tenements, (as, for the liberty of using a way over an other person's close, (a) or for nailing the frame-work of a skylight against the wall of his house, (1) does not convey an interest in the property, and will be binding by parol. (b)

An agreement for an abatement of the rent of lands is clearly within the statute. (2) So, an agreement for a crop growing upon land, conferring an exclusive right to the land during the growth of the crop for the purpose of making a profit of the growing surface, (as, where the agreement was for the purchase of a crop of mowing grass, growing in a close of the defendant; the grass to be mowed and made into hay by the plaintiff; and no time fixed for the commencement of the mowing,) this has been determined to be a contract for the sale of an interest in or concerning land. (3) But where the one party agreed to sell the other a crop of potatoes in a close, at so much for the sack, to be got immediately, the Court considered the contract as confined to the sale of the potatoes, and that it did not convey an interest in the soil, but merely an easement, a right to come upon the land, for the purpose of taking up and

(1) Winter v Brockwell, 8 East, 310. n. 11 East, 366.

(2) O'Connor v Spaight, 1 Scho, &

Lef. 306.

(3) Crosby v Wadsworth, 6 East, 602. 2 Maule & Sel. 208.

(a) Cranford v Morrel, 8 Johns. Rep. 253.

(b) A. entered on land belonging to B. without his knowledge or authority, cleared and made improvements, B. afterwards agreed by parol with A. that he would sell the lands to A. as wild lands, or pay him for the improvements he had made. It was held that though the promise to sell was clearly void by the statute of frauds, yet the promise to pay for the improvements made on the land was not within the statute. Frear v Hardenbergh, 5 Johns. Rep. 271. A contract for the sale and delivery of the possession of land must be in writing. Howard Eaton, 7 Johns. 205.

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carrying away the potatoes. (1) And in the later case of Warwick v. Bruce, (2) where the contract was for all the potatoes growing on a certain quantity of land, at so much per acre, to be dug and carried away by the purchaser, the Court held that the potatoes were the subject-matter of the sale, and that the contract was for a mere chattel. (a)

Fourthly, "No action shall be brought upon any agreement that is not to be performed within the space of one, year from the making thereof, unless the agreement upon which, &c." This clause applies to those cases only, where the thing is not to be performed within a year, by the express agreement between the parties. Cases depending upon contingencies, which may or may not happen in the course of a year from the time of making the agreement, are not within the statute; (b) as, an agreement to pay a sum of money upon the return of a certain ship, (3) or on the day of marriage of the party, (4) or an agreement to give a legacy by his last will and testament. (5) In the first of these cases, the ship might by

(1) Parker v Staniland, 11 East, 362.

(2) 2 Maule & Sel. 205. The contract was made about that time of year, when such crops are usually dug up.

(3) Anonym. case stated by Treby, C. J., as the opinion of all the judges.

1 Salk. 279.

(4) Peter v Compton, Skin. 353. 1. Ld. Raym. 316. Francam v Foster, Skin. 326.

(5) Fenton v Emblers, 3 Burr. 1278, 1 Black. Rep. 353. S. C. Bull. N. P. 280 S. C.

* It is difficult to distinguish this case from that of Emmerson v Heelis (2 Taunt 38.,) in which the Court of Common Pleas were of opinion, that a sale by public auction, of several lots of turnips then growing, was a sale of an interest in land Mansfield, C. J. who delivered the judgment of the Court, said shortly, that “ on this point the case could not be distinguished from the case of hops before decided in the Common Pleas," referring to Waddington v Bristow, (2 Bos. & Pull, 452.) The question there was, whether a contract to buy all the hops growing on certain land, at so much by the hundred weight, to be delivered in packets to the buyers, was exempted from an agreement-stamp by the stat. 23. G. 3. c. 58 8. 4., as an agreement made for, or relating to, the sale of goods, wares, and merchandises; and the Court held, that the contract was not within the exemption.

(a) Vide Whipple v Foot, 2 Johns. Rep. 418. Newcomb et al. v Ramer, ib. 421. (n) Bostwick v Leach, 3 Day 476.

(b) Moore v Fox, 10 Johns. Rep. 244.

possibility have returned within the year; so, in the others, the marriage might have taken place, or the death of the party might have happened, within that time. And though the contingency, upon which the money was to be paid did not happen in either case till after the expiration of a year, yet the promise was adjudged to be binding without any memorandum in writing. Where the agreement is to be performed upon a contingency, and it does not appear from the agreement, that it is to be performed after the year, then a note in writing is not necessary, for the contingency might possibly happen within the year; but where it appears by the whole tenor of the agreement, that it is to be performed after the year, there a note in writing is necessary. (1) (a) In other words, the clause in the statute includes only those cases, in which it is expressly stipulated, or in which it appears to be the understanding of the parties as collected from the terms of the agreement, that the contract is not to be performed (that is completed) within the period of a year. (2)

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No action shall be brought, whereby to charge, &c. Agreement to unless the agreement, (b) upon which such action shall be be in writing. brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. First, with respect to the subject-matter of the writing. Whatever constitutes an essential part of the agreement ought to be expressed, and with sufficient certainty. In the construction of this clause, it has been determined,

(1) Resolution of the majority of the Judges, in Peter v Compton, Skin. 353.

(2) Boydell v Drunimond, 11 East 142. 156, 157. 159.

(a) A contract for a year's service, to commence at a day subsequent to the making thereof, being a contract not to be performed within a year, is within the fourth section of the statute of frauds, and must be in writing. Bracegirdle v Heald, 1 B. & Alderson. 722.

(b) The staute of frauds in Virginia contains also the word promise, unless the promise or agreement." Vide Violett v Patton, 5 Crunch Rep. 151. Johnso ▾ Ronald, 4 Munford 77.

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that the word "agreement" must be understood in its proper and correct sense; and that, as the consideration of the promise is part of the agreement, this ought to be stated in writing, as well as the promise itself. (a) Thus, in an action against the defendant upon his promise to pay the debt of a third person, in consideration of the plaintiff's forbearance to sue, the plaintiff cannot recov er, unless there is a written memorandum of such consideration. (1) This strict construction of the act, by making it necessary to produce written evidence of the terms, by which the parties meant to be bound, is manifestly best calculated to give effect to the intention, which the legislature had in view, of securing the parties from being charged merely by parol testimony. A letter therefore by one of the contracting parties, admitting that he made a parol agreement, but not containing the terms, is not sufficient evidence of an agreement to charge (b) the party. (2) So, a written agreement for a lease under a certain rent ought to specify the term, for which the premises are to be demised, (3) or at least ought to refer to some other written instrument, by which the extent of the term may be ascertained. And as the word agreement implies the assent of two or more persons, it is clear, that the contracting parties ought to be named, or the agreement cannot be enforced. (4)

(1) Wain v Warlters, 5 East, 10. As to this case, see Ex parte Minet, 14 Ves. 190. Ex parte Gardom, 15 Ves. 287.

(2) Seagood v Meale, Prec Ch. 560. 1 Atk. 12. 9 Ves. 250. 252. 11 Ves.

555.

22.

(3) Clinan v Cooke, 1 Scho. & Lef,

(4) Charlewood v D. of Bedford, i Atk 497. Champion v Plummer, New Rep. 252.

(a) Vide Sears v Brink & Brink, 3 Johns. Rep. 211. "It is as necessary to the prevention of frauds and perjuries, that the consideration which leads to the promise should be in writing, as the promise itself. The word agreement comprehends the consideration as well as the promise. This is the construction given to the statute in the case of Wain v Warlters, and it appears to be a sound construction, and one which this court is disposed to adopt." Van Ness, J.

(b) Vide Johnson v Ronald, 4 Munford 77.

(a) However the words of the statute are not to be con strued so strictly, as to make it necessary to state precisely, in the memorandum of the agreement for paying the debt of another person, what is the exact amount of the debt but it will be sufficient to engage to pay generally, for all the goods furnished within a certain time, or whatever sum the person may owe, &c.; and the amount of the goods furnished, or of the debt contracted, is to be ascertained by evidence at the trial. (1) In a late case of this kind, where the promise to pay was made by the defendant in a letter addressed by him to one G., (in which he undertook, in case G. would give the bearer D. W. indulgence for a certain time, to see him paid,) the court of King's Bench were of opinion, that the evidence of G. had been properly admitted to prove, what was the amount of the debt, and also that the defendant had applied to him as the attorney of the plaintiff, who employed him to sue D. W. for the debt. (2)

The agreement, or some memorandum or note of the agreement, is required to be in writing. And here the question arises, what is a memorandum or note of agreement within the meaning of the statute. (b)

In the first place, it seems to be clear that a writing may be used as evidence to establish an agreement, although from the disability of one of the parties it may have been void as a legal instrument from the time of its creation, or may have since become void in consequence

(1) 15 East, 274. Stadt v Lill, I & Lef. 52. 73. Campb. 242. 9 East, 348 S. C. 1 Scho.

(2) Bateman v Phillips, 15 East, 272.

(a) A letter of credit addressed, by mistake, to John and Joseph, and delivered to John and Jeremiah, will not support an action by John and Jeremiah, for goods furnished by them to the bearer, upon the saith of the letter of credit. It is not a written contract between the plaintiffs and the defendant, and parol evidence cannot be admitted to make it such. Grant v Naylor, 4 Cranch 221.

(b) Vide post 374. n.