Statute Of Frauds. This is a very peculiar law, and in its extent and systematic form is quite unknown out of the British empire and the United States. It originated, nearly two centuries ago, in the earnest desire of eminent English jurists to prevent the numerous frauds which were perpetrated by means of suborned and perjured witnesses; and it was thought that the more effectual way of doing this would be a provision that a large number of the most common contracts should be incapable of legal enforcement unless they were reduced to writing and signed by the party whom it was sought to charge. For this purpose, in the 29th year of Charles II. (1678), the "statute for the prevention of frauds and perjuries" was enacted; and it is commonly known by the shorter name of the "statute of frauds." It has always been doubted by wise lawyers and judges whether this statute has not caused and protected as many frauds as it has prevented. But the same reasons which led to its enactment have always produced a prevailing belief that on the whole it was useful.

Hence, its provisions have been enacted more or less entirely, or declared to be law by adoption, in nearly if not quite all the states of the Union. In no one of them is the English statute verbally copied; and perhaps the provisions are not precisely the same in any two states. But they all copy parts of the original statute, and most of them enact its most material parts; and the difference between the enactments of different states is, generally speaking, not important. The reason why so many have deemed the statute useless or worse is, that it has been found impossible to make all its provisions, or even its more important ones, universally known. Hence, while by its requirement of written-evidence it tends strongly to suppress that large class of frauds which was founded upon mere perjury, it tends also to expose innocent parties to grievous fraud through their ignorance of this requirement. They make, and perhaps with much care, important bargains, with all the details well adjusted; but they do not take the precaution to have their agreements reduced to writing and verified by signature; and after complying with their part of the bargain in good faith, they learn for the first time in court, or from their counsel, that their bargain gives them no legal right or remedy, because of the omission of that which they had never supposed to be requisite.

We shall proceed to give the most general rules in regard to the provisions of this statute (meaning thereby both those which are most widely adopted, and those of the most important and frequent application) which have been sanctioned by the jurisprudence of the United States; without, however, attempting to go into a close consideration of the details and diversities of state enactment or adjudication. -By the fourth section of the English statute, which is the one that our statutes copy most frequently, no action can be brought upon an agreement not reduced to writing and signed by the party to be charged therewith, or by some person by him authorized, if by the action: 1, any executor or administrator is to be charged to answer damages for the deceased out of his own estate; 2, or if any person is to answer for the debt, default, or miscarriage of another; 3, or upon any agreement in consideration of marriage; 4, or upon any contract for the sale of lands, or any interest in or concerning them; 5, or any agreement not to be performed within one year from the making thereof.

In reference to all these, it is held that a signing is sufficient if substantial, although not literal and formal: as if in a letter signed by the party he alludes to and recognizes the agreement; or if the party writes his name at the beginning or in any part of the agreement, with the intention that it shall verify the instrument as his own; or if a broker, for both parties or either party, writes their or his name in his book, they or he assenting. But where, as in some of our statutes, the word used is not "signed" but "subscribed," there it has been said, but may not be certain, that the name must be written at the bottom of the agreement. So the name may be printed, or written in pencil. An agent may sign, and may sign sufficiently although he write only his own name; and any ratification of his signature would be equivalent to a previous authority. But one of the contracting parties cannot sign as the agent of the other. An auctioneer or his clerk, or a broker, may be agent for either party or both; and his entry of the name of a seller or purchaser, at the time of the sale, satisfies the requirement of the statute, unless there be some agreement or condition to the contrary.

The written agreement need not be in any precise or regular form, but must contain all the substantial elements of the bargain. In England, and in some of our states, it must recite the consideration of the contract, while in others, if the promise be in writing and signed, the consideration may be proved by other evidence. The agreement may be contained in letters, and written on several pieces of paper, if they are such that they can be read together consistently with their purpose and character. And if a contract be severable in its own nature, and in some of its parts the statutory requirement is satisfied and in some not, the contract is still enforceable for those parts which comply with the statute. If a written contract be sued, it may be shown in defence that it has been altered. But if a plaintiff rests upon his written contract, but can maintain his action by it only by showing that it was orally altered, it is no longer the written contract on which he rests, and the action is defeated. Of the special clauses, the second, relating to a promise "to answer for the debt, default, or miscarriage of another," makes this statute cover all guaranties; and it is of great importance in respect to them.