BEARD VS. LINTHICUM. 345

delay, that it is released or satisfied. It is not very difficult to
conceive a reason why the legislature may not have intended
to embrace decrees presumed, from efflux of time, to be exe-
cuted or satisfied, and to extend to them the summary remedy
provided by the act for the case of abatements caused by death.
In the latter case, the event—the death of the party—is one
which no diligence or precaution on the part of the suitor can
guard against; whilst, in the former, it is his own fault if he suf-
fer his decree to become dormant by lapse of time. It is true,
this delay is not unfrequently the result of forbearance on the
part of the creditor; but still, until the parties are brought be-
fore the court and heard, the legal presumption, when the spe-
cified period from the date of the decree has run out, is, that
it has been executed or satisfied. Mullikin vs. Dmall, 7 G. &
J., 358, 359.

Thinking, then, after a careful consideration of the act of as-
sembly, that it does not embrace this case, which is the case of
a decree become dormant by lapse of time, as well as abated by
the death of the defendant, and that a bill of revivor would
be the most appropriate remedy, I shall dismiss the petition
of the complainant, though without costs, the case being one
of the first impression,

[No appeal was taken from this order.]

HARRIET A. BEARD

vs. DECEMBER TERM, 1848.
JOHN H. LINTHICUM ET AL.3

[STATUTE W FRAUDS—PART PERFORMANCE—SPECIFIC PERFORMANCE.]

IT has been repeatedly remarked by eminent judges, that the disposition,
which at one time existed to relax the statute of frauds, should be opposed ;

and, that the courts should take a stand against any further encroachment
upon its provisions.

A party who seeks to take a case out of the statute on the ground of part per-
formance of the contract, must make out, by clear and satisfactory proof, the
existence of the identical contract, charged in the bill.