1 Payment of the purchase-money of land by several years of labor for his father after his majority, followed by actual possession and the making of permanent and valfurther than this, it may do justice between any two parties in any particular case; but it is in danger of doing for them illegal justice, and therefore of doing injustice to the whole community.

Under the clause in the 4th section of the statute, prohibiting any action to be brought charging any person, upon any agreement made in consideration of marriage, unless the agreement or some note or memorandum thereof be in writing and signed by the party to be charged, the marriage itself is not a part performance of the contract to take it out of the statute, (h)

It may be added, that there are in the books many instances in Which equity has satisfied the justice of the case before it, in * apparent disregard of other provisions of the statute of frauds. Thus, an executor having promised a testator to pay a legacy, and told him that he need not put it in his will, was held to pay it himself, (i) But even law, in an analogous case, has sustained the somewhat equitable action of assumpsit For when a testator intended to provide by will for felling timber, to raise money for his younger children, and his eldest son desired him not to disfigure the estate, and promised to provide the money; after the death of the father, the younger child brought an action of assumpsit against the heir, and it was held, that it could be maintained. (j)1 But most of these cases would come under equity jurisdiction as grounded on fraud, (k)

(h) Montacute v. Maxwell, 1 P Wms. 616. See Argenbright v. Campbell, 3 Hen. & M. 144. But where by a parol antenuptial contract it was agreed, in consideration of the marriage, that the intended husband should have certain bonds and other securities, the property of the lady, and should allow her during her life the interest thereon as pin-money; and, after the marriage of the parties, and the death, first, of the wife, and then of the husband, upon a bill filed by the administrator of the wife against the husband s executor, praying that the bonds, etc., should be delivered up to the plaintiff (who, apart from the contract in question, was entitled to them under the laws of the State as chosea in action, not reduced into possession by the husband), it was held by the Court of Appeals, reversing the decision of the Chancellor (3 Md. Ch. Dec. 119), that the bill should be dismissed. Crane v. Gough, 4 Md. 316. The contract was there treated as one which had been executed; and the court refused to use the statute of frauds as an engine to oust the defendant from the position which he was considered as holding by virtue of such executed contract. An agreement in consideration of marriage was held to be taken out of the statute by part performance, in Surcome v. Pinniger, 3 De G., M. & G. 571, 17 Eng. L. &Eq. 212.

(i) Oldham v. Litchford, 2 Vera. 506; Reech v. Kennigate, Ambl. 67.

liable improvements on it, under an oral contract by the father to convey, to take effect at his death, take the agreement out of the statute of frauds and entitle the son to specific performance. McDowell v. Lucas, 97 111. 489. So, too, where the son abandoned his intended removal to another State because of domestic disagreement, relinquished $I,000 offered to him for that purpose by his wife's father, took possession of land bought for him by his father, with the deed in the latter's name, repaired the house and fences, made gates, put in a pump, raised a crop, but died before his family occupied the place, it was held that his heirs were entitled to specific performance. Bohanan v. Bohanan, 96 111. 591. To same effect, see Langsston v. Bates, 84 111 524; Worth v. Worth, id. 442. Laird v. Allen, 82 111. 43; Harless v. Petty, 84 Ind. 269, where the relief was denied only for lack of a demand for a conveyance •, Lnfollett v Kyle, 51 Ind. 446, where-the son was an infant at the time of the agreement* Hardesty- v. Richardson. 44 Md. 617; Twin v. George, 33 Mich. 253; Hagar v. Hagar, 71 Mo. 610; Hiatt v. Williams, 72 Mo. 214. See Bechtel v. Cone, 52 Md 698; Benson v Cutler, 53 Wis. 107. See Pomeroy, Eq. Jar. g 1409. - K.

Still another class of questions arises under the equity jurisdiction, as grounded on mistake. Undoubtedly, equity will correct a mistake of either party, if it be material, and would, if known, have prevented or materially varied the contract. It will, as is said, "reform" the contract and enforce it as reformed. But the question has often come before our courts, whether oral evidence can be received to show the mistake, and thereby make it in fact a new contract, when an oral contract would be void or not enforceable by the statute of frauds. The course of adjudication is not uniform on this point. But while it cannot be denied that numerous authorities support a disregard of the statute in such cases, (I) others maintain its * authority, (m) We should say, on principle, that if a material part of a contract is not written, that contract is not written; and if it be one which the statute declares of no force unless written, courts of equity have no rightful power to give it force.2

(j) Dutton v. Poole, 2 Lev. 210,1 Vent 318

(k) Reech p. Kennegal, 1 Ves Sen. 125.

(l) Gillespie v. Moon, 2 Johns Ch. 585;

I Story, Eq. § 161 and note : 1 Green 1. Ev. § 296. a; Johnson, Ch., Philpott v. Elliott, 4 Md. Ch. Dec. 273; Moale v. Buchanan,

II Gill & J. 314, 325, which, however, was a case where there was a part performance of the contract; and this is a distinction to which importance has been attached. Coles v. Bowne, 10 Paige, 535. See Bellows v. Stone, 14 N. H. 201, per Parker, C. J. Bat in jurisdictions where this doctrine is entertained, it is held, that there must be clear proof, not only of the fact that a mistake has been committed, and that the contract, as written, does not express the intention of the parties, but also of the precise stipulation proposed to be inserted, or other correction proposed to be made, philpott v. Elliott. 4 Md. Ch, Dec. 273; Hall v. Clagett, 2 Md. Ch. Dec. 151. And the court will not interfere to reform and enforce a contract, where the mistake is the result of the plaintiff's own omission of reasonable vigilance, and fraud is not proved upon the other party. Wood v. Patterson, 4 Md. Ch. Dec. 335. If the contract be altogether oral, equity cannot, on the ground of a supposed Jurisdiction to reform it, proceed first to rectify it, and then to enforce specific performance *, there must be some written expression of the contract to satisfy the statute. Johnson, Ch.,Gough v Crane, 3 Md. Ch. Dec. 135.