pose in the law. It is believed to be a fact that the average layman who signs a document could not tell a minute afterwards whether it was sealed or unsealed. Why should the law persist in maintaining an idle ceremony that means nothing?)

§ 110. (Contracts, Sec. 78.) Effect of Seal in Early Law. Case 124. Rann v. Hughes, 7 Term Reports, 350 Facts: Suit against an administrator on a written promise to pay certain debts of the deceased for which promise there was no consideration. It was contended that as the promise was in writing, although not under seal, a consideration was not necessary to support the promise.

Point Involved: Whether a contract in writing and not under seal must have consideration. Character of promise under seal.

LORD CHIEF BARON SKINNER: "All contracts are by the law of England distinguished into agreements by specialty [contracts under seal] and agreements by parol [contracts not under seal]; nor is there any such third class as counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol and a consideration must be proved."

Question 129: What was the point in issue? What did the Court decide? What great division of contracts did the Court make? What is the vital point of distinction?

(Note: Contracts under seal are also called contracts by "specialty," and simple contracts are also called contracts "by parol." The word "parol" is used in law in a number of meanings. In this connection it means any contract not under seal, whether in writing or not. It is often also used in other connections as synonymous with "oral," and sometimes as synonymous with extrinsic, as in the law of evidence.)

Case 125. Walker v. Walker, 13 Ired. (N. C.) 335. PEARSONS, J.: "We are not aware of any rule of law by which a consideration is inferred from the fact of

the execution of a sealed instrument. No consideration is necessary in order to give validity to a deed (an instrument under seal). It derives its efficacy from the solemnity of its execution-the act of sealing and delivery, not upon the idea that a seal imports a consideration, but because it is his solemn act and deed and is therefore obligatory. The general rule is that

a deed is valid without a consideration.

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Question 125: What is the rule of law announced by the above decision?

(Note: It is often said by Courts and text writers that a contract under seal is binding because it imports a consideration, or because the party is estopped to deny a consideration. But the true rule is that by common law a contract under seal was enforceable because it was under seal and not because a consideration cannot be denied. This is shown by the fact that historically promises under seal were enforced before the theory of consideration was evolved. It would be just as logical to say that promises upon consideration were binding because a consideration imports a seal. The truth is that by common law, there were two sorts of contractual promises, the one under seal, enforceable because under seal, and promises upon consideration, enforceable because upon consideration. The latter contract has become the characteristic contract of modern times.

There were certain contracts by ancient law that needed to be under seal, as deeds of conveyance, bonds and powers of attorney. But any instrument could be put under seal and such seal gave its legal character.)

Case 126. Wm. Herbert Page, Contracts, Sec. 13.

"The modern theory that contract is an agreement enforceable at law has disarranged common classifications based on the form of action. However, since the common law classification went back to the beginning of the common law itself, it survives to this day, though the original reason for its existence has long since vanished. The simple contract, though the last to be developed, is now looked upon at modern law as the contract par excellence. It is the representative type of contract

at modern law, and possesses all the elements requisite therefor, since it is an agreement which by reason of its consideration, the law will enforce. Whether the simple contract is expressed or implied makes no difference except as to the evidence by which it is to be proved, as long as it is a genuine agreement. Contracts under seal are genuine contracts since they are agreements which, by reason of their form, are enforceable at law. They do not possess the same elements as simple contracts; for they require form which simple contracts do not; and do not require consideration which simple contracts do, but they are included under the definition of contract. By reason of the abolition of private seals in many jurisdictions, and the requirement of a consideration even in contracts under seal this class of contracts has lost its original importance."

Question 126: (1) What is the important type of contract at the present day?

(2) What does this author say as to necessity of consideration in simple contracts? Is it necessary whether contract is expressed or implied?

§ 111. (Contracts, Sec. 79.) Instruments requiring seal at common law.

(Note: Under the common law, deeds conveying the fee; or creating freeholds; must be under seal. Bonds required seals. Any instrument not requiring a seal could be put under seal and thereupon took the characteristics of a sealed instrument.)

§ 112. (Contracts, Sec. 80.)

Modern legislation in respect to sealed instruments.

(Note: Legislation concerning private seals may be classified as follows: (A) Legislation in respect to the form of bringing suit, abolishing the distinction between sealed and unsealed instruments in this regard. (B) Legislation in respect to the form of the seal. In almost every jurisdiction a seal may be by way of a scrawl, written or printed. (C) Legislation whereby want or failure of consideration can be shown in a court of law. (D)

Legislation abolishing all distinction between sealed and unsealed documents.)

B. Contracts Required by Law to Be in Writing.

§ 113. (Contracts, Sec. 81.) Certain kinds of contracts must be in writing in order to be effectual.

(Note: Certain kinds of contracts must be made in (not merely evidenced by) writing, e..g., voluntary conveyances of real estate; negotiable promises; acceptances of bills of exchange by drawee; bonds; assignments of patents; promises interrupting the running of the statute of limitations; etc.)

C. Contracts Not Enforceable Unless in Writing.

A. Nature and object of statute of frauds.

B. The cases within the statute.

C. What amounts to compliance with statute.

(a) Nature and Object of Statute of Frauds.

§114. The statute of frauds.

§115. The text of the statute of frauds.

§116. The statute relates to the enforcement, not the validity of contracts.

§ 114. (Contracts, Sec. 82.) The statute of frauds.

(Note: General observations on the statute of frauds.

(1) Date: The statute was enacted April 16, 1677. See as to date and authorship Article in 26 Harvard Law Review by Professor George P. Costigan.

(2) Subject matter: We are accustomed in contracts to consider the fourth and seventeenth sections of the statute of frauds. Causten Browne in the Preface to the First Edition of his work on the Statute of Frauds (1857) says: "The mul tifarious provisions of the Statute of Frauds appear to group themselves in these several classes: 1. The creation and transfer of estates in land, both legal and equitable, such as at common law could be effected without deed; 2. Certain cases of contracts which at common law could be made by oral agreement; 3. Additional Solemnities in cases of wills; 4. New liabilities imposed in respect of real estate held in trust; 5. The disposition of

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estates per auter vie; 6. The entry and effect of judgments and executions. The (first) three classes have this in common that they all pertain, in one way or another, to the subject of written evidence. In contract we are concerned only with the fourth and seventeenth sections and may therefore consider for our purposes that the statute is composed only of those two sections.

(3) The relation of the statute to the general subject of frauds. The statute of frauds is unfortunately entitled. It is "an Act for Prevention of Frauds and Perjuries.' Its preamble is more fortunate, stating that it is enacted for the "prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury." But even this creates a wrong impression. The statute, as far as contracts is concerned, is a statute calling for a kind of evidence in the proof of contracts. The motive was to avoid the accomplishment of fraud by the commission of perjury. But the general subject of fraud in contracts was untouched. Hence, it is better to remind the student to forget that the statute of frauds has anything to do with frauds and to think of it only as a statute requiring a certain kind of evidence for certain classes of contracts. The Blue Sky Law is a statute of frauds, but nobody calls it such; the Bulk Sales Act is a statute of frauds, but it does not go by that name. These and other statutes are just as much "statutes of frauds" as the statute which monopolized that title.

(4) The statute in the American States. The English Statute of Frauds has become, apparently an interwoven part of American law. It is in force generally throughout the American jurisdictions. The 17th section (Sales) has been incorporated in the Uniform Sales Act. The weight of authority seems to be that it is a statute serving a good purpose, notwithstanding in some sources it has been "so much deplored." Hence, its vitality. It is, of course, true that the statute has been frequently used, as a technical defense, by a person who has made a contract and ought to perform it. No rule of law operates always justly. But the reason for the rule may nevertheless be a reason of justice.

When we are studying the 4th and 17th sections of the old English Statute of Frauds we are studying modern American Law. Of course we use the modern cases. But the statutory ex