sutton, 3 Meriv. 246, Morphet v. Jones, 1 Swanst. 181.

(2) 1 Bro. C. C. 417.

(a) Brodie v. St. Paul, 1 Ves. jun. 333; and see 1 Bro. C. C.

417.

(b) See what is said in Cooth v. Jackson, 6 Ves. 39. O'Herlihy v. Hedges, 1 Sch. & Lefr. 123.

(c) See what Lord Redesdale says, Bond and Hopkins, 1 Sch. & Lefr. 433, and his Treatise Pl.

(d) Cited 2 Vern. 456.

(e) See the Report of the case in Gilbert's Eq. Reports, p. 11, and Colles's Parl. Cases,

however, that very soon after the passing of the Statute of Frauds () this species of equitable relief was administered.

If, therefore, it be clearly shown what the Agreement was, and that it has been partly performed, that is, that an act has been done, not a mere voluntary act (g), or merely introductory or ancillary to the Agreement (h), but a part-execution of the substance of the Agreement, and which would not have been done unless on account of the Agreement (i); an act, in short, unequivocally referring to, and resulting from, the Agreement, and such, that the Party would suffer an Injury, amounting to Fraud (k), by the refusal to execute that Agreement; in such Case, the Agreement will be decreed to be specifically performed (1).

Wherever, therefore, a parol Agreement is sought to be established on the ground of part-performance, if the Statute is pleaded, the answer must deny the acts charged of part-performance (m).

The ground on which the Court acts in these cases is, as before observed, Fraud, in refusing to perform, after performance by the other Party (n); and not because the Agreement was not within the original

(f) 29 Car. 2, c. 3.

(g) As in Robertson against St. John, 2 Bro. C. C. 140.

(h) See 1 Bro. C. C. 412. Lacon v. Mertins, 3 Atk. 4.

(i) Cooke v. Tombs, 2 Anstr. 424. Gunter against Halsey, Ambl. 586.

(k) Clinan v. Cooke, 1 Sch. & Lefr. 41; and see Morphett v. Jones,, 1 Swanst. 181.

(1) Gunter v. Halsey, Ambl. 586. Fraine and Dawson, 14

Ves. 386, and Lewis and Clitherow, MS. The case contra. Hollis and Whiting, 1 Vern. 151, cannot be considered as Law.

(m) Bowers v. Cator, 4 Ves. 91. Wills v. Stradling, 3 Ves. 378.

(n) Whitbread against Brockhurst, 1 Bro. C. C. 413. Hare v. Shearwood, 1 Ves. jun. 243. Buckmaster v. Harrop, 7 Veş. 346.

conception of the Statute (o). The allowing any other construction upon the Statute of Frauds would be to make it a guard and protection to Fraud, instead of a security against it, which was its object (p).

" I

It was, however, the opinion of Lord Alvanley, that the Court had gone rather too far in permitting part-performance, and other circumstances, to take Cases out of the Statute, and then, unavoidably, perhaps, after establishing the Agreement, to admit parol Evidence of the contents of that Agreement. "Partperformance might be evidence of some Agreement; but of what, must be left to parol Evidence. always thought," says he, "the Court went a great way. They ought not to have held it Evidence of an unknown Agreement, but to have had the Money laid out, repaid. It ought to have been a Compensation. Those Cases are very dissatisfactory. It was very right to say, the Statute should not be an engine of Fraud: therefore compensation would have been very proper. They have, however, gone farther; saying, it was clear there was some Agreement, and letting them prove it. But how does the circumstance of a Man having laid out a great deal of Money prove that he is to have a Lease for ninety-nine years? The common sense of the thing would have been to let them bring an Action for the Money. I should pause upon such a Case (q)." Impressed, probably, with similar feelings, Lord Eldon, early in that judicial career which has immortalized him as a Lawyer, ex

(0) 1 Bro. C. C. 413, 417.
(p) Walker v. Walker, 2 Atk.

100.

&c; and see what is said in Wills v. Stradling, 3 Ves. 382; and in Attorney - General v.

pressed a determination not to go one iota farther than the Cases (r); and another great Judge, Lord Redesdale, made a similar resolution (s).

A parol Agreement for a Lease made by a Tenant for Life, in pursuance of a Power, if partly performed, might be enforced against the Tenant for Life, but it could not be enforced against a Remainder-man; for though the Tenant for Life is bound, it is principally on the ground of Fraud, which is personal, and which does not apply to the Remainder-man (t). If the Remainder-man after the death of the Tenant for Life acquiesced, it would be different (u). The only way in which a Remainder-man could be affected with Fraud would be by showing that an expenditure had been permitted by him, with a knowledge that the Party had only a parol Agreement from the Tenant for Life (x).

The Cases are numerous in regard to what acts are to be considered as a part-performance (y).

If the Vendee, on a parol Agreement for the Sale of Lands, is let into Possession by the Vendor, this has been held to amount to a part-performance (≈);

(r) Cooth v. Jackson, 6 Ves. 32, 37; and see what is said by Lord Redesdale in 2 Sch. & Lefr. 5, and by Lord Manners, in Toole v. Medlicott, i Ball & Bea: 404.

(s) Lindsay v. Lynch, 2 Sch. & Lefr. 5

(t) Shannon v. Bradstreet, 1 Sch. & Lefr: 72.1

(u) Ibid. 73. Styles v. Cowper, 3 Atk. 692.

(x) Blore v Sutton, 3 Meriv.

(y) See 3 Ves. jun. 39, and the cases there cited.

(z) Butcher v. Stapely, 1 Vern. 365. Pyke v. Williams, 2 Vern. 455. Wheeler v. Newton, Prec. Ch. 16. Ibid. 561. Lockey v. Lockey, Pree. Ch. 519. 2 Str. 783, and the cases cited in the note, Atk. 12.2 Freem. 269; and see Lacon v. Mertins, 3 Atk. 4. Kine v. Balse, 2 Ball & Bea. 348.