2 Child v. Godolphin, 1 Dick. 39.

3 Whitchurch v. Bevis, 2 Bro. C. C. 566. 4 Spurrier v. Fitzgerald, 6 Ves. 555.

Bark worth v. Young, in 1856, Vice Chancellor Kindersley, after citing the foregoing cases, said: "A verbal agreement is still an agreement; you cannot, from a mere allegation of an agreement, infer or presume that it was in writing; and as the fact that it was in writing is neither expressly alleged in the bill, nor necessarily to be inferred or presumed from what the bill does allege, the mere allegation of an agreement amounts to nothing more than the allegation of a verbal agreement, and then the defence may be made by demurrer. I think this view is strongly supported." In the case before him, however, as the bill set out in addition a sufficient memorandum of the agreement, which was one in consideration of marriage, he overruled the demurrer.1 Thus it appears that in England the general tendency of judicial opinion has been against the sufficiency of a bill in equity, unless it alleged that the agreement was in writing. At law, on the other hand, the rule in England has been (as both in equity and at law in this country), that it is sufficient since the statute, as it was before, to allege an agreement generally, which throws it on the defendant to allege that it is not in writing.2

§ 506. A distinction has been taken, in regard to the obligation to allege a writing, between the cases where the contract is declared on by the plaintiff and where it is pleaded by the defendant. In the Queen's Bench, four years after the enactment of the Statute of Frauds, where a contract of guaranty was set up in defence, and the plea did not allege it to be in writing, and the plaintiff demurred, the demurrer was allowed, on two grounds, one of which was that "though upon such an agreement the plaintiff need not set forth the agreement to be in writing, yet when the defendant pleads such an agreement in bar, he must plead it so as it may appear to the court, that an action will lie upon it, for he shall not take away the plaintiff's present action and not give him another upon the agreement pleaded."1 It will be observed, however, that the plea being held bad also upon another ground, the case is not decisive of the point above quoted. And it seems the rule does not apply where the plea is of title, in the party pleading and as against the other party claiming adversely, in property for the sale of which the statute makes a writing necessary. Thus, where the plaintiff in replevin for growing corn pleaded a fi. fa. under which the sheriff seized the corn and sold it to the plaintiff, who thus became possessed of the same, and the defendant contended that the plea was bad as not alleging that the sale was in writing, it is reported that the courts were against him on that point, and observed that assignments of terms of years were commonly pleaded without a statement of any writing.2

1 Barkworth v. Young, 26 L. J. n. s. Ch. 156. And see Jerdein v. Bright, 2 Johns. & H. 325.

2 Spurrier v. Fitzgerald, 6 Ves. 555, per Grant, M. R.; Roberts on Frauds, 202; Buller, N. P. 270; Williams v. Leper, 3 Burr. 1890; Forth v. Stanton, 1 Wms. Saund. 226, note; Duppa v. Mayo, 1 Wms. Saund. 380, note; Birch v. Bellamy, 12 Mod. 540; Rann v. Hughes, 7 T. R. 350, note; Clarke v. Callow, 46 L. J. Q. B. Div. 53, per Mellish, L. J.; Young v. Austen. L. R. 4 C. P. 553.

§ 507. Where a plaintiff in equity seeks the specific performance of an oral agreement, having no writing, but relying upon the peculiar power of a court of equity, he should specially allege all the equitable circumstances existing in his case, such as part-performance and the like, upon which he intends to rely to avoid the bar of the statute and give the court of equity its jurisdiction.3 According to the system of equity pleading which once prevailed, it would have been sufficient for the plaintiff to allege the agreement, and then, if the defendant pleaded the statute, he might specially reply the equitable circumstances to meet that plea. Now that special replications in equity are practically abolished, and amendments to the bill after plea or answer have taken their place, the method above suggested appears to be uniformly pursued, though necessitating an informality in the plea.1 It does not appear to have been ever decided that acts done in part-performance of the agreement must be expressly alleged to have been so done; but such is the common and probably safer course.2 The question of the sufficiency of what is alleged to warrant a decree for specific performance will be raised by a demurrer to the bill.3

1 Case v. Barber, T. Raym. 451. See Villers v. Handley, 2 Wils. 49; Young v. Austen, L. R. 4 C. P. 553, 558.

2 Peacock v. Purvis, 2 Brod. & B. 362.

3 Small v. Owings, 1 Md. Ch. Dec. 363; Meach v. Stone, 1 D. Chip. (Vt.) 182; Underhill v Allen, 18 Ark. 466; Hart v. McClellan, 41 Ala. 251.

§ 507 a. With regard to the proper manner of setting out a trust, the enforcement of which is sought, it is unnecessary to aver that the trust was manifested or proved in writing.4

§ 608. Next, with regard to the necessity and the manner of taking advantage in pleading of the defence given by the statute. As to the first, there seems to be an important difference between cases of trust and cases of contract. In the former, the statute provides that, unless evidenced as it requires, the trust "shall be utterly void and of none effect." From this it follows that although the defence of the statute be not taken, a court will still be unable to give effect to the trust in the absence of the evidence required. With regard to contracts, however, the statute being regarded as not affecting their validity, it is held that unless the privilege of requiring the statutory evidence given by it to the party resisting the enforcement of the contract is sufficiently claimed by him in some proper pleading, the court will proceed with the contract under common-law rules.1 To this rule, however, an exception must be made where the plaintiff sues on the common counts, and therefore does not disclose the foundation of his case until he puts in his evidence. Under these circumstances, the defendant will be allowed to insist upon this statutory privilege, although his pleading has not in terms done so.2