should be affixed in the proper place, such an instrument would not be a compliance with the statute, as it could not be considered as signed by them. Therefore, where articles of agreement contained the terms of a contract which was not to be performed within a year, purporting to be made between certain persons whose names were stated at the commencement of the articles, and who were described as the contracting parties, and concluded with the words, "As witness our hands," without being followed by any name or signature, they were held not to be sufficiently signed within the Statute of Frauds (u). And as a signature in print is good, so is a signature in pencil. This, indeed, was held in a case of a pencil indorsement of a promissory note, but it seems equally applicable to the signature required by the Statute of Frauds (x). The signature is to be that of the party to be charged; and, therefore, though, as I have pointed out to you, both sides of the agreement must appear in the writing, the consideration as well as the promise, it is not necessary that it should be signed by both the parties; it is sufficient if the party suing on it is able to produce a writing signed by the party whom he is seeking to charge (y). The person who seeks to enforce the agreement has not the other altogether at his (u) Hubert v. Treherne, 3 M. & G. 743. (x) Geary v. Physic, 5 B. & C. 234. (y) Laythoarp v. Bryant, 2 Bing. N. C. 735. mercy, but must fulfil his own part of the agreement before he can seek performance on the part of the person who has signed (2). But although the written memorandum may be made and signed subsequently to the making of the contract (a), yet it must exist before an action is brought upon it (b). compliance The last point I shall mention common to all the Effects of noncontracts falling within this section regards the con- with statute. sequence of non-compliance with its provisions. This consequence is, not that the unwritten contract shall be void, but that no action shall be brought to charge the contracting party by reason of it (c). And cases may occur in which the contract may be made available without bringing an action on it; and in which, consequently, it may, though unwritten, be of some avail. Thus, for instance, if it has been partly executed, Courts of Equity will enforce its complete performance (d); and if money have been paid in pursuance of it, that payment is a good one for all purposes: thus, where £100 was paid by the incoming tenant to the outgoing one, partly for himself, and partly for the landlady, in (z) Reuss v. Picksley, 35 Laythoarp v. Bryant, supra. L. J. (Ex.) 218, Ex. Ch. (a) Leroux v. Brown, 22 L. J. (C. P.) 1; 12 C. B. 801. (b) Bill v. Bament, 9 M. & W. 36, quære,-see Fricker v. Tomlinson, 1 M. & G. 772. (c) Per Bosanquet, J., in See In re Hilliard, 2 D. & L. (d) Sugden, V. & P. c. 3, s. 7. pursuance of a verbal agreement, and the incoming tenant refused to pay the landlady her share, saying that there was no writing, and that words were but wind, the landlady brought her action, and Lord Ellenborough non-suited her, on the ground that the agreement, being for an interest in land, ought to have been in writing; but the Court of Queen's Bench set aside the non-suit, with Lord Ellenborough's own concurrence (e). And where, to an action for goods sold, the defendant pleaded an agreement that, in consideration of the defendant giving up possession of certain premises and stockin-trade, the plaintiff should pay him £100, and also discharge him from all debts and causes of action, which premises had been given up and the £100 paid; it was decided that this accord and satisfaction might be proved by parol; although, if it had been required to enforce the delivery up of possession of the premises, a writing might have been necessary (f). An instructive case has recently been decided upon the point now under consideration. A parol contract had been entered into in France, by which the defendant, who resided in England, agreed with the plaintiff, a British subject residing in France, to employ the plaintiff as the defendant's agent to collect eggs and poultry in France, and to send them over to the defendant (e) Griffith v. Young, 12 East, 513. See Cocking v. Ward, 1 C. B. 858. (f) Lavery v. Turley, 30 L. J. (Ex.) 49. in England, the service to be for one year from a future day, at £100 a-year. This contract, although not being in writing, it could not be enforced by action in England, was valid in France, and as such, by the comity of nations, would in its nature be valid in England; yet, upon the principle that the 4th section of the Statute of Frauds does not invalidate the contract, but relates to the mode of procedure only, the Court of Common Pleas held that the action would not lie (g). I have now pointed out to you the matters in which all simple contracts agree, and the practical differences which exist between the effect of written and that of parol contracts, although both sorts fall within the denomination Simple Contracts. I have described the consequences which follow from the rules of evidence upon the reduction of any contract whatever into writing; as well as those consequences which follow from the provisions of the Statute of Frauds, in the cases to which it is applicable. (g) Leroux v. Brown, 22 L. J. (C. P.) 1; 12 C. B. 801. 94 Sect. 4. executors and adminis trators. LECTURE III. THE FOURTH SECTION OF THE STATUTE OF FRAUDS. -PROMISES BY EXECUTORS AND ADMINISTRA TORS. GUARANTIES.-MARRIAGE CONTRACTS. CONTRACTS FOR THE SALE OF LAND.-AGREE- I HAVE now touched on the points which equally apply to each of those five species of contracts to which the 4th section of the Statute of Frauds relates; those, namely, which regard the appearance in the writing of the consideration and other terms as well as the promise, the signature which the statute requires, and the consequences of not reducing into writing contracts which the statute requires should be so evidenced. It remains, before terminating the consideration of that section of the Act, to consider each of the five particular species of contracts to which it applies. The first is-any special promise by an executor or administrator to answer damages out of his own estate. The principal case on this subject is Runn v. Hughes (a), which went up to the House of Lords. (a) 7 T. R. 350, n. ; 4 Bro. C. C. 27. Forth v. Stanton, 1 Wms. Saund. p. 211, n. 2. |