If it appears affirmatively on the face of a pleading setting up such a contract thai the agreement was oral* the pleading is demurrable. White v. Levy, 9 Southern Rep. 164 (Ala. 1891); Underhill v. Ale, 18 Ark. 466; Clifford v. Heald, 141 Mass. 322; Howard v. Brower, 37 Ohio St. 402. See also Pierson v. Ballard, 32 Minn. 263. But see Loughran v. Giles, 110 N. C. 423.

If the statute is not specially pleaded it is held in some States that no objection based on the statute can be taken at the trial. Brigham v. Carlisle, 78 Ala. 243; Guynn v. McCauley, 32 Ark. 97; McClure v. Otrich, 118 111. 320; Lawrence v. Chase. 54 Me. 196; (see Farwell v. Tillson, 76 Me. 227); Graffam v. Pierce, 143 Mass. 386. But perhaps more commonly under a denial of the contract advantage may be taken of the statute by objecting to proof of an oral contract. Leaf v. Tuton, 10 M. ft W. 393; Dunphy v. Ryan, 116 U. S. 49; Hnrlburt v. W. & W. Mfg. Co. 38 Ark. 594; Suman v. Springate, 67 Ind. 115; Metcalf v. Brandon, 58 Miss. 841; Maybee v. Moore, 90 Mo. 340; Galley v. Macy, 84 N. C. 434; Birchell v. Neaster, 36 Ohio St. 331; Popp v.Swanke, 68 wis. 364. And this could probably be done everywhere if the declaration or complaint alleged that the contract was in writing, Reid v. Stevens,

* Of the other sections of this statute it will not be necessary to say much. Those which relate to wills lie entirely without the scope of this work; and those in relation to trusts, almost as much so. The first, second, and third sections relate to leases, and these sections are subject to so many important modifications in this country, the provisions respecting them in the several States being not only diverse from the statute, but from each other, that an examination of the questions which have arisen under the English statute, and of the adjudication which has settled these questions, would not be of much use.

It should be said, however, that equity has held that a part performance of a contract takes the case out of the statute; either on the ground of fraud, (z) or on the presumption of an unproved agreement which satisfies the requirements of the statute, (a) Much doubt has been expressed as to the wisdom or expediency of this rule; (b) but it seems now to be well established. But the efforts to make the same rule operative at law, (c) have wholly failed; and the dicta which asserts this rule at law, have been overruled, (d) And even in equity, it is * established with some qualifications, or, rather, requirements. Thus, the equitable rule is mainly applied, if not wholly confined, to contracts for the sale of lands or some interest in them; and nothing is a part performance for this purpose, which is only ancillary or preparatory; (e) it must be a direct act which is intended to be a substantial part of the performance of an obligation created by the contract; (f) and it must be an act which would not have been done but for the contract; (g)1 and it must be directly

(z) See Roberts on Frauds, p. 130 et seq.

(a) See Roberts on Frauds, p. 130 et seq.

(b) See Lindsay v. Lynch, 2 Sch. ft L. 1; Forster v. Hale, 3 Ves. 696, 712.

(c) Brodie v. St. Paul, 1 Ves. Jr. 326; Davenport v. Mason, 15 Mass. 85; Baldwin v. Palmer, 10 N. Y. (6 Seld.) 232.

(d) Cooth v. Jackson, 6 Ves. 39; Kidder v. Hunt, 1 Pick. 331; Adams v. Townsend, 1 Met. 483; Norton v. Preston,

15 Me. 14; Jackson v. Pierce, 2 Johns. 224; Baldwin v. Palmer, 10 N. Y. (6 Seld.) 232.

(e) See Roberta on Frauds, p. 139.

(f) Jones v. Petermau, 3 S. & R. 543; Johnston v. Glancey, 4 Blackf. 94; Mor-phett v. Jones, 1 Swanst. 172; Ex parte Hooper, 19 Ves. 477.

(g) Frame v. Dawson, 14 Ves. 386; Ganter v. Halsev, Ambl. 586; Phillips v. Thompson, 1 Johns. Ch. 149.

120 Mass. 209; or if the declaration were on the common counts. Hunter v. Randall, 62 Me. 423: Boston Duck Co. v. Dewey, 6 Gray, 446 ; Alger v. Johnson, 4 Hun, 412.

1 Where the plaintiff, a school board, having the right of possession of a school-house on the defendant's land only so long as it was used for school purposes, agreed to remove from the land if the defendant would purchase the school-house, and did so remove, and built a new school-house, it was allowed to recover the agreed price, though the contract of sale was not in writing. Wilkins School District v. Milligan, 88 Pa. 96. An agreement to construct a ditch over the lands of the two contracting parties, and keep it in repair for their mutual benefit, will be enforced between such parties, if in prejudice of the party doing the act, who must himself be the party calling, on this ground, for the completion of the contract (h)l they have, in pursuance of such agreement, performed labor and paid their share of the expenses incurred in the construction of the ditch. Gooch v. Sullivan, 13 Nev. 78. A contract whereby the grantor put the grantee into possession of lands, and agreed to convey or devise the same in consideration that the grantee would board and care for the grantor during life, is not within the statute, Mauck v. Melton, 64 Ind. 414; to take such a contract out of which, however, the purchaser must have gone into possession, Johns v. Johns, 67 Ind. 440. Where the defendant, intending to purchase the entire interest in land, acquired, through the invalidity of the conveyance, only the interest of part of the joint owners, he was not allowed to uphold a parol purchase from the other joint owners by his entry and improvements. Nay v. Mograin, 24 Kan. 75. See chapter on Specific Performance. - K.

(h) See Roberts on Frauds, p. 138, and Buckmaster v. Harrop, 7 Yes. 341.

1 Where the defendant, instead of selling under foreclosure, orally agreed, on the plaintiff's conveying the land to him, to allow him to occupy the land without rent for one year, and provided he could find a purchaser, to pay him a bonus of $50, and the excess over the mortgage debt, it was held that the plaintiff's performance of the conditions entitled him to such bonus and excess. Reyman v. Mosher, 71 Ind. 596. The relinquishment of dower by a wife in her husband's lands is a sufficient consideration as against his creditors, for his oral agreement, afterwards executed, to have certain land conveyed to her. Brown v, Rawlings, 72 Ind. 505. - K.