The Statute of Frauds and Perjuries, passed in the twenty-ninth year of Charles the Second, was intended as an effectual prevention of all the more common frauds practised in society. But a great diversity of opinion, as to its effect, has existed both in England and in this country, (a) Provisions substantially similar, however, have been made by the States of this country, although in no one State is the English statute exactly copied. The questions which have arisen under this statute are almost innumerable; and the great variety of cases leave some of them as yet unsettled. But the statute has had a most important operation upon a great variety of contracts; especially upon those of sale and guaranty; and we must endeavor to present the results of the widely extended adjudications on the subject.

The two sections which peculiarly affect the law of contracts", are the fourth and the seventeenth. By the fourth section it is enacted, that "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 any agreement made upon consideration of marriage; or upon any contract for the sale of lands, tenements, * or hereditaments, or any interest in or concerning them; 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." By the seventeenth section it is enacted, that "no contract for the sale of any goods, wares, or merchandises, for the price 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 to bind the bargain, or in part 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."

(a) Some courts and jurists have supposed that this statute has caused or permitted as many frauds as it has prevented. It is, however, asserted that a court of equity will never permit it to he used as a means of committing a fraud. Ryan v. Dorr, 34 N. Y. 307.

It is obvious, that the most general purpose of these sections is, to permit no party to bind himself except by a written promise, signed by him; because this will secure an exact statement and the best evidence of the terms and conditions of the promise, (a) Let us then first consider what signing is held to be sufficient; then what the agreement must contain and express; and then how it must be framed.

It was decided in the time of Lord Hardwicke that a substantial signing of the agreement was sufficient, although it was not literal and formal (b)1 Hence, if the agreement be not itself signed, but a letter alluding to and acknowledging the agreement is signed, this is sufficient (c) It is not, however,

(a) Browne, St. Frauds, § 346.

(b) See Welford v. Beazely, 3 Atk. 503.

(c) Tawney v. Crowther, 3 Bro. Ch. 161, 318; Saunderson v. Jackson, 2 B. & P. 238; Shipper v. Derrison, 5 Esp. 190; Phillimore v. Barry, 1 Camp 513; Allen v. Bennet, 3 Taunt, 169; De Beil v. Thomson, 3 Beav. 469; Macrory v. Scott, 5 Exch. 907; Gale v. Nixon, 6 Cowen, 445; Parker v. Parker, 1 Gray, 409; Toomer v. Dawson, Cheves, 68. And the letter may be sent to the plaintiff himself, or the acknowledgment may be contained in a letter sent to a third person. Welford v. Beazely, 3 Atk. 503. And the indorsement of an unsigned contract of sale by the vendee for the purpose of transfer will operate as a signature. Norman v. Molett, 8 Ala. 546. In Jackson v. Lowe, 1 Bing. 9, the purchaser of 100 sacks of good English seconds flour, at 45s. a sack, wrote to the vendors as follows: "I hereby give you notice, that the flour you delivered to me, in part performance of my contract with you for 100 sacks of good English seconds flour, at 455. per sack, is of so bad a quality that I cannot sell it, or make it into salable bread. The sacks of flour are at my shop, and you will send for them, otherwise I shall commence an action." To which the vendors answered by their attorney: "Messrs. L. & L. consider they have performed their contract with you so far as it has gone, and are ready to complete the remainder;

1 One signature may apply not only to the paper on which it is, but to another so attached thereto at the signing as to indicate the signer's intention to make it one paper. Ridgway v. Ingram, 50 Ind. 145; Commons v. Scott, L. R. 20 Eq. 11; Kronheim v. Johnson, 7 Ch. D. 60. - K.

* enough that the agreement be written by the party and, unless the flour is paid for at the expiration of one month, proceedings will be taken for the amount." Held, that the jury were warranted in concluding that the contract mentioned in the vendors' answer was the same as that particularized in the purchaser's letter, and that, therefore, the two writings constituted a sufficient memorandum of the contract under the 17th section of the statute of frauds. And see Fyson v. Kitton, Q. B. 1855, 30 Eng. L. & Eq. 374. So in Dobell v. Hutchinson, 3 A. & E 355, the purchaser of lands by auction signed a memorandum of the contract, indorsed on the particulars and conditions of the sale, and referring to them. Afterwards he wrote to the vendor, complaining of a defect in the title, referring to the contract expressly, and renouncing it. The vendor wrote and signed several letters, mentioning the property sold, the names of the parties, and some of the conditions of sale, insisting on one of them as curing the defect, and demanding the execution of the contract. Held, that these letters might be connected with the particulars and conditions of sale, so as to constitute a memorandum in writing, binding the vendor under the statute of frauds, although neither the original conditions and particulars, nor the memorandum signed by the purchaser, mentioned, or were signed by, the vendor. In Boy-dell p. Drummond, 2 Camp. 157,11 East, 142, the paper containing the signature was held not to refer with sufficient certainty to the paper containing the terms of the contract. - Where there is a prior insufficient or unsigned written contract, the plaintiff cannot avail himself of a subsequent letter from the defendant, in which, though the order for goods be recognized, the terms of the contract are renounced and disaffirmed. Thus, in Cooper r. Smith, 15 East, 103, there was a defective memorandum of a bargain for the sale of goods; but the defendant wrote a letter, in which, though he admitted the order, he insisted that the goods had not been delivered in time; and it was held, that the letter did not supply the defects of the memorandum, and that it was not competent for the plaintiff to prove, by parol testimony, that it was not stipulated that the goods should be delivered within a given time. And this case was recognized in Richards v. Porter, 6 B. & C 437. There A sent to B, on the 25th of January, an invoice of five pockets of hops, and delivered the hops to a carrier to be conveyed to B. In the invoice, A was described as the seller, and B as the pur chaser of the hops. B. afterwards wrote to A as follows: "The hops I bought of A on the 23rd January are not yet arrived. I received the invoice; the last were longer on the road than they ought to have been; however, if they do not arrive in a few days, I must get some elsewhere." Held, that the invoice and this letter, taken together, did not constitute a note in writing of the contract to satisfy the statute of frauds. To the same effect is Archer v. Baynes, 5 Exch. 625. There the defendant verbally agreed to purchase of the plaintiff certain barrels of flour. The defendant afterwards wrote to the plaintiff, stating that he had received some barrels, which were not so fine as the sample, and were not the barrels he had bought, and that he would not have them. In answer the plaintiff wrote as follows: "Annexed you have invoice of the flour sold you last Friday. lam very much astonished at your finding fault with the flour. It was sold to you subject to your examining the bulk; and it was not until after you had examined it, and satisfied yourself both of the quality and condition, that you confirmed the purchase. What was forwarded you was the same you saw. Under these circumstances, you cannot, therefore, object to fulfil your agreement." The defendant replied as follows: " I beg to say, the barrels I have received is not the same I saw. I took a sample with me from the sample I have, and the barrels I saw was quite as fine as I compared them with, nor was they lumpy. Now the barrels I have received is all very lumpy, and none of them so fine as the same. If you will take them back and pay charges, I will with pleasure send them. There must be some mistake about them."Held, that the letters did not constitute a sufficient note or memorandum, in writing, of the contract, within the 17th section of the statute of frauds. Alderson, B., said: "No doubt if the letter of the plaintiff of the third of October, and of the defendant in answer, taken together, contained a sufficient contract, namely, one that would express all its terms, they would constitute a memorandum in writing within the statute. We have no difficulty, therefore, in coming to the conclusion, that these letters may be looked at for the purpose of seeing whether or not they contain a sufficient contract, to take the case out of the statute; but looking at them, we do not think they do. They do not express all the terms of the contract; and the case is in truth governed by himself, unless he also signs it. (d) If, however, he writes his name in *any part of the agreement, it may be taken as his signature, provided it was there written for the purpose of giving authenticity to the instrument, and thus operating as a signature; (e) * but not otherwise. (f) But an entry Richards v. Porter, which was cited in the course of the argument, and in which Lord Tenterden gave a similar decision as to a document of a similar nature which was then before him. There is a distinct refusal on the part of the defendant to accept the flour which he had bought of the plaintiff. It is clear from the Tetters that he had bought the flour from the plaintiff upon some contract or other; but whether he bought it on a contract to take the particular barrels of flour which he had seen at the warehouse, or whether he had bought them on a particular sample which had been delivered to him, on the condition that they should agree with that sample, does not appear: and that which is in truth the dispute between the parties is not settled by the contract in writing." See also Kent v. Huskinson, 3 B. & P. 233; Smith v. Surman, 9 B. & C. 561; Blair v. Snodgrass, 1 Sneed, 1. The letter, it seems, must be sent, and the memorandum completed before the action is brought. Bill v. Bament, 9 M. & W. 36. In that case, Martin, arguendo, contended, that a memorandum written after the commencement of the action was sufficient. But Parke, B., said: "With regard to the point which has been made by Mr. Martin, that a memorandum in writing after action brought is sufficient, it is certainly quite a new point, but I am clearly of opinion that it is untenable. There must, in order to sustain the action, be a good contract in existence at the time of action brought; and to make it a good contract under the statute, there must be one of the three requisites therein mentioned." But see Fricker v. Thomlinson, 1 Man. & G. 772.