Statute of Frauds: to what it extends. Parol leases the force of No action against executors, &c., upon a special promise, or upon any agreement or contract for Sect 1.-Of Parol Agreements and the Statute of I.-ENACTMENTS OF THE STATUTE OF FRAUDS. THE Statute of Frauds, 29 Car. 2, c. 3(a), enacts that: Sect. 1. "All leases, estates of freehold, or terms of years, or any uncertain (b) interest, of, in, to, 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 or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or 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 estates, or any former law or usage to the contrary notwithstanding" (c). Sects. 2 and 3 relate to parol leases not exceeding three years, and parol surrenders of leases: vide infra, tit. LEASES. Sect. 4. "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 sale of lands, any agreement made upon consideration of marriage (d): or (a) This celebrated statute owes its origin to Lord Nottingham, and seems in its progress to have received some touches from the hands of Sir M. Hale, and Sir Leoline Jenkins. See Ash v. Abdy, 3 Swanst. 664; and Whin v. Warlters, 5 East, at p. 17. (b) That is to say, uncertain as to duration in point of time: Wood v. Lake, Say, 3; 13 M. & W. 348. (c) Where a canal Act authorized the owners of land, set out for the canal, to contract for, sell, and convey the land to the company; and that all such contracts, &c. should be valid in law, any law or statute to the contrary notwithstanding, and that all contracts, &c. should be enrolled; and by a subsequent section, that, on payment of the sum agreed for or assessed, the lands and the fee-simple and inheritance thereof should be thenceforth vested in the company, it was considered that a conveyance in writing was not dispensed with by the Act: Doe d. Robins v. Warwick and Birmingham Canal Co., 2 Scott, 717; Earl of Harborough v. Shardlow, 7 M. & W. 87. (d) This clause does not apply to mutual promises of marriage: Cork v. Baker, 1 Str. 34; Harrison v. Cage, Lord Raym. 386 King v. Gillett, 7 M. & W. 55. A parol agreement to upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them (e): 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, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. Sects. 5 and 6 relate to the making and revoking of wills. (Repealed, except as to wills made before 1st January, 1838, 1 Vict. c. 26, ss. 2, 34.) Statute of Frauds : to what it extends. &c., unless agreement, writing and &c. be in signed. Sect. 7. "All declarations or creations of trusts or confidences Declarations or creations of of any lands, tenements, or hereditaments, shall be manifested trusts of lands and proved by some writing, signed by the party who is by law to be in writenabled to declare such trust, or by his last will in writing, or ing signed. else they shall be utterly void and of none effect." Proviso for transferred, or trusts arising, Sect. 8. "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 extinguished by implication or extinguished by an act or operation of law, then and in every of law. such case such trust or confidence shall be of the like force and effect as the same would have been had this statute not been made." of trusts shall Sect. 9. "All grants and assignments of any trust or confidence Assignments shall likewise be in writing signed by the party granting or be in writing. assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect." Sects. 10 and 11 relate to the payment of debts out of trust estates. Vide infra, tit. MORTGAGES. make a settlement in consideration of marriage is void: Randall v. Morgan, 12 Ves. at p. 73; see also Caton v. Caton, L. R., 2 H. L. 127. But a signed letter stating the terms of the intended settlement is sufficient to take the case out of the statute: Bird v. Blosse, 2 Vent. 361; Wankford v. Fotherley, 2 Vern. 322; see also Hammersley v. Baron de Biel, 12 Cl. & F. 45. (e) This section extends to an assignment as well as to interests created de novo out of an estate. Anon., 1 Vent. 361. Where A., having verbally agreed with B. for the purchase of houses, agreed by writing with C. to sell him the benefit of the bargain for 407., and C. obtained a conveyance, it was held that A. could recover the 401.; the transfer of the bargain, though it was one that was not enforceable, being a sufficient consideration: Seaman v. Price, 10 Moore, 34; see also Cocking v. Ward, 1 C. B. 858; Kelly v. Webster, 12 C. B. 283; Sanderson v. Graves, L. R., 10 Ex. 234. B.-VOL. I. T Statute of Sect. 12 relates to estates pur autre vie. (Repealed, to what it 1 Vict. c. 26.) extends. What con tracts for the sale of goods required to be in writing. In actions of debt or upon the case grounded upon contract no acknowledgment or promise shall be deemed Sects 13, 14, 15, and 16 relate to judgments, &c.: infra, tit. MORTGAGES. Sect. 17. "No contract for the sale of any goods, wares, and merchandizes, for the price (ƒ) 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 (g) 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 by such contract, or their agents thereunto lawfully authorized." Sect. 18 relates to recognizances. Sect. 19, 20, 21, to nuncupative wills. (Repealed 1. Vict. c. 26.) Sect. 22. Revocation of wills. (Repealed 1 Vict. c. 26.) Sect. 23. Soldiers' and mariners' wills. Sect. 24. Jurisdiction of the Ecclesiastical Courts. Sect. 25. Husbands not to be obliged to distribute the estate of their wives (h). By the stat. 9 Geo. 4, c. 14, intituled An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements, it is enacted (after reciting the Acts 21 Jac. 1, c. 16, and 10 Car. 1, sess. 2, c. 6 (i)— Sect. 1. "In actions of debt or upon the case grounded upon any simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments or either of them, or to deprive any party of the (f) See stat. 9 Geo. 4, c. 14, s. 7, infra, p. 276. (g) See Blenkinsop v. Clayton, 7 Taunt. 597; 1 J. B. Moore, 328. (h) Sects. 16-25 become sects. 15-24 in the Revised Statutes, but sect. 17 is so well known under that title that it is thought better to leave them as above. Sects. 1-4 of (i) 10 Car. 1, sess. 2, c. 6, was the Irish Act. the 9 Geo. 4, c. 14, are repealed so far as they relate to personal actions or actions of ejectment in the superior courts of law in Ireland (16 & 17 Vict. c. 113, s. 3), but are practically re-enacted by sects. 24, 25, 26 of that Act. Statute of to what it extends. less it be a benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and that where there shall be two or more joint contractors, or executors, or administrators of any sufficient contractor, no such joint contractor, executors, or administrators, evidence of a contract, unshall lose the benefit of the said enactments, or either of them, so as to be chargeable in respect or by reason only of any writing written acknowledgment or promise made and signed by any party chargesigned by the other or others of them: provided always, that nothing herein able. contained shall alter or take away, or lessen the effect of any ment by joint Acknowledgpayment of any principal or interest made by any person whatso- contractor not ever (k). Provided also, that in actions to be commenced against to bind the two or more of such joint contractors, or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts, or this Act, as to one or more of such joint contractors, or executors or recover administrators, shall nevertheless be entitled to recover against against one joint contracany other or others of the defendants, by virtue of a new acknow- tor though he ledgment or promise, or otherwise judgment may be given, and may fail against the costs allowed, for the plaintiff as to such defendant or defendants others. against whom he shall recover, and for the other defendant or defendants against the plaintiff.” others. Effect of partpayment not to be altered. Plaintiff may If defendant plead in abatement that any other person ought to be jointly sued, and it appears that the remedy against such person is barred by recited Acts or this Act, the Sect. 2. "If any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited Acts or this Act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." Sect. 3. "No indorsement or memorandum of any payment the party pleading. written or made after the time appointed for this Act to take Indorsements effect, upon any promissory note, bill of exchange, or other of payment by writing, by or on the behalf of the party to whom such payment party to whom shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes." issue shall be found against payment is made shall not take the case out of recited Acts. Recited Acts and this Act shall apply to Sect. 4. "The said recited Acts, and this Act, shall be deemed and taken to apply to the case of any debt on simple contract, alleged by way of set-off on the part of any defendant, either by simple conplea, notice, or otherwise." (k) See Waugh v. Cope, 6 Mec. & W. 824, and cases there cited. tract debts alleged by way of set-off. Statute of Sect. 5 relates to the confirmation of promises by to what it infants (1). extends. Action not tion of charac Sect. 6. "No action shall be brought whereby to charge any maintainable person upon or by reason of any representation or assurance on representa- made or given concerning or relating to the character, conduct, ter, &c., unless credit, ability, trade, or dealings of any other person, to the they be in intent or purpose that such other person may obtain credit, writing, money, or goods upon (m), unless such representation or assurance be made in writing signed by the party to be charged therewith (n). signed by the party charge able. Clause in Statute of Sect. 7 extends the clause in the Statute of Frauds Frauds exten- (sect. 17, supra, p. 274), and a similar clause in the Irish statute, 7 Will. 3, c. 12 (repealed by stat. 23 & 24 Vict. c. 154),— ded to con tracts for sale, &c. of goods, although delivery be not intended to be made immediately. Exemption of stamps. What matters within the Statute of Frauds. 37 & 38 Vict. c. 62, s. 2. be brought on ratification of infants' contract. "To all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." Sect. 8. "No memorandum or other writing, made necessary by this Act, shall be deemed to be an agreement within the meaning of any statute relating to the duties of stamps." Sect. 9. Act not to extend to Scotland. (7) This section is virtually repealed by the Infants' Relief Act, 1874, which enacts (sect. 2) that, "No action shall be No action to brought, whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy or upon any ratification made after full age of any promise, or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. (m) The Act is so printed: the word "credit" should probably be in this place instead of preceding the word "money." See the observations of Parke, B., and Lord Abinger, C. B., in Lyde v. Barnard, 1 M. & W. 115, 123. (2) This clause was fully discussed in Lyde v. Barnard, 1 Mee. & W. 101. |