In a case decided in the same term in the Common Pleas, where growing turnips were sold, but no particular time was stated for their removal, nor did it appear what the degree of their maturity was, the court, without adverting to these circumstances, held it to be a sale of an intcrest in land within the statute (b). It must be admitted to be very difficult to distinguish the cases.

Lord

In a still later case (c), where potatoes stated to be then growing, on 31 acres of land, were sold by parol, at the rate of 251. per acre, to be dug and carried away by the purchaser, but no time was appointed for that purpose, it was decided that the contract was not within the statute. Ellenborough said, that if this had been a contract conferring an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it would be a contract for sale of an interest in or concerning lands, and would then fall unquestionably within the range of Crosby v. Wandsworth. But here is a contract for sale of potatoes at so much per acre, the potatoes are the subject matter of sale, and whether at the time of sale they were covered with earth in the field or in a box, still it was a sale of a mere chattel; it falls therefore within the case of Parker v. Stanyland, and that disposes of the point on the statute of frauds.

If an entire agreement be made for the sale of real and personal estate, and the agreement as to the land be within the statute and void, it cannot be supported as to the personal property which was sold with it (d).

(b) Emerson v. Heelis, 2 Taunt. 38.

(c) Warwick v. Bruce, 2 Mau. and Selw, 205.

(d) Cooke v. Tombs, 2 Anst.

420; Lea v. Barber, ib. 425, cited; see Chater v.Beckett. 8 Term Rep. 201; and see Neal v. Viney, 1 Camp. Ca. 471; Corder v. Drakeford, 3 Taunt. 382.

SECT.

SECTION II.

Of the Form and Signature of the Agreement.

We may now consider, first, what is a sufficient agree

ment; 2dly, what is a sufficient signature by the party or his agent; and 3dly, who will be deemed an agent lawfully authorized. And,

First then, it is to be observed, that the statute requires the writing to be signed only by the person to be charged; and therefore, if a bill be brought against a person who signed an agreement, he will be bound by it, although the other party did not sign it, as the agreement is signed by the person to be charged (e). This point has been established by the concurrent authority of the Lord Keeper North, Lord Keeper Wright, Lord Chancellor Hardwicke, Lord C. B. Smith, and Bathurst and Aston, Justices, when Lords Commissioners, Lord Chancellor Thurlow, Lord Chancellor Eldon, and Sir Wm. Grant. The legislature has expressly said, that the agreement shall be binding if signed by the party to be charged; and as

(e) Hatton v. Gray, 2 Cha. Ca. 164; Cotton v. Lee, 2 Bro. C. C. 564; Coleman v. Upcot, 5 Vin. Abr. 527. pl. 17; Buckhouse v. Crossby, 2 Eq. Ca. Abr. 32. pl. 44; Seton v. Slade, 7 Ves. Jun. 265; Fowle v. Freeman, MS. 9 Ves. Jun. 355. S. C.; see 1 Scho. and Lef. 20; and 11 Ves. Jun. 592; Western v. Russell, 3 Ves. and Bea. 187; and see Wain v. Warl

F 4

ters, 5 East, 10; Egerton v. Matthews, 6 East, 307, which do not impeach this doctrine; see particularly 5 East, 16; and Allen v. Bennet, 3 Taunt. 169. As to Wain v. Warlters, see Stadt v.Lill, 9 East, 348, 1 Camp. Ca. 242; Ex parte Minet, 14 Ves. Jun. 189; Ex parte Gardom, 15 Ves. Jun. 286; Bateman v. Philips, 15 East, 272

Lord

Lord Hardwicke has observed, the word party in the statute is not to be construed party as to a deed, but person in general (f); but there have been instances in which the want of the signature to the agreement by the party seeking to enforce it has been deemed a badge of fraud (g); but, perhaps, the transaction ought not to be viewed in that light, unless the other party called on the party who had not signed to execute it, in which case a refusal to sign might be held to operate as a repudiation of the contract ().

In a late case, Lord C. J. Mansfield observed, that in equity a contract signed by one party would be enforced, and it was not clear that it was different at law (i), The rule in equity, it is conceived, is founded simply on the words of the statute, which must be equally binding on the courts of law. There is not an objection which can be made to the rule as applicable to an action at law which will not apply with equal force to a suit in equity. In a later case, accordingly, upon the 17th section, the same learned judge observed, that every one knows it is the daily practice of the Court of Chancery to establish contracts signed by one person only, and yet a court of equity can no more dispense with the statute of frauds than a court of law can (k). Lord Eldon has observed, that equity has not upon these points gone farther than courts of law: what is the construction of the statute, what within the legal intent of it will amount to a signing, being the same questions in equity as at law. Upon that point, equity professing to follow the law, if a new question should arise, his Lordship said, that he would rather send a case to a court of law (1).

(f) See 3 Atk. 503.

(g) See O'Rourke v. Percival,

2 Ball and Beatty, 58.

(h) See 2 Ball and Beatty, 371.

(i) Bowen v. Morris, 2 Taunt.

374.

(k) Allen v. Bennet, 3 Taunt. 176.

(1) 18 Ves. Jun. 183.

If a written agreement has been in part executed, it seems that an agreement subsequently entered into between the parties, and reduced into writing, will bind them both, if signed by one of them (m).

A receipt for the purchase money may constitute an agreement in writing within the statute (n); and it has frequently been decided, that a note or letter will be a sufficient agreement to take a case out of the statute (o); but every agreement must be stamped before it can be read (p); and, as this ought to be done, the court will permit the cause to stand over to get the agreement stamped, and will assist either party in obtaining it for that purpose.

Thus, in Fowle v. Freeman (q), the agreement was sent by the vendor to his attorney, with a letter written at the bottom, directing him to prepare a technical agreement. The vendor afterwards refused to perform the contract, and the attorney would not deliver the agreement to the purchaser for the purpose of getting it stamped, contending, that it was a private letter to him; but the court, on motion, ordered it to be delivered to the purchaser for that purpose.

But if the agreement is admitted by the answer so as to dispense with the necessity of proving it, the office copy of the bill, or, if the defendant refuse to produce it, the record itself, may be read in support of the plaintiff's case, and need not be stamped, nor can the fact of the agreement not being stamped be taken advantage of (r).

(m) Owen v. Davies, 1 Ves. 82. (n) Coles v. Trecothick, 9 Ves. Jun. 234; Blagden v. Bradbear, 12 Ves. Jun. 466.

(0) Coleman v. Upcot, 5 Vin. Abr. 527. pl. 17; Buckhouse v. Crossby, 2 Eq. Ca. Abr. 32. pl. 44. (p) Ford v. Compton; Hearne ▾ James, 2 Bro. C.C. 32, 309.

(g) Rolls, March 8, 1804, MS. 9 Ves. Jun. 351. S. C. but not reported as to this point; See infra, ch. 4. s. 3; Clarke v. Terrel, 1 Smith's Rep. 399; Coles v. Trecothick, 9 Ves. Jun. 234.

(r) Huddleston v. Briscoe, 11 Ves. Jun. 583.

If, upon a treaty for sale of an estate, the owner write a letter to the person wishing to buy it, stating, that if he parts with the estate it shall be on such and such terms (specifying them); and such person, upon receipt of the letter, accepts the terms mentioned in it, the owner will be compelled to perform the contract in specie (s).

So, if a man (being in company) make offers of a bargain, and then write them down and sign them; and another person take them up and prefer his bill, that will be a sufficient agreement to take the case out of the statute (t).

But if it appear that, on being submitted to any person for acceptance, he had hastily snatched it up, had refused the owner a copy of it; or if, from other circumstances, fraud in procuring it may be inferred, it seems that in case of an action it will be left to the jury to say whether it was intended by the defendant, at first, to be valid agreement on his part, or as only containing proposals in writing, subject to future revision (u): and if the aid of equity be sought, these circumstances would have equal weight with the court. So in every case it must be considered, whether the note or correspondence import a concluded agreement: if it amount merely to treaty, it will not sustain an action or suit (x).

The note or writing must specify the terms of the agreement, for otherwise all the danger of perjury which the statute intended to guard against, would be let in.

Thus, upon the sale of nine houses which were in mortgage, the vendor wrote a letter to the mortgagee to this effect: "Mr. Leonard, pray deliver my writings to

(s) Coleman v. Upcot, 5 Vin. Abr. 527. pl. 17. see Gaskarth v. Lord Lowther 12 Ves. Jun, 107. (t) S. C. Per Lord Chancellor. (u) See Knight v, Crockford, 1

Esp. Ca. 189.

(x) Huddleston v. Briscoe, 11 Ves. Jun. 583. Stratford v. Bosworth, 2 Ves. and Bea, 341.

the