(7.) As to how the Plaintiff's case may be sustained in the absence of a written agreement: - fraud, - part performance: - admission by Defendant of parol agreement: - parol variation of written agreement.

Although, in general, there must, in order to sustain a suit for specific performance, be a contract in writing within the Statute of Frauds, the Courts, in certain cases, decree specific performance of a parol agreement, upon the ground, 1st, of fraud having been the cause of the noncompliance with the requisitions of the Statute: 2ndly, of the parol agreement having been in part performed, or 3rdly, of its existence being admitted by the defendant (e).

Written agreement, when dispensed with, on the ground of fraud.

Part performance or defendant's admission.

(y) See Scargill v. Hurry, 14 Jur. 847; Marshall v. Davies, 14 Jur. 997, V. C. R.

(z) Keeble v. Dennish, 14 Jur. 847.

(a) Scargill v. Harry, ib.

(b) Nottingham v. Mould, 16 L. T. 122, V. C. K. B.

(c) Hemming v. Mayo, 14 Jur. 847.

(d) See Jackson v. Grant, Times 23rd Nov. 1850, 41 L. O. 79, V. C. R.

1st. If by fraud the defendant has prevented a compliance with the requisitions of the statute, this will not avail him, but the plaintiff will be entitled to relief on proving the fraud and the parol contract (f).

2ndly, As to acts of part performance sufficient to take a case out of the Statute of Frauds. - It is, in general, of the essence of such an act, that the Court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract (g); for instance, delivery of possession is a sufficient part performance on the part of the vendor to sustain his suit against the purchaser (h); and acceptance of possession is a sufficient part performance, on the part of the purchaser, to sustain his suit against the vendor (i): the fact of the purchaser being, without liability to a charge of trespass, in possession of the vendor's land, is considered as showing unequivocally that some contract has taken place between the litigant parties (j); and the Court will then receive parol evidence of the terms of such contract. So, the retention of possession by a tenant after the determination of the original tenancy, may, under special circumstances, amount to part performance (k): so, if a tenant in possession lay out money on the premises, upon the faith of the parol agreement (l), or, it is conceived, commit acts which would, (if he were merely tenant,) subject him to the loss of his lease (m), or to proceedings on the part of the landlord (n): so, it has been held, that the mere payment of additional rent entitles the tenant to an answer from the landlord as to the existence of an agreement for a renewed lease, although the Court intimated an opinion against the admissibility of parol evidence in opposition to the answer (o).

Fraud takes the case out of the Statute.

Part performance - what acts of are sufficient to take the case out of Statute.

(e) As to the distinction between agreements and declarations of trust, see Dale v. Hamilton, 2 Ph. 266, 275.

(f) See note to Pym v. Blackburn, 3 Ves. 38, and cases there collected.

(g) Per V. C. Wigram, in Dale v. Hamilton, 5 Ha. 381.

(h) Pyke v. Williams, 2 Vern. 455;

Buckmaster v. Harrop, 13 Ves. 456; Reynolds v. Waring, You. 351, 353.

(i) Clinan v. Cooke, 1 Sch. & Lef. 41; Gregory v. Mignell, 18 Ves. 328; Morphett v. Jones, 1 Sw. 172.

(j) Per V. C. Wigram, 5 Ha. 381.

(k) Dowell v. Dew, 1 You. & C. C. C. 345.

(l) Wills v. Stradling, 3 Ves. 382;

And when the parties have for many year's acted upon the assumption that a contract existed, acts which might not in themselves, and irrespectively of the lapse of time, have been sufficient to take the case out of the Statute, have been held to have that effect (p).

But there can be no part performance of an incomplete contract (q): and an act which, though in truth done in performance of a contract, admits of explanation without supposing a contract, is not, in general, sufficient to take the case out of the Statute (r): e. g., delivery of the abstract, or giving directions for the conveyance, is insufficient (s): so, also, is payment of a sum alleged to be purchase-money (t); or procuring, and paying a valuable consideration for, a release by a third party (u); or the mere retention of possession by a tenant after the determination of his tenancy but before notice to quit (v); or an expenditure by the tenant to which he is liable under the terms of his lease (w): so, possession obtained wrongfully by the plaintiff, of course, cannot avail him (a?): marriage, it may be remarked, is not, for the purposes of specific performance, considered as a part performance of a parol contract for which it forms the consideration (y).

What are insufficient.

Mundy v. Jolliffe, 5 Myl. & Cr. 167; Sutherland v. Briggs, 1 Ha. 26.

(m) See and consider Parker v. Smith, 1 Coll. 608.

(n) See 5 Myl. & Cr. 177; and Sutherland v. Briggs, ubi supra.

(o) Wills v. Stradling, 3 Ves. 378, 382.

(p) Blachford v. Kirkpatrick, 6 Beav. 232.

(g) Lady Thynne v. Earl Glengall,

H. L. C. 131, 158; and see Parker v. Smith, 1 Coll. 623.

(r) 5 Ha. 381.

(s) Sug. 140; Whaley v. Bagnel, 1 Bro. P. C. 345; Hole v. White, 1 Bro. C. C. 409 (cited); Thomas v. Blackman, 1 Coll. 301.

(t) Clinan v. Cooke, 1 Sch. & Lef. 40; Watt v. Evans, 4 Y. & C. Ex. 579; and see 5 Ha. 381.

(u) O'Reilly v. Thompson, 2 Cox, 271.

(v) Wills v. Stradling, 3 Ves. 381; Brennan v. Bolton, 2 Dru. & War. 349.

So, if, in the case of moneys expended by a tenant, the circumstances were such as would, if there were no contract for sale, enable him to recover the amount from the landlord, the case would not appear to be different in principle from that of payment of purchase-money; the same remark applies to the case of the payment of additional rent (z); where, however, as we have seen, the decision was, that the landlord who had pleaded the Statute should answer.