woman is an object of their peculiar consideration, the difference in the nature of the property in question cannot afford a ground for an opposite line of conduct in the two

It would surely be as inconsistent with the principles of a court of equity as it certainly would be contrary to a clear legal principle, to deprive the widow of her property, in order to make good the speculation (for it is no more) of a dealer in suits at law.



FREQUENTLY as this most important point has occurred, the courts of equity (strange to say) have left it in an extremely unsettled state; and as it has not yet received the attention it deserves, either from text-writers, or the great judges who have occasionally touched on it, we propose to give it a brief discussion, and shall endeavour to elicit the principles on which it rests.

We shall begin with observing that the question, in our opinion, depends entirely on the statute of frauds, and that the doctrines of equity, with respect to it, before that statute, are immaterial. This position, though seemingly obvious, we shall endeavour to establish, as one of the most popular of professional authors 1 enters upon the subject with a different impression. Mr. Sugden commences his examination of the doctrine with the four cases in Tothill, 2 which arose previously to the statute, and which, he remarks, appear to be applicable to the point under consideration; as equity, even before the statute, would not execute a mere parol agreement not in part performed. But whoever scrutinises the cases to which that gentlemen refers, will, we think, be convinced that they do not support his proposition; and the firmi


Sugd. Vend. 107. 2 William v. Nevil, Tothill 135. Ferne v. Bullock, ibid. 206. Clarke v. Hackwell, ibid. 228. Millar v. Blandist, ibid. 85.

and positive language in which it is stated, forms a singular contrast to the manner in which he gives their specific results.

In two of them (Ferne v. Bullock, and Clarke v. Hackwell)“ parol agreements were,” he says, “enforced, apparently on account of the payment of very trifling parts of the purchase money; but the particular circumstances of those cases do not appear.” And he concludes this part of his inquiry with observing, that though the decisions are not easily reconcileable, yet “the result of them clearly is, that payment of a trifling part of the purchase money was not a part-performance of a parol agreement.” Weapprehend that Mr.Sugden has forgotten the simple principle on which the doctrine depended prior to the statute of frauds, and that a recurrence to it will solve the difficulties, and reconcile the apparent contradictions, of the cases he has quoted. Before the statute there was not (as Mr. Sugden has imagined) any substantive rule in the courts of equity, that they would not execute a parol agreement, not in part performed. On principle a parol agreement, if proved, would have clearly bound the parties ; but such an agreement was difficult of proof, and therefore the courts naturally leaned against it, except when it was fortified by concomitant circumstances of an unambiguous complexion. Of these circumstances, the part performance of the agreement, by the payment of the whole or any part of the purchase money, was one of the most decisive ; but still it was important only as raising a presumption, and might consequently have been repelled by others of an opposite tendency. When, however, but a trifling sum was paid, the act was more equivocal, and therefore more controllable by positive evidence or accompanying facts. This explanation coincides with the true rule, which in a book of authority is expressed to be, that“ the court was very cautious of relieving bare parol agreements for lands, not signed by the parties, nor any money paid.” 1

We now come to the statute itself (29 Car. 2. c. 3.) which declares generally, that no contract relating to lands shall be binding, if not in writing. The student who has been taught in elementary text-books, that the power of parliament is transcendant, and its enactments equally binding on all our courts of judicature, will be not a little surprised to find that equity continued, in some cases, to act as if this statute had no existence. 1 In the first case, indeed, subsequent to the statute, we find it laid down that a contract (parol] for land, and a great part of the money paid, is void. And this case appears to have been generally3 acted on, until the time of Lord Hardwicke, who laid it down broadly, that paying money had always been considered as a part performance ;4 a dictum which, taken in its full extent, would virtually sweep away the line of demarcation between the ancient and modern doctrines of equity on this subject, and almost render the above enactment a dead letter. We afterwards find the distinction taken between the payment of a considerable and an inconsiderable part of the purchasemoney;5 but this distinction, if in other respects sound, would be rendered unsatisfactory from the vagueness of the word considerable, and the consequent necessity of taking the opinion of the Court on every case that arises until some definite proportion is fixed. Finally comes a decision by Lord Redesdale, holding clearly, that payment of purchase-money is not a part performance, and had never been deemed so.7 That the assertion with which this proposition is accompanied, is illconsidered, is evident from the authorities which have been referred to in the brief deduction ; but the decision we conceive to be right in its fullest latitude, and we unite with Mr. Sugden 8 in hoping that it will set the point at rest. The unsettled state of this doctrine strikingly exemplifies the evils which courts of equity produce when they aim at too much. In the present instance the legislature has, in the most positive manner, required the agreement to be in writing. What course might we have expected the courts of equity to follow? What was, undoubtedly, anticipated by the legislature? That equity would, under ali circumstances, have held a parol agreement to be void. This would have been to construe the statute in a mode which would have precluded frauds arising from the specific source at which the legislature aimed, viz. from agreements being by parol. But the courts of equity reasoned thus. The statute was passed to preclude frauds, and it would be to make it a medium of fraud, if we do not enforce parol agreements which have been partly performed. The answer to which is, that after an enactment expressly requiring every agreement for the sale of lands to be in writing, those who choose still to rely on agreements by parol, have no more to complain of in such agreements being regarded as actual nullities, than if they were to neglect any other positive declaration of the legislature. 1 We are glad to find that Lord Redesdale has viewed this subject in the same light. His lordship added, that “the great reason why part payment does not take parol agreement out of the statute, is, that the statute has said that in another case, viz. with respect to goods, it shall operate as a part performance. And the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in case of goods, and was silent as to the case of lands, that they meant it should not bind in the case of lands.” We trust that this decision, which is consonant to the true spirit of a wholesome statute, will be established, though failing, as we conceive it does, in that part of its premises to which we have above alluded. But though judicial determinations have, in an infinity of instances, grown into principles, and become irresistible authority, yet when founded on a statute, which may always be referred to, and the construction of which is open to the courts at all times, precedents are not

1 Treatise of Equity, B. 1. c. 3. s. 8.

1 It is not quite unusual for courts of equity to set their veto on acts of parliament, and render the passing of them totally nugatory. They exercised this constitutional prerogative in the instance of the statute which required two witnesses form will of money in the funds, 35 G. 3. c. 14. s. 16.

2 Freem. 486. pl. 664 b.

3 The doctrine of this case seems to have prevailed in Leak v. Morrice, 2 Cha. Ca. 135. 1 Dick. 14,5. to have been rejected in the subsequent case of Alsop v. Patten, 1 Vern. 472. and to have revived in the still later cases of Seagood v. Meale, Prec. Cha. 560. and Lord Fingall v. Ross, 2 Eq. Ca. Abr. 46. pl. 12.

4 In Lacon v. Mertins, 3 Atk. 1.
5 Main v. Melbourne, 4 Ves. J. 720.

6 Mr. Sugden (Vend. 112. 7 Ed.) properly remarks, that the reasoning of Sir Wm, Grant in Butcher v. Butcher, 9 Ves. J. 382. is applicable to this point.

7 Clinan v. Cooke, 1 Scho. & Lef. 22. 8 Vend. 113.


It seems that no part performance takes a case out of the French enactment. “ With us,” said Mr. Brougham, in his late speech on the state of the law, “the things are so numerous which take transactions out of the statute of frauds, that the memorandum is only in a small proportion of cases required.”-Colburn's Edition, p. 90. We agree with him, that as almost all men are able to write at the present day, its outlets should be stopped up.--Ibid.

wanting to show that a series of dicta and decisions, however long, may be subverted, if considered to militate against its real meaning and policy. 1


The lives of men devoted to scientific or literary pursuits can rarely be chequered by that diversity of incident, which gives biography its principal charm. They are, however, scarcely less interesting on this account to those who are treading the same paths, and who, fixing their eyes on the useful or splendid results of intellectual labour, naturally contemplate, with nearly an equal pleasure, the means of their production.

Charles Fearne was the eldest son of Fearne, Esquire, judge advocate of the admiralty, who presided at the trial of the unfortunate Byng, and who, on that remarkable occasion, and in the general course of his profession, was esteemed a very able and learned man. He gave his son Charles the first rudiments of education himself, and at a proper age sent him to Westminster School, where he was soon distinguished for classical and mathematical attainments. Being designed for the law, as soon as he had finished his education at this seminary, he was entered at the Inner Temple, but with no fixed resolution to become a barrister. His life had hitherto passed in making excursions from one branch of learning to another, in each of which he made very considerable advances, and might perhaps have succeeded in any. During this state of irresolution his father died.

The interest with which our author is regarded, as the first who successfully digested and elucidated the most abstruse, multifarious, and obscure department of our law of real pro

It seems to have been on this principle that the House of Lords proceeded, when in the great case of Ffytche v. the Bishop of London, it determined (May 1783) that a general bond to resign at the patron's request was illegal. Chalmers's B. D. vol. xiv. 159.

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