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 Whitchurch v. Bevis, 2 Bro. C. C. 560.
2 Child v. Godolphin, 1 Dick. 42.
§ 525. The first case in which this question appears to have been raised was that of Child v. Godolphin, decided by Lord Macclesfield, in 1723, where it was held that the defendant ought by answer to deny the agreement, and a plea of the statute, not denying the parol agreement, was ordered to stand for an answer.2
§ 526. In Cottington v. Fletcher, 1740, the same question arose upon a trust, upon which the plaintiff alleged that the defendant had taken a certain advowson, and the defendant pleaded the Statute of Frauds in bar of the discovery, but by his answer admitted that the advowson was assigned to him for the purposes charged by the bill. Lord Hardwicke said that undoubtedly, if the plea stood by itself it might have been a sufficient plea; but as coupled with an answer admitting the facts, it was overruled.3
§ 527. Again, in Taylor v. Beech, 1749, a case of agreement for securing a wife's independent property at her marriage, the defendant denied having entered into any written agreement, and pleaded the statute in bar of any discovery as to the parol agreement. Lord Hardwicke overruled the plea because of the equitable circumstances alleged, although, as he said, "the Statute of Frauds was a protection against the defendant's making a discovery of a parol agreement, and might be pleaded as well to the discovery as relief."1
1 Argenbright v. Campbell, 3 Hen. & M. 161.
2 Child v. Godolphin, 1 Dick. 39. But see the case of Hollis v. White-ing, 1 Vern. 151, where Lord Keeper North said, as early as 1682. that if a plaintiff laid in his bill that it was part of the agreement that it should be put in writing, it would possibly require an answer.
3 Cottington v. Fletcher, 2 Atk. 155.
§ 528. The same question was argued very fully before the House of Lords, in the case of Whaley v. Bagnel, in 1765. The plaintiff's bill was for a specific execution of an oral agreement for the sale of land, and the defendant pleaded the Statute of Frauds in bar both of the discovery and relief. The plea having been allowed by the Lord Chancellor of Ireland, an appeal was taken to the House of Lords, and was there dismissed.'2
§ 529. The case of Whitchurch v. Bevis, before Lord Thurlow, was first heard in 1786, and, after several rehear-ings and full arguments, was finally determined three years later. The bill was for a specific performance of an agreement to sell a house for an annuity, and stated certain facts in the way of part-performance, the agreement not having been reduced to writing; the defendant pleaded the Statute of Frauds, both as to the discovery and relief, but did not aver in his plea that there was no parol agreement. Lord Thurlow, after the first hearing upon the plea, ordered the cause to stand over that it might be argued upon the form of the plea itself, remarking that if the rule was right that, upon an agreement appearing by the answer, though not in writing, it should be enforced, notwithstanding the defendant insisted upon the statute, he saw no reason why there should not be a discovery, for the discovery was only an incident to the natural justice of performing the unwritten agreement. At a subsequent hearing, his Lordship overruled the plea, and ordered it to stand for an answer, with liberty to except and to reserve the benefit of the plea to the hearing. After stating the view upon which he proceeded, and which has already been referred to,1 he says, "I am aware, that except the case determined by Lord Macclesfield,2 there is- no other; the opinion I give is, that if nothing had been stated in the bill but a parol agreement, if the defendant pleads, he must support his plea by an answer, denying the parol agreement, the only effect of the statute being that it shall not be proved aliunde. If he answers and says there was no parol agreement, I think that no evidence that can be given will sustain the suit. If this doctrine be not maintainable, the judgment I am giving is wrong." 3 Finally, in delivering judgment upon the whole case, he asserts the same view; but, an answer having been filed, in which the agreement charged was confessed, the plea of the statute as to the relief was allowed.
1 Taylor v. Beech, 1 Ves. Sr. 297.
2 Whaley v. Bagnel, 1 Bro. P. C. 345. The report furnishes no opinions in the case, only a brief note of judgment at the end of the arguments.
§ 530. A few years later, in the case of Moore v. Edwards, Lord Loughborough seems to have taken the rule as settled, according to the view expressed by Lord Thurlow. Upon a bill for specific performance of a verbal agreement to make a lease, the defendant pleaded the statute and made answer, denying that the acts alleged were done in part-performance, as was charged in the bill. Lord Loughborough held the answer to be argumentative, and ordered the plea to stand for answer with liberty to except, benefit to be saved at the hearing; and on the defendant's moving that the words, "with liberty to except," be struck out, or the following added, "except as to such part of the said plea which insists upon the Statute of Frauds and Perjuries in bar to the discovery of the agreement therein mentioned," his Lordship said the order was right, and added, "saving the benefit of the plea to the hearing gives you a right to insist upon the Statute of Frauds as a defence to the suit; but it does not exempt you from the discovery." 4
1 Ante, § 522.
2 Child v. Godolphin, 1 Dick. 39. His Lordship's attention does not seem to have been called to the various dicta before referred to in the text. 3 Whitchurch v. Bevis, 2 Bro. C. C. 567. 4 Moore v. Edwards, 4 Yes. 23.
§ 531. But in the latest English case bearing upon this question Lord Eldon puts the case of a defendant answering as to the acts of part-performance, when alleged, and insisting that he was not bound to answer whether there was a parol agreement or not, as raising a difficulty which he had never been able to get over; and this certainly goes to show that he did not regard it as settled that the statute could not be pleaded in bar of discovery.1