Under the English statute it has been held that only the enforceability, not the validity, of a bargain depends upon the satisfaction of the statute. It is even said that the only effect of the statute is to require certain evidence in order to prove the bargain. This view has been given currency by the learned author of the leading treatise on the Statute of Frauds,17 and has been expressed in the statute of Iowa referred to in the preceding section.18 It has also received sanction from expressions of distinguished judges.19 But it has more accurately

5Code (1907), Sec. 4289.

6 Milk' St. (1012), Sec. 3065.

7 Camp. L. (1916), Sec. 11981. The enactment of the Uniform Sales Act in 1913 substitutes "not enforceable by action" in the clause relating to sales of goods.

8Rev. St. (1913), Sec. 2630.

9 Rev. L. (1912), Sec. 1075. The enactment of the Uniform Sales Act in 1915 substitutes "not enforceable by action" in the clause relating to sales.

10Comp. St. (1915), p. 2615, {6. The Uniform Sales Act was passed in 1907.

11 Birdseye's Cum. &. Gilb. Cons. L. (1918), Personal Property Law, See. 31. The Uniform Sales Act was passed in 1911.

12Lord's Oreg. Laws (1910), Sec. 808. See Taggart v. Hunter, 78 Oreg. 139, 150 Pac. 738, 152 Pac 871, Ann. Cas. 1918 A. 128.

13Comp. L. (1907), {2467. The Uniform Sales Act was passed in 1917.

14Stat. (1915), Sec. 2307. The Uniform Sales Act was passed in 1911, and the Statute of Frauds in that Act is printed in the Wisconsin Statutes as 1684-t, Sec. 4; but the old statute declaring sales "void" if the statute is not satisfied is still printed as { 2308.

15Comp. St. (1910), Sec.Sec. 3751, 3752. The Uniform Sales Act was passed in 1917.

16 Jones v. Pettigrew, 25 S. Dak. 432, 127N.W.538. See infra, Sec. 531, n. 55, 56.

17 Browne on the Statute of Frauds.

18 In Reuber v. Neglea, 147 lows, 374, 126 N. W. 066, 968, the court said: "Our Statute of Frauds is a statute of evidence. It does not forbid an oral contract nor render an alleged oral contract void or invalid. It only forbids oral evidence of a contract which is within its provisions. It permits the plaintiff to call his adversary as a witness and to establish the alleged contract by his oral evidence if he can,"

19 Lord Blackburn in Maddison v. Alderson, 9 App. Cas. 467, at p. 488: been said: "The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy; " 20 for it seems that the effect of the statute is more far-reaching than a rule of evidence. In the first place a memorandum made after the beginning of the action will not satisfy the statute; 21 while on the other hand, parol evidence of a lost or destroyed memorandum is sufficient.22 Again, it is generally held that the statute must be affirmatively pleaded.23 If only a rule of

"I think it is now finally settled that the true construction of the Statute of Frauds, both the 4th and 17th sections, is not to render the contracts under them void, still less illegal, but is to render the kind of evidence required indispensable when it is sought to enforce the contract." Similar expressions are used by the court in Dennison p. Barney, 40 Colo. 442, 113 Pac. 619; Jacob v. Davis, 4 Ia. Ann. 39; Townwnd v, Hargraves, 118 Mass. 326; Crane v. Powell, 139 N. Y. 379, 24 N. E. 911; Hoaton v. Eldridge, 66 Ohio St. 87, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737; Jones c. Pettigrew, 26 8. Dak. 432, 127 N. W. 538.

20 Safe Deposit Ac. Co. p. Diamond Coal Ac. Co., 234 Pa. 100, 83 Atl. 64, 58.

21Bill v. Bament, 9 M. & W. 36; Lucas p. Dixon, 22 Q. B. D. 357; Bird p. Muuroe, 66 Me. 337, 347, 22 Am. Rep. 571. See also Purdon Co., p. Western Union Tel. Co., 153 Fed. 327. A contrary decision, under the section of the statute relating to land, is Remington p. Linthicum, 14 Pet. 84, 10 L. E. 364. See also Cash v. Clark, 61 Mo. App. 636; and infra, Sec. 590.

22 Van Boskerck v. Torbert, 184 Fed. 419, 107 C. C. A. 383; Woodruff Oil Ac. Co. p. Portsmouth Ac. Co., 246 Fed. 376,168 C. C. A. 439; Kleeman v. Collins, 9 Bush, 460,467.

23Carter v. Fischer, 127 Ala. 52, 28 So. 376; Ex ports Banks, 185 Ala. 276,

64 So. 74; Marsh p. Fricke, 1 Ala. App. 649, 66 So. 110; ElDorado Ice, etc, Mill Co. p. Kinard, 96 Ark. 186, 131 S. W. 460; Wolfskill p. Douglas, 127 Cal. xviii, 69 Pac. 987 (but see Fee-ney p. Howard, 79 Cal. 626, 632, 21 Pae. 984, 4 L. R. A. 826, 12 Am. St. Rep. 162); Dennison p. Barney, 49 Colo. 442, 113 Pac. 619; Taliaferro v. Smiley, 112 Ga. 62, 37 S. E. 106; Marks v. Talmadge, 8 Ga, App. 667, 69 S. E. 1131; Williams v. Johnson, 8 Ga. App. 651, 70 S. E. 89; Koenig v. Dohm, 209 111. 468, 476, 70 N. E. 1061; Hodges v. Bankers' Surety Co., 152 111. App. 372; De Montague v. Bach-arach, 187 Mass. 128, 132, 72 N. E. 938; Fee p. Sharkey, 59 N. J. Eq. 284, 44 Atl. 673; Crane p. Powell, 139 N. Y. 379,34 N. E. 911; Sanger v. French, 157 N. Y. 213, 51 N. E. 979; Brauer v. Oceanic Steam Nav. Co., 178 N. Y. 339, 70 N. E. 863; Agan v. Barry, 66 N. Y. App. Div. 101, 72 N. Y. S.667; Krell v. Stein, 127 N. Y. S. 160; Shea v. Keeney, 140 N. Y. 8. 912, 155 N. Y. App. Div. 628; Hammings v. Doss, 125 N. C. 400, 34 S. E. 511; Gtedwdl v. Hume, 16 Ohio C. C. 846 (but see Birchell v. Neaster, 36 Ohio St. 331); Suber p. Richards, 61 S. Car. 393, 39 S. E. 540; Bailey p. Henry, 125 Term. 390, 143 S. W. 1124; Smith p. Ruohs (Term. Ch. App.), 64 8. W. 161; Citty p. Manufacturing Co., 93 Term. 276, 24 S. W. 121, 42 Am. St. Rep. 919; Hart p. Garcia (Tex. Civ. App.), 63 S. W. 921; Boohor p. Anderson (Tex. Civ. App.), 86 S. W. 966; Abba v.

evidence were involved this would be unnecessary. To be sure the requirement of a special plea is by no means universal; for in England at common law, and still in many jurisdictions of the United States, the defendant may take advantage of the statute under the general issue.24 In some of these cases the fact that the local Statute of Frauds declared that contracts within its terms were "void" is the decisive point. The words of the English statute also seem to express, if naturally construed, more than a rule of evidence. For these reasons it seems better to call the rule of the statute one of remedial procedure, somewhat analogous to the rule of the Statute of Limitations, rather than a mere rule of evidence.25