(s) See p. *41.
1 But in Lord Nottingham's MS. report of the ease of Ash v. Abdy (1678), printed in 3 Swanst. 644, he remarks: "And I said that I had some reason to know the meaning of this law, for it had its first rise from me, who brought the bill into the Lords' House, though it afterwards received some additions and improvements from the judges and civilians." In Gilbert's Rep. in Eq. 171, "Sir Matthew Hale and Sir Leoline Jenkins, who prepared this statute," are referred to, but Lord Mansfield, in Windham v. Chetwynd, 1 Burr. 418, doubted Lord Hale's authorship of the statute, as "it was not passed till after his death, and was brought in, in the common way, and not upon any reference to the judges;" and Lord Campbell, in his Lives of the Chancellors, refers to the statute as deserving more praise for its general design than for the manner in which it was executed: vol. 3, p. 418.-r.
For a fuller account of this famous statute and of its application or adoption in the British Colonies, see Reed, Statute of Frauds, chap. I.
The chief object of passing the statute was, to prevent the facility to frauds, and the temptation to perjury, held out by the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses. How great this temptation and facility in their own nature are, is obvious; and, accordingly, the statute, in the 1st section, declares its own enactment to be "for the prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury and subornation of perjury;" and then it goes on to provide for various cases, in which it was apprehended that such practices were most likely to occur. The 1st of the twenty-five sections of which it consists is levelled at parol conveyances of land, and contains the celebrated enactment, of which you have doubtless often heard, that they shall create estates at will only. The 2d section excepts from this enactment the case of leases not exceeding three years from the making thereof, and reserving two-thirds of the annual value as rent.
The 3d section forbids parol assignments, grants, or surrenders; the 5th is levelled at unattested *devises; the 6th at secret revocations of devises; the 7th at parol declarations of trust; the 19th and 20th against nuncupative wills of personalty; and the 21st against verbal alterations in written wills.
But the two sections which mainly affect contracts, and which, consequently, are chiefly important to the subject of this Lecture, are the 4th and 17th.
1 The defence of the Statute of Frauds is personal, and can only be relied on by the parties or their privies: Chicago Dock Co. v. Kinzie, 49 111. 289. Contracts within the Statute of Frauds are not illegal, unless put in writing; but only not capable of being enforced-an immunity which the defendant on the trial may waive : Montgomery v. Edwards, 46 Vt. 151.-s.
The 4th section enacts - "That no action shall be brought 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 miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or 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."
The contracts provided for by this section are, therefore, as you will have observed1st. Promises by an executor or administrator to answer damages out of his own estate.
*2d. Promises to answer for the debt, default, or miscarriage of another person.
3d. Agreements made in consideration of marriage.
4th. Contracts or sales of lands, tenements, or hereditaments, or any interest in or concerning them.
5th. Agreements not to be performed within the space of a year after the making thereof.
The latter part of the section applies equally to each of these five sorts of contract, which are equally prohibited from being made the subject-matter of action, unless the agreement or some note or memorandum of it shall be in writing, signed by the party to be charged or some person thereunto by him lawfully authorized.
Sustain it, that promise would be nudum pactum as to him. The statute never meant to enforce any promise which was before invalid, merely because it was put in writing. The *obligatory part is indeed the promise, which will account for the word promise being used in the first part of the clause; but still, in order to charge the party making it, the statute proceeds to require that the agreement (by which must be understood the agreement in respect of which the promise was made) must be reduced into writing. And indeed it seems necessary for effectuating the object of the statute, that the consideration should be set down in writing as well as the promise; for, otherwise, the consideration might be illegal, or the promise might have been made upon a condition precedent, which the party charged may not afterwards be able to prove, the omission of which would materially vary the promise, by turning that into an absolute promise which was only a conditional one; and then it would rest altogether on the conscience of the witness to assign another consideration in the one case, or to drop the condition in the other, and thus to introduce the very frauds and perjuries which it was the object of the Act to exclude, by requiring that the agreement should be reduced into writing, by which the consideration as well as the promise would be rendered certain."1 The point, however, actually de1 The decisions upon this point have been various and often in the same State have been conflicting. The English cases are stated in the text. Outside of Great Britain it would appear that it has been considered necessary, apart from precise statutory directions for the consideration to appear in the memorandum in Canada, Gerow v. Clark, 9 U. C. Q. B. 223, and in Alabama, Rigby v. Norwood, 34 Ala. 132; Delaware, Weldin v. Porter, 4 Houst. 239; Illinois, Prather v. Vineyard, 9 111. 48; Patmorr. Haggard, 78 111. 609; Maryland, Ordeman v. Lawson, 49 Md. 155; Culbertson v. Smith, 52 lb. 634; and Wisconsin, Taylor v. Pratt, 3 Wis. 692. The weight of authority in America, however, is the other way, and it has been held that unless expressly required by statute the memorandum need not express the consideration in the United cided in Wain v. Warlters, is no longer law as to the particular description of contracts to which that case