No. 17.

29 Charles II. c. 3.-An Act for Prevention of Frauds and Perjuries.*

OR Prevention of many fraudulent Practices, which are com

FOR

monly endeavoured to be upheld by Perjury and Subordination 29 Car. II. c. 5. of Perjury; be it enacted by the King's most Excellent Majesty, 1 Roll. Abr. 24. by and with the Advice and Consent of the Lords Spiritual and Tem

poral, and the Commons, in this present Parliament assembled, and

by the Authority of the same, That from and after the Four and 2 Lev. 227. Twentieth Day of June, which shall be in the Year of our Lord One Parol Leases and Thousand Six Hundred Seventy and Seven, all Leases, Estates, Inte- Interest of Freerests of Freehold, or Terms of Years, or any uncertain Interest of, Force of Estates in, to or out of any Messuages, Manors, Lands, Tenements or at Will only. Hereditaments, made or created by Livery and Seisin only, or by

The Statute of Frauds embraces a great Variety of Subjects that have no Connection with each other, and many of which are in no Degree affected by the common Object referred to in the Title and Preamble. There is no Act, in the Statute Book, to which, from the Nature of its Contents, it would be more difficult to assign an appropriate Place in a Collection like the present; and the Statute is introduced in this Place, in conformity with a Principle which has, in a great Measure, been suggested by its own very miscellaneous Provisions, of inserting Acts which embrace a Variety of Provisions, applicable to different Parts of the general Division, under a common Title, in the first Class to which any one of the Subjects so included may relate.

The Statute, although far from having met with universal Approbation, has certainly received its full Share of Panygeric; and the Language of Extravagance has even gone so far as to declare, that every Line of it deserved a Subsidy. The framing of it has been ascribed to Sir Matthew Hale; but, apparently, without any sufficient Foundation.

The two leading Provisions, which require that the Disposition of Lands, and certain personal Contracts, shall be evidenced by Writing, signed by the Party conveying or contracting, and that Wills of Land shall be attested by Witnesses, are very useful and expedient-but are not distinguished by any great Novelty of Principle.

The Language and Composition of the Act have, certainly, no Claim to particular Commendation; and it is truly observed by Lord Mansfield, with Respect to the Clause concerning the Attestation of Wills, "that the whole Clause, which introduces a positive Solemnity to be observed, not by the learned only, but by the unlearned, at a Time when they are supposed to be without legal Advice, in a Matter which greatly interests every Proprietor of Land, when the Direction should be plain to the meanest Capacity, is so loose, that there is not a single Branch of the Solemnity defined or described with sufficient Certainty, to convey the same Idea to the greatest Capacity." Wyndham v. Chetwynd, 1 Bur. 418. It is certainly an Act which, next to those relating to the Settlement of the Poor, has been productive of greater Litigation, in settling its Construction, than any in the whole Range of the Statutes, although the Annuity Act may be placed in Competition with it in that Respect, when considered with Reference to the very limited Nature of the Subject to which it applies. It was stated by Mr. Barrington, forty Years ago, to be a common Notion in Westminster Hall, that it had not been explained at a less Expence than £100,000. But the Laxity, which has some times prevailed in the Construction of it, may share, with any Imperfection of its own, a considerable Proportion of the Imputation of that Expence-a Larity which the Opinions recently expressed, concerning its Operation, have very generally condemned; and there can be no doubt, that the permitting the Exposition of an Act to be influenced by any Opinions respecting its Policy or Utility, is not less repugnant to general Convenience, than to the Maintenance of a due Subordination of judicial Interpretation to legislative Authority.

hold shall have the

No. 17.

Parol, and not put in Writing, and signed by the Parties so making 29 Car. II. c. 3. or creating the same, or their Agents thereunto lawfully authorized by

Writing, shall have the Force and Effect of Leases or Estates at Will (1) only, and shall not either in Law or Equity be deemed or taken to have any other or greater Force or Effect; any Consideration for making any such Parol Leases or Estates, or any former Law or Usages, to the contrary notwithstanding.

Except Leases not II. Except nevertheless all Leases not exceeding the Term of exceeding Three Three Years from the making thereof, (2) whereupon the Rent reserved Yeats, &c. to the Landlord, during such Term, shall amount unto Two third Parts at the least of the full improved Value of the Thing demised.

tates of Freehold

III. And moreover, That no Leases, Estates or Interests, either No Leases or of Freehold, or Terms of Years, (3) or any uncertain Interest, not shall be granted being Copyhold or Customary Interest, of, in, to or out of any or surrendered by Messuages, Manors, Lands, Teuements or Hereditaments, shall at

Word.

Promises & Agree. menis by Parol.

any Time after the said Four and Twentieth Day of June be assigned, granted or surrendered, unless it be by Deed, or Note (4) in Writing, signed by the Party so assigning, granting or surrendering the same, or their Agents thereunto lawfully authorized by Writing, or by Act and Operation of Law.

IV. And be it further enacted by the Authority aforesaid, That 2 Shower 16. from and after the said Four and Twentieth Day of June, no Action Skinn.142, 143. shall be brought whereby to charge any Executor or Administrator upon any special Promise, to answer Damages out of his own Estate; 1 Vent.361,362. or whereby to charge the Defendant upon any special Promise to answer for the Debt, Default or Miscarriages of another Person; (5)

2 Mod. 310.

3 Lev. 65, 66.

1 Salk. 280.

See 3 Bur.1281, 1886, 1921.

(1) In Case the Holding is at a yearly Rent, it is construed to be a Tenancy from Year to Year, and not a strict Tenancy at Will, and there must be proper Notice to quit. Clayton v. Blakey, 8 T. R. 3. The Tenancy in all Respects, except the Duration of the Term, is regulated by the Parol Agreement. Doe dem. Rigge v. Bell, 5 T. R. 471. See some Observations as to Cases where Tenancy at Will may still subsist. Watkin's Elements of Conveyancing,. See also Harg. Notes to Co. Litt 55. (a). In Richardson v. Langridge, 4 Taunt. 128, it was held, that a Letting without Reference to Time, creates a strict Tenancy at Will.

(2) A Lease by Parol for three Years to commence in future, is not good. Rawlins v. Turner, 1 Lord Raym. 756.

(3) Ruled at Nisi Prius, that the Statute extends to a Parol Assignment of a Tenancy from Year to Year, Botting v. Martin, 1 Camp. 318, to a Surrender of such a Tenancy. Mollett v. Brayne, 2 Campb. 103.

(4) A Cancelling is not a Surrender within the Act. Roe v. Achb. of York, 6 East 86. Hut a Surrender of a Lease for Years may be made without Deed, as where a Mortgagee wrote on the Mortgage Deed "Received of A. B. for Principal and Interest, and I do release and discharge the within Premises from the Term of Five Hundred Years." This was holden to be a sufficient Surrender, Farmer v. Rogers, 2 Wils. 26.

(5) This Clause extends to a Promise that a third Person hiring a Horse shall return it. Buckmyr v. Darnall, Lord Raym. 1085. Salk. 27. a Promise to pay the Debt of A. B. in Case the Plaintiff would not sue for it. Rothey v. Curry, B. N. P. 281, to pay a Debt in Case the Plaintiff would stay his Action. Fish v. Hutchinson, 2 Wils. 94. A Promise before Delivery to pay, if J. S. would not. Jones v. Cooper, Cowp. 227-If you do not know him, you know me, and I will see you paid. Matson v. Wharam, 2 T. R. 80. (If the Person for whose Use the Goods are furnished be liable, any other Promise by a third Person to pay, must be in Writing, per Buller, ibid.] an Application to trust Defendant's Son on Defendant's Credit-Use him well and I will be bound for the Money, as far as £800 or £1000, the Son being debited and applied to for Payment-Question submitted to the Jury if any Credit was given to the Son-if so to find for Defendant-Verdict and Judgment for Defendant accordingly. Anderson v. Hayman, 1 H. Bl. 120,

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or to charge any Person upon any Agreement made upon Consideration of Marriage; (6) or upon any Contract or Sale of Lands, Tene- 29 Car. II. c 3. ments or Hereditaments, or any Interest in or concerning them; (7) or upon any Agreement that is not to be performed within the Space of One Year from the making thereof; (8) unless the Agreement (9)

to pay a Composition on the Debt of another, and Law Expences incurred→→→ bad for the Whole. Chater v. Beckett, 7 T. R. 201.

It does not extend to a Promise to pay-for not further prosecuting a Suit against Defendant, and others for a Tort. Stephens v. Squire, 5 Mod. 205. to pay £50 in Consideration of withdrawing the Record in an Action against a third Person for an Assault. Read v. Nash, 1 Wils. 305. A Promise by Defendant to pay Rent, if Plaintiff would not distrain Goods assigned to Defendant and others. Williams v. Leaper, 2 Wils. 308. 3 Bur. 1886-parting with Goods in Consideration of Promise to pay. N. P. per Lord Eldon. Houlditch v Milne, 3 Esp. 86. A Case where Plaintiff having Policies of Assurance in his Hands as a Security against Acceptances, for J. S delivered them to Defendant on his Promise to provide for the Acceptances. Castling v. Aubert, 2 East, 325-Agreement to assign Debt of A. B. to C. D. in Consideration of Ten Shillings in the Pound This is a Purchase of the Debt, and A. B. is discharged. Anstey v. Marden, 1 B. and P. N. R. 124.

(6) Mutual Promises of Marriage are not within the Act. Cork v. Baker, 1 Str. 34. Harrison v. Cage, 1 Ld. Raym. 386. The Contrary had been determined, in Philpott v. Wallet, 3 Lev. 65.

(7) Contract for Purchase of a growing Crop of Grass to be mown and made into Hay by the Vendee, is a Contract for an Interest in Land, and within the Statute, Crosby v. Wadsworth, 6 East, 602. So a Sale of growing Turnips, their Maturity not being stated. Emmerson v. Heelis, 2 Taunton, 38-Sale of Potatoes to be got immediately, is not. Parker v. Staniland, 11 East, 362. and see accordingly Warwick v. Bruce, 2 M. and S. 205. Plaintiff let Defendant Land, to be paid a Moiety of the Crops in Lieu of Rent, an Appraisment agreed to between the Parties, amounts to a Case of Goods sold and delivered, and is not within the Statute, Poulter v. Killingbeck, 1 Bos. and Ball. 397, Plaintiff agreed to accept A. B. as Tenant upon Defendant agreeing to pay Plaintiff 40, Part of £100, agreed to be paid by A. B. the Money being paid, Assumpsit lies for the £40, the Contract being executed, Griffith v. Young, 12 East, 513. A Parol Licence for an Easement to the Owner of adjoining Premises, is good, and not within the Statute. See Wood v. Lake, Say. 3. Winter v. Brockwell, 8 East, 308.

An equitable Mortgage by deposit of Title Deeds, was established in Russel v. Russel, 1 Bro. Ch. 269, and is now a Matter of daily Occurrence. This is mentioned in Ex parte Finden, 11 Ves. 404 n. as the first Case which broke in upon the Statute, and let in Evidence which it was the very Object of the Statute to exclude. But the Doctrine although disapproved, is not to be disturbed. Ex parte Haigh, 11Vesey, 403. Norris v. Wilkinson, 19 Ves. 197.

(8) This does not apply to Contracts upon an Event which may or may not happen within aYear, as Marriage, Death, the Arrival of a Ship, Anon. Salk. 280, Peter v. Compton, Skinner, 353. Fenton v. Emblers, 3 Burr. 1278. Where it appears by the Facts of the Case that the Engagement was not intended to be performed within a Year (as the Subscription for Boydell's Shakspeare) though Part was performed in that Time, the Case is within the Statute, Boydell v. Drummond, 11 East, 142.

(9) The Term Agreement, here seems to import no more than Promise or Engagement, and was not considered as having any other Construction until the well-known Case of Wain. v. Warlters, 5 East, 10, where, from a fanciful Derivation of the Term Agreement from agregatio mentium, it was decided, that it imports something to be done on both Sides, and that the Consideration must appear upon the Face of an Instrument, by which a Person engages for the Debt of another. In Stadt. v. Lill 9 East, 348, the Consideration was held to be sufficiently shewn in an Agreement undertaking to Guarantee the Payment of any Goods which A. might deliver to B. The Decision in Wain v. Warlters, is disapproved by Lord Eldon, in Exparte Minet, 14 Vesey, 189, Exparte Gardom, 15 Vesey, 286, and it is a Case which has been more disapproved by the Profession, and is certainly more inconvenient in itself than

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29 Car. II. c. 3.

upon which such Action shall be brought, or some Memorandum or Note thereof, shall be in Writing, and signed (10) by the Party to be charged therewith, (11) or some other Person thereunto by him law. fully (12) authorized. (13)

any Decision of modern Times. See the Observations on the Grounds of the Decision in Fell's Treatise on mercantile Guarantees. App. IV. In Bateman v. Phillips, 15 East, 272, it was ruled that a Letter to an Attorney stating, "I trust you will give A. B. Indulgente till next Week, when I will undertake to see you paid," was a sufficient Promise to pay the Debt for which the Attorney was employed to sue. See, further, Notes to Sec. 17, infra.

(10) The Signature need not necessarily be at the Foot of the Instrument; but the mere Writing of the Name of the Party in the Body of an Instrument containing Instructions for a Lease, as "A. B. to pay C. D. &c." being only applicable to a particular Purpose, and not intended as a Signature, is not suffi cient, Stokes v. Moore, 1 Cox P. Wms: 771 N. So the Altering a Draft is not a Signature, Hawkins v. Holmes, 1 P. W. 770. See Sanderson v. Jackson, Note to Sec. 17, infra. Signature as a Witness, knowing the Contents, was held sufficient by Lord Hardwicke, in Wilford v. Beazely, 1 Wils. 118, 3 Atk. 503. Sed. Qu. the Question of a Knowledge of the Contents so as to attach to the Fact of Attestation, an Effect and Import which it does not bear upon the Face of it, involves the Subject in all the Danger of Parol Evidence.

(11) A Party, who has himself signed the Agreement, cannot object, that it is not signed by the other Party, as is settled by a Series of Cases, from Hutton v. Gray, 2 Cha. Ca. 164, decided about seven Years after the Statute, to Seton v. Slade, 7 Ves. 265. This is a strong Illustration of the Principle, that the Writing required is the Evidence and not of the Essence of the Contract.

(12) The Authority of the Agent need not be given in Writing-Coles v. Trecothick, 9 Vesey, 234, 250, Clinan v. Cooke, 1 Schoales, and Lefroy, 22— but this is expressly required with Respect to the Subjects mentioned in Sec. 1. The Clerk of an Agent is not generally authorized to sign-but held sufficient in the particular Case upon Evidence of Assent. Coles v. Trecothick, ub. supra, See Mortlock v. Buller, 10 Ves. 292, in which, under a Power to Trustees to sell at the Request of A. B. a general Consent of the Trustees to sell was held not to constitute A. B. an Agent for the Trustees to enter into a Contract. An Authority to a Steward, to sell by Auction, does not authorize a Sale by private Contract. Daniel v. Adams, Amb. 495. It was ruled, in Walker v. Constable, 1 Bos. and P. 306, that an Auctioneer, upon a Sale of Land by Auction, is not such an Agent of both Parties as to make his Entry of the Sale operate as a Signature of the Purchaser, contrary to the Doctrine established with Respect to Sect. 17, as to Sales of Goods. See Lord Eldon's Observations upon this Subject, in Coles v. Trecothick. See the Observations of Sir Wm. Grant, Buckmaster v. Harrop, 7 Vesey, 341, and of Lord Erskine upon Appeal, 13 Vesey, 456, and the Opinion of Sir Wm. Grant, Higginson v. Clowes, 15 Vesey, 516.

In Emmerson v. Heelis, 2 Taunt. 38, it was decided, that the writing down the Name of the Purchaser, by the Auctioneer, is a signing by an Agent for the Purchaser, although for the Sale of an Interest in Land-and this is confirmed by White v. Proctor, 4 Taunt. 209. It does not seem to have been noticed, that, at the Time of writing down the Name, it is not intended as the Record of a Purchase,. but only of a Bidding.

(13) In Addition to the preceding Notes on this Section, it will be proper to advert briefly to the following Heads :

An Agreement, expressed by Letter, is sufficient.-Moor v. Hart, 2 Ch. Rep. 147, 1 Vernon, 110. So a Proposal by Letter acceded to by Parol.-Coleman v. Upcot, 5 Viner, 527. A Proposal by Letter for a Daughter's Portion, afterwards retracted and again agreed to by Parol.-Bird v. Blosse, 2 Vent. 361. A Proposal at first refused but afterwards consented to.-Hodgson v. Hutchenson, 5 Viner, 522. This seems to be an incorrect Decision, not merely with Reference to the Statute, but upon general Principles-for, in ordinary Cases, a Proposal may be retracted at any Time before Acceptance, and is no longer obligatory after actual Refusal. Ruled, that a Letter by the Defendant to his Daughter, whom the Plaintiff courted, intimating that he had met the Plaintiff, and agreed to give him a Portion, which Letter was not communicated to the Plaintiff, was

V. And be it further enacted by the Authority aforesaid, That from and after the said Four and Twentieth Day of June all Devises and Bequests of any Lands or Tenements, deviseable either by Force

No. 17.

29 Car. Il e. 3. shall be in Wi

Devises of Lands

ting, and attended by Three or Four Witnesses.

not binding, being no more than a mere Communication.-Ayliffe v. Mr. 3 Lev. 86. Justice Tracy, 2 P. Wms. 65. See Wankford v. Fotherley, 2 Vern. 322. Carthew $5,514 -Maxwell v. Lady Montacute, Prec. Ch. 526, 1 P. Wms. 618.-Allan 3 Mod.218,262. v. Bower, 3 Bro. Ch. 149.-Luder's v. Anstey, 4 Vesey, 501-5 Vesey, 213. There is a Difference between the 4th and 7th Sections of the Statute: the latter only requires, that a Trust shall be manifested by Writing, not that it shall be constituted by Writing-and the former requires the very Agreement to be in Writing -Per Sir Wm. Grant, in Randall v. Morgan, 12 Ves. 67.

A Letter or other Paper, duly signed, clearly referring to another Paper, which contains the Terms of the Agreement, is sufficient-Tawney v. Crow ther, 3 Bro. Ch. 161, 318-but there must be an actual Reference; and an Agreement for a Lease, not specifying a definite Term, or referring to an Advertisement in which such Term was expressed, cannot be connected with the Advertisement by parol Evidence.-Clinan v. Cooke, S. & L. 22. The Cases of Seagood v. Meale, Prec. Ch. 560-Clerk v. Wright, 1 Atk. 12Whaley v. Bagenal, 1 Bro. P .C. 345-and also Clinan v. Cooke, decide, that a Letter reterring to an Agreement, but not specifying the Terms of it, is not sufficient. In Brodie v. St. Paul, 1 Vesey, jun. 326, it was held, that a Reference in an Agreement to such Parts of another Paper as had been read to the Party was not sufficient.

An Alteration of an Agreement, relating to a Subject within the Statute, is as much affected by the Statute as an orignal Agreement, and requires the same Solemnities.

Sufficient Attention has not always been paid, in this Respect, to the Distinction between Cases where Writing was necessary from the Nature of the Subject, and those in which it had only been accidentally resorted to in the original Agreement.-See Cokes v. Mascal, 2 Vern. 34.-Jordan v. Sawkins, 1 Ves. jun. 402.-Rich. v. Jackson, 4 Bro. Ch. 514.-Robson v. Collins, 7 Vesey, 130. The Disallowance of parol Evidence, to shew that other Terms, not expressed, were intended to perform Part of a written Agreement, does not depend so much upon the Statute, as upon the general Rule of Law, that parol Evidence cannot be admitted to vary the Terms of an Agreement.See, upon this Subject, the Distinction between Cases of a Plaintiff requiring the Performance of an Agreement different from that expressed, and those of a Defendant resisting Performance on the Ground of Fraud or Surprise — Young v. Clark, Prec Ch. 538.-Legal v. Miller, 2 Vesey, 376-Buxton v. Lister, 3 Atk 583.-Shirley v. Stratton, 1 Bro. Ch. 440.-Staugron v. Marquis of Townsend, 6 Vesey, 328.-Clarke v. Grant, 14 Vesey, 519-Higginson v. Clowes, 15 Vesey, 516. See also Price v. Dyer, 17 Vesey, 356, in which the original Agreement was enforced, notwithstanding a subsequent parol Agreement to add other Terms in Favour of the Defendant. In this Case most of the Authorities upon the Subject are referred to.

For Cases of decreeing Performance of an Agreement, not conformable to the Statute, on the Ground of Fraud, see Cooke v. Mascal, 2 Vern. 34 and 200.-Mallet v. Halfpenny, cited Pr. Ch. 404.

For Cases in which a Person, who has dissuaded another from making or altering his Will, uporr an Engagement to comply with his Intention, has been compelled to perform such Engagement, see Chamberlaine v. Chamberlaine, 2 Freem, 34, 2 Eq. Ca. ab. 43, Prec. Ch. 4.-Devenish v. Baines, Prec. Ch. 3-Oldham v. Litchford, 2 Vern. 506.-Reech v. Kennegal, 1 Vesey, 123-Barrow v. Greenough, 3 Vesey, jun. 152.

It is a well known Exception, which Courts of Equity have introduced in the Construction of the Statute, that the Benefit of it shall not be taken against an Agreement which has been in Part performed; and Buller, J. in Brodie v. St. Paul, 1 Vesey, jun. 333, intimated an Opinion, that the same Rule would prevail at Law-but the contrary Opinion was strongly expresssed by Lord Eldon, in Cooth v. Jackson, 6 Vesey, 29. The Inclination of Courts of Equity, in modern Cases, has been rather to narrow than to extend the Doctrine of part Performance.