SiR W. J. ITCHIE C.J.-As regards the real estate, or the proceeds thereof sought to be recovered in this .action, I think the court below was right in holding that the alleged agreement cannot be enforced by reason of the non-compliance with the statute of frauds, there being in this case no writing signed by the party to be charged or his agent, as required by the statute in actions on an agreement concerning lands, nor is the case taken out of the statute by evidence of part performance. As regards so much of the decree as touches the value of the stock and implements on the farm at the death of the intestate, as it has not been appealed against it will stand.
FOURNIER J. concurred.
J.-I am of opinion that this appeal should be dismissed with costs.
GWYNNE J.-Apart from the judgments in Alderson v. laddison in the Court of Appeal and in the House of Lords (10), I should have been of opinion that the present is not at all a case for the application of the doctrine of part performance taking a case out of the operation of the 4th section of the Statute of Frauds; but in view of the above judgments in Alderson v. Maddison (1) it is impossible, without utterly disregarding those judgments, to apply that doctrine to the present case. The arguments on behalf of the plaintiff Jare based upon the same fallacy as that which Lord G
JJustice Baggallay, in givingjudgment in Humphreys v. Green pronounced the arguments on behalf of the plaintiff in that case to rest, namely, that they relied upon the parol agreement itself to prove that the alleged acts of part performance were referable to that agreement, and I must add that there seems to have been much in the conduct of the plaintiff wholly inconsistent with the particular parol agreement, which heonow insists upon, ever having been made. That the plaintiff had reasonable expectation of some benefit from his uncle's will cannot, I think, be doubted and his disappointment, no doubt, has been great, but to hold that he is entitled, upon the equitable doctrine of part performance, to the very benefit which he insists upon would be to extend that doctrine beyond what is warranted by the decided cases upon which the doctrine rests. While we may sympathise with the plaintiff in his disappointment we cannot strain the law beyond its legitimate limits for his benefit. We may, however, I think, while dismissing his appeal do so, under the circumstances, without costs, as was done in Alderson v. Maddison (1) and direct the costs of the administrator, Prevost, to be paid out of the estate the intestate.
I think, also, that so much of the order of the court below as, in the event of the parties differing upon the " sum to be paid as the value of the cattle and increase," directs a new trial to be had, and all that is in the order subsequent to that direction, should be expunged from the order and that, in lieu thereof, it should be directed that it should be referred to an officer of the court to take evidence as to such value