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.
1 Leaf v. Tuton, 10 Mees. & W. 393; Reade v. Lamb, 6 Exch. 130. But see § 511 supra, showing a still more recent change in the Rules.
2 Skinner v. McDouall, 2 De. G & S. 265; Rigby v. Norwood, 34 Ala. 129.
3 Vaupell v. Woodward, 2 Sandf. (N. Y.) Ch. 143. See also Rhodes v. Rhodes, 3 Sandf. (N. Y.) Ch. 279.
4 Barry v. Coombe, 1 Pet. 649. See further on this subject, Small v. Owings, 1 Md. Ch. Dec. 363; Harrison v. Harrison, 1 Md. Ch. Dec. 381; Edelin v. Clarkson, 3 B. Mon. (Ky.) 31; Allen v. Chambers, 4 Ired. (N. C.) Eq. 125; Baker v. Hollobaugh, 15 Ark. 322; Schoonmaker v. Plummer, 139 111. 612.
§ 521. The doctrine that the defendant cannot plead the statute in bar of the discovery, is principally founded upon the rule of equity, that every defendant is bound to confess or deny all facts which, if confessed, would give the plaintiff a claim or title to the relief prayed, and that, as equity would decree a parol agreement if confessed, the defendant must confess or deny it. "But in applying this rule," says an eminent writer, with a force and discrimination displayed by none other upon this vexed question, "it is previously material to ascertain, whether the Statute of Frauds has not in such a case relieved the defendant from this general obligation. The prevention of frauds and perjuries is the declared object of the statute; and the decreeing of a parol agreement, when confessed by the defendant, and the statute not insisted on, is evidently consistent with such object; nam quisque renuntiare potest juri pro se introducto. But if the defendant be bound to confess or deny the parol agreement, his answer must be either liable to contradiction, or not liable to contradiction. If the defendant's answer be liable to contradiction by evidence aliunde, the evil arising from contradictory evidence, which the statute proposed to guard against, would necessarily result. If the defendant's answer be not liable to contradiction by evidence aliunde, the rule would furnish a temptation to perjury, by giving the defendant a certain interest in denying the agreement; since, if he confessed it, he would be bound to perform it. If the defendant be bound to confess or deny the parol agreement insisted on by the plaintiff, one of the above consequences must necessarily ensue; which of the two is likely to prove the most mischievous, were, perhaps, difficult to decide; for though the perjury, which might take place if contradictory evidence were allowed, is an evil of considerable size, yet the defendant being liable to be contradicted, might operate as a check on his falsely denying that which was truly alleged."1
§ 522. And so Lord Thurlow, upon one of several occasions on which a case presenting this question was argued before him, remarked that the court had laid down two exceptions, by which, if they were to be sustained, it amounted to the same thing as if the statute had made the exception of the two cases, that is, where the agreement is confessed by the answer, or where there is a part-performance; that in the latter case the defendant must answer to the agreement as well as to the part-performance; that as to the former, it was a clear exception from the statute, that the danger of fraud and perjury was avoided, where the defendant admitted the agreement; that if the party might or might not take advantage of the statute by insisting or not insisting upon it, there was no foundation for the exception, but, if the exception was founded, it made it like any other equitable case. "But," he asks, "what will become of the statute? The bill will not be sustained, unless the defendant confesses the agreement by his answer; you shall not prove it aliunde." 2 Nevertheless, he comes to the conclusion that even if the bill stated only the agreement, without alleging part-performance, a pure plea of the statute would not suffice, but the defendant must answer to the agreement.
§ 523. Again, it is obvious, upon a careful examination of the cases, that the doctrine that the defendant could not plead the statute in bar of the discovery as to the fact of the agreement is closely connected with the doctrine, which, as we have seen, is no longer maintained, that upon a confession of the agreement by answer the court will enforce it, although the defendant insist upon the benefit of the statute. Thus, Lord Thurlow says, in the case just referred to: "When a court of equity said, that, if a parol agreement came out, there should be a specific performance, they said it was matter of honesty to carry it into execution. If I say that, upon a parol agreement appearing it shall be performed, I must say, I shall compel the discovery whether there was a parol agreement or not," for, as he adds in another place, "the discovery is only an incident to the natural justice of performing the unwritten agreement."1 And so Lord Macclesfield said in an early case: "The defendant ought by answer to deny the agreement; for if she confessed the agreement, the court would decree a performance notwithstanding the statute, for that such confession would not be looked upon as perjury, or intended to be prevented by the statute." 2 It is thus apparent that the doctrine of not allowing the statute to be pleaded in bar of the discovery, has been, by the course of later and sounder decisions, deprived of its chief foundation in principle; if, indeed, it has not become entirely nugatory.
1 Fonbl. Eq. Pk. T. Ch. III. § 8, note d.
2 Whitchurch v. Bevis, 2 Bro. C. C. 567. Such seems to be the conclusion of his Lordship, and is the only one which makes the report of the case (which is quite defective and confused) consistent with itself. See Mr. Belt's note to page 567 of the report.
§ 524. Before examining the cases bearing upon this question, however, one more quotation may be pardoned, in order that the objections in reason to compelling a discovery may be fully illustrated. In a case in the highest court of judicature in Virginia, Mr. Justice Tucker says: "I am, therefore, of opinion, that, with respect to all promises, agreements, and contracts within the purview of the statute, if not reduced to writing, and signed pursuant to the statute, and if nothing be done in performance of them, whereby the actual state of the parties, or one of them, is materially affected; they ought to be considered as imperfect and incomplete, so as to be incapable of supporting a suit, either at law, or in equity; consequently, that wherever a defendant to a bill for the specific performance of a parol agreement, pleads and relies upon the benefit of the statute, he is not compellable to answer as to the agreement, and confess or deny it, but may protect himself from such answer by his plea; and where offered and insisted on, it ought to be allowed: for, by compelling a defendant to answer after he has claimed the protection of the statute by his plea, the inducement to perjury, which it is the object of the statute to prevent, will be increased in tenfold proportion." 1