(j) 2 Story, Eq. Jur. § 755. This view of Judge Story is criticised by Chancellor Johnson, Winn v Albert. 2 Me. Ch. Dec. 173, 174. (See the opinion of the Court of Appeals in the same case, 5 Md. 72.) Vide per Lord Bathurst, Ch., Popham v. Eyre, Lofft, 814.

(k) 1 Fonbl. Eq. b. 1, c. 3, § 8, note (d). Opinion of Johnson, Ch., in Winn v. Albert, ubi supra, where it is said that in these cases equity is able to grant relief upon the ground of waiver, and upon that only.

(l) Treatise of Equity, b. 1, c. 3, § 8. See Attorney-General v. Day, I Ves. Sen. 221. The jurisdiction of equity may be perhaps best supported upon this last-mentioned ground and that of waiver jointly; neither one, it is conceived, would have been sufficient without the other. And such would appear to be the view taken by Mr. Fonblanque in his note above cited.

(m) Lord Thurlow, Ch., Whitchurch v. Bevis, 2 Bro. Ch. 559, 566, 567.

(n) Child v. Godolphin, cited 2 Bro. Ch. 566, 568.

(o) A court of equity is bound to follow the law where the public interest is concerned; and, therefore, if a statute contain a general enactment, regulating the mode by which certain property shall be transferred, equity for the most part cannot, any more than a court of law, give effect to a transfer which is not in compliance with the statute. Knight Bruce, L. J., Hughes v. Morris, 2 De G., M. & G. 356. See Stoddard p. Hart, 23 N. Y. (9 Smith, 566.) says the plaintiff is right in asserting that this contract was made; but the court see that it is precisely such as the statute says shall have no force in this court, and the defendant rests on the statute. The court reply, that because the defendant admits such a contract as the law declares to be nowhere enforceable, they will enforce it The absurdity of such ruling struck the English courts quite early, and they were inclined to overrule the earlier decisions and refuse relief in such cases, (p) Now it may be considered, perhaps, established in England, (q) and more certainly in this country, (r) that relief would be refused in all cases of this kind; and a contract for the exchange of lands is as much within the statute of frauds as a contract for the sale of lands, (rr)

Much of this reasoning would apply to another question which has arisen under the statute of frauds, namely, whether a part performance of an oral contract takes it out of the operation * of the statute. It may be regarded as the prevailing rule in this country, that it has this effect (s) In Maine, Massachusetts,1 Tennessee, North Carolina, South Carolina, and Missouri, it seems to be otherwise; (t)2 and the rule is not very distinctly adopted in some other States. But generally it prevails, (u)

(p) See Whitchurch v Bevis, 2 Bro. C. C. 559; Moore v. Edwards, 4 Ves. 24.

(q) Mitf. PL 367; 1 Fonb. Eq. b. 1, c. 3, § 8, note (d); Blagden v. Brad bear, 12 Ves. 471. Lord Eldon, Ch., Rowe v. Teed, 15 id. 375.

(r) Argenbright v Campbell, 3 Hen. & M. 144, 160; Thompson v. Tod, Pet.

C. C. 388.

(rr) Purcell v. Miner, 4 Wallace, 513.

(s) Newton v. Swazey, 8 N. H. 9; Eaton v. Whitaker, 18 Conn. 222; Phil-lips v. Thompson, I Johns. Ch. 131; Caldwell v. Carrington, 9 Pet. 86; Dugan v. Getting*, 3 Gill, 138; Hall v. Hall, 1 Gill, 383; Netherly v. Ripley, 21 Tex. 434; Merethew v. Andrews, 44 Barb. 200; Mason v. Blair, 33 111. 194; Mahany v. Blunt, 20 la. 142; Chastain v. Smith, 30 Ga. 96; McLure v. Tenville, 89 Ala. 572; Taylor v. Millard, 118 N. Y. 244; Holmes v. Caden, 57 Vt 111; Anderson v Scott, 94 Mo. 637; Bnrlingame v. Rowland, 77 Cal. 315.

(t) Brooks v. Wheelock, 11 Pick. 439;

Wilton v. Harwood, 23 Me. 131; Allen v. Chambers, 4 I red. Eq 125; Ridley v. McNairv, 2 Humph. 174; Patton v. M'CIure, Mart. & Yerg. 333; Givens v. Calder, 2 Desans. 171 , Lnckett p. Williamson, 37 Mo. 388. See also White v. Ban nun, 86 Ky. 93; Holmes v. Holmes, 86 N. C 205.

(u) Caldwell v. Carrington. 9 Pet. 103. It is incumbent on the plaintiff to make out, by clear and satisfactory proof, a part performance of that very contract; it is not enough that the act relied on is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. Phillips v. Thompson, I Johns. Ch. 131; Beard v. Linthicum, I Md. Ch. Dec. 345; Mundorff v. Kilbourn, 4 Md. 459; Knoll v. Harvey, 19 Wis. 99; Mahany v. Blunt, 20 la. 142. As to what acts of part performance point sufficiently unequivocally to the alleged contract, see Sutherland v. Briggs, 1 Hare, 26 Where the statute of frauds is pleaded, and the

1 In Maine and Massachusetts, at the present day, suitable part performance would probably be held ground for enforcing specifically an oral contract in regard to land. See Douglass v Snow, 77 Me. 91; Potter v Jacobs, 111 Mass. 32, Barnes v. Boston, etc. R. R. Co. 130 Mass. 388.

2 And in Mississippi, Niles v. Davis, 60 Miss. 750.

Id some of the States, it is, however, confined within very narrow limits. Thus, in Pennsylvania, it is said that the land must be clearly designated, and notorious and exclusive possession taken in pursuance of the contract and maintained; and improvements, which constituted the consideration, made on the faith of the promised conveyance; and, generally, that part performance is not enough to take the case from the statute, if it can reasonably be compensated in damages, and that usually it does admit of compensation, (v) But if such strictness prevails there, the doors are thrown open far more widely in other States.(vv) l

*So it has been held, that a mere possession, without any improvement or expenditure, except for temporary purposes, and costing less than the received rents and profits of the land is not sufficient, (w)2 Nor is a delivery and possession plaintiff relies upon acts of part performance, he must allege the part performance in his bill of replication. Small v. Owings, I Md. Ch. Dec. 363. Where a written contract upon a matter within the statute of frauds is attempted to be enforced with a parol variation, on the ground of a part performance of it as varied, such part performance must have a distinct reference to the variation. Heth v. Wool-ridge, 6 Rand. 605, where Carr, J., argues strongly against the specific execution, in any case, of a contract (within the statute of frauds) contained partly in a writing which originally embraced the entire agreement between the parties, and partly in subsequent parol modifications of the written agreement. It was agreed between two brothers, that one of them, who was subject to epileptic attacks, should be supported during his life by the other, to whom, in consideration thereof, he was to give all his property, he having been supported accordingly, after his death, a conveyance of his property was decreed to the other brother. Rhodes v. Rhodes,