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if he is discontented with the first. Now unless that court can review the proceedings of the court of common pleas, it would be a great defect in the administration of justice, if errors could not be corrected in this court. If indeed the court of BOILEAU. common pleas had given no final judgment in the case, there would have been a technical difficulty hard to be got over: a writ of error does not lie, except on a final judgment. But the judgment entered by the common pleas has removed all objections of that kind. It seems to me, therefore, that whether we consider this matter upon grounds of general convenience, without regard to former decisions, or take it up on the opinions which have been entertained both by the courts of common pleas and by this court, ever since the making of the law on which the case arises, the writ of error was properly issued. I am therefore of opinion that it should not be quashed.

YEATES J. was holding a court of nisi prius during the argument, and gave no opinion.

SMITH J. Ingenious as were the arguments of the counsel who moved to quash the writ of error, I have not been able to entertain a doubt upon the point.

The mode here pursued, of carrying the law on the subject into execution, has been adopted from the passing of that law. Titles to lands depend upon the legality of that mode. Yet if we found that the mode hitherto adopted was not warranted by the' law, we ought to correct it. But, as I think that this manner of proceeding is warranted by the law and is calculated to carry it into complete execution, I cannot consent to quash the writ of error.

As to the point contained in the bill of exceptions, against the admissibility of N. Boileau as a witness, if it be open to consideration, I think it deserves another discussion. Are we precluded from discussing it? Let it not be said that judgment is already given upon it. The record was never before this court until this term; the judgment therefore alleged to have been given is a mere nullity. It seems to me not to be yet too late for the court of common pleas (which always under this act puts the issue directed by the register's court into form) so

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BOILEAU.

to modify that issue, as that justice shall not be entangled in a net of form, if this court shall be warranted in awarding a venire facias de novo.

BRACKENRIDGE J. concurred with the chief justice.

Motion refused,

Judgment reversed, and
Venire de novo awarded.

Saturday, December 24th.

A parol con

THI

EWING against TEES.

HIS cause was tried before Mr. Justice Yeates at a nisi prius in the present month, when a point was reserved for is good un- the opinion of this court.

tract for the sale of lands,

frauds and

action for

a written

der the act of The facts, according to the report of his Honour, were perjuries, to in substance these. On the 14th November 1801 a written support an agreement was made by the defendant with Jacob S. Otto as the damages. So plaintiff's agent, to pay the plaintiff 6,366 dollars 67 cents for a tract of land in Philadelphia county; 300 dollars to be paid on or before the 17th of the month, possession of the land to be agent, who has merely a delivered on the 30th, and the balance to be paid on the 22d parol autho- December following, when the deed was to be executed. The Pity. Quare, whe- agreement was signed by both Otto and Tees. Upon the trial, a witness swore that on the 17th he went with the defendant to

contract with an

ther in any

court will

tion within

the four

days.

civil case the Otto, and that the defendant told Otto he was sorry for his grant a new agreement, as his wife did not like the place, but that he would trial, where there has make him a compensation for his trouble; that. Otto replied, he been no mo- had sent the agreement to the plaintiff, and whether he would be satisfied with it, he could not tell, as he had sold the place for less than he was authorized to do; that the defendant then said, this is the day I was to pay 300 dollars, and if you cannot tell me whether I am to have the place now, I will have nothing to do with it before this man; to which Mr. Otto answered, if you do not take the place now, you will be sorry for it hereafter. The witness swore that he believed the defendant had 300 dollars in his pocket; but he did not know that he tendered it. Between the 17th and 25th the plaintiff assented to the agreement. On or before the 30th the possession was tendered, and on the 22d December a deed; both which the defen

dant refused. The place was then sold for a less sum, and the present action brought to recover damages for the breach of the contract. The material question of fact was whether the defendant had offered a performance on the 17th, which had been refused by Otto; and for this the testimony above mentioned was relied on; but by the plaintiff's counsel it was said to be contradictory and inconsistent, and to be opposed by that of another witness who swore that the reason assigned by Tees to him, for not taking possession on the 30th, was simply because his wife thought the place unlucky, and not because Mr. Otto had refused to abide by the contract. The point of law, which was reserved at the request of counsel, was whether, under the circumstances of the case, Otto should not have had an authority in writing from his principal. His Honour charged the jury, that if the defendant had tendered the money on the 17th, which Otto had refused, he would have been no longer bound; but that if he was merely using finesse to avoid compliance with his contract, they should find for the plaintiff, which they accordingly did, 283 dollars 21 cents damages.

Ewing and Sergeant for the plaintiff. The naked question is whether Otto's authority should have been in writing. The 1st section of the act of frauds and perjuries, which embraces the first three sections of the 29 Car. 2. c. 3. relates wholly to conveyances of an interest in the lands, &c.; and it requires that, to pass an estate in them, the conveyance shall be put in writing and signed by the parties or their agents lawfully authorized by writing. The 4th section of the English statute then provides that no action shall be brought to recover damages upon any contract or sale of lands, unless the agreement shall be in writing and signed by the party to be charged therewith, or by some other person by him lawfully authorized. This section is wholly omitted in our act. So that it was the intention of our legislature to leave the action for damages as it stood at common law. A parol agreement for the sale of lands will therefore support an action for damages, still more a parol authority to an agent to agree, which is good even by the English statute. Sugden 56. Bell v. Andrews. (a) The most that is required by the 29 Car. 2. is that the contract shall be

(a) 4 Dall. 152.

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signed by the party to be charged, or his agent. Signing by the other party is unnecessary. Hatton v. Gray (a), Fowle v. Freeman (b).

Meredith and S. Levy for the defendant. The object of the first section of our act was to prevent any part of a contract in relation to lands, from resting upon parol evidence. The writing in question, which if it was any thing, was a sale of the lands, conveyed no interest to either party, for want of a written authority to the agent. It is good for nothing as to the purpose for which it was intended: and therefore if it has any effect, it must be against the intention of the parties. To go by the letter of the act is doing injustice to its spirit. Its terms are something ambiguous; but its evident intention was to cut up altogether parol contracts for lands. So it must have been held in Nicholson's Lessee v. Mifflin, (c) where for want of proof of a written authority to the agent, the plaintiff was nonsuited. Bell v. Andrews has nothing to do with the point; for the only material question there, was whether the payment of the consideration might be proved by parol evidence. It is essential that the party signing should have some evidence in his hands to shew the acquiescence of the party who does not sign, 1 Pow. Contr.286; and this is not contradicted by Hatton v. Gray, for there one wrote, and the other signed, which was equal to a signing by both. From the manner in which the reserved point embraces the circumstances of the case, we are however at liberty to press them for a new trial; and although the four days are past, yet where the court see that manifest injustice is done, they 'will order a new trial of their own accord. There was in fact no contract. The agent's declaration on the 17th November, when the defendant must have tendered the money, shews that he had no authority of any kind. What the plaintiff did afterwards is immaterial; for on that day, the defendant, finding that the agreement was without authority, retracted his promise, which he had a right to do. A mere promise does not bind till acceptance by the promisee; and till then, the promisor has a locus pænitentiæ, as in bids at auction, and may retract. 1 Pow. Contr. 544. Payne v. Cave. (d) Both must be bound or neither. The plaintiff certainly was not bound, either at the date, or on the

17th; the promise was therefore destitute of mutuality, and the defendant was at liberty to decline when he did. Cooke v. Oxley. (a)

Reply. The point is whether under the circumstances there should have been a written authority, not whether there should be a new trial. The merits were decided by the jury; and even if they were with the defendant, there is no instance in which a new trial has been granted by the court, after the four days have passed without a motion. [SMITH J. In the King v. Holt, 5 D. & E. 438. the court said, they would themselves take an objection to the verdict, if they thought substantial justice had not been done.] That was a criminal case, and the opinion of the court is confined to such cases. It was founded upon the King v. Gough, where Buller said the proceeding was irregular. At all events, it is confined to cases of extreme and palpable injustice; of which there is not a trace here. First, as to the locus pœnitentiæ; it is gone the instant the contract is reduced to writing, or is in part performed. 1 Fonbl. 171. Then as to the refusal by the agent and his want of authority; it is plain the jury did not believe the defendant's witness, and that they thought the defendant was practising a trick. Otto told him to take the place then, and the plaintiff assented the instant he heard of the agreement. He tendered the possession and the deed; he recognised Otto for his agent from the outset, and therefore it did not lie with the defendant to deny him. When a party offers to perform, no case is to be found where equity has inquired whether he was bound. And hence the words circumstances of the case; for under the circumstances we contended that no authority at all was necessary, as the acts of the agent were adopted. Then as to the statute; all that is necessary in England, is that the party to be charged, has signed. Fowle v. Freeman is explicit, and has not been answered. So is Hatton v. Gray, for the writing was not a signing. Hawkins v. Holmes (b). But in this state, the contract is attended by all its consequences at common law, except passing the estate; so that it is not necessary in this action, that there should be a signing by either party. Nicholson's Lessee v. Mifflin was an ejectment for the land, and therefore writing was essential.

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TEES: