writing his name, he may be said to sign by his printed name, as well as his written name'.

In an action on the case for the non-delivery of a quantity of gin, bought of the defendants', it appeared, that at the time the order for the gin was given by the plaintiff to the defendants, a bill of parcels was delivered to the former, the printed part of which was, "London. Bought of Jackson and Hankin, distillers," and then followed, in writing, "1000 gallons of gin, 1 in 5. gin 7s. 350." The name of the purchaser was inserted in the bill of parcels. About a month after, the defendants also wrote the following letter to the plaintiff: "Sir, we wish to know what time we shall send you part of your order, and shall be obliged for a little time in delivery of the remainder; must request you to return our pipes. Yours, &c. Jackson and Hankin." It was holden, that by connecting the bill of parcels with the subsequent letter of the defendants, the requisites of the statute were sufficiently complied with.

Or their agents thereunto lawfully authorized.] The question, whether this (17th) section of the statute, comprehends contracts for the sale of goods by auction, as well as other sales, has not as yet been solemnly determined (14). As"suming, however, that sales by auctioneers or brokers are within the 17th section, it has been uniformly holden, ever since the case of Simon v. Metivier", that the auctioneer or broker is the agent of both parties, and a memorandum, made by him of the bargain, is a sufficient compliance with the terms of the statute, to make the contract of sale binding on

r Per Eldon C. J. in 2 Bos. & Bul. 289. s Saunderson v. Jackson and another, 2 Bos. & Pul. 238.

t See Champion v. Plummer, 1 Bos. & Pul. N. R. 254.

u Per Ellenborough C. J. delivering the opinion of the court in Hinde v, Whitehouse, 7 East, 569.

(14) Lord Mansfield C. J. and Wilmot J. in Simon v. Metivier, 1 Bl. R. 599. were inclined to think, that sales by auction were not within the statute, on the ground, that the solemnity of that kind of sale, and the number of persons present, precluded al perjury as to the fact of sale. But see the judicious remarks of Ellenborough C. J. on this opinion, and the reasoning on which it is founded, in Hinde v. Whitehouse, 7 East, 569. See ante, p. 766. under the 4th clause of the 4th section, as to sales of land by auc

each (15). But the memorandum by the auctioneer must be a sufficient memorandum; for where at a sale by auction of sugars, the auctioneer (having before him the printed catalogue of sale, containing the lots, marks, and number of hogsheads, and the gross weights of the sugars; and also another written paper containing the conditions of sale, which latter he read to the bidders, as the conditions on which the sugars were to be sold; but the two papers were neither externally annexed nor contained any internal reference to each other,) wrote down on the catalogue the name of the highest bidder, and the sum bid for the particular lots; it was holden, that the minute made on the catalogue of sale, (which catalogue was not by any reference incorporated with the conditions of sale,) was not a suthcient memorandum of a bargain under those conditions of sale. But where goods were sold by auction to an agent, and the auctioneer wrote the initials of the agent's name, together with the prices, opposite the lots purchased by him, in the printed catalogue, and the principal afterwards, in a letter to the agent, recognised the purchase, it was holden, that the entry in the catalogue, and the letter, coupled together, were a sufficient memorandum of the

contract.

In Boydell v. Drummond, 11 East, 149., it was holden, that the signature of the defendant, in a book entituled "Shakespeare Subscribers, their signatures," not referring to a printed prospectus which contained the terms of the contract, and which was delivered at the time to the subscribers to the Boydell Shakespeare, could not be connected with the prospectus, so as to take the case out of the statute, inasmuch as such connection could not be established without the intervention of parol evidence, and that would open a door for perjury, which it was the object of the statute to prevent.

If on a sale by auction of goods the same person is declared the highest bidder for several lots, a distinct contract x Hinde v. Whitehouse, 7 East, 558.

y

Phillimore v. Barry, 1 Camp. N. P. C.

513.

(15) In like manner, the memorandum in a broker's book, and the bought and sold notes transcribed therefrom, and d livered to the buyers and sellers respectively, are sufficient to bind the bargain, the broker being considered as the agent of both parties. Rucker v. Cammeyer, 1 Esp. N. P. C. 105. ruled by Kenyon C. J. on the authority of Simon v. Metivier; and per Ellenborough C. J. in Hinde v. Whitehouse, 7 East, 569. S. P.

arises for each lot; and although all the lots together purchased by the same person exceed 107. in value, yet if the lots are separately of less value than 107. a memorandum in writing is not necessary".

It is to be observed, that neither the 4th nor 17th sections of this statute require, that the agent should be authorized by writing. A parol authority, therefore, is sufficient (16). But the character of agent cannot be supported by one of the contracting parties.

III. The fifth and sixth Sections relating to the Execution and Revocation of Wills.

5th Section." All devises and bequests of any lands or "tenements, devisable either by force of the statute of "wills, or by this statute, or by the custom of Kent, or of "any borough, or any other particular custom, shall be in "writing, and signed by the party so devising the same, or "by some other person in his presence, and by his express "directions, and shall be attested and subscribed in the presence of the devisor, by three or four credible wit 66 nesses, or else they shall be utterly void and of none "effect."

66

All devises of any lands or tenements.] Although these words are very general, yet it has been holden, that copyhold land and customary estates, passing by surrender, are not comprehended within them. In these cases, the estate is considered as passing by the surrender, of which the will only directs the uses. Consequently, it is not necessary that such will should be executed with the solemnities required by this statute. Hence, a mere draught of a will, the signing and publication of which were prevented by the

z Emmerson v. Heelis, 2 Taunt. 38.
a Per Kenyon C. J. in Rucker v. Cam-

meyer, 1 Esp. N. P. C. 106. See
also Emmerson v. Heelis, 2 Taunt.
46.

b Wright v. Dannah, 2 Camp. N. P. C.

903.

c Roe d. Gilman v. Heyhoe, 2 Bl. R. 1114. See also the Attorney-general v. Barnes, 2 Vern. 598. Attorney

general v. Andrews, 1 Ves. 295. Tuffnell v. Page, 2 Atk. 37.

d Doe d. Cook v. Danvers, 7 East, 299. Cary v. Askew, coram Sir L. Kenyon, M. R. May 9, 1786. 2 Bro. C. C. 58. and in a note to Wagstaff v. Wagstaff, 2 P. Wms. 259. Cox's ed. recognized by Ellenborough C. J. in 7 East, 324.

(16) The third section, relating to assignments and surrenders of leases, &c. requires that the agent should be authorized by writing.

sudden death of the testator, has been holden sufficient to pass copyhold land surrendered to the use of the will.

N. By the 12th section of this statute, "Estates pur "auter vie are devisable by will in writing, signed by the devisor, and attested by three witnesses, as in the fifth " section."

66

Shall be in writing.] This provision is merely a repetition of what had been required by the stat. 32 H. 8. c. 1. which first gave the power of disposing of land by will. But writing was the only solemnity which that statute required (17). Hence, before the statute of frauds, short notes, taken by a lawyer from the testator's mouth, for the purpose of being reduced into form, were holden to be a good will, though the testator died before they were so reduced into form. In like manner, a scrap of writing, though it was not signed, sealed, or written, by the testator, might have been established as a will by the testimony of a single witness. This did in fact happen in a very remarkable case, that of Sir Francis Worseley's will. One Baynham, of Gray's Inn, wrote a will for Sir Francis Worseley, which will was in loose sheets, dictated by Sir Francis, who had neither signed nor sealed the same, though the writing itself purported both; but Sir Francis, who intended to write the same over again, had said, that in the mean time that should be his will. N. Baynham was the only witness: the court conceived this to be a sufficient will.

It has been conjectured by a very eminent lawyers, that the preceding case, which was decided in 18 Car. 2., might have occasioned the introducing the fifth section of the statute of frauds, the provision of which (viz. 1st, That the will shall be signed by the testator, and 2dly, That it shall be attested and subscribed by three credible witnesses in the presence of the testator) point directly at the two griev ances in Sir Francis Worseley's case.

And signed by the party devising.] What shall be con

el Anderson, 34. cited by Ld. Ellen

borough C. J. 7 East, 324.

lessee of Gerard v. Ld. Manchester, 18 Car. 2.

f Reported in 1 Sidf. 315. pl. 33. 2 Keb. g Ld. Camden in Hindson v. Kersey. 128. pl. 82. by the name of Stepheus,

(17) Blackstone, in his commentaries, B. 2. c. 23. observes, that many frauds and perjuries were introduced by this stat. 32 H. 8. and remarks on the difficulty and hazard, even in matters of public utility, of departing from the rules of the common law, which are 39 nicely constructed and artificially connected, that the least breach in any one disorders for a time the texture of the whole.

sidered as a sufficient signature within this clause, will appear from the following casesh. The devisor wrote his will with his own hand, thus: "I, John Stanley, make this my last will and testament," and thereby devised the land in question, and put his seal thereto, but did not subscribe his, name. The will was subscribed by three witnesses in his presence. This was holden to be a good will to pass the land; for the will having been written by the devisor, and his name being in the will, it was a sufficient signing within the statute, which has not appropriated any particular place in the will, where it shall be signed, either at the top, or bottom, or in the margin (18).

It seems, that if the devisor cannot write, a mark made by him will be a sufficient signing within the statute (19).

Whether the devisor, by merely affixing his seal to the will, can be considered as having sufficiently signed within the meaning of the statute, seems to be a vexata quæstio. Affirmed per North, Wyndham, and Charlton, in Lemayne

h Lemayne v. Stanley, 3 Lev. 1. Adjudged after several arguments by the whole court, sc. North C. J. Wyndham, Charlton, and Levinz, Js.

i

on special verdict in ejectment, Easter T. 1681. C. B.

See in Lemayne v. Stanley, Freem. 538. a dictum to this effect.

(18) See the opinion of Lord Mansfield C. J. in Right v. Price, Doug. 241. where the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it; and the will was read over to the testator, who set his mark to the two first sheets, and attempted to set it to the third, but being unable, from the weakness of his hand, he said he could not do it, but that it was his will; and, on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets, but was not able. Lord Mansfield C. J. observed, that "the testator, when he signed the two first sheets, had an intention of signing the others, but was not able. He therefore did not mean the signature of the two first as the signature of the whole will consequently there never was a signature as of the whole." N. The case was ultimately decided on another ground.

(19) See Harrison v. Harrison, 8 Ves. jun. 185. where it was holden by Lord Eldon C. on the authority of Gurney v. Corbet*, C. B. 1710, that a will was duly executed to pass freehold land, although one witness only had subscribed his name, and the other two had attested by setting their marks. See also Addy v. Grix, coram Sir W. Grant M. R. 8 Ves. jun. 504. S. P.

* Not printed, but said by Ld. Eldon to be in a note book which was the property of Mr. J. Burnet.