§ 503. We have now to examine, in conclusion of this treatise, certain points of pleading which have presented themselves, some of them involving no little difficulty, in cases decided upon the Statute of Frauds. And in so doing, it will be convenient to inquire, first, how the declaration or bill should be framed, and, secondly, when and how the defence upon the statute may be taken.

§ 504. We have seen that in cases where the plaintiff is allowed to recover for money paid, services rendered, etc., in pursuance of a verbal contract, upon which, as being within the statute, he cannot maintain an action directly for damages, he must claim upon the implied obligation of the defendant to give compensation for what he has received.1 On the other hand, where he brings an action upon the contract of which a memorandum in writing has been duly executed, his count must of course be special, relying upon the contract itself.2

§ 505. It is now well settled in this country, that in a suit at law or in equity upon a contract affected by the statute, the declaration or bill will be sufficient if it allege a contract generally, without stating whether it is in writing or not. In a case in Massachusetts, the declaration, after setting forth that one F. owed the plaintiff the sum of sixteen dollars for labor and services performed by him for F., and that he was about to sue F. therefor, alleged "that the defendant, in consideration that the plaintiff would forbear to sue the said F., promised and agreed to pay the same to the plaintiff, and the plaintiff did forbear to sue the said F., and the defendant owes him the said sum." To this declaration the defendant demurred, assigning for cause "that the defendant's promise was void, as within the Statute of Frauds, it being to answer for the debt or default of another, and no agreement in writing or memorandum thereof was ever made or signed by the defendant, nor is any copy of any agreement set out by the plaintiff in his declaration." The lower court overruled the demurrer, and on appeal their judgment was sustained by the full bench. Metcalf, J., delivering the opinion of the court, said: "As this demurrer contains a traverse or denial of facts, it is wrong in form. But we do not overrule it for that reason. We treat it, as the counsel for the defendant treated it, namely, as a demurrer because the declaration, though it sets forth an agreement which is within the Statute of Frauds, does not allege that the agreement was in writing. This, however, is not a legal cause for demurrer. The Statute of Frauds has not altered the rules of pleading, in law or equity. A declaration on a promise which, though oral only, was valid by the common law, may be declared on in the same manner, since the statute, as it might have been before. The writing is matter of proof, and not of allegation."1

1 Ante, § 124.

2 Babcock v. Bryant, 12 Pick. (Mass.) 133; Quin v. Han ford. I Hill (N. Y.) 82; Beers v. Culver, 1 Hill (N. Y.) 589; Elder p. Warfield, 7 Harr. & J. (Md.) 391; Wagnon v. Clay, 1 A. K. Marsh. (Ky.) 257; Louisville Prize Mining Co. v. Scudder, 3 Col. 152.

1 Price v. Weaver, 13 Gray 273; and see Kibby v. Chitwood, 4 T. B. Mon. (Ky.) 91; Dayton v. Williams, 2 Doug. (Mich.) 31; Richards v. Richards, 9 Gray (Mass.) 313; Sanborn v. Chamberlin, 101 Mass. 409; Mullaly v. Holden, 123 Mass. 583; Carroway v. Anderson, 1 Humph. (Tenn.) 61; Elting v. Vanderlyn, 4 Johns. (N. Y.) 237; Piercy v. Adams, 22 Ga. 109; Walker p. Richards, 39 N. H. 259; Perrine v. Leachman, 10 Ala. 140; Brown v. Barnes, 6 Ala. 694; Miller 9. Drake, 1 Caines (N. Y.) 45; Elliott v. Jenness, 111 Mass. 29; Cross v. Evarts, 28 Tex. 523; Walsh v. Kattenburgh, 8 Minn. 127; Cranston v. Smith, 6 R. I. 231; Burkham v. Mastin, 54 Ala. 122; Ecker v. Bohn, 45 Md. 278. Contra, by Indiana statute, Langford v. Freeman, 60 Ind. 46; Krohn v. Bautz, 68

§ 505 a. In England, however, the doctrine was not definitely settled until the promulgation, in 1875, of the Rules and Orders concerning Pleading and Practice under the "Supreme Court of Judicature Act."1 In Whitchurch v. Bevis, in 1789, Lord Thurlow said, speaking of the case of Child v. Godolphin, before Lord Macclesfield:2 "If the bill had stated the agreement generally, a demurrer might have been allowed, but where the agreement is stated to be in writing, the plea must be supported by the answer."3 In Spurrier v. Fitzgerald, the Master of the Rolls, Sir William Grant, after citing this passage, says: "That shows that, if the plaintiff alleges a written agreement, the defendant will be reduced to the necessity of pleading."4 In the case of

Ind. 277; and see Babcock v. Meek, 45 Iowa 137; Harris Photo. Co. v. Fisher, 81 Mich. 136; Benton v. Schulte, 31 Minn. 312; Dexter v. Ohlander, 89 Ala. 262; Lehow v. Simonton, 3 Col. 346; Tucker v. Edwards, 7 Col. 209; Groce v. Jenkins, 28 S. C. 172; Horn v. Shamblin, 57 Texas 243; Broder v. Conklin, 77 Cal. 330; McCann v. Pennie, 100 Cal. 547; Manter v. Churchill, 127 Mass. 31; Vassault v. Edwards, 43 Cal. 458; Mallory v. Mallory, 92 Ky. 316; Smith v. Theobald, 86 Ky. 141.

1 36 & 37 Vict. cap. 66; amended 37 & 38 Vict. cap. 83; and 38 & 39 Vict. cap. 77, under which last the first schedule prescribes certain rules of court. Order xix., p. 23, of these rules prescribes that after November 1, 1875, a "bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds or otherwise." In Catling v. King, 5 Ch. Div. 660, in 1876, the judges of the Chancery Appeals Court intimated that, under this rule, the defence of the statute could not be raised by demurrer, and in Towle v. Topham, 37 L. T. n. s. 309. Jessel, M. R., said, "The first objection is that the contract did not contain all that was necessary; and that by the Statute of Frauds such a contract cannot be enforced. To that the answer is that if the Statute of Frauds is relied on it must be pleaded. That was decided by the Court of Appeals (of which I was a member) in Catling v. King." See this same rule xix. noticed pout, § 511, note. In Daniell's Chancery Practice, 5th London ed. 1871, p. 306, it is stated that " in a bill for specific performance of an agreement relating to land, it is, however, necessary to allege that the agreement is in writing, otherwise the bill will be demurrable."