It was objected, that there was no evidence of the execution of the deed by the defendant Heming; but the learned Judge ruled that there was evidence for the jury. It was also objected, that this was a contract within the 4th section of the Statute of Frauds, 29 Car. 2, c. 2, and ought, therefore, to have been signed by the defendant Heming. His Lordship was of opinion that a deed was not within the meaning of that statute, and a verdict was found for the plaintiff. Knowles having obtained a rule nisi for a new trial, on the ground of misdirection, Watson and T. Jones shewed cause (a).-Assuming that a contract by deed is an agreement within the Statute of Frauds, 29 Car. 2, c. 3, s. 4, this deed did not require to be signed, for it was wholly performed on the one part by the plaintiff, and all that remained to be done on the other was payment. The statute only applies where the agreement is not to be performed by either party within the year. In this case the whole consideration for the promise to pay the money was executed. It is the same in principle as Hoby v. Roebuck (b), and Donellan v. Read (c). [Parke, B.-There are some observations on the latter case in the note to Peter v. Compton, 1 Smith's Lead. Cas. 144. However, Donellan v. Read is not at variance with Peter v. Compton, because Holt, C. J., disposed of that case by saying it did not appear that the agreement was not to be performed within the year.] It is in accordance with what was said by Abbott, J., in Bracegirdle v. Heald (d). But the statute does not apply to deeds; its object was the prevention of fraud in (a) Upon the objection, that there was no evidence of the execution of the deed by the defendant Heming, the Court stopped Watson, saying that there was clearly evidence to go to the jury. Parke, B., referred to Hudson v. (6) 7 Taunt. 157. 1849. CHERRY v. HEMING. 1849. CHERRY V. HEMING. respect of parol agreements, and not to affect such solemn instruments as deeds. That is evident from the recital. The question arose in Cooch v. Goodman (a), but was not decided. [Parke, B.-Mr. Preston, in a note to his edition of Sheppard's Touchstone (b), treats as a mistake the passage in Blackstone's Commentaries (c), in which it is laid down that the Statute of Frauds revives the Saxon custom of signing; and in page 60, where it is said, "It appeareth that the putting to or subscribing of the parties' name or mark to the deed he is to seal is not essential; for a deed," -Mr. Preston adds,-even since the Statute of Frauds and Perjuries, "may be good, albeit the party that doth seal it doth never set his name or his mark to it, so as it be duly sealed and delivered."] To render an agreement good, some consideration must be expressed on the face of it; and if the word "agreement" in the statute includes deeds, a consideration must be stated in them, although none is required to support them. The inference, therefore, is, that the statute means such agreements only as require a consideration to be expressed on the face of them. In a plea of an agreement within the statute, it is necessary to aver that the agreement is in writing; but a deed is never pleaded as an agreement signed by the parties. Even if the statute does apply, there is in this case a sufficient memorandum in writing'; for the notice of the 31st March, 1837, which was signed by the defendants, expressly refers to and adopts the deed: Schneider v. Norris (d), Saunderson v. Jackson (e). It is the same as if a letter had been written by the defendants, in which they acknowledge that on a certain day they had made such an agreement, which would be clearly a note or memorandum within the statute: Coles v. Trecothick (f). (a) 2 Q. B. 580. (c) Vol. 2, p. 306. (d) 2 M. & Sel. 286. Knowles and Bramwell, in support of the rule.-Deeds are within the mischief which it was the object of the statute to prevent. [Parke, B.-The object was to render the evidence certain. In Aveline v. Whisson (a), which was an action of covenant on a lease, a plea that the indenture was not signed by the lessor, or any agent authorised in writing, was held bad. That shews that the first section of the statute does not apply to deeds.] An agreement is not the less an agreement because it is under seal. [Alderson, B.-Your argument must go this length: that a deed sealed and attested, but not signed, is no agreement under the Statute of Frauds.] In Smith's Mercantile Law (b) it is said, that the cases in which it is held that the statute does not apply to agreements, one part of which is to be performed within a year, and the other not, is opposed to the older authorities, and that the word "agreement" has been frequently construed to mean all that is to be done on both sides. An agreement includes both the consideration and promise. Expanding the language of the statute, it means any arrangement between the parties where that which is the consideration for the other party's acting is not to be performed within the year. Performance is not complete until both parties have performed their promises. PARKE, B.-The rule must be discharged. With respect to the question, whether this is an instrument within the Statute of Frauds, I think that Donellan v. Read is an answer; and, in my opinion, that case was rightly decided. The question turns upon the construction of the words. not to be performed;" and in Donellan v. Read the Court considered that those words meant, not to be performed on either side, and did not include cases where the contract was performed on the one side. That was certainly in accordance with the opinion expressed by Lord Tenter (a) 4 M. & G. 801. VOL. IV. T T (6) Page 440, 4th edit. EXCH. 1849. CHERRY v. HEMING. 1849. CHERRY v. HEMING. den in Bracegirdle v. Heald. If Donellan v. Read had been simply a decision on a doubtful point, we ought to be bound by it, unless manifestly wrong; and the learned observations of Mr. Smith are not sufficient to induce me to say that it was wrongly decided. The case of Peter v. Compton, which he relies on, does not support his view. All that can be said of that case is, that, there being two answers to the Statute of Frauds, Lord Holt gives one which is satisfactory, namely, that the agreement might have been performed within the year. It is unnecessary to give an opinion on the other points; but I must own that I think a deed is not within the Statute of Frauds, because, in my opinion, that statute was never meant to apply to the most solemn instrument which the law recognises. I also think that the notice which refers to the deed would, if it were necessary to have recourse to it, be a sufficient note or memorandum within the statute. I do not mean to be concluded by this expression of my opinion on the two latter points, but only to state my present impression. ALDERSON, B.-I also think that Donellan v. Read is good law; but even if it were not, this case would not require its assistance, because, this being the case of a deed, it must be taken to have been sealed by the parties in due form, and the statute does not apply to such instruments, but only to parol agreements. ROLFE, B.-I am strongly inclined to think that the statute does not extend to deeds, because its requirements would be satisfied by the parties putting their mark to the writing. The object of the statute was to prevent matters of importance from resting on the frail testimony of memory alone. Before the Norman time, signature rendered the instrument authentic. Sealing was introduced because the people in general could not write. Then there arose a distinction between what was sealed and what was not seal ed, and that went on until society became more advanced, when the statute ultimately said that certain instruments must be authenticated by signature. That means, that such instruments are not to rest on parol testimony only, and it was not intended to touch those which were already authenticated by a ceremony of a higher nature than a signature or a mark. PLATT, B., concurred. 1849. CHERRY V. HEMING. Rule discharged. LUSH v. RUSSELL. ASSUMPSIT. The declaration, after reciting that the defendant, before and at the time of the making of the promise, &c., was about to commence and carry on the trade and business of a baker in the city of Bristol, and the plaintiff then was and still is a journeyman baker, stated, that heretofore, to wit, on &c., it was mutually agreed by and between the defendant and the plaintiff, that the plaintiff should forthwith enter into the employ of the defendant, and should continue in his employ, in the capacity of journeyman baker, for the term of four years, &c. (The declaration, which set out the agreement verbatim, here stated numerous stipulations on the part of the plaintiff as to faithful service, &c., immaterial to the present question). And the defendant, in consideration of the faithful services of the plaintiff, to be done and performed as was therein before expressed, did thereby agree with the plaintiff, that he the defendant would receive the plaintiff into his service and employment, and continue him in service fendant did not pay the plaintiff the additional sums which he would have been entitled to if he had continued in the employ of the defendant. General demurrer to the two last breaches, and joinder therein:-Held, that the proper course was to have applied to a Judge to strike out those breaches, and that, upon this record, they could not be treated as surplusage. |