§ 532. Upon the whole, it would seem to be by no means clear but that the present English doctrine, whatever earlier decisions may go to establish, is against allowing the bar to the discovery. Lord Redesdale comes to the conclusion, in the last edition of his treatise on Equity Pleadings, that "it may now be doubtful whether a plea of the statute ought in any case (except perhaps the case of a trust),2 to extend to any discovery sought by the bill."3 Other text-writers, however, appear to entertain a contrary opinion.4

§ 533. In our own country, the weight of judicial authority may be said to be in favor of allowing the bar to the discovery, the courts both of Vermont5 and Virginia6 having adopted that position as agreeable to the soundest principles and the most approved precedents. It must be observed, however, that the learned Chancellor of New York does not appear to coincide in this view, when he lays it down that if the bill states an agreement generally, which will be presumed a legal contract until the contrary appears, the defendant "must either plead the fact that it was not in writing, or insist upon that defence in his answer."7

§ 534. The same reasoning upon which it is maintained that a defendant may insist upon the statute in bar of the discovery as to the fact of the agreement, seems to apply where the bill seeks to enforce a trust resting in parol. If he may, as we have seen it is the better opinion that he may, insist upon the statute in bar of the execution of the trust, it is nugatory to force him to discover as to its existence. There appears to be no case in which the question has been distinctly under consideration. The cases where a discovery has been required as to trusts alleged to be imperfectly declared, or illegal or fraudulent, are not applicable; as there the answer is made evidence not to set up the trust, but to defeat the defendant's apparent title, and to found a decree for a resulting trust to the heir.1

1 Rowe v. Teed, 15 Ves. 372.

2 Post, § 534.

3 Mitf. Pl. (Oth Am. from 5th Eng. Ed.) 312.

4 Cooper, Eq. Pl. 256; Story, Eq. Pl. § 763.

5 Meach v. Stone, 1 D. Chip. 182.

6 Argenbright v. Campbell. 3 Hen. & M. 144.

7 Cozine v. Graham, 2 Paige, 1S2.

§ 535. As to the burden of proof, the plaintiff having alleged a certain contract, and the defendant having answered that the alleged contract was not actionable unless in writing, and was not in writing, the burden is on the plaintiff to prove the writing without which his action cannot be maintained,2 unless the contract was made in another State, in which case it is said that the law presumes that it was made in conformity with the law of that State, and casts upon the party maintaining the contrary the burden of proving it.3 As to the general presumption, when nothing more appears than the existence of the contract, that it was a contract in writing, the case of Stout v. Ennis is instructive.4

1 Ante, § 103.

2 Jonas v. Field, 83 Ala. 447; Lowe v. Hamilton, 132 Ind. 406; Jones v. Hagler, 95 Ala. 529.

3 Miller v. Wilson, 146 111. 523.

4 Stout v. Ennis, 28 Kans. 706.