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.
It can scarcely be necessary to offer any apology for the appearance of what professes to be a practical treatise upon the Statute of Frauds. Perhaps it is not too much to say that there is no subject, apparently so simple in its nature as the requirement of certain kinds of evidence in certain cases, more confused and complicated by the number, variety, and apparent if not actual contradiction of the decisions. Nor has there been for many years any work to which the practitioner could resort as a safe and ready guide to the rules and modifications of rules which these decisions have established. There are, it is true, numerous text-writers, of whose works we possess late editions, upon topics involving a more or less extended notice of the statute; but it is certainly no disparagement of their labors to say that they have been unable to give to it so full and thorough a treatment as its importance has come to demand; to do so was quite incompatible with the proper plans of their respective treatises. The work of Mr. Roberts, the only one in which this subject has been exclusively considered, ha always been held in high esteem for the breadth and judiciousness of its commentary, its critical analysis of cases, and its lucid and elegant style. Such has been the profusion of decisions since he wrote, however, that it cannot now supply the practical need of the profession.
That the present work is altogether such as to supply this need, the author is far from confident. The professional reader will be well able to appreciate the difficulties which have opposed themselves to the execution of such a task, arising not only from the confused state of the law itself but from the diversity of the titles to be discussed. In regard to both these points, the method pursued in the examination of cases, and the selection and arrangement of the topics treated, a few words may be not inappropriately said in this place.
The multifarious provisions of the Statute of Frauds appear to group themselves in these several classes: 1. The creation and transfer of estates in land, both legal and equitable, such as at common law could be effected without deed; 2. Certain cases of contracts which at common law could be validly made by oral agreement; 3. Additional solemnities in cases of wills; 4. New liabilities imposed in respect of real estate held in trust; 5. The disposition of estates pur autre vie; 6. The entry and effect of judgments and executions. Of these, the last three classes have clearly no such mutual relation as would have made it profitable or practicable to consider them together even if there existed any need of a special treatise in regard to them. The other three classes have this common feature, that they all pertain, in one way or another, to the subject of written evidence, and thus are perhaps susceptible of being treated in succession without actual incongruity. But for two reasons it was deemed best to omit from this work the consideration of the provisions in regard to wills: first, because it did not seem to be really needed by the profession, the admirable treatise of Mr. Jarman, as lately edited in this country, presenting in complete and accessible shape all that it would have been appropriate to present here, and the author being unwilling to increase the size of the book without increasing its practical value; secondly, because those provisions stand entirely outside of what appears to be generally understood as the domain of the Statute of Frauds, whether in reference to the English law or that of the several States, namely, the requirement of writing in proof of transactions which were previously capable of valid proof by oral evidence, involving the recognition, so to speak, of writing as a tertium quid in law, the establishment of a distinction between the two kinds of transactions, those effected by writing and those effected verbally, both of which the common law comprehended within the single term parol. The result has been, therefore, to confine the work to the first two of the general topics to which, as above analyzed, the statute relates; and of these, it has been found unavoidable to give decided prominence to the topic of contracts, as in itself possessing superior practical importance, and as being most perplexed by contradictory decisions.
As to the method pursued in the consideration of adjudged cases, it may be necessary to explain that while the text has been devoted, wherever the condition of the law allowed, to that concise and systematic statement of principles, with their modifications and exceptions, which is always most acceptable in a practical treatise, yet in many cases where, owing to the conflicting character of the decisions, this could not be done without leaving the topic confused, the author has thought best to avoid being superficial at the risk of being considered prolix, and has freely and closely examined the cases in detail. In so doing he has been occasionally obliged to state conclusions at variance with some which have appeared to rest upon high judicial authority, but always in a spirit of sincere deference, and solely with a view to afford some aid to the researches of the more accomplished reader. His examination of cases referred to has been personally and carefully made; and while he cannot doubt that the superior ability and learning of those who may examine his work may discover errors in his conclusions, he believes it will be found that the difficulties of the subject have been plainly stated and fairly met.
With all its imperfections, and doubtless it has many, it is now submitted to the profession for which the author has testified his respect by endeavoring to render it this service.
Boston, June, 1857.