required to be in writing; which they were of opinion, must be understood as including the idea of whatever was constituent of its legal efficacy. They considered it as implying the tassent of t[119] Wain v. Warlters goes only the length of deciding the necessity of stating the consideration. But when coupled with the succeeding case of Egerton v. Matthews, the court, by these adjudications, seems to say, that, as by an agreement must always be understood the assent of two or more minds, reciprocally expressed and mutually binding, and which must be so complete and certain, that each party may have an action upon it, an instrument so perfected, is necessary to satisfy the 4th section of the statute of frauds. : The judgment in Wain. Warlters must be understood to rest wholly upon the signification and force of the word agreement, in legal understanding but the consideration must be regarded as integrally incorporated with the very idea and definition of the term agreement, to distinguish the principle of this case from the rule in respect to all other cases of consideration, wherein the uniform course of the courts has been to admit parol and extrinsic evidence of its existence and quality. It has always been held, indeed, that the use and intent of an instrument must not be varied or contradicted by parol; and that therefore it cannot be averred against the indentures made for declaring the uses of a subsequent fine, recovery, or other assurance, that after the indentures, and before the assurance, it was settled by mutual agreement, that the assurance should be to other uses. See the Countess of Rutland's case, 3 Rep. 26. a. But it has always been considered, that in respect to evidence, there is a great difference between use and consideration; for if no particular consideration is specified, any consideration may be shown by evidence; and even where a fine, feoffment, or conveyance, is made upon an express consideration, a man may aver by word another consideration, provided such other consideration is consistent with the consideration expressed Cromwell's case, 2 Rep. 76, a. Thus too, in Mildmay's case, 1 Rep. 176, a. it is said, that if a man by deed indented and enrolled, according to the statute, for divers good considerations, bargains, and sells his land to another and his heirs, the deed is inoperative, for no use can be raised upon such a consideration; but the bargainee in such case, may aver, that money, or other valuable consideration, was given, and if the truth be such, the bargain and sale shall be good, for which was cited the case of Villers v. Beamont, which went beyond it, for in that case, a particular consideration was expressed, yet an averment and proof was made of another consideration, consistent with the consideration expressed. Where, indeed, a consideration is expressed, no other consideration, which is contradictory to it, can be proved; whereof an example is given at the end of Bedell's case, 7 Rep. 39. b; as, if a [120] That the lite name is not cessary. two or more minds, and that the consideration was involved in this reciprocity between the parties, which reciprocity ought, therefore, to appear, or the whole agreement could not appear; that the consideration, in a word, was an integral part of the contract, and not lying in averment or parol testimony. The counsel for the plaintiff insisted that the consideration was a matter of fact, and among the res gesta, by the averment and proof of which the instrument was not contradicted or varied, but affirmed and corroborated. To maintain their side of the question, it seemed incumbent upon them to show, that the consideration of an agreement was no essential part of its consti tution, but a matter connected with the act of contracting by an accessory and circumstantial relation. Which argument the court repelled by answering in substance as follows: viz. the terms of the agreement, it is allowed, ought to be in writing; if there was no consideration, the agreement was of no avail in law; if there was one, it was necessarily an ingredient in the terms of the agreement, since the true notion of a legal consideration is not a personal collateral inducement, by which a party is privately influenced, but a benefit or loss in the mutual understanding and contemplation of both the parties. Third preliminary topic. With respect to the signing, which ral act of is one of the constituents of a valid agreement, under the 4th signing the and 17th sections of the statute, (and which is the third head of always ne- inquiry proposed at the beginning of this chapter to be treated of) it seems proper to observe in the first place, that the literal act of subscribing the name is not always judged necessary to satisfy the requisition of the statute in this particular. It is true, indeed, that in the case of Bawdes v. Amhurst,(a) Lord Chancellor Cowper, after stating that he had always been tender of (a) Prec. in Chan. 402. 1 father by deed indented, in consideration of 1001. paid by the son, covenants to stand seized for the use of the son; there no use shall be raised to the son, unless the deed be enrolled, according to the stat. 27 Hen. 8, c. 10. An attention to which distinction between evidence of a contradictory, and of a new or additional but consistent consideration reconciles and explains the case of Clarkson v. Hanway, 2 P. Wms. 203, which was nearly the same in circumstances with the example putin Bedell's case as abovementioned. laying open that wise and just provision which the Parliament had made, declared that he knew no case where an agreement, though it were all written with the party's own hand, had been held sufficient, unless it had been likewise signed by the party, and that the party's not signing it, was an evidence that he did not think it complete, but had left it for an after consideration, and might afterwards make alterations or additions to it. The case, however, was not decided on the insufficiency of the signing, but on the imperfect state of the document which was offered as the agreement, and which consisted only of preparatory *heads for a settlement into which the proposals on each side had [ 121 ] been digested by the solicitor. Held by Lord not to be ne cessary that the identical agreement But in Welford v. Beazeley,(6) Lord Hardwicke denied the general doctrine laid down in Bawdes v. Amhurst, though he agreed with the particular reason of the judgment; observing, that there had been cases where a letter written to a man's own agent, setting forth the terms of an agreement as concluded by him, had been deemed a signing within the statute. And it seems to have been his Lordship's clear opinion, as may be collected from this and other cases, that it is not necessary that the identical agreement should be signed, but that if the agreement or contract is acknowledged by a letter signed, the statute is sa- should be tisfied. And this was the result of Tawney v. Crowther,(c) signed; but enough, if qualified, however, as I apprehend, by this distinction--that if the contract the agreement itself is unsigned, the letter referring to it should is acknowledged by a demonstrate an intention to be bound by the agreement, accord- letter signing to the terms contained therein, or if any other terms are contained in the letter, such letter should be decided in its expression.(59) But the bare writing an agreement with one's own hand, is not of itself equivalent to a signing, according to Lord Macclesfield, in Hawkins v. Holmes,(d) who seems, however, to have entertained stricter sentiments on the general doctrine than appear to have been adopted in later cases. (b) 3 Atk. 503. (c) 3 Bro. Ch. R. 318. (d) 1 P. Wms. 770. (59) But if a letter is intended only to be carried into execution, by a more formal instrument, it seems there is no locus penitentiæ. Decrees have been founded, says the Master of the Rolls, in Fowle v. Freeman, 9 Vez. jun. 355, upon letters and proposals never intended at the time to be a complete, final agreement. ed. The place of the signa ture not es sentrally important. If the name is inserted any where, it is suffici ent, but then it must be inserted with a view to The place of the signature seems not to have been regarded as of much importance. If the name is inserted in any part of the instrument, it may operate as a signing, under the statute of frauds, but then it must have been inserted for the clear and only purpose of giving authenticity to the instrument. This has been often held in respect to wills, as where a testator begins thus: "I, A. B. do make this my last will and testament," and omits to subscribe his name, the will is considered as sufficiently signed.(e) And Lord Eldon, in the late case of Coles v. Trecothic,(f) observed, that if such was a sufficient signature in a will devising lands, it was very difficult to say upon what ground such a signature should not constitute an effectual agreement as to lands or goods; which opinion his lordship had before intimated, when he sat as chief in the court of Common Pleas.(g) *[122] That this would be virtually a signature, was thought by the barons in Stokes v. Moore et Ux. a case determined in Serjeant's Inn Hall, in 1786,(h) who admitted, that if the name had been inserted in that case, with a view of giving authenticity to the whole instrument, it did not much signify in what part of the instrument it was found; and in the nisi prius case of Knight v. Crockford,(i) the same point was so ruled by Ch. J. Eyre.(60) give authenticity to the whole instrument, and not as applicable to particular purposes. In Stokes v. Moore, above-mentioned, the defendant Moore t[123] was called upon by the defendant to name a person to †prepare the lease. Moore named one S. for that purpose, and wrote certain instructions for the lease in the following words: "The lease renewed-Mr. Stokes to pay the King's tax, and also to (e) 3 Lev. 1. Levayne v. Stanley, 3 Lev. 86. Hilton v. King, and see Vin. tit. Dev. (N. 7.) (ƒ) 9 Vez. jun. 249. (g) 2 Bos. et Pull. 238. Saunderson v. Jackson. (h) 1 P. Wms. edit. Cox, 770, n. (i) 1 Esp. Ni. Pr. Ca. 190. (60) Nor does it make any difference, if the party who has thus formally written his own agreement, beginning it with, "I A. B. &c." leave a place at the bottom for his signature, and neglect to subscribe his name; and yet in such a case, as was observed by Lord Eldon, in Saunderson v. Jackson, it is impossible not to see that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed And see the same point in Fowle v. Freeman, 9 Vez. 351. * 2 Bos. et Pull. 238. pay Moore 241. a-year, half-yearly-Mr. Stokes to keep the house in good tenantable repair," &c. And the question was, whether there was a sufficient signature, as Moore had written his own name in the body of the instrument. The barons dismissed the bill, and one of the grounds for the dismission was, that it could not be imagined that a name inserted in the body of an instrument, and applicable to particular purposes, could amount to such an authentication as the statute required. It is, therefore, on such questions to be considered, what the object of the instrument is; for the insertion of the name must be always governed thereby; it must also appear that the writer had the whole object of the instrument in prospect, when he wrote his name, and that the instrument, or writing, was completed by one simultaneous act. as a witness, with a know ledge of the contents, a sufficient signing with in the sta tute. It is upon the above principles that Lord Hardwicke appears The signing to have determined the case of Welford v. Beazeley,(k) in which it was held by him, that the signing as a witness was a sufficient signing within the statute, so as to affect the testator with a liability under the agreement, as far as the contents thereof depended upon his acts for their effect; provided, that at the time of attesting, he was well acquainted with the contents; which knowledge of the contents is a matter of fact, proveable by parol evidence.(61) It was observed by the present Chancellor, in commenting upon this case, that although it is true, that where a party, or principal, or person to be bound, signs as, what he cannot be, a witness, he cannot be understood to sign otherwise than as a principal; yet that the decision in Welford v. Beazeley went upon the assumption of the fact, that the intention of the party there was not to sign the instrument as an agreement, that was to be binding upon her. The truth is, she was not named as a party to the instrument, but it specified certain acts, which it concerned her, and her only, to perform, and her signing as a witness, with a perfect acquaintance with the contents, had the effect of acknowledging and adopting the agreement; and by (4) 1 Vez. 6. 1 Wils. 118. S. C. (61) See the civil law doctrine on this head, in Menochius de Præ sumptionibus, lib. 3, præs. 66, num. 24, et seq. *[124] |