hesitation. *This was, continued the Chief Justice, the intention of the statute in all contracts for sale, in order to prevent confusion and uncertainty in the transactions of mankind; and his Lordship concluded, with citing Whaley v. Bagenal,(/) in the House of Lords, as coinciding with his own determination.

It is said not to have ever been decided, that a defendant may not by his answer admit the agreement, and at the same time insist upon the statute. In the argument of Cooth v. Jackson, above cited, it was admitted, that there was no case to this effect; and Lord Eldon, after stating himself to feel all the disinclina tion which had been lately expressed, to take cases out of the reach of the statute farther than they had been already carried, declared that the circumstance, of there having been no such case, would very much weigh with him; it being his purpose not to form a new head of cases out of the statute.

In Child v. Godolphin,(m) however, it appears to have been the *[160] clear opinion of Lord Macclesfield, that whether *part-performance is or is not alleged in the bill, though the defendant may plead the statute, he must answer to the parol agreement, and confess or deny its existence, and that if he confess it, the court will enforce it; and, indeed, it seemed of course that the statute would not be suffered to avail the defendant, if he was bound to confess or deny after pleading it; for it would be a nugatory exertion of jurisdiction, and sporting with the conscience of the party to urge him to speak out as to the agreement, unless they meant to compel the performance thereof, if confessed. The case of Cottington v. Fletcher, reported in Atkins,(") which contains a like opinion of Lord Hardwicke, is said, in Moore v. Edwards,(0) to be a complete mistatement. The reporter represents Lord Hardwicke to have overruled the defence upon the statute,

(1) 6 Bro. P. C. 45. (m) Cited by Lord Thurlow in Whitchurch v. Bevis, 2 Bro. 556; and see 1 Dickens's Reports, 39. (n)2 Atk. 155. (0)4 Vez. jun. 24.

stantiating agreements by writing in certain cases therein particulari.. sed, in order to avoid altogether the lubricity of memory, and the opportunities of perjury and fraud, his Lordship found himself reduced, by the unsteadiness of former decisions, to the necessity of computing the degrees of the weight and value of difierent descriptions of verbal testimony, in a case expressly comprehended within the statute.

merely on the ground that the agreement was admitted. But Lord Rosslyn said, that it appeared by Lord Hardwicke's own notes, that he determined the case upon the fact of the agree ment's having been in part executed.

In the first argument upon the plea in Whitchurch v. Bevis,(^) Lord Thurlow appeared to be influenced by the case of Child v. Godolphin, to hold, that if nothing is stated in the bill but the parol agreement, the defendant ought to support his plea by an answer denying the parol agreement. But upon the second discussion of the case, his Lordship allowed the plea of the statute, although the parol agreement was confessed by the answer. It appears that Baron Eyre, in two cases which came before him in the Exchequer,(9) was of opinion, that if the defendant, by his answer, insisted upon the statute, a specific performance could not be decreed. Lord Rosslyn, we have seen, held the same opinion in Moore v. Edwards ;(r) and though not the point of adjudication, yet the weighty declarations of the present Chancellor, in the case of *Cooth v. Jackson, (8) leave us [161] hardly any room to doubt that it will hereafter be the doctrine of courts of equity, that the defendant may admit. the agreement without being precluded by such admission from praying to have the benefit of the statute.

If a bill, therefore, should now allege an agreement without stating it to be in writing, or averring part-performance, it seems that the plea of the statute alone, without any answer, would repel the plaintiff from the relief sought by him. But if acts of part-performance are set forth in the bill, the defendant must answer as well as plead: he should plead the statute, and deny the acts of part-performance; and if the acts alleged are found not to amount to part-performance, the plea will be allowed.

Acts of part-performance, and also an agreement in writing, are now commonly stated in the bill, to avoid the demurrers, and to compel the defendant to answer; the rule being, that the de fendant must answer to all parts of the bill upon which the plaintiff could be entitled to relief. But although where the plaintiff in his bill alleges acts of part-performance, the defendant is regularly put to answer, yet, according to the present strong inclination,

(p) 2 Bro. 566. (q) Eyre v. Iveson; and Stewart . Careless, cited in Whitchurch v. Bevis, 2 Bro. C. R. 563, 564. (r) 4 Vez. jun. 23. s) 6 Vez. jun. 37.

I had almost said the prevailing doctrine of the courts of equity, he is not laid under a necessity of simply denying or confessing the answer, but he may admit the parol agreement, and insist upon the statute, and also contest the acts of part-performance; but if he confesses the agreement, without saying any thing about the statute, though the bill states acts of part-performance, there will be no occasion for him to prove these acts, such necessity being superseded by the defendant's admission. If he denies the agreement, and the part-performance, both the agreement and part-performance must be substantively proved; for proof of part-performance will not evidence the terms of the particular [162] agreement, however it may avail to establish the existence of some agreement; and when this is the state of the pleading, the parties are placed in the predicament which has been explained a few pages above, in which, a mysterious logic has not seldom triumphed over the good sense and policy of the statute of frauds.

Experience of the ill effects of treating cases as out of the spirit which have been obviously within the letter of the statute, seems to have recalled our courts, both of law and equity, to a severer rule of practice; and particularly in respect to the doctrine of part-performance, the law seems to be regaining its proper limit, and recovering land out of the ocean. Before the acts of a party can be construed as amounting to part-performance, it seems that he must receive a prejudice() thereby, for they are not received merely as evidence of the agreement, but they must be such as may be fairly imputable to a design to perform, and capable of being considered as an inceptive execution of the contract: they ought to be clear and unambiguous in respect to their object; and perhaps it may not be presumptuous to infer from the present apparent disposition of the courts to give effect to the statute, that they would hardly suffer a case to be taken out of its reach by a part execution, composed of minute and incipient acts, reversible without trouble or cost, or open to an easy and immediate compensation.(80) This hope is

() Vide Buckmaster v. Harrop, 7 Vez. jun. 340.

(80) Gunter v. Halsey, Ambler, 586. Whitbread. Brockhurst, 1 Br. C. R. 412. Whaley v. Bagenal, 6 Bro. P. C. 45. Wills . Shad. ling, 3 Vez. jun. 379. Pym v. Blackburn, 3 Vez. jun. 34; and see Cooth

enlarged by the perusal of the recent case of Cooth v. Jackson, where the present Chancellor is stated by the reporter to have said *" the most rational way seems to me to be, that if the de-[163] fendant admits the agreement, but insists on the benefit of the statute, there is no occasion to inquire about the part-perform- ance."

It has before been observed in the introductory chapter, that care ought to be taken to note the distinction between cases where the resort to equity is for the specific performance of an unwrit ten agreement, and where the bill being for the execution of a written agreement, the application is endeavoured to be repelled by setting up a subsequent parol agreement, whereby, on good consideration, the first agreement was meant to be modified; for though equity cannot, unless on the ground of some plain acts of part-performance, or the confession of the party, establish a contract in the teeth of the statute of frauds, yet the court will on slenderer grounds suffer a parol agreement to weigh as an inducement to refuse its assistance, in carrying into effect the first agreement(u). But although this doctrine is said to turn upon the discretion in the court to grant or withhold its peculiar and extraordinary remedy, of compelling specific performance, it should not be forgotten by us, that this discretion has its bounds, and that it must be regulated by principles of judicial analogy and consistency.(x)

(u) See Legal v. Miller, 2 Vez. 299, but especially the case of Woollam v. Hearn, 7 Vez. jun. 211. (x) 9 Vez. jun. 35, White v. Damon.

v. Jackson, 6 Vez. jun. 41, where it was held, that upon a parol agreement for a compromise, and a division of the estate by arbitration, acts ⚫done by the arbitrators towards the execution of their duty, as surveying, &c. cannot be considered as acts of part-performance. The authority of the case of Sir James Lowther v. Caril, 1 Vern. 221, wherein the court seems to have thought that alterations made in the draft by one of the parties, and his sending it to the other to execute, took the case out of the statute, is opposed by that of Hawkins v. Holmes, 1 P. Wms. 770.

*[165]

*PART III.

17th Section and 5th Clause of the 4th Section.

Contracts for the Sale and Purchase of Goods and Chattels.

HAVING considered how contracts for the sale of lands are affected by the statute, I shall proceed in this division of the work to examine its operation on contracts for the sale and purchase(81) of goods, or moveable chattels, which will lead us in a somewhat connected order of inquiry to the subject of the 17th section, and the 5th clause of the 4th section, of the statute in question. By these branches of the statute, it is provided, that no contract for the sale of goods, to the value of 107. or more, shall be valid, unless the buyer actually receives part of the goods sold, or gives part of the price to the vendor by way of earnest to bind the bargain, or in part-payment; or unless some note or memorandum in writing be made, and signed by the party, or his agent, who is to be charged with the contract: and, with respect to property of whatever value,(82) that no contract or agreement regarding the same shall be valid, unless the thing contracted for is to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith.

*Before this statute thus modified the obligation of these contracts, a bargain for the sale and purchase of goods, at a future stipulated time, provided there was a quid pro quo, or that motive or consideration, which our law requires to raise an actionable de

(81) This section does not affect exchanges, where one commodity is given for another; in permutatione discerni non potest uter emptor uter venditor sit. Vid. Dig. lib. 18, tit. 1.

(82) This clause is general with respect to all agreements whatever. But as agreements respecting lands are included in the clause which was considered in the second part of this chapter, whether they are for immediate or future execution, I have judged it proper to treat of the 5th clause of the 4th section, respecting contracts not to be executed within the space of one year from the making, as to its operations only on contracts for goods; and have therefore included the consideration of it in the same part with that of the 17th section.