spectus did not refer to the book, or the book to it, the statute had not been complied with, and the contract could not be enforced.

"If," said J. Leblanc, "there had been anything in that book which had referred to the particular prospectus, that would have been sufficient; if the title to the book had been the same with that of the prospectus, it might perhaps have done: but, as the signature now stands, without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any pro[*39] spectus, and saying that it was the prospectus exhibited in his shop at the time, to which the signature related: the case therefore falls directly within this branch of the Statute of Frauds."

There is a third point common to all the five contracts mentioned in the fourth section; it is with regard to the signature. The words are, you will recollect, "Signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The signature to be that of the party to be charged; and therefore, though as I have pointed out to you, both sides of the agreement must appear in the writing, the consideration as well as the promise, it is not necessary that it should be signed by both the parties; it is sufficient if the party suing on it is able to produce a writing signed by the party whom he is seeking to charge; that was the point decided in Laythoarp v. Bryant, 2 Bing. N. C. 744, 29 E. C. L. R. (a)1

(a) And if a contract already exists, binding one party, any subsequent note signed by the other party, which includes or refers to the terms of the same contract, is equally binding. Dobell v. Hutchinson, 3 Ad. & Ell. 355, 30 E. C. L. R.

It matters not whether the signature be placed at the top or else

As it was in Penniman v. Hartshorne, 13 Mass. 87; Hawkins v. Chace, 19 Pickering, 502; Balland v. Walker, 3 Johns. Cases, 60; Clason v. Bailey, 14 Johns. 487; Douglass v. Spears, 2 Nott & M'Cord, 207; Anderson v. Harold, 10 Ohio, 399; Smith v. Smith, 8 Blackford, 208.

[*40]

*The last point I shall mention common to all the contracts falling within this section regards the consequence of non-compliance with its provisions. (a) This consequence is, not that the unwritten contract shall be void, but that no action shall be brought to charge the contracting party by reason of it. (b) And cases may occur, in which the contract may be made available without bringing an action on it; and in which, consequently, it may, though unwritten, be of some avail. Thus, for instance, if money have been paid in pursuance of it, that payment is a good one for all purposes: for instance, in Griffith v. Young, 12 East, 513, where 1007. was paid by the incoming tenant to the outgoing one, partly for himself,

where in the document, so that the intention to sign it be clear. Johnson v. Dodgson, 2 M. & W. 653; [Penniman v. Hartshorne, 13 Massachusetts, 90. By the New York Revised Statutes the memorandum must be subscribed; and it is held, therefore, that a signature elsewhere than at the bottom or end of the writing is insufficient to satisfy the statute as thus varied. Davis v. Shields, 26 Wendell, 341.] But it is essential that it should have been signed before an action is commenced to enforce it, or there would be no good contract, and therefore no cause of action at the time it was brought. (See Bill v. Baiment, 9 M. & W. 36, which decides the doubt in Fricker v. Tomlinson, 1 M. & Gr. 773, 39 E. C. L. R.)

(a) The seventeenth section differs in this respect. (See infra, p. 70.)

(b) It is not necessary in pleading to declare that the promise was in writing; it is sufficient to show that it was so (2 Salk. 519); neither must the defendant who relies on the fact that there was no written note, plead that defect specially: he may give evidence of it under the general issue, which is a denial of the matters of fact from which the law implies a contract. Therefore, a special plea, that the Statute of Frauds had not been satisfied, would be demurrable as an argumentative denial of the contract itself. Leaf v. Tuton, 10 M. & W. 393; Buttemere v. Hayes, 5 M. & W. 456. See also Maberly Sheppard, 10 Bing. 99, 25 E. C. L. R.; and Baldey v. Parker, 2 B. & C. 44, 21 E. C. L. R.

V.

and partly for the landlady, in pursuance of a verbal agreement. The incoming tenant refused to pay the landlady her share, saying that there was no writing, and that words were but wind. The landlady [*41] brought her action, and Lord Ellenborough nonsuited her, on the ground that the agreement, being for an interest in land, ought to have been in writing; but the Court of Queen's Bench set aside the nonsuit, with Lord Ellenborough's own concurrence.1

I have now pointed out to you the matters in which all simple contracts agree, and the practical differences which exist between the effect of written and that of verbal contracts, although in theory both sorts fall within the denomination Simple Contracts. I have described the consequences which follow from the rules of evidence upon the reduction of any contract whatever into writing, and I have begun to describe those consequences which follow from the provisions of the Statute of Frauds, in the cases to which it is applicable. But as it is impossible to finish the consideration of that statute this evening, I shall proceed with it in the next lecture.

THE STATUTE OF FRAUDS-PROMISES BY EXECUTORS AND AD

In the last lecture I began the consideration of those species of contracts which, according to the fourth section of the Statute of Frauds, must be evidenced by writing.

To the same effect is Philbrook v. Belknap, 6 Vermont, 383.

I touched on the points which equally apply to each of those five species, those namely which regard the appearance in the writing of the consideration as well as the promise, the signature which the statute requires, and the consequences of not reducing to writing contracts which the statute requires should be so evidenced. It remains, before terminating the consideration of that section of the Act, to say a few words upon each of the five particular species of contracts to which it applies. The first is-any special promise by an executor or administrator to answer damages out of his own estate. The principal case on this subject is Rann v. Hughes, which went up to the House of Lords, and is reported in 7 Bro. P. Ca. 556, and 7 T. R. *350 n. The [*43] point decided in that case is, that the Statute of Frauds in no manner affected the validity of such promis es, or rendered them enforceable in any case in which at common law they would not have been so; but merely required that they should be reduced to writing, leaving the written contract to be construed in the same manner as a parol contract would have been had there been no writing. The opinion of the judges was delivered to the House of Lords by L. C. Baron Skynner, and is extremely instructive. (a)

(a) It is thus essential that the consideration for the promise of the executor and administrator should appear, which consideration, as we shall afterwards see under the title of Parties to Contracts, must be other than that which attached to the original liability: it is, in fact, a new contract between new parties, for the executor is nowise bound to perform the contracts of his testator de bonis propriis, and, therefore, his promise to do so must be supported by a new consideration. Forbearance to sue an executor for some definite time for a debt due from the testator is a sufficient consideration for a promise by the executor to pay it, although there be no assets. 1 Rol. Abr. 24, pl. 33; Hawes v. Smith, 2 Lev. 122 (see Deeks v. Strutt, 5 Term, 693). The proving of his debt by the creditor, at the re

[*44]

The next species of promise mentioned in the *fourth section is " Any special promise to answer for the debt, default, or miscarriage of another person."

This includes all those promises which we ordinarily denominate guarantees, and has given rise to a very great deal of discussion.

In the first place, it has been decided that the sort of promise which the statute means, and which must be reduced to writing, is a promise to answer for the debt, default, or miscarriage of another person, for which that other person himself continues liable. Thus, if A. go to a shop, and say, "Let B. have what goods he pleases to order, and if he do not pay you, I will," that is a promise to answer for a debt of B. for which B. himself is also liable, and, if it be sought to enforce it, it must be shown to have been reduced to writing: but, if A. had said "Let B. have goods on my account," or "let B. have goods, and charge me with them;" in these cases, no writing would be required, because B. never would be liable at all, the goods being supplied on A.'s credit and responsibility, though handed by his directions to B. You will find this proposition amply illustrated by Birkmyr v. Darnell, Salk. 27; Bird v. Gammon, 3 B. N. Ca. 889, 39 E. C. L. R.; Goodman v. Chase, 1 B. & A. 297, 20 E. C. L. R.; and the notes to Forth v. Stanton, 1 Wms. Saund. 211. Goodman v. Chase presents rather a singular instance of the application of the rule of *construction [*45] of which I have been speaking. In that case,

quest of the executor, has been held a sufficient consideration, it being "a trouble and charge" to the creditor to do so. 1 Siderfin, 57. Any valid consideration suffices, (see the next lecture on "Considerations,") and such consideration flowing between the parties, according to the rule in p. 35, ante, must appear on the memorandum. See the notes in 2 Saund. 137 b, and 1 Saund. 209 a.