This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
5 Blagden v. Bradbear, 12 Ves. 471.
6 Thompson v. Tod, Pet. (C. C.) 380; Stearns v. Hubbard, 8 Greenl. (Me.) 320: Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Winn v. Albert, 2 Md. Ch. Dec. 169; s. c. nom. Albert v. Winn, 5 Md. 66; IIol-lingshead v. McKenzie, 8 Ga. 457; Barnes v. Teague, 1 Jones (N. C.)Eq. 277; Thompson v. Jamesson, 1 Cranch (C. C.) 295.
§ 516. According to a case before Lord Thurlow, it would seem to have been considered by him that where a bill in equity charges acts of part-performance or other equitable circumstances to avoid the bar of the statute, it is impossible for the defendant to plead the statute in bar; for in that case the plea averring, first, that there was no contract in writing, and secondly, that there had been no acts done in part-performance, was overruled as double.2 The bill, in fact, seems to have asserted two grounds of relief, a written agreement and acts done in part-performance, thus making a double case, both branches of which the defendant sought to meet in his plea. It is remarked, however, by an eminent writer, that it may be questionable whether, at this advanced era of equity pleading, such an objection should be suffered to prevail, as this mode of pleading, though undoubtedly loose and improper, technically speaking, had been, for a period long preceding, acknowledged and tolerated.3
§ 516 a. Whether the rule that a defendant may insist upon the statute, though admitting the agreement charged, applies equally in cases of trusts, is a question which has been agitated to some extent, and is of manifest importance. Lord Redesdale speaks of it as a question "upon which it may be very difficult to make a satisfactory distinction."1 The admission of the trust by the defendant's answer is susceptible, it is said, of being considered as a declaration of trust in writing.2 But at the same time it is admitted that, to the same extent, an admission of an agreement must, upon the same principle, be considered as a memorandum of the agreement, and that it is difficult to see why the defendant should not be allowed to insist upon the statute, notwithstanding such admission, in one case as well as in the other.3 Indeed, it may well be said, that whether the admission in either case is or is not properly to be taken as a manifestation of the trust or a memorandum of the agreement, within the meaning of the statute, must depend upon the question whether the defendant is allowed nevertheless to insist upon the statute. If he is, it can hardly be that his admission amounts to the required manifestation or memorandum, seeing that it is in his power to nullify the whole effect of it in the same pleading.4
1 Thompson v. Tod, Pet. (C C.) 380.
2 Whitbread v. Brockhurst, 1 Bro. (C. C.) 404.
3 Beames's Elements of Pleas in Equity, 174. Such also would seem to be the inclination of Lord Redesdale's mind, from a comparison of the several passages of his work on Pleading (Mitf. Pl. 240, 243, 266, 267), bearing upon this question. In his second edition he states the settled rule to be that "if any matter is charged in the bill, which may avoid the bar created by the statute, that matter must be denied by way of averment in the plea, and must be denied particularly and precisely by way of answer to support the plea." (pp. 212-214 ) In his last edition, he states this as what had been the rule, deferring, apparently with some reluctance, to Lord Thurlow's decision in Whitbread v. Brockhurst. See ante, § 507, as to this difficulty in regard to the manner of pleading having grown out of the disuse of special replications.
§ 517. We have seen, at an earlier page, that a man might be convicted of perjury for falsely swearing to a contract within the Statute of Frauds, on the ground that the testimony was not immaterial when in fact it proved the promise; though it might have been incompetent, if objected to in season.5 It has been held, however, by Chief Justice Abbott, at nisi prius, that where, in an answer in chancery to a bill filed against the defendant for a specific performance of an agreement relating to the purchase of land, the defendants denied having entered into any such agreement, and relied upon the Statute of Frauds, they were not guilty of perjury upon its being proved that they had entered into such an agreement verbally. The Chief Justice said: "The statute, for the wisest reasons, declares that agreements of this description shall not be enforced unless they are reduced into writing. These defendants, therefore, having insisted upon the statute in their answer, the question is whether, under such circumstances, the denial of an agreement which by the statute is not binding upon the parties is material; I am of opinion that it was utterly immaterial. It is necessary that the matter sworn to, and said to be false, should be material and relevant to the matter in issue, the matter here sworn to is in my judgment immaterial and irrelevant, and the defendant must be acquitted." l In this case, it will be observed, the testimony given by the defendants did not prove the contract, all parol proof of it having been barred by their reliance upon the statute; whereas in the case before referred to, that bar not having been interposed, the testimony was competent and material, and did prove the contract. Lord Mansfield relates a case, which he speaks of as remarkable, where the defendant bought an estate for the plaintiff; there was no writing, nor was any part of the money paid by the plaintiff; the defendant articled in his own name and refused to convey, and by his answer denied any trust; parol evidence was rejected, and the bill was dismissed; the defendant was afterward indicted for perjury, tried, and convicted upon evidence of the plaintiff confirmed by circumstances and the defendant's declarations; the plaintiff then petitioned for a supplemental bill in the nature of a bill of review, stating this conviction, but the bill was dismissed because the conviction was not evidence.2 It would appear from his Lordship's account of the case, that the Statute of Frauds was insisted upon by the defendant, as upon no other ground could parol evidence of the contract have been rejected. If so, it conflicts with the decision of Chief Justice Abbott, and is overruled by it so far as the propriety of the conviction for perjury is concerned; but it seems that it may stand upon the general rule that when the defendant does not choose to admit the agreement and thereby waive the benefit of the statute, the truth of his denial cannot be inquired into by means of parol evidence.