CHAP. III. CHAPTER III. Section I. CONTRACTS UNDER FOURTH SECTION. HE fourth section of the Statute of Frauds (a) provides that "no action shall be brought whereby to charge any executor or adminis trator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon 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." This section of the Statute does not expressly and immediately vacate the contracts mentioned (a) See 7 W. III. c. 12, s. 7, for the Law in Ireland. in it if made by parol, (a) it only precludes the bringing of actions to enforce them by charging the contracting party or his representatives on the ground of such contract, or of some supposed breach thereof. (b) Sales by auction are within the statute, (c) and so also are sales in bankruptcy. (d) But sales under the order of the Court are not, for the object of the statute being to prevent frauds and perjuries, any agreement in which there is no danger of either is considered as out of the statute. (e) But the purchaser is always required to sign. (f) CHAP. III. Sect. I. Sales to which statute ex tends. tracts. An action cannot be maintained in this country to Foreign conenforce a parol agreement made abroad and valid there, which could not, on account of the statute, have been sued upon if made here. (g) The rule is now well established, that so much of the law as affects the rights and merit of the contract; all that relates, ad litis decisionem, is adopted from the foreign country; so much of the law as affects the remedy only, all that relates, ad (a) The seventeenth section, (c) Buckmaster v. Harrop, it would appear, distinctly 7 Ves. 341; Blagden v. Bradavoids the contracts to which bear, 12 Ves. 472; Higginson it applies. Laythoarp v. Bryant, v. Clowes, 15 Ves. 521. 3 Scott,256; Stockdale v.Dunlop, 6 M. & W. 224. See, however, a dictum of Lord Denman, C. J., contra, in Stead v. Dawber, 2 Per. & D. 447. (b) Crosby v. Wadsworth, 6 East. 602, per Lord Ellenborough; and see Leroux v. Brown, 12 C. B. 801; Barkworth V. Young, 4 Drew, 1; Banks V. Crossland, L. R. 10 Q. B. F (d) Ex parte Cutts, 3 M. & A. 549; 3 Dea, 267. (e) Att.-Gen. v. Day, 1 Ves. Sen. 218; Lord v. Lord, 1 Sim. 503; Blagden v. Bradbear, 12 Ves. 472. (f) Dart. V. & P. 5th ed. 197. (g) Leroux v. Brown, 12 C. B. 801; and see Williams v. Wheeler, 8 C. B. (N. S.) 299. CHAP. III. Dissolution of contract. Alteration. litis ordinationem, is taken from the lex fori of the country where the action is brought. (a) The statute does not contain any provision requiring that a contract, which must be in writing, shall be dissolved by writing, and it seems, therefore, that such a contract may, before breach, be wholly waived and abandoned by a parol agreement, so as to prevent its being sued upon. (b) And if another contract is substituted it must be valid, and must be in writing, if it comes within the class of contracts required by the statute to be so proved. (c) Any alteration in the terms of an agreement required to be in writing, must be evidenced by writing. (d) Special promise by executor. Mere promise is insufficient; must be consideration. Section II. PROMISES BY EXECUTOR. No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate. A promise by an executor to pay a debt out of his testator's estate is nudum pactum, if there are no assets, (e) and a consideration must be alleged, as of (a) Huber v. Steiner, 2 Sc. 326, per Tindal, C.J.; and see 2 Wms. Saund. 399; Add, on Contrs. 176, and 1 Sm. L. C. 7th ed. 658, notes to Mostyn v. Fabrigas. (b) Hobson v. Cowley, 27 L. J. Ex. 205; Lavery v. Turley, 30 L. J. Ex. 49; Goss v. Lord Nugent, 5 B. & Ad. 66. (c) Moore v. Campbell, 10 Exch, 323; Noble v. Ward, L. R. 2 Exch, 135. (d) Emmet v. Dewhurst, 3 Mac. & G. 587; Noble v. Ward, L. R. 2 Exch. 135. (e) Pearson v. Henry, 5T. R. 6: Mitchinson v. Hewson, 7 T. R. 348. CHAP. III. Sect. II. assets come to his hands, or of forbearance, otherwise the promise will not be personally binding on him.(a) The Statute of Frauds was made for the relief of personal representatives, and others, and did not intend to charge them, further than by common law they were chargeable. The words of the statute are merely negative, and say that executors and administrators shall not be liable out of their own estates, unless the agreement upon which the action is brought, or some note or memorandum thereof, is in writing, signed by the party. The common law required a consideration, The statute also requires and the statute added writing. (b) It is not necessary writing. to plead that the promise was in writing, though it must be proved in evidence that it was. (c) Under some circumstances, however, a mere parol Exceptions. agreement is binding, and specific performance may be decreed. Thus a verbal promise by a person to whom letters of administration are afterwards granted, may be binding on him as administrator. Where A promised that if the widow of an intestate would permit him to be joined with her in the letters of administration, he would make good any deficiency of assets to pay debts, it was held that the promise was binding, and not within the statute, because at the time it was made A was not administrator, and it was no answer to say that he was administrator afterwards. (d) So an (a) Reech v. Kennegal, 1 Ves. Sen. 126; Barnard v. Pumfrett, 5 My. & Cr. 63. (b) Rann v. Hughes, 7 T. R. 350, n. (a.); 4 Bro. P. C. 27; and see Hawkes v. Saunders, Cowp. 289; Philpot v. Briant, 4 Bing. 717; 1 M. & P. 754. But see also Herbert v. Powis, (c) Anon. Salk. 519; Wil- (d) Tomlinson v. Gill, Ambl. 330; and see Griffith v. Sheffield, 1 Eden, 77; Gregory v. Williams, 3 Mer. 590. Sect. II. Not necessary to show cause of debt. Requisites to promise. CHAP. III. administrator, de bonis non, verbally promising to pay an annuity given by the testator's will, does, under certain circumstances, make himself personally liable. (a) It is not necessary to show the cause of the debt. (b) In order that a promise may be binding, there must be some benefit to the party making it, or some detriment to the party to whom it is made, otherwise it will be nudum pactum, and cannot be enforced: and therefore, if at the time the promise was made there was no person whom the plaintiff could have sued, his forbearance does not amount to a consideration. (c) So it has been held that where a man who is neither executor nor administrator gives a promissory note, payable at a future day, to a creditor of a deceased person, for the debt, without any other consideration for making it, the payment of the note cannot be enforced by the payee, if at the time of them aking thereof there was no personal representative of the debtor. (d) What is sufficient A promise in consideration that the plaintiff would consideration. forbear to require sureties of the peace is a sufficient consideration. (e) Where the plaintiff declared in assumpsit that the defendant's testator was indebted to A, who, after the testator's death, assigned the debt to the plaintiff, and appointed him to receive it to his own use, and the de (a) Herbert v. Powis, 1 Bro. P. C. 355. (b) Therne v. Fuller, Cro. Jac. 396; Austen v. Bewley, ib. 548. (c) Jones v. Ashburnham, 4 East, 455; and see Marshall v. Burtinshaw, 1 B. & P. (N. R.) (d) Nelson v. Serle, 4 M. & W. 795; reversing Serle v. Waterworth, ib. 9; Hamilton v. Terry, 21 L. J. C. P. 132; and see Barber v. Fox, 2 Wms. Saund. 420, n. (a) (e) Rippon v. Norton, Cro. Eliz. 881. |