1 Mitf. Eq. Pl. 268. See Rigby v. Norwood, 34 Ala. 129. 2 Mitf. Eq. Pl. 268. Also Story Eq. Pl. § 766.

3 Mitf. Eq. Pl. 268; Story Eq. Pl. § 766.

4 Ante, § 498.

5 Ante, § 135 b.

1 Rex v. Dunston, Ry. & M. 112.

2 Bartlett v. Tickersgill, Trin. T. 32 & 33 Geo. II., cited in Abrahams v. Bunn, 4 Burr. 2255, and 4 East 577, in notis.

§ 518. The next question is upon the form or ingredients of a proper plea or answer insisting upon the statute.1 In equity, the defendant's plea of the statute must contain negative averments to the effect that there was no writing executed as required by the statute.2 And when the bill charges any such equitable circumstances as might avoid the bar of the statute, they must be traversed generally by way of averment in the plea, and particularly and precisely by way of answer to support the plea.3 So also, where the bill, though not stating any such equitable circumstances, alleges the agreement to have been in writing, and charges facts in evidence thereof, negative averments must be put in by the defendant against these allegations.1 At law, the earlier cases leave it doubtful whether the correct practice was to couple the plea of the statute with a denial that the contract sued upon was reduced to writing according to its requirements. In Lilley v. Hewitt, decided in the Exchequer in 1822, the action was upon a guaranty, and the plea averring that there was no agreement or note or memorandum stating the consideration, in writing signed by the defendant, was held bad on special demurrer. Mr. Baron Wood, with whom the rest of the court seem to have concurred, said the plea appeared to him to be altogether new, that he had never before met with, nor did he ever hear of, such pleas as a bar to an action of that nature, and he condemned them in the strongest language, as leading to great prolixity and confusion in pleading.2 But in Maggs v. Ames, a few years later, the Court of Common Pleas held a similar plea to be good; without any allusion made to Lilley v. Hewitt by the court or in argument.3 Again, Lord Tenterden, in the House of Lords, where a similar plea was presented, said he inclined to think it bad; but he did not find it necessary to pass upon the point.4 In 1833 the New Rules were passed, by which, among other things, it is ordered that the general issue shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged is implied by law.6 It was soon settled that under the general issue, as thus restricted, the defence of want of written memorandum might still be taken,6 and thereby the case of Maggs v. Ames is considered to be overruled. Later cases established that a plea that the alleged agreement was not reduced to writing, etc., is bad on demurrer, as amounting to an argumentative denial of the contract or of the facts from which it is implied by law, within the New Rules.1

1 For form of plea of the statute to bill for specific performance of a parol agreement, accompanied by an answer to the matters stated in the bill tending to show part-performance, see Whitchurch v. Bevis, 2 Bro. C. C. 559; Van Heythusen's Eq. Draft. 107. For form of answer insisting on the same benefit of the statute as if it had been pleaded, see Curtis, Eq. Prec. 197, 198.

2 Mitf. Eq. Pl. 265; Welf. Eq. Pl. 326; Stewart v. Careless, cited in Whitchurch v. Bevis, 2 Bro. C. C. 565; Moore v. Edwards, 4 Ves. 23; Bowers v. Cator, 4 Ves. 91; Evans v. Harris, 2 Ves. & B. 361; Mussell v. Cooke, Finch, Prec. Ch. 533; Bean v. Valle, 2 Mo. 126; Dinkel v. Gun-delfinger, 35 Mo. 172.

3 Taylor v. Beech, 1 Ves. Sr. 297; Bowers v. Cator, 4 Ves. 91; Rowe v Teed. 15 Ves. 378; Evans v. Harris, 2 Ves. & B. 361; Cooth v. Jackson, 6 Ves. 12; Hall v. Hall, 1 Gill (Md.) 383; Cozine v. Graham, 2 Paige (N. Y.) Ch. 177; Champlin v. Parish, 11 Paige (N. Y.) Ch. 405; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; Thompson v. Tod, Pet. (C. C) 380; Chambers v. Massey, 7 Ired. (N. C.) Eq. 286; Meach v. Stone, 1 D. Chip. (Vt.) 182; Miller v. Cotten, 5 Ga. 341; Tarleton v. Vietes, 1 Gilm. (111.) 470. But see ante, § 516.

1 Evans v. Harris, 2 Ves. & B. 361. And see Jones v. Davis, 16 Ves. 262.

2 Lilley v. Hewitt. 11 Price 494.

3 Maggs v. Ames, 4 Bing. 470. The form there sustained is inserted by Mr. Chitty in his volume of precedents, 2 Chit. Pl. 909. 4 Lysaght v. Walker, 5 Bligh n. s. 1.

5 Hil. T. 4 Will. IV.

6 Johnson v. Dodgson. 2 Mees. & W. 653; Buttemere v. Hayes, 5 Mees. & W. 456; Eastwood v. Kenyon, 11 Ad. & E. 438.

§ 519. The language of the plea or answer in setting up the statute must be clear and explicit to that end. Where a defendant by his answer formally alleged that no formal note of the agreement charged was made, and denied that any binding agreement ever existed, but did not expressly claim the benefit of the Statute of Frauds, he was held to be not entitled to the benefit of it at the hearing.2 So with an allegation in the answer, "that the contract is void in law and that the defendant is not bound to perform the same."3 And where the answer to a bill for the specific performance of a contract for the sale of land set up that the writing produced was signed by the defendant for another purpose and not to acknowledge the agreement, and concluded with submitting to the court whether it was "an agreement, such as is required by law and equity, to compel the defendant to make the sale and conveyance claimed," etc., the Supreme Court of the United States doubted whether it was a sufficient setting up of the statute, though they did not find it necessary to determine the point.4

§ 520. Next, as to the extent of the protection afforded the defendant by his plea or answer setting up the statute. This presents the inquiry, whether he is thereby protected from discovery as to the fact of the making of the agreement; and it is a question the most difficult in itself, and the most embarrassed by conflicting decisions and dicta, of any which have thus far arisen upon the subject of pleading under the Statute of Frauds.