A question has been much agitated, and variously decided in cases where specific performance was sought, of contracts for the transfer of land, and, indeed, of other contracts, as to the' effect in equity of the statute of frauds upon such contracts. (x) l It will be seen, in our chapter on that statute, that * it declares that no action shall be brought to enforce a large number of contracts specifically enumerated, unless the same be in writing, (y) signed by the party sought to be charged. (z) It also provides, that all interests in lands, tenements, and hereditaments, except leases for three years, not put in writing and signed by the parties or their agents authorized by writing, shall not have, nor be deemed in law or equity to have, any greater force or effect than leases or entails at will. This statute, or important parts of it, as has been previously said, have been very generally enacted in the States of this country, with various qualifications.

(x) To comply with the statute, the whole contract must either be embodied in some writing signed by the party, or in some paper referred to in a signed document, and capable of being identified by means of the description of it contained in the signed paper. Subject to the rule just stated, oral evidence may be introduced to connect the two papers, but not to supply any part of the contract itself. Ridgway v. Wharton, 3 De G., M. & G. 677; Squire 0. Campbell, 1 Mylne & C. 480; Cliuan v. Cooke, 1 Sch.* & L. 22 (compare Forster v. Hale. 3 Ves. 636, 713 and note (2), by Hovenden); Hodges v. Horsfall. 1 Russ. & M. 116; Martin v. Pycroft, before Parker, V. C, 11 Eng. L. & Eq. 110; Moale v. Buchanan, 11 Gill & J. 322; Dorsey tr. Way man, 6 Gill, 59; Parrish v. Koons, I Pars. Eq. 79; Park-hurst v. Van Cortlandt, 1 Johns. Ch. 273; Madeira v. Hopkins, 12 B. Mon. 604. See Martin v Pycroft, on appeal, 2 De G., M. & G. 785, 15 Eng. L. & Eq. 376. Though the case is of a nature capable of adenuate remedy at law, yet if the statute of frauds stand in the way of relief at law, while there has been such a part performance as to exempt the case from the operatiou of the statute in equity, this is a motive for the court of equity to entertain a bill for specific performance. Pembroke v. Thorpe, 3 Swanst. 443, note. But the absence of a writing cannot be a ground of jurisdiction, though it may be a motive to exercise it; the court of equity only interferes where it has jurisdiction of the original subject-matter, namely, the contract; in which case the want of writing will sometimes not take away the jurisdiction. Lord Cottenham, Ch.; Kirk v. Bromley Union, 2 Phillips, 648. As to evidence of a contract in consideration of marriage, see 1 Fonb. Eq. c 3, § 10, note (k).

(y) An undelivered deed cannot avail as the memorandum of the agreement; although it was read and assented to by both parties, and delivery postponed only for a collateral object, as to obtain a release of dower by the vendor's wife. Parker v, Parker, 1 Gray, 409. But the contrary has been held in Virginia. Bowles v. Woodson, 6 Gratt. 76; Par-rill v. McKinley, 9 Gratt. 1; in neither of which cases, however, was the point necessarily involved in the decision. A will drawn in pursuance of an agreement to devise certain lands to the plaintiff, was executed; but, having been lost, so that it could not be established as a testamentary instrument, it was held it might be treated nevertheless as a memorandum of the contract; and, as such memorandum, its contents, the writing itself being destroyed or lost, might be proved by paroL Brinker v. Brinker, 7 Barr, 53.

(z) As to writings signed by an agent, or the agent of an agent, such as an auctioneer, see Kemeys 0. Proctor, 3 Ves. & B. 57; and the same case before Lord Eldon, L C, I Jacob & W. 359.

1 An oral agreement for the sale of an interest in an invention, before letters-patent are obtained, is not within the statute of frauds, as a contract for the sale of goods, wares and merchandise, and equity will decree its specific performance. Somerby v. Buntin, 118 Mass. 279.

The reasons for requiring written evidence of important contracts are so strong, that it is not surprising to find that rules founded upon these reasons have always existed, in one form or another, in almost all civilized countries, and in many that are not called so. (a) Courts of equity, before the statute, seldom gave relief unless the contract was in writing; (b) by the statutes of some of our States, conferring equity powers, it is expressly required; and it may be said to be a principle of equity jurisprudence at this day, to give far greater weight to a written contract,, and, practically, to require in almost every case that it should be written, (c) But it is held, that equity will decree specific performance of a contract which does not satisfy the- statute of frauds, if it be confessed in the answer, (cc)

* It is a principle of equity jurisprudence, that parol evidence is admissible to rebut, but not to raise, an equity; and this principle or rule gives rise here to an important distinction. Although, to resist a specific performance, a defendant may show by parol that the written document does not fully represent the contract between the parties, (d) and thus defeat the bill, or compel the plaintiff to accept a performance with a variation; (e)

(a) See 1 Greenl. Ev. § 262.

(b) See Lofft, 809.

(c) I Sugd. V. & P. c. 3, f 8, pl. 39; Rankin v. Simpson, 19 Pa. 471. See Rohson p. Collins, 7 Ves. 133; Davis p. Symonds, I Cox, C. C. 404; Ratcliffe v. Allison, 3 Rand. 537. But there is no rule of equity requiring contracts to be in writing; although there is, necessarily, a greater burden upon the party seeking the specific execution of an unwritten agreement, to establish its existence and terms clearly and satisfactorily. Alexander v. Ghiselin, 5 Gill. 183. There may be proof of a consideration additional, but not in contradiction to that expressed in a written agreement. See Clifford v. Turrell, 1 Younge & C, Ch. 148. A writing signed by the defendant as a proposal must be accepted without variation by the other party, before it is capable of being enforced as an agreement; and at any time before acceptance the defendant may withdraw from it. Thornbury v. Bevill, 1 Younge & C, Ch. 554; Kennedy v. Lee, 3 Meriv. 451.