ding by the solicitor in the cause is, that the sale is immediately chilled (i).

The same rule has been applied to assignees of a bankrupt, who, without authority, bought-in an estate ordered to be sold by the court upon a petition of a mortgagee (k).

(i) Nelthorpe v. Pennyman, 14 Ves. Jun. 517.

(4) Ex parte Tomkins, Ch. 23d Aug. 1816, MS. App. No. 11.

СНАР

CHAPTER III.

OF PAROL AGREEMENTS AND PAROL EVIDENCE.

WITH a view to prevent many fraudulent practices which were commonly endeavoured to be upheld by perjury, it was enacted by the 29 Car. 2. c. 3. usually called the statute of frauds, that () "all leases, estates, interests of freeholds, or terms of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements, or hereditaments, made and created by livery and seisin only, or by parol, and not put in writing by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the effect of leases or estates at will, any consideration for making any such parol leases or estates notwithstanding." But, nevertheless, leases not exceeding three years, whereupon the reserved rent should amount to two-thirds of the full improved value, were excepted (m). The act then requires the assignment, grant, and surrender of existing interests to be made by writing (n); and then (o) enacts that "no action shall be brought, whereby to charge any person upon any agreement made upon any contract, or sale of lands, tenements, or hereditaments, or any interest in, or concerning them (I), unless the agreement, upon

(I)" Or upon any agreement not to be performed within a year;" which clause does not extend to any agreement concerning lands. Hollis v. Edwards, 1 Vern. 159. It is quite clear, that an agreement for sale of lands must be in writing, although the contract is to be performed the next day.

which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

In treating of these legislative provisions, we may consider-1, What interests are within the statute-2, What is a sufficient agreement--3, What agreements will be enforced, although by parol; and-4, In what cases parol evidence is admissible to vary or annul written instru

ments.

IT

SECTION I

Of the Interests which are within the Statute.

T was observed, in the case of Crosby v. Wadsworth (p), that collecting the meaning of the first section by aid derived from the language and terms of the second section, and theex ception therein contained, the leases, &c. meant to be vacated by the first section, must be understood as leases of the like kind with those in the second section, but which conveyed a larger interest to the party than for a term of 3 years, and such, also, as were made under a rent reserved thereupon; and the court, therefore, determined, that a sale of a standing crop of mowing grass, then growing, was not within the first section of the statute, because neither of the foregoing circumstances were to be found in the agreement, although, as the agreement conferred an exclusive right to the vesture of the land during a limited time, and for given purposes, it was, the court held, a contract or sale of an interest in, or at least, an interest concerning lands.

It was not, however, necessary in the above case, to

(p) 6 East, 610.

decide upon the precise construction of the first section, which seems in this respect to be co-extensive with the fourth, and, consequently, every interest which is within the fourth section is equally within the first, unless it come within the saving of the second section. The first and second sections appear to enact, that all interests actually created without writing, shall be void, unless in the case of a lease not ex ceeding three years, at nearly rack-rent, which exception must have been introduced for the convenience of mankind, and under an impression that such an interest would not be a sufficient temptation to induce men to commit perjury. Perhaps, therefore, the first section ought to extend to every possible interest, which is not within the exception in the second clause. If an estate, of whatever value, should be conveyed to a purchaser by livery of seisin, without writing, the act would avoid the estate, although the purchaser had paid his money. An actual lease for any given number of years, whether with or without rent, or any interest uncertain in point of duration, must, it should seem, equally fall within the provision of the first section, and cannot be sustained unless it come within the saving in the second section.

This, however, of itself, would not have prevented all the evils which the act intended to avoid; for, although actual estates could not be created, yet still parol agreements might have been entered into respecting the future creation of them. To remedy this mischief, the provision in the fourth section was inserted, which, it is conceived, relates not to contracts or sales of lands, &c. but to any agreement made upon any contract or sale of lands, &c. (I), and as agreements were more to be dreaded

(1) This appears to be the true reading of the statute, although this branch of the fourth section has been sometimes read as a distinct clause,

dreaded than contracts actually executed, no exception was inserted after the fourth section, similar to that which follows the first section, and consequently an agreement by parol, to create even such an interest as is excepted in the second section, would be merely void.

If this be the true construction of the act, it answers

the

et

in which case the word agreement is dropped, and the clause runs thus, no action to be brought upon any contract or sale of lands, &c." See Anon. 1 Ventr. 361, and 6 East, 611; but this clause seems to be governed by the preceding one in the same section, as to agreements made upon consideration of marriage. The statute says no action to be brought, "to charge any person upon any agreement made upon any consideration of marriage, or upon [any agreement made upon] any contract or sale of lands, &c." The words between crotchets must, it is submitted, be implied. At the same time, there is certainly ground to contend, that the clause would have the same operation if not governed by the words in the preceding clause.

The statute seems to have been strangely misunderstood in the case of Charlewood v. Duke of Bedford, 1 Atk. 497, the report of which agrees with the register's book. The object of the bill was to compel the performance in specie of a parol agreement, by the Duke's steward, to grant a lease. The case, therefore, fell within the fourth section, but the defendent pleaded the first, and to bring his case within it, stated the words of the statute at the close of that section, to be " any contract for making such lease, or any former law to the contrary notwithstanding." The words really are any consideration, &c." The framer of the plea must have adopted an error which has been sometimes entertained, that the first section relates to leases, and the fourth to sales, and this notion compelled him to alter the statute in the way he did, for he could not otherwise have brought his case within it. It is observable, that Lord C. B. Comyns, before whom the cause was heard, did not notice the mistake,

Lord Keeper North seems to have entertained the erroneous opinion above noticed; for, in a case which came before him on a parol agreement for a lease, he said, that the difficulty that arose upon the act was, that it makes void the estate, but does not say the agreement itself shall be void, and therefore, though the estate itself is void, yet, possibly, the

agreement