Recovery actually levied or suffered, the Issue in Tail not being bound (c); but if the Covenant relates to an Entail in Equity, the Court will compel the Heir to comply with the bargain made by his Ancestor (d). So, a mere Contract for the Sale of an Estate does not entitle the Vendee to cut Timber before the payment of the purchase-money (e). Nor does the Rule hold in regard to Dower, the Wife, as before observed, not being entitled to it out of an Estate, agreed only to be purchased by, and not actually conveyed to, her Husband (f). So, if a Body Corporate, having a Power, make an Agreement for the Renewal of a Lease, and the Fine is paid, and a new member is introduced amongst them, it may be doubtful whether the Agreement could be enforced against such new Member (g). He would certainly be entitled to his proportion of the Fine paid on the Renewal (h). These instances are sufficient to show that the Equity maxim, "what is agreed to be done is considered as done," is not universally true.

With these preliminary remarks on the effect of a mere Agreement in Equity, we may now proceed to consider, what Agreements will be decreed to be specifically performed.

It may be stated, as a general Rule, that an Agreement, to be specifically performed, must be according to the forms prescribed by Law, and between parties

able and willing to contract, and that the Agreement must be certain and defined, equal and fair (i).

The doctrine in Equity as to the ability of Parties to contract, is, in general, governed by the Rules of Law on that subject, except in regard to Infants and Femes Covert. The doctrine as to Infants has already been adverted to, and the contracts of Femes Covert will be observed upon hereafter. It is not, therefore, necessary to enlarge upon that topic, except only to observe, that a specific performance of an Agreement will be decreed against one, who after the Agreement becomes a Lunatic, if the legal Estate is vested in Trustees; and so also, though the legal Estate is in the Lunatic, if the Vendee is content to let it remain in him (k).

With respect to the Forms required by Law in Agreements, it is to be observed, that by the Statute (1), no Action shall be brought whereby to charge a 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 the same, unless the Agreement upon which such Action shall be brought, or

(i) Vid. Lord Walpole v. Lord Oxford, 3 Ves. 420. Buxton v. Lister, 3 Atk. 385. Underwood and Hitchcox, 1 Ves. 279. Franks v. Martin, 1 Eden, p. 323.

(k) Owen v. Davis, 1 Vez. 82; and see Hall v. Warren, 9 Ves. 605.

(1) 29 Car. 2, c. 3, s. 4. It seems Sir Leoline Jenkins had some share in the framing of this Act; especially of that provision in it which exempts the Wills of Soldiers and Sea

men from the strict formalities
required in the Wills of other
Persons, leaving them to the
full privilege of the old Roman
Military Testaments.
[See
Wynn's Life of Sir Leol. Jen-
kins, 1 vol. p. 3] The Lord
Keeper Guilford had also a
great share in the penning of
the Statute of Frauds, as well
as Sir Matthew Hale. Lord
Nottingham said of that Statute
that every line was worth a
subsidy. [see North's Life of
Lord Keeper Guilford, p. 108,9.

some Memorandum or Note thereof, is in Writing, and signed by the party charged therewith, or some other person thereunto by him lawfully authorized; but an Agreement to be good within the Statute need not be sealed (m).

The reason of the provision in respect to Marriage seems to be, that in no case can there be supposed so many unguarded expressions and promises used, as in addresses in order to Marriage, where many passages of gallantry usually occur (n). An Agreement, therefore, made by the Husband before Marriage, and not reduced into Writing, is within the Statute (o); nor will a recognition after the Marriage, of a Parol Promise before Marriage, take the case out of the Statute (p); but a Letter containing the terms of a Marriage Agreement takes the case out of the Statute (q).

Marriage is not considered as a part-performance of a Parol Agreement, made before Marriage, so as to take it out of the Statute of Frauds (r).

Sales by Auction (excepting Sales under a Decree) (s) are within the Statute of Frauds (t); and

the Auctioneer is considered as the Agent for both Parties (u).

Wherever the substance of the statute has been complied with in the material part, the forms have never been much insisted on (x). If, therefore, a Letter contains the terms of the Agreement-the amount of the consideration, and the subject matter of the Contract (y); or if it refers to another Paper which contains the Terms, parol Evidence will be admitted to show what was the thing so referred to (2), and it is a sufficient written Agreement (a); and a Letter has been held binding, though the Person did not intend to be bound (b), or looked to the execution of a more formal Instrument (c); and even a Letter sent to an Agent (d), or other third person (e), has been considered as a sufficient signing within the Statute. Whether a note, written in the third person, viz. "Mr. T. proposes, &c." making thereby an offer to purchase, amounts to a Contract in Writing, signed within the Statute of Frauds, is not decided (f).

Cases, however, upon the effect of Letters, have

been thought to have gone too far (g); nor will the Court decree a performance unless it can collect, upon a fair interpretation of the Letters, that they import a concluded Agreement; if it rests reasonably doubtful, whether what passed was only Treaty, let the progress towards the confines of Agreement be more or less, the Court will rather leave the parties to Law than specifically to perform what is doubtful as a contract (h).

Where there is a complete Agreement in Writing, and a person who is a Party, and knows the contents, signs as a Witness only, this has been held a sufficient signing within the Statute (i). So if the Agreement begins" I, A. B. agree, &c." this is a sufficient signing (k); but altering the draft of the Conveyance has not been considered to amount to a signing of the Agreement (1); and though the Party writes the Agreement, it is ineffectual unless it be also signed (m). The mere circumstance of the name of the Party being written by himself in the body of a Memorandum of Agreement for a Lease will not constitute a signature within the meaning of the Statute of Frauds (n).

It has been questioned, whether, if a Man be in the habit of printing instead of signing his name, he may not be said to sign by the printed name as well as

(g) Allen v. Bennett, 3 Taunt.

173.

(h) Huddlestone v. Briscoe, 11 Ves. 591, quoted with approbation in Stratford v. Bosworth, 2 Ves.&Bea.346; and see that case.

(i) Welford v. Beazely, 3 Atk. 503; and see Coles v. Trecothick, 9 Ves. 234.

(k) Knight v. Cuckford, 1 Esp. N. P. C. 190, cited 2 Bos. & Pull. 239, by Lord Eldon.

(1) Hawkins v. Holmes, 1 P. Wms. 770.

(m) Bawdes v. Amhurst, Prec. Ch. 402.

(n) Stokes v. Moore, 1 Cox, 219.