not only in making appointments but in all that is incident thereto.

"It follows that as the claimant was not found deficient at any examination, and was not dismissed for misconduct under the provisions of Revised Statutes, § 1525, nor upon and in pursuance of the sentence of a courtmartial to that effect or in commutation thereof, according to Revised Statutes, § 1229, he is still in office and is entitled to the pay attached to the same."

We adopt these views, and affirm the judgment of the Court of Claims.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

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(See S. C. Reporter's ed. 485-491.)

District of Columbia-payment of certificate of auditor of board of public works to holder discharges debt when indorsement of in blanknotice not to pay to assignee.

1. The payment, by the District of Columbia, of certificates of the auditor of the board of public works, to a third person, where such certificates have been indorsed in blank and placed in his hands by the owner, in the absence of any notice of his want of authority to collect, discharges the debt. 2. A letter by the attorney of the owner, sent to the treasurer of the board of public works merely requesting him not to pay the certificates, was not sufficient to make the District liable to the owner [No. 111.]

after payment to the holder.

Argued Jan. 14, 1886. Decided Jan. 25, 1886.

APPEAL from the Court of Claims. Judg

ment affirmed.

The case is stated by the court. Mr. Enoch Totten, Eppa Hunton and V. P. Edwards, for appellant:

Whatever notice was conveyed to Magruder was conveyed to his principal, the Corporatice. It may be that he, in addition to filing the paper, should have made some note or entry upon the books of the Corporation, in such rather as to arrest the attention of his successors, but a failure of that character on his part acnot change the position or rights of a cred

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Bridgford v. Tuscumbia, 4 Woods, 611; 16 Fal. Rep. 910; 6 Barb. 516; Bigelow v. Perth Aby, 1 Dutch. 297; San Antonia v. Lewis, Tex. 69.

One notice to a corporation is enough; and

sequent change of officers furnishes no defee against such a wrong as this. It is the day of the outgoing officer to see to it that his ssor is made acquainted with any unusual instances connected with any particular or piece of property.

Mechanics Bank of Alexandria v. Seton, 1 Pet 290 (26 U. S. bk. 7, L. ed. 152); People 1. Comptroller, 77 N. Y. 45.

Mr John Goode, Solicitor-Gen., for apjeixe.

This is a suit brought July 28, 1880, under
the Act of June 16, 1880, chap. 243, 21 Stat. at
L. 284, by Matthew J. Laughlin against the
District of Columbia to recover an amount
claimed to be due upon five certificates of the
auditor of the board of public works. The facts
are these:

Laughlin contracted with the board of pub-
lic works to do certain work and furnish cer-
tain materials in grading the streets in Wash-
ington. The work was done and the board, ac-
cording to its usage with contractors, issued to
the attorney in fact of Laughlin, certificates of
accounts allowed by its auditor, as follows:
"No. 4763. Office of Auditor of Board of
Public Works,

Washington, D. C., Dec. 24th, 1873.


I hereby certify that I have this day audited
and allowed the account of M. J. Laughlin,
per J. F. Murray, att'y, for work, as per sched-
ule, amounting to fifteen hundred dollars.
J. C. Lay, Auditor."
Three other certificates for $6,000, $5,000,
and 4767, were issued to the same person and
and $2,000 respectively, numbered 4764, 4766
in the same form, all having the same date.
Another certificate for $597 was also issued,
but as the right to recover on that was aban-
doned at the argument it need not be specially
referred to.

After the certificates were issued Laughlin
demanded payment from the treasurer of the
board of public works, which was refused for
want of funds. He then borrowed money on
them from Rudolph Blumenburg, at the rate
of thirty-three cents on the dollar of their face
value, giving his notes for the amount bor-
rowed, and delivering the certificates indorsed
by him in blank as collateral. Certificates
Nos. 4764, 4766 and 4767 were hypothecated

January 20, 1874, and No. 4763, February 14,


On or about the 5th of June, 1874, a written document was delivered to James A. Magruder, treasurer of the board of public works, which he filed with the papers of the board, where it has ever since remained, and of which the following is a copy:


'Washington, D. C., June 5th, 1874.
Col. James A. Magruder, Treasurer, B. P. W.
Sir: I do most respectfully ask of you not to
pay the following auditor's certificates, dated
December, 1873, issued to 'M. J. Laughlin, per
J. F. Murray, attorney,' viz: No. 4763, for
$1,500; No. 4764, for $6,000; No. 4766, for
$5,000; No. 4767, for $2,000.

Also a certificate issued in the name of M. J.
Laughlin, No. 4426, for $597.

Very Respectfully,

J. F. Murray." Previous to that date Laughlin had orally notified Magruder not to pay the certificates, but at what exact time does not appear. He did not, however, bring any suit to enjoin the payment or conversion of the certificates, or to establish his interest in or title to them.

On the 20th of June, 1874, Congress passed "An Act for the government of the District of Columbia and for other purposes" (chap. 337, 18 Stat. 116), by which "all provisions of law providing for an Executive, for a secretary for board of public works and for a delegate in

Mr. Chief Justice Waite delivered the opin- the District, for a Legislative Assembly, for

of the court:





Ост. 1 ERM,

the Act giving that court jurisdiction in this class of cases was passed.

lin for the amount due on the certificates notwithstanding the payment to Cowdrey upon the allowance by the board of audit. The court of claims was of opinion that it did not, and in this we concur.

Congress in the District of Columbia" were re- | judgment against Laughlin, and to reverse that pealed, and a commission created to exercise judgment this appeal was taken. "all the power and authority now lawfully vested in the governor or board of public works owner of certificates of the auditor of the board of said District," except as thereinafter limited. of public works, like those now in question, It has been settled in this court that if the This commission was authorized to take pos- places them in the hands of a third person, insession and supervision of all the offices, books, dorsed in blank so as to give him apparent aupapers, records, moneys, credits, securities, assets thority for their collection, payment by the and accounts belonging or appertaining to the District to the person so invested with apparent business or interests of the government of the authority, without notice of a want of actual District of Columbia and the board of public authority, will discharge the debt. Cowdrey v. works, and exercise the power and authority Vandenburgh, 101 U. S. 572 [Bk. 25, L. ed. conferred by the Act. By section 6 the First 923]; Looney v. District of Columbia, 113 U. S. Comptroller of the Treasury and the Second 258 [Bk. 28, L. ed. 974]. The court of claims Comptroller of the Treasury of the United so held in Adams v. District of Columbia, 17 Ct. States were constituted a board of audit "to Cl. 351, decided at the December Term, 1881, examine and audit for settlement," among oth-which was but a little more than a year after er things "the debt purporting to be evidenced and ascertained by certificates of the auditor of the board of public works." required to "issue to each claimant a certificate, have now to consider is, whether the letter of This board was signed by each of said board and countersigned June 5, 1874, addressed by the attorney of Such being the law, the only question we by the comptroller of the District, stating the Laughlin to the treasurer of the board of public amount found to be due to each and on what works and placed on file with the papers of the account." Power was given the board to "sub-board, makes the District answerable to Laughpœna witnesses, administer oaths and examine witnesses under oath," and it was allowed "full access to all of the records, books, papers and vouchers of every kind whatsoever of the board of public works;" "and to the end that said books and accounts may be thoroughly examined, and the indebtedness of the District and of public works or its successor. of the board of public works, and the state of partment of the District Government estabThe board of audit was no sense the board the books and accounts of the officers aforesaid, lished "to examine and audit for settlement" may be accurately ascertained," the board was certain classes of the debt of the District. It It was a deauthorized to "employ one or more skillful and was invested for this purpose with quasi juimpartial accountants *** and such other dicial powers. The commission, which was the assistants as they may deem necessary to make general governing body of the District, had no examination of said books, vouchers and pa- control over it. No claim against the District, pers, and discharge their duties * shall procure inspection of such bank books to audit, could be paid except upon a certificate **and of either of the classes this board was required and papers as may be necessary." The board of allowance signed by each of the members of was also to give notice for the presentation of the board and countersigned by the comptroller claims, and no claim could "be audited or al- of the District. The board could not begin its lowed unless presented within ninety days aft- work until public notice had been given the er the first publication of such notice." section 7 the sinking-fund commissioners were their claims, and it could act only for a limited By creditors of the District to appear and present required to exchange the three-sixty-five bonds period. This notice was to all the world and of the District at par, for like sums of any debt required all who had claims to appear or suffer evidenced by certificates of the board of audit. the consequences if they kept away. Laughlin On the 16th of July, 1874, N. A. Cowdrey was bound to take notice of the statute creatpresented the certificates, now in dispute, to ing the board and of the duties of the board in this board of audit for allowance and settle- respect to claims like his. He knew that his ment. Before their presentation, and after certificates were outstanding in the hands of their delivery by Laughlin to Blumenburg, some one invested by him with an apparent tithere had been printed over the indorsement in tle as owner, or at least with an apparent aublank which was on them when delivered the thority to collect them. He knew or ought to following: might present them and demand their allowance. The law charges him also with notice of have known that the holders of the certificates the power of the board to examine witnesses and consider the rights of contesting parties. It is true he may have had the right to suppose that his letter to the treasurer of the board of public works would be brought to the attention of the board; but that letter was nothing more than a request to the treasurer not to pay. No reason was assigned for the request, and no statement was made of the facts connected with the title or authority of the person certificates had been presented to the treasurer who might present them for payment. If the


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"For value received, the within debt is assigned and transferred to N. A Cowdrey, who is authorized to collect the same for his own This was done without the knowledge of Laughlin. Certificates of allowance were issued to Cowdrey in due form by the board of audit; and these were taken up by an exchange of bonds for them by the sinking-fund commissioners. Neither Blumenburg nor any assignee of his has accounted to Laughlin for the proceeds of the certificates, nor returned the notes for which they were transferred as security.

Upon these facts the court of claims gave



after the letter was delivered to him, it would have been his duty to notify Blumenburg before payment, so that the proper steps might be taken to contest the right of the holder to the money. But when the office of treasurer of the board of public works was abolished and the board of audit created, an entirely new condition of things arose. The statute authorizing the board gave notice to Laughlin that he must himself appear before that tribunal to assert his rights as against the holder of his certificates or take some other steps to prevent their payment, and, if he did not, that his claim against the District might be lost. The board, even if his letter had been brought to its attention, would not have been compelled to give him any other notice to appear than that which be already had. As he failed to appear at all, there was nothing for the board to do but to act upon the evidence which was before it, and decide accordingly. In Cowdrey v. Vandenburgh the suit was by Vandenburgh, the owner of a certificate like those now in question, against Blumenburg and Cowdrey, to compel surrender of the certificate to him upon allegations as to their title very similar to those which are bere made against them. Upon proof of the charge against Blumenburg and a failure by Cowdrey to show that he paid vale for the certificate, the decree sought was granted. So here, if Laughlin had appeared before the board and made his showing, it is possible he might have got the pay instead of Cowdrey; but he failed to do so, and it is now too late for him to assert his rights against the District.

Under the statute law of the Territory of Montana there is no distinction between legal and equitable remedies, and there is "but one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs," which is "the same at law and in equity.' R. S. of Montana of 1879, p. 41. This law being in force, James M. Ryan, the defendant in error, brought this suit in the District Court for the Third Judicial District in the County of Lewis and Clarke, Montana Territory, against Elijah M. Dunphy, the plaintiff in error, to recover judgment against the latter on his promissory note for $1,511.50, dated June 1, 1879, and payable to the plaintiff in error on December 1 following. The defendant admitted in his answer the execution and delivery of the note, and that it had not been paid; and by way of cross action and counter claim, alleged that in February, 1879 one Rumsey and one Embrey were the owners of certain placer mining ground, with the appurtenances particularly described, situate in Grizzly Gulch, Minnesota Mining District, in Lewis and Clarke County, Montana, and that at the time mentioned, the defendant being in negotiation for the purchase thereof, entered into a contract with the plaintiff, which is thus stated in the defendant's answer:

"The said defendant was to effect the purchase of the two thirds of the above-described property upon the best terms possible, exercising and using his best judgment for the joint use and benefit of said plaintiff and defendant; that the title thereto and all deeds of convey. ances for the said interest in and to said premises and property were to be taken in the name of the defendant herein, and that the plaintiff herein was not to be known in the transfers and James H. McKenney, Clerk, Sup. Court, U. S. purchase until such time as the purchase was

The judgment of the Court of Claims is affirmed.

True copy. Test:

ELIJAH M. DUNPHY, Piff. in Err.,



See S. C. Reporter's ed. 491–499.)

Batute of Fraude-parol contract to buy lands and convey, not enforcible-refusal to perform contract-pleading and evidence.

LA parol agreement that one of the parties shall par base a tract of land on the best terms possible, 1 then convey an interest therein to the other party is within the Statute of Frauds and cannot *forced.

Aration to enforce it.

completed and all of the conveyances executed,
and when so completed and a good and suffi-
cient title acquired to said property by defend-
ant, the defendant was to make and deliver
to the said plaintiff a good and sufficient
deed of conveyance for the undivided one
third thereof; and that upon the execution and
delivery of such deed the said plaintiff prom-
one third of all moneys paid by him as the con-
ised and agreed to pay to this defendant the
sideration for such conveyance and transfer,
and the one half of all expenses incurred and
paid in and about obtaining the title to the said
property as aforesaid."



that on July 26, 1879, the defendant had acThe answer further averred, in substance, [493] der the circumstances of this case the pur- quired a complete and perfect title to the entire rawer of the land was not the agent of the other interest and estate in said property by conveypary and the law implies no promise by the latter ances from Rumsey and Embrey; that the conpay the price as for money paid out at his re-sideration for said conveyances was $5,200, and The mere refusal of a party to perform a parol the expenses incident to acquiring the title were tract for the sale of land cannot be construed $2,200; and that on the day last mentioned the te such a fraud as will give a court of equity plaintiff was indebted to the defendant, under The denial of the making of a contract lets in said contract, on account of the said purchase fense of the Statute of Frauds as effectively and expenses, in the sum of $1,935.51; and that it had been specifically pleaded. [No. 114.] on that day he tendered to the plaintiff a good Argued and submitted Jan. 15, 1886. Decided and sufficient deed for the one undivided third Jan. 25, 1886. of said property and demanded of him the payment of the last mentioned sum of money; and the plaintiff refused to receive the deed or pay the money demanded of him, and denied the existence of the agreement above set forth. The defendant therefore prayed judgment against

ERROR to the Supreme Court of the Termory of Montana. Judgment affirmed. Statement of the case by Mr. Justice Woods:



the plaintiff for the sum of money so demanded, | he can recover for money had and received, or with interest from July 26, 1879.

The plaintiff filed a replication, in which he denied that he ever made the contract set out

in the answer.

Upon the trial of the cause, as appeared by
the bill of exceptions, the defendant being upon
the stand as a witness in his own behalf, and
having stated that he did in February, 1879,
enter into a verbal contract with the plaintiff
for the purchase of the mining ground described
in the answer, and that there was no written
agreement, was asked to state what the agree-
ment was. "The plaintiff objected to the wit-
ness answering said question, for the reason
that the agreement, not being in writing," was
"void by the Statute of Frauds. The court
sustained the objection and refused to permit
the said witness to answer the question."
"The defendant then proposed to prove by said
witness the truth of the matters alleged and set
up in his answer, and read the same to the
court. The court refused to permit the defend-
ant to prove said matters, on the ground that
the said matters rested in parol and were not in
The defendant excepted to these
rulings. There being no further evidence the
jury returned a verdict for the plaintiff for
$1,733, the amount due on the note sued on,
for which sum the court rendered judgment
against the defendant. Upon appeal by the de-
[494] fendant to the supreme court of the Territory
this judgment was affirmed. By the present
writ of error the defendant seeks a reversal of
the judgment of affirmance.

Mr. M. F. Morris, for plaintiff in error.
The rule that governs this class of cases has
been well stated by a recent elementary writer,
Bishop on Contracts, § 503, 535, 545:

"If one has voluntarily done a thing which,
being within the statute, he could not have
been compelled to do, he may enforce payment
of it, that is, recover the consideration orally
agreed-from the other."

And again: "If the conveyance is actually made, any oral promise to pay for the land is good."

And this is the tenor of all the authorities on
the subject.

Phillips v. Thompson, 1 Johns. Ch. 418; Park-
hurst v. Van Cortlandt, 1 Johns. Ch. 273; Baker
v. Wainwright, 36 Md. 336; Green v. Drummond,
31 Md. 71; Nutting v. Dickinson, 8 Allen, 540;
Philbrook v. Belknap, 6 Vt. 383; Ray v.
13 Tex. 550; Zabel v. Schroeder, 35 Tex. 308;
Sims v. McEwen, 27 Ala. 184; Knowlman v.
Bluett, L. R. 9 Exch. 1; Swain v. Seamens, 9
Wall. 254 (76 U. S. bk. 19, L. ed. 554).

It may be objected that if the plaintiff in
error paid his own money and not that of the
defendant in error, there is no resulting trust,
and no relation of principal and agent. The
answer is that if the plaintiff in error advanced
his own money for the use and benefit of the
defendant in error, the payment is a loan to
the latter in contemplation of law; and it there-
by becomes the money of the defendant in error.
Messrs. Edward W. Toole and Joseph
K. Toole, for defendant in error:

Where a party pays money or renders services to another upon a contract void under the Statute of Frauds, it has always been held that


contract is disregarded and the action is based upon the implied promise to pay. This howupon a quantum meruit. But in such case the the complaining party must stand or fall upon the establishment of it. ever is emphatically a suit upon the contract, and by the plaintiff in error support this proposition. The authorities cited

§ 124: Gray v. Hill, Ryan & Moody, 420; Ful ler v. Reed, 38 Cal. 99; Patten v. Hicks, 43 Cal. See also, Browne, Stat. Frauds, 3d ed. p. 122, 509; Cooper v. Pena, 21 Cal.403; Dung v. Parker, 52 N. Y. 494; Kidder v. Hunt, 11 Am. Dec. 183; Houston v. Townsend, 12 Am. Dec. 109; Jackson v. Murray, 17 Am. Dec. 58; Story, Part. p. 94, n. a.; 12 Wis. 138, 153, 169; 9 Wis. 397; 5 Ves. 314; 4 Fed. Rep. 694; Pac. Law. Rep. Apr. 9, 1885, 338.

the court:
Mr. Justice Woods delivered the opinion of

refusing to allow him to prove the contract set
up in his answer. The statute law of Montana
The defendant insists that the court erred in
applicable to the question in hand is as follows:
Chapter XIII., art. I of the Revised Statutes of
Montana of 1879 provides as follows:

than for leases for a term not exceeding one year, or any trust or power over or concerning "Sec. 160. No estate or interest in land, other lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subhis lawful agent thereunto authorized by writ scribed by the party creating, granting, assigning.' ing, surrendering or declaring the same, or by

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a longer time than one year, or for the sale of
any lands or interest in lands, shall be void, un-
Sec. 162. Every contract for the leasing for
less the contract or some note or memorandum
thereof expressing the consideration be in writ-
the lease or sale is to be made.'
ing and be subscribed by the party by whom

fendant based his cross action is as effective for The denial in the replication of the plaintiff of the making of the contract on which the deas if the statute had been specifically pleaded. May v. Sloan, 101 U. S. 231 [Bk. 25, L. ed. letting in the defense of the Statute of Frauds 797]; Buttermere v. Hayes, 5 M. & W. 456; Kay v. Čurd, 6 B. Mon. 100. The question is, there leged in the answer of the defendant, not be fore, fairly presented, whether the contract aling in writing, is valid and Fading under the statutes of Montana.

defendant seeks to enforce is a contract for the sale of lands. According to the averments of We cannot doubt that the contract which the the answer it was this: the plaintiff, being in treaty for the purchase of the lands, agreed with the defendant to acquire title to the undivided two thirds thereof in his own name upon the best terms possible, and, when he had acquired the title, to convey to the plaintiff, by a good and sufficient deed, an undivided third of the premises, for which the plaintiff promchase money and one half the ised to pay the defendant one third of the purcurred in obtaining the title. an agreement of the defendant to

expenses inconvey to the This is simply


plaintiff a tract of land for a certain considera- | contract as entitles the defendant to equitable
Son It therefore falls precisely within the relief, on the ground that it would be a fraud
terms of section 162 above quoted. It is a con- on him not to enforce the contract.
tract for the sale of lands and, not being in
writing signed by the vendor, is void. The cir-
cumstance that the defendant, not owning the
and which he agreed to convey, undertook to
acquire the title, instead of taking the case out of
the statute, brings it more clearly and une-
quivocally within its terms. A contract void
the statute cannot be enforced directly or
collaterally. It confers no right and creates no
cbligation as between the parties to it. Car-
gton v. Roots, 2 M. & W. 248; Dung v.
Parker, 52 N. Y. 494. The defendant must
therefore fail in his cross action, unless he can
ake his case out of the operation of the Statute
of Frauds.

The case as stated in the defendant's answer
is not, either in the averments or prayer, one
for equitable relief. There is no averment, and
no proof was offered, that the refusal of the
plaintiff to accept the deed and pay the purchase
price of the land has subjected the defendant
to any loss. His answer avers that before he
made his contract with the plaintiff he was
negotiating with the owner for the purchase of
the land. It is not alleged that he would not
have purchased the land if he had not made
his contract with the plaintiff. There is no
averment that the land is not worth, or that it
cannot be sold for, all it cost him. As between
these parties there has been no payment, no
The defendant seeks to evade the effe of possession and no improvements. The only
the statute by the argument that in the transac- complaint of misconduct on the part of the
30 set out in his answer he was acting as the plaintiff which can be inferred from the plead-
Agent of the plaintiff as well as for himself;ings is his refusal to perform a verbal contract
and that, having as such agent paid for the
hare of the land which he had agreed to con-
ey to the plaintiff, he is entitled to recover
back the price, as for money paid out and ex-
peded for the plaintiff at his request.

It is well settled that when one person pays ney or performs services for another upon a contract void under the Statute of Frauds, he may recover the money upon a count for money pad to the use of defendant at his request, or ever for the services upon the quantum Set count. Wetherbee v. Potter, 99 Mass. 4: Gray v. Hill, Ryan & Moody, 420; Shute ↑ Dorr, 5 Wend. 204; Ray v. Young, 13 Tex. 6. But in such cases the suit should be barht upon the implied promise. Buttermere ↑ Haven, 5 M. & W. 456; Griffith v. Young, 12 East, 513; Kidder. Hunt, 1 Pick. 328. Clearly de present case does not belong to that class. Here the suit is based upon, and its purpose is a enforce, the void contract.

The cause of action set up in the defendant's Ever is that the plaintiff, having contracted purchase the land and receive a conveyance Serefor, became liable, upon a tender to and al by him of the deed, to pay the agreed This is a suit upon the express contract. re is no implied contract on which the 78 action can rest, for the law implies a contaly to do that which the party is legally s to perform. As the express contract set ty the defendant was void under the statthe plaintiff was not bound in law to ac*****dred tendered him by the defendant or the purchase money. The defendant paid ey to or for the plaintiff. The money cut by him was to enable him to perform retract with the plaintiff. He paid it out f and for his own advantage. The A has received neither the money nor the -1mm the defendant. Neither reason nor tates that he should pay the defendthe price of the land and therefore the law se provision to do so. 2 Bl. Com. 443; Stunders, 12 Wheat. 341 [25 U. S.bk. 650]. The cross action cannot, therebe sustained on any supposed implied of the plaintiff.

But the defendant's counsel further insist that has been such a part performance of the

for the purchase of lands. But the mere breach
of a verbal promise for the purchase of lands
will not justify the interference of a court of
equity. Purcell v. Miner, 4 Wall. 513 [71 U.
S. bk. 18, L. ed. 435]. There is no fraud in
such a refusal. The party who so refuses stands
upon the law and has a right to refuse. Under
the circumstances of this case the statute is as
binding on a court of equity as on a court of
law. If the mere refusal of a party to perform
a parol contract for the sale of lands could be
construed to be such a fraud as would give a
court of equity jurisdiction to enforce it, the
Statute of Frauds would be rendered vain and
nugatory. The defendant knew or ought to
have known that the statute requires such a
contract as the one he seeks to enforce to be
evidenced by writing. That he did not exact
a contract in writing is his own fault. Courts
of equity are not established to relieve parties
from the consequences of their own negligence
or folly.

The Statute of Frauds is founded in wisdom
and has been justified by long experience. As
was said by Mr. Justice Grier, in Purcell v.
Miner, ubi supra, the statute "is absolutely
necessary to preserve the title to real property
from the chances, the uncertainty and the fraud
attending the admission of parol testimony."
It should be enforced. Courts of equity, to pre-
vent the statute from becoming an instrument
of fraud, have in many instances relaxed its
provisions. But this case is barren of any
averment or proof or offer of proof which ought
to induce a court of equity to afford relief. It
follows that neither in a court of law nor a
court of equity can the defendant maintain his
suit on the cause of action set up in his answer
by way of counterclaim or cross action.
Judgment affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Ct. U. B.



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