such a contract so altered subsists between these parties; but the statute intervenes, and, in the case of such a contract, takes away the remedy by action."

Plaintiff entered into a written agreement with the defendant, for the purchase of a cargo to be shipped on board a vessel on her next arrival at a certain port. On the arrival of the vessel, the defendant verbally requested a postponement of the shipment, until she should have completed another voyage. Plaintiff assented to this proposal, and the voyage was made. The defendant, on the second arrival of the vessel, declined taking the goods, which were resold by the plaintiff, who brought his action to recover the loss sustained by the defendant's non-performance of the contract. It was held, that the plaintiff could not recover. Parke, B., said, "Here there was an original contract in writing to send these goods by the first vessel; an alteration as to the time of their delivery was subsequently made by parol; and the point to be decided is, whether such an alteration, by parol, of the written contract, can be binding. It appears to me that it cannot; and that the same rule must prevail as to the construction of the 17th section, which has already prevailed (o) in the construction of the 4th section." "It appears to me that no distinction can be made; and that it is unnecessary to inquire, what are the essential parts of a contract, and what not; and that every part of the contract, in regard to which the parties are stipulating, must be taken to be material" (p). So where goods above the value of 107. have been sold under a written contract, or subsequent parol agreement to alter the mode of delivery (q) is inoperative. So also parol evidence of a previous course of dealing between the parties is not admissible to qualify the terms of the writing (r); but where an agreement is expressed in short and incomplete terms, parol evidence is admissible to explain that which was per se unintelligible, provided such explanation is not inconsistent with the terms used (s).

Where a contract in writing, whether within the Statute of Frauds or not, is made by an agent in his own name, on behalf of an undisclosed principal, parol evidence is always admissible, so as to give the benefit of the contract to the unnamed principal, or to charge him with liability thereon, but never for the purpose of discharging the agent (t). And where brokers signed a note in the following form, "sold for Messrs. T. to our principals, &c.," it was held that evi

(0) Goss v. Lord Nugent, 5 B. & Ad. 58. (p) Marshall v. Lynn, 6 M. & W. 109. (q) Moore v. Campbell, 10 Exch. 323. (r) Ford v. Yates, 2 Scott, N. R. 645; 2 M. & G. 549, S. C. As to the admissibility of evidence of custom of trade to explain or annex terms, see Brown v. Byrne, 3 E. & B. 702; Syers v. Jonas, 2 Exch. 111; Phillipps v. Briard, 1 H. & N. 21; Cuthbert v. Cumming, 10 Exch.

809: Humfrey v. Dale, 7 E. & B. 267; S. C. (in error) 27 L. J., Q. B. 390.

(s) Sweet v. Lee, 3 M. & G. 452. See Shore v. Wilson, 9 Cl. & F. 365.

(t) Higgins v. Senior, 8 M. & W. 834; Carr v. Jackson, 7 Exch. 382; Schmaltz v. Avery, 16 Q B. 655; notes to Thompson v. Davenport, 2 Sm. Lead. Ca. 303; Laming v. Cooke, 1 F. & F. 9; Humble v. Hunter, 12 Q. B. 655.

dence of a custom in the trade, that when a broker purchased without disclosing his principal, he was himself liable to be looked to as purchaser, was admissible, notwithstanding the Statute of Frauds (u), for, "where by any rule of law, or by the usage of any trade, the terms of a contract acquire a particular meaning, the contract must be taken to express that meaning as much as though it had been set forth in extenso” (x).

Parol evidence, however, may be given to show that a document signed by the parties, and purporting to be an agreement between them, was not to operate as an agreement at all until something further should happen or be done, as the payment of money, or the obtaining the consent of a third person (y). So it is admissible to show that a written contract, which bears no date, was intended to operate, not from its execution, but from a future uncertain period (z). But where land is occupied under a written agreement, parol evidence of an understanding between the parties that the rent was to commence from a day later than that named in the writing is inadmissible (a).

Again, parol evidence is admissible to show that a writing given in evidence and signed by the defendant alone, does not contain all the terms agreed upon, and, consequently, that it does not constitute a sufficient memorandum within the 17th section (b); but if there has been no acceptance of the goods, or part payment to take the sale out of the statute, such writing will not exclude parol evidence of the omitted terms, which will in that case be binding on the parties (c). If the supposed contract, however, is reduced to writing, and is signed by both parties, or the note in writing of one party has been adopted by the other, the writing alone will bind them, notwithstanding that the contract may have been originally completely entered into by parol, and some of the terms agreed on are admitted from the writing (d).

It is clear that the printed particulars of a sale, which have been signed by the auctioneer to satisfy the statute, cannot be varied by his verbal statements at the time of the sale (e), but where the sale is of goods of less value than 107., and there is no signature, evidence of a statement by the auctioneer at variance with the catalogue posted up in the room is admissible (ƒ).

(u) Humfrey v. Dale, 7 E. & B. 266; affirmed (in error) 27 L. J., Q. B. 390. (x) Per Cockburn, C. J., in Humfrey v. Dale, 27 L. J., Q. B. 396.

(y) Pym v. Campbell, 6 E. & B. 370. See Gudgen v. Bessett, ibid. 986, and Murray v. Earl of Stair, 2 B. & C. 82.

(z) Davis v. Jones, 17 C. B. 625.
(a) Henson v. Coope, 3 Sc. N. R. 48.

(b) Goodman v. Griffiths, 1 H. & N. 576.

(c) Lockett v. Nicklin, 2 Exch. 93. (d) Harnor v. Groves, 15 C. B. 674; Smith v. Jeffries, 15 M. & W. 561. (e) Shelton v. Livius, 2 C. & J. 411. (f) Eden v. Blake, 13 M. & W. 614. See ante, p. 198.

III. The Fifth and Sixth Sections, relating to the Execution and
Revocation of Wills.

Stats. 7 Will. IV. & 1 Vict. c. 26, and 15 Vict. c. 24, for the
Amendment of the Laws with respect to Wills, p. 899.

The sections of the Statute of Frauds relating to wills have been repealed, as to all wills made since 31st Dec. 1837, by the stat. 7 Will. IV. & 1 Viet. c. 26, s. 2 (g); although the law of wills made since that date does not come within the title "Statute of Frauds," yet it has been thought advisable to insert the new statutes in this section, and to divide the subject into two heads.

First, As to Wills made before 1838; 5th Section of the Statute of Frauds." All devisees and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this statute, or by the custom of Kent, or of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the devisor, by three or four credible witnesses, or else they shall be utterly void and of none effect"

"All facts relating to the subject-matter and object of the devise, such as that it was or was not in the possession of the testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in the will” (h).

All Devises of any Lands or Tenements.-Although these words are very general, and extend to customary freeholds (i), not passing by surrender, yet it has been held, that copyhold land (k), and customary (1) estates, passing by surrender, are not comprehended within them. In these cases, the estate is considered as passing by the surrender of which the will only directs the uses. Consequently, it is not necessary that such will should be executed with the solemnities required by this statute. Hence, a mere draught of a will, the signing and publication of which were prevented by the sudden death of the testator, has been held sufficient to pass copyhold land surrendered to the use of the will. Note. By stat. 55 Geo. III. c. 192, dispositions by will, by any person dying after 12th July, 1815, of copyhold estates, are made effectual without any previous surrender to the use thereof. But this statute only 1 Ves. sen. 225; Tuffnell v. Page, 2 Atk. 37.

(g) See post, p. 899.

(h) Per Parke, J., Doe d. Templeman v. Martin, 4 B. & Ad. 785.

(i) Hussey v. Grills, Ambl. 299.

(k) Doe d. Reed v. Harris, 8 A. & E. 1; Roe d. Gilman v. Heyhoe, 2 Bl. R. 1114. See also The Attorney General v. Barnes, 2 Vern. 598; Attorney-General v. Andrews,

(1) Doe d. Cook v. Danvers, 7 East, 299; Carey v. Askew, 2 Bro. C. C. 58, and in a note to Wagstaff v. Wagstaff, 2 P. Wms. 259, Cox's ed., recognized by Ellenborough, C. J., in 7 East, 324.

supplies the want of a formal surrender, and does not extend to a case where the surrender is a matter of substance, as where it is required to be accompanied by the separate examination of wife (m). Since this statute, a copyhold will pass (n) under a general devise of real estate, although there be no surrender to the use of the will. But the will must contain a disposition of the copyhold, either expressed or implied (o). The statute applies to wills made before the statute, as well as those which were made after (p). An heir at law, who has not been admitted to a copyhold estate, which has descended to him, nor paid the lord's fine due on admission, may, notwithstanding, devise the same (q). No presumption will be made against the right of a party to devise his copyhold estate (r).

Shall be in Writing.-This provision is merely a repetition of what had been required by the stat. 32 Hen. VIII. c. 1, which first gave power of disposing of land by will. But writing was the only solemnity which that statute required. Hence, before the Statute. of Frauds, short notes, taken by a lawyer from the testator's mouth, for the purpose of being reduced into form, were held to be a good will, though the testator died before they were so reduced into form (s). În like manner, a scrap of writing, though it was not signed, sealed, or written by the testator, might have been established as a will by the testimony of a single witness. This did, in fact, happen in a very remarkable case, that of Sir Francis Worseley's will (t).

And signed by the Party devising.-What shall be considered as a sufficient signature within this clause, will appear from the following cases :-The devisor wrote his will with his own hand, thus: "I, John Stanley, make this my last will and testament; and thereby devised the land in question, and put his seal thereto, but did not subscribe his name. The will was subscribed by three witnesses in his presence. This was held, to be a good will to pass the land; for the will having been written by the devisor, and his name being in the will, it was a sufficient signing within the statute, which has not appropriated any particular place in the will where it shall be signed, either at the top or bottom, or in the margin (u). A mark made by the devisor will be a sufficient

(m) Doe d. Nethercote v. Bartle, 5 B. & Ad. 492.

(n) Doe d. Clarke v. Ludlam, 7 Bingh. 275.

(0) Doe v. Bird, 5 B. & Ad. 695. (p) See the words.

(q) Right v. Banks, 3 B. & Ad. 664. (r) Doe d. Dand v. Thompson, 10 Jur. 28; 15 L. J., Q. B. 88, S. C.

(s) 1 Anderson, 34, cited by Lord Ellenborough, C. J., 7 East, 324.

(t) Reported in 1 Sidf. 315, pl. 33; 2 Keb. 128, pl. 82, by the name of Stevens, Lessee of Gerrard v. Lord Manchester, 18 Car. II.

(u) Lemayne v. Stanley, 3 Lev. 1; adjudged after several arguments by the whole court, S C.; North, C. J., Wyndham, Charlton, and Levinz, Js., on special verdict in ejectment, Easter T. 1681, C. B. See Right v. Price, Dougl. 241.

signing within the statute, even though his hand be guided (x). In such case, it is immaterial whether the devisor can write at the time or not, and no collateral inquiry of that sort ought to take place (y). So it has been held, that a will was duly executed to pass freehold land, although one witness only had subscribed his name and the other two had set their marks (2). So, under the Wills Act, attestation by initials will suffice (a), or by a wrong name (b), or where the hand is guided (c). Whether the devisor, by merely affixing his seal to the will, can be considered as having sufficiently signed within the meaning of the statute, seems to have been a rexata quæstio. Affirmed per North, Wyndham, and Charlton, in Lemayne v. Stanley, 3 Lev. 1, dub. per Levinz, S. C. Affirmed per Holt, C. J., in Lee v. Libb, 1 Show. 69. Affirmed per Lord Raymond, C. J., at Nisi Prius, in Warneford v. Warneford, 2 Str. 764. Negatived per three Barons (including Parker, C. B.), in Smith v. Evans, 1 Wils. 313; also per Willes, C. J., Sir John Strange, M. R., and per Parker, C. B. (d), sitting with Lord Hardwicke, C., in Ellis v. Smith, as assistants, 1 Ves. jun. 11; 1 Dickens, 225; but Lord Eldon, in Wright v. Wakeford, 17 Ves. 458, says expressly, that sealing without signing is not sufficient. It is not required by the statute that the witness should see the devisor sign, or that he should sign in their presence. It is sufficient that the devisor should declare to the witnesses that the instrument offered to them to be subscribed is his will, and that the signature is his handwriting (e).

Attested and subscribed.—It is not necessary that the will should be attested and subscribed by all the witnesses at the same time. Hence, where the devisor published his will in the presence of two witnesses, who subscribed it in his presence, and some time after he sent for a third witness, and published it in his presence; the will was held to be duly attested (f). If the will be subscribed.

(x) Wilson v. Beddard, 12 Sim. 28; Re Bryce, 2 Curt. 325.

(y) Baker v. Dening, 8 A. & E. 94; 3 N. & P. 228. See Lemayne v. Stanley, Freem. 538

(z) Harrison v. Harrison, 8 Ves. jun. 185, decided by Lord Eldon, C., on the authority of Gurney v. Corbet, C. B., 9 Burnet, 138; Serjt. Hill's MSS., vol. 30, p. 51. See also Addy v. Grix, coram Sir W. Grant, M. R., 8 Ves. 504; Doe d. Davies v. Davies, Q. B. 648; Doe d. Counsell v. Caperton, 9 C. & P. 112; Re Amiss, 2 Rob. Ecc. R. 116.

(a) Re Savory, 15 Jur. 1042; Re Christian, 2 Rob. Ecc. R. 110.

(b) Re Redding, 14 Jur. 1052; 2 Rob. 339, S. C.; Re Glover, 11 Jur. 1022.

(c) Harrison v. Elwin, 3 Q. B. 117.
(d) Parker, C. B., observed, however,
VOL. II.

(according to the report in 1 Ves. jun. 12,) that, as in some cases it was thrown out obiter, that sealing was signing, and in one case decreed, that it was equal to signing, he should submit his opinion. But in Dickens's Rep. of Ellis v. Smith, vol. 1, p. 228, and in a MS. note, this remark does not appear; and Parker's dissent from the opinion of the three judges in Lemayne v. Stanley, and Lord Raymond in Warneford v. Warneford, stands unqualified.

(e) Grayson v. Atkinson, 2 Ves. 454; Ellis v. Smith, 1 Ves. jun. 11; 1 Dickens, 225, S. C.

(f) Jones v. Lake, 16 Geo. II. B. R., on special verdict in ejectment; 2 Atk. 176, n.; S. P. admitted per Hardwicke, Ch., 2 Ves. 458.