in the plaintiff's pleadings and admitted by the defendant; (2) where the reduction of the contract to writing was prevented by the fraud of one of the parties; (3) where it is a completed agreement, and has been partly carried into execution, and is definite in its terms (q). But if in any particular case the acts of part performance of a parol agreement as to an interest in land are to be held sufficient to exclude the operation of the Statute of Frauds, they must be such as are unequivocally referable to the agreement; in other words, there must be a necessary connection between the acts of part performance and the interest in the land, which is the alleged subject-matter of the agreement; and it is not sufficient that the acts are consistent with the existence of such an agreement, or that they suggest or indicate the existence of some agreement, unless such agreement has reference to the subject-matter. As was said by Lord Hardwicke in the case of Gunter v. Halsey (r), they must be such as could have been done with no other view or design than to perform the agreement (s). The doctrine of part performance rendering a parol contract enforceable in equity, is confined to contracts as to interests in land (†).

(9) Smith's Manual of Equity, 13th edition, p. 279. As to what constitutes part performance, vide Id. p. 281.

(r) 2 Amb. 586.

(s) Cited by Baggallay, L. J., Humphreys v. Green, L. R., 10 Q. B. D. 154; 52 L. J., Q. B. 143.

(t) Britain v. Rossiter, L. R., 11 Q. B. D. 123; 48 L. J., Q. B. 362; 27 W. R. 482.

CONTRACTS BY EXECUTORS, ETC.

Sect. 4. "No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate . . . 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."

The agreement must embody the consideration for the promise, and be signed by the executor or the administrator, or his agent (u).

GUARANTEES.

Sect. 4. "No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person. . unless the agreement," &c. (as in the case of executors, supra).

The agreement must rest on a valid consideration (x), which must be new and executory, except where it is the embodiment of verbal terms on which the contract has been executed, and the guarantee subsequently given in writing (y). It is the essence of a guarantee that the original debtor should con

(u) Rann v. Hughes, 7 Bro. P. C. 556.
(x) Semple v. Pink, 1 Ex. 74.

(y) Eastwood v. Kenyon, 11 A. & E. 438.

P.

FF

tinue liable; and therefore, if his liability is extinguished, and the surety is the only party liable for the debt, his liability will not require to be evidenced by writing. If the person for whose use the goods are furnished is liable at all, any promise by a third person, upon sufficient consideration, to pay that debt, must be in writing (2). It is also held that the promise to pay the debt of another person need be proved by writing only where the promise is given to the original creditor, and not where it is given to the debtor or a third person that the promisor will be answerable to the creditor (a). Thus, a promise to indemnify is not within the statute (b). Where the chairman of a board of health virtually promised a contractor that he would see him paid for certain extra work, it was held by the House of Lords, affirming the Court of Exchequer Chamber, that the chairman's words were evidence to sustain a claim against him personally, i. e., that they did not constitute a promise to pay the debt of another within the Statute of Frauds (c). The plaintiff's name must appear on the document (d). Formerly, it was necessary that the guarantee should disclose a consideration on the

(z) Birkmyr v. Darnell, 1 Smith, L. C. 274; Fitzgerald v. Dressler, 7 C. B., N. S. 374.

(a) Eastwood v. Kenyon, 11 A. & E. 446.

(b) Per Byles, J., Reader v. Kingham, 13 C. B., N. S. 344; cf. Wildes v. Dudlow, 44 L. J., Ch. 341; 23 W. R. 435.

(c) Lakeman v. Mountstephen, L. R., 7 E. & I. 17; 44 L. J., Q. B. 188; 22 W. R. 617.

(d) Williams v. Lake, 2 E. & E. 349.

face of it; this is no longer required (e), but though parol evidence is admissible to prove the consideration, it is inadmissible to explain the promise (ƒ).

MARRIAGE.

Sect. 4. "No action shall be brought whereby

to charge any person upon any agreement made upon consideration of marriage, unless the agreement," &c. (as in the case of executors, supra).

This provision does not extend to promises to marry (g), but only to cases where something collateral to and dependent upon the event of the marriage is the substance of the contract; as, where A. promises B. so much money in the event of B. marrying A.'s daughter (h). An oral contract, however, if complete and partly performed, will be enforced in equity; but marriage is not part performance of a contract of the kind now under consideration (¿).

CONTRACTS NOT TO BE PERFORMED WITHIN A YEAR.

Sect. 4. "No action shall be brought whereby to charge any person upon any agreement that

(e) 19 & 20 Vict. c. 97, s. 3.

(f) Holmes v. Mitchell, 7 C. B., N. S. 361.

(g) Cock v. Baker, 1 Str. 34.

(h) Harrison v. Cage, 1 Ld. Raym. 386.

(i) Lassence v. Tierney, 1 Mac. & G. 551.

is not to be performed within the space of one year from the making thereof, unless the agreement," &c. (as in the case of executors, supra).

The statute does not apply where the contract is capable of being performed by either party within a year from the date of its making (j); but it applies to a contract defeasible by a contingency which may occur within that period (). A contract to serve for a year, the service to commence the day after the day on which the contract is made, is within the statute (7).

DECLARATIONS OR CREATIONS OF TRUSTS.

Sect. 7. "All declarations or creations of trust or confidence of any lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect." The beneficial owner is the only person who is enabled to declare the trust (m), and no person can create a trust

., N. S.

(j) Cherry v. Heming, 4 Ex. 631; Smith v. Nesle, 2 C. B., ) 67.

(k) See Davey v. Shannon, L. R., 4 Ex. D. 81; 48 L. J., Ex. 459; 27 W. R. 599.

(1) Britain v. Rossiter, L. R., 11 Q. B. D. 123; 48 L. J., Ch. 17; 26 W. R. 868.

(m) Kronheim v. Johnson, L. R., 7 Ch. D. 60; 47 L. J., Ch. 132; 26 W. R. 342.