The theory of the statute of frauds that best explains the greatest number of cases is that it is essentially a rule of evidence, and has no effect of any kind upon the formation of the contract, but solely on the means whereby it is to be proved.1 It is not strictly correct to call an oral contract within the statute either void or voidable. It is, indeed, unenforceable, but only because proof is impossible for want of proper evidence ; and this, only if the statute is taken advantage of at the trial in a proper manner.2 The contracts enumerated in the fourth section of the statute of frauds are not required by the Common

5Bernier v. Mfg. Co., 71 Me. 506; 36 Am. Rep. 343; King v. Welcome, 5 Gray (Mass.) 41; Lemon v. Randall, 124 Mich. 687: 83 N. W. 994.

6 Lemon v. Randall. 124 Mich. 687; 83 N. W. 994.

7 Leach v. Ritzke. 86 111. App. 483.

8 Campan v. Lafferty, 43 Mich. 429; 5 X. W. 648.

1 Merchant v. O'Rourke, 111 la. 351; 82 X. W. 759; Townsend v. Hargreaves, 118 Mass. 325; Stone v. Dennison, 13 Pick. (Mass.) 1; 23 Am. Dee. 654; Third National Bank v. Steel, 129 Mich. 434; 88 X. W. 1050: Heaton v. Eldridge, 56 O. S. 87; 60 Am. St. Rep. 737; 36 L. R. A. 817; 46 X. E. 638.

2 See Sec. 752.

Law to be in writing or to be proved by writing. Accordingly, in jurisdictions where the statute is not in force, oral contracts of these classes are enforceable,' such as oral contracts for the sale of realty.4 Where this theory of the statute obtains an oral contract within the statute of frauds in force where such contract is made and is to be performed may be enforced in another jurisdiction where such statute is not in force.5 In some jurisdictions, however, the statute of frauds is said to affect the contract itself and not merely the means whereby it is to be proved.6