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 Smith v. Evans, 1 Wils. 313.
2 Wright v. Wakeford, 17 Ves. 459. With submission, however, it may be said to be quite obvious that although sealing may not be precisely equivalent to, it may be something higher and more solemn than, mere signature; so that the inference that it was insufficient would not follow from its being unnecessary. See also Morison v. Tumour, 18 Ves. 175. His Lordship refers to no cases in support of his remark.
3 Selby v. Selby, 3 Meriv. 2; Schneider v. Norris, 2 Maule & S. 286, per Lord Ellenborough. See Hubert v. Moreau, 2 Car. & P. 528. And see the following cases holding the execution of a will by mark to be good: Wilson v. Beddard, 12 Sim. 28; Taylor v. Dening. 3 Nev. & P. 228; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144; In re Field, 3 Curt. (Eccl.) 752.
4 See § 362, post.
5 Saunderson v. Jackson, 3 Esp. 180; Schneider v. Norris, 2 Maule & S. 286. And see Commonwealth v. Ray, 3 Gray (Mass.) 447; Lerned v. Wannemacher, 9 Allen (Mass.) 417.
In a case where the defendant's name as vendor was printed at the head of a bill of parcels, and the plaintiff's name as vendee was written in below in the defendant's handwriting, Lord Ellenborough held that the defendant had thus affirmed the printed name as his own; but remarked that if the case had rested merely on the printed name, unrecognized by, and not brought home to, the party, as being printed by him or by his authority, so that the printed name had been unappropriated to the particular contract, it might have afforded some doubt whether it would not have been trenching upon the statute to have admitted it.1 There would seem to be no doubt that a man's stamping or impressing his name himself on the memorandum is a good signature.2
§ 357. In regard to the place of the signature,there is no restriction. It may be at the top, or in the body, of the memorandum as well as at the foot. It was held in a very early case that an instrument in a testator's handwriting, commencing "I, A. B., do make," etc., was sufficiently signed as a will;3 and the same rule has been applied in many cases of memoranda of agreement commencing in the same way, or in the third person, as "Mr. A. B. proposes," etc.4 But the name, beside being in his handwriting, must in Saunderson v. Jackson, where he said that if a man make a memorandum commencing, "I, A. B.," etc., it is held sufficient, though it is manifest he intends a further signature. 1 But it may be questioned whether this broad observation is justified by the authorities. Where instruments commencing in the first person have been taken to be well signed, without subsequent subscription, they generally appear to have been so attested, or accompanied by acts of the party so clearly showing that he regarded the instrument as complete, as to repel the presumption of an intention to make a further execution;2 in cases of instruments commencing in the third person, as, "Mr. A. B. agrees," etc., such a presumption does not arise. Actual delivery of a memorandum of the former class as the agreement of the party, and perhaps the res gestce, the circumstances attending the writing of it, would be taken into consideration to determine whether it was signed within the intent and meaning of the law.3
1 Schneider v. Norris, 2 Maule & S. 286; Drury v. Young, 58 Md. 546. Since the Revised Statutes of New York, requiring the memorandum to be " subscribed," it is held in that State that an actual manual subscription in writing is necessary, and that a printed signature is not sufficient. Vielie v. Osgood, 8 Barb. 130; Davis v. Shields, 26 Wend. 351.
2 Pitts v. Beckett, 13 Mees. & W. 743. Qucere, if this, done at the bottom of the instrument, would not satisfy the New York statute cited in the last note.
3 Lemayne v. Stanley, 3 Lev. 1.
4 Knight v. Crockford. 1 Esp. 188; Ogilvie v. Foljambe, 3 Meriv. 53; Morison v. Tumour, 18 Ves. 175; Propert v. Parker, 1 Russ. & M. 625; Western v. Russell, 3 Ves & B. 187; Penniman v. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. (Mass.) 502; Yerby v. Grigsby, 9 Leisrh (Va ) 387; Bleakley v. Smith, 11 Sim. 150; Holmes v. Mackrell, 3 C. B. n. S. 789. The New York Court of Appeals have decided (reversing the judgment of the Supreme Court), that since their Revised Statutes requiring the memorandum to be subscribed, the signature must be at the always be inserted in such a manner as to authenticate the instrument as the act of the party executing it, or, in other words, to show the intention of the party to admit his liability upon the contract.1 The mere insertion of his name in the body of an instrument, where it is applicable to a particular purpose, will not constitute a signature within the meaning of the statute.2 And although it be so inserted as to control and direct the entire instrument, still the better opinion seems to be that its insertion must also be intended as a final signature, and that if it appear that the instrument was to be further executed, it will not be taken to have already been sufficiently signed. Such was the decision of the High Court of Delegates in a case of a will where both real and personal property were disposed of, and the testatrix signed and sealed it, a clause of attestation in the common form being subjoined, but no subscription of witnesses; and the will was found, at her death, wrapped in an envelope on which was written, "1 sealed and signed my will to have it ready to be witnessed the first opportunity I could get proper persons for it;" it was held not well signed so as to pass even the personal property.3 The same view has been taken by high authority in several cases arising upon the fourth section.4 It was criticised by Lord Eldon, it is true, foot. James v Patten, 6 N. Y. 9; Traylor v. Cabanne, 8 Mo. App. 131; Coon v. Rigden, 4 Col. 275; Tingley v. Bellingham Bay Boon Co., 5 Wash. 644.
1 See cases cited in last note; also Kronheim v. Johnson, 7 Ch. Div. 60. The Supreme Court of Maryland has repudiated this doctrine. Hig-don v. Thomas, 1 Harr. & G. 139. The question is for the jury. Johnson v. Dodgson, 2 Mees. & W. 653.