CH. 11. 9 Ves. 351.2 Bos. & P. 238, Allen v. Bennett. 3 Ves. & Bea. & P. 238. Moore's R. 328, a shilling offered and not accepted does not bind it. Next words are, some note or memorandum in writing of the bargain made and signed by the party to be charged therewith, or some other person thereunto by him, lawfully authorized." On this clause the first question is, does the word, bargain, include the consideration, so that this must be expressed in the memorandum? On this point, see Wain v. Warlters, Ch. 9, a. 20, s. 33, Ch. 11. a. 14, and cases there cited, Hunt, adm. v.. Adams, case Ch. 1, a. 25, s. 1.-Egerton v. Matthews, and other cases there cited, Ch. 11. a. 14, and cases there cited, as Sears v. Brinks, Stack v. Sill, &c. &c., but the word bargain is used in the 17 sect. 29 Ch. II. So in Mass. act the word agreement is used as to paying another's debt. Then as to bargain, Egerton v. Matthews may govern, Ch. 1, a. 25, s. 1 ; Ch. 11. a. 14, s. 5. Why have this and like cases been classed with Wain v. Warlters? This too has been questioned by Lord Eldon, 14 Ves. 189, Minet's case. --15 Ves. 286, Gordon's case.--Roberts on Frauds 117, note 58.--Fell on Mercantile Guaranties 246, and by C. J. Parsons, Ch. 11, a. 14, s. 5. The promisee's engagement need not appear, the jury may find his assent to the bargain; 6 East 307, 308, Egerton v. Matthews & al. As where the defts. agreed in writing to buy of the plt. thirty bales of Smyrna cotton, they signed, but the plt. did not. The act is to be signed by the party to be charged. 2 Johns. Ch. Cas. 164.-3 Taunt. 169.-3 Johns. Cas. 60.-4 Bos. & P. 252, 254.-3 Johus. R. 399.-7 Ves. 275, promisee's name must appear &c. What is signing. Making a mark is signing; see the word, 187.-2 Bos. mark, in the index. So the name printed or written with a pencil is signing. Saunderson v. Jackson, 14 Johns. R. 484. Ch. 127, a. 5, 12 Johns. R. 102. Mode of placing the signature, see Ch. 11, a. 7, above. 1 Phil. Evid. 370, 371, 272, 273. 3 Atk. 503, s. 2. 2 Maule & S. 294.-Ch. 32. a. 10, s. 12, a. 8, s. 1. Material. The form of the note or memorandum. This is not material; a letter is, Ch. 11, a. 4, 7, a. 8, several cases; a letter written by any one for one party, and communicated to the other is one. 2 Ch. R. 147.-1 Vern. 110, Hodgson v. Hutchinson.-5 Vin. Abr. 522, 527. Ch. 11, a. 10, s. 3. But a letter not written to be communicated to the other party, nor 7 Taun. 295. actually communicated to him, is not a memorandum. 2 P. W. 65, Ayliff v. Tracy; but is, if it state the agreement as already made by the party, but not to, or for the other party. 3 Atk. 503, and 2 Bos. & P. 238, also Tawney's Ca. a. 8.1 Scho. & Lefr. 22. Enough the letter recognises the past transaction. 1 Atk. 12.-11 Ves. 550.-1 Johns. Ch. R. 273. But the letter or writing signed must lead by writings to the -2 Bos. & P. 238. very terms of the contract in writing. 11 East 142.-1 Ves. Jr. 326, 334.-1 Scho. Lefr. 22.-3 Ves. & Beames 192. -2 Ball & Beatty 370. No parol evidence to vary the memorandum. See Mery v. Axsel, Preston v. Meruau, and many other cases, Ch. 93, parol evidence, also Binsted v. Coleman, Bunb. 65.-1 Ves. 326, 334, Ch. 11, a. 10, s. 1, Clinan v. Cooke ib. Walker v. Walker ib.-1 Johns. Ch. R. 279, but may be admitted as to the time of delivery &c., 3 D. & E. 590, 592, in Littler v. Holland, Cuff v. Penn, 1 Maule & S. 21, and Ch. 93, a. 3, s. 15.-14 Ves. 524, 254. CH. 11. Art. 5. 1 Johns. R. Next words, CC or some other person authorized" &c. If an 9 Ves. 250.agent sign as a witness it is sufficient, if he know the contents, 102. and puts his name so as to sanction the contract. See Auction and Auctioneer. 3 Burr. 1921, § 11. Sales at auction. (See Ch. 16.) It is said, that sales Simon v. Moat public auction are not within the statute, and the auctioneer tivos.-Bul. must be considered as the agent of the buyer (after knocking N. P. 275. down the hammer) as well as for the seller, and that his setting down in writing the name of the buyer, the price, &c., was sufficient to take the case out of the statute. See Ch. 16, a. 1, s. 14, Hinde v. Whitehouse.-Imp. M. P. 170.-1 Esp. 14.-1 W. Bl. 599.-2 H. Bl. 63, Rondeau v. Wyatt. See a. 6, s. 14, and Ch. 16.-Blagden v. Bradbear, 12 Ves. 466. 12. But in Rondeau v. Wyatt, Lord Loughborough held 2 H. Bl. 63.-executory contracts within the act, though it has been admitted 1 Com. D. by the party in his answer in chancery and is void, 7 D. & E 18. Sel. 153. 198.-1 Phil. Evid. 359. Walker v. 13. Held, that a sale at auction of lands is within the act. Bos. & P. 306, See more of sales at auction, Ch. 16, and New. on Contracts 176.-1 Esp. R. 105, 107.-7 Ves. 341.-9 Ves. 249.-4 Ch. 32, a. 9, Taun. 208.-2 Taun. 28. It seems to be well settled, that in s. 9. the sale of goods the auctioneer's writing down the buyer's name, is a signing by an authorized agent of the parties. So is the better opinion as to the sale of lands, but the agent Ch. 32, a. 10, must not be one of the parties. s. 12. ART. 5. A parol agreement cannot control a deed, and how Littler v. Holfar a writing? 1. Covenant. The plts. agreed to build two land.-3 D. & houses for the deft., on or before April 1, 1788, in considera- E. 590, 593. tion whereof, the deft. was to pay £500. Held, the parties could not, by a subsequent parol agreement, enlarge the time for building the houses, for the obligation of a covenant cannot be varied by a parol contract. As to the certainty of the contracts, see Ch. 225, a. 10, s. 5. 2. Debt on arbitration bond; award to be made by 3 D. & E. a certain day. The declaration stated, that the parties after- 592, Brown wards, by mutual consent, enlarged the time, within which v. Goodwin. CH. 11. 3 D. & E. 592. 2 D. & E. 425, Harri Roe v. son. enlarged time the award was made; on demurrer it was held, that the plt. must rest on the bond, which could not be extended to an award made after the time expressed in the bond, under a new agreement, so it was void. 3. Writing. An action was brought on written articles as to the theatre. These articles required a written license to the party to be absent. The deft. proved a parol license to be absent, but as the articles required a license in writing, the court held that a parol agreement was no answer to the plt's. action against the deft. for being absent. 4. A lease contained a proviso, that the lessee should not let, without leave in writing, on penalty &c., a parol license was adjudged to be insufficient to discharge the lessee from the restriction of the said proviso. In these two cases it was a part of the contract that the licenses be in writing; hence, these decisions do not directly prove in themselves, that written are more valid than parol agreements. 3 Bl. Com. ART. 6. Parol agreements as to lands. (See art. 10, a. Chris. Notes 11, a. 12, this chapter and Ch. 32.) When a verbal contract is 13, see Ch. 32.-Pow. on confessed by the deft. in his answer, or where there has been Con. 292, &c. a part performance of it, as by paying part of the considera-Cooper's tion money; or by entering and expending monies on the lands, equity will decree a performance; for in either case the acts done afford such evidence of the contents of the contract, that no essential danger arises of fraud and perjury by letting in evidence of a parol agreement. Pl. 133, 166, 167, 340, 341. -10 Mod. 572, New. on Con. 34, 36. 2 Vent. ease, and 2. In the case of an agreement for the sale of lands, the vendor, in equity, is deemed a trustee for the vendee till the 11 Mod. 467, conveyance is executed; and covenants, contracts, and agreeCoventry's ments, founded on valuable considerations, are viewed in equity New. on Con. as if they were actually performed, and the legal defects in 35, 36, &c.— their execution are aided by equity. Hence, if one covenant Hinton v. to sell and convey land, and die before conveyance made, Hinton, Cooper's Pl. 133. equity will compel his heir to execute it; but not if the vendor be tenant in tail, and his contract exceed his power; nor of stock or chattels, as corn, hops, &c. 1 P. W. 570.10 Vesey 161. Dougl. 620, v. Robinson. 3. When the plt. is to deliver possession and receive money, his declaration ought to shew he has a right to deliver it. As where in an assumpsit, on an agreement by which the deft. was to take of the plt. certain lands and goods, that should 2 H. Bl. 123. appear to be his property, by appraisement, or forfeit £5 5s. and if either party failed to perform he was to pay £10 to the other, exclusive of the deposit, the deft. to take possession on a day fixed. The plt. averred that on that day he was ready to deliver the premises to the deft., but that he did not accept them, but refused to do so, and so became liable to pay the £10, exclusive of the deposit. There was a special demurrer to the declaration; three causes were assigned; one, that it did not appear the plt. had any interest in the premises at the time of the agreement. The court decided, that "the plt. was to deliver possession, and therefore he ought to have shewn, that he had a right so to do." St. Albans v. Stone, 1 H. Bl. 270. A leased his farm to B by deed, they then agreed by parol B should pay for a pasture part of it; this is void. CH. 11. Art. 6. Act March $4. This act provides, 1st section, that all interests in, or 9 Johns. R. out of, lands, tenements, or hereditaments, created by livery 358.-Mass. and seisin only, or by parol, and not put in writing, and signed 10, 1784.by the party creating the same, or his agent authorized in wri- N. York Act ting, shall have only the force of estates at will, and no inter- the same. ests therein or thereout shall be assigned, granted, or surrendered, but by deed, or note in writing signed as above. Sealing a will is a signing, 2 Stra. 761, Warneford v. Warneford. 6 Cruise 50. -1 § 5. 2d. section enacts, that no action be maintained on any Doubted, contract, or sale of lands, tenements, or hereditaments, or any Wils.313. interest in or concerning the same, unless the agreement or some note thereof be in writing, signed as above. 6. 3d. section enacts, "that all grants and assignments, as well as all declarations, or creations of trusts, or confidences of any lands, tenements, or hereditaments, shall be proved by some writing signed by the party, who is by law enabled to grant, assign, or declare such trust, or by his last will in writing," or else be utterly void; provided that where any conveyance shall be made of any lands &c., by which a trust or confidence may arise by implication of law, or be transferred, or extinguished by operation of law, then such trust to be of like effect as it would have been if the act had never been made. $7. 4th section enacts, that all deeds and other conveyances of lands, tenements or hereditaments, signed and sealed, by the grantor having right, and acknowledged by him, and recorded at length in the registry of deeds, in the county where the land is, shall be valid to pass it, without any other ceremony in law; and no conveyance in fee simple, fee tail, for life, or any lease for more than seven years, of any lands &c., shall be good, to hold the same against any but the grantor and his heirs only, unless the deed or deeds be so acknowledged and recorded. 8. This act is in substance worded as the Province act was Note; the acts here citof 1692, except in the first provision. This Province law except- ed art. 4 & 6, ed leases not exceeding three years, on which a rent was re- being in subserved equal to two thirds of the improved value. And the stance that of province law of 1697, the 1st, 2d, and 3d sections, with said exception, are copied, in substance, from the 29th of Ch. II., the English statute respecting frauds. 29 Ch. II. in the several same. CH. 11. 2 Cain. 64. Sugden 60, 63.-2 Vent. 361.-Vern. 366.-12 Ves. 466. 1 Bac. Abr. 9. Upon these statutes, in substance the same, there have been the following material cases and explanations, viz: § 10. If A buy lands in his name, with B's money, it is a trust for B, though there be no deed declaring it, for the act extends not to trusts raised by operation of law; but the evidence of the fact must be clear; was in equity-12 Mass. R. $11. A parol agreement, intended to be reduced to wri73-9 Ves. ting, but is prevented by the fraud of the party to be bound, may be decreed in equity. 249. 12. A contract for the sale of timber growing on the land, is not within the act, but may be by parol, because it is a bare chattel; the authorities however are not entirely uniform on this subject, but some hold such trees an interest concerning lands. 13. A sale of land at auction is within the act, though knocked off to the best bidder, and his name written in the catalogue as a purchaser; the deposit not being paid, and he failed in his special action according to Eyre C. J. This doctrine of a sale at auction not being within the act, is on the whole unsettled. In the case of Simon v. Motivos, so often cited, there was a particular circumstance that had weight, to wit the next day the buyer came and saw the goods weighed, which the court thought a circumstance that deserved some attention, as it amounted to a delivery of the goods. Buller 280 cites this case, and adds the court decided, 1st. They thought a sale at auction not within the act, because so public a matter. "2d. They thought the contract here was sufficiently reduced into writing, and signed by an agent of the deft's, for the auctioneer was for that purpose his agent." Sd. They held the weighing by the deft's. servant was a delivery. 4th. That it was not within the act, as the contract was executory, to wit: the lot to be fetched away in six weeks. Imp. M. P. 170, cites this case as it stands in 3 Burrow, and approved it, as there decided. Timber and trees growing are a chattel, 1 Ld. Raym. 182. 14. 1. Esp. 14, the rule is laid down thus, "goods sold at public auction are not within the statute, that is, no earnest or note in writing between the parties is required;" and cites as an authority this same case of Simon v. Motivos. 15. Thus" buying and selling at auction, is not within the statute of frauds-semble. But certainly the auctioneer's setting down in writing, the price, the buyer's name, &c. is sufficient ;" and cites as an authority, this case of Simon v. Motivos; (as to an executory contract,) the court said, "the case of Simon v. Motivos was decided on the ground, that the auctioneer was the agent as well for the deft. as for the plt., |