area granted by the owner of an adjoining house, who might have successfully resisted the erection as being(n) productive of nuisance to the licensor's property, after being acted on, cannot be countermanded; and in like manner a parol license(o) to do an act on a party's own land, affecting injuriously the admittance of light or air into a neighbour's house, or affecting a water privilege to which a neighbour is entitled, becomes irrevocable after expense incurred.

However, a parol executory license is countermandable at any time, and if an owner of land licenses another to go over, or do any act upon his close, and then conveys away the close, there is an end of the license, because it is only an authority(p) with respect to the soil of the grantor, and if the close ceases to be his soil the authority is instantly gone. A license executory is a simple authority excusing trespasses on the close of the grantor, as long as the close belongs to the licensor, and the license is not countermanded; and if a person out of kindness allows his neighbour to pass over his land, the transferee of the land is not bound to do so. A license continues executory, unless expense be properly incurred in carrying it into effect.

10. A lease having been granted for twenty-one years, the landlord afterwards made improvements on the property, in consideration of the tenant's agreeing to pay an additional yearly sum during the term, and it was decided(q) such yearly allowance, not being rent, could not be recovered by distress, but that the agreement, being collateral to the lease, might be enforced, although not reduced into writing, and that it was not a contract for an interest concerning land within the meaning of the Statute; however, an action for the recovery of such a collateral sum can only be maintained(r) against the original party to the contract, and an assignee of the lease will not be chargeable with such an increased rent.

11. An agreement by parol which has been carried into effect(s), although void under the Statute, and incapable of being enforced, if disputed before it is executed, will entitle the party to recover as upon a new implied contract. Under a parol(t) agreement for the sale of

(n) Winter v. Brockwell, 8 East, 308; Harvey v. Reynolds, 12 Price, 724. (o) Liggins v. Inge, 7 Bing. 682; 5 Moo. & P. 712, S. C.

(p) Wallis v. Harrison, 4 Mee. & W.

538.

(q) Hoby v. Roebuck, 2 Marsh, 432; 7 Taunt. 157, S. C.; Donellan v. Read, 3 B. & Adol. 899; Price v. Leyburn, Gow's N. P. C. 109.

(r) Lambert v. Norris, 2 Mees. & W. 333.

(s) Poulter v. Killingbeck, 1 Bos. & Pull. 397; Price v. Leyburn, Gow's N. P. C. 109-112; Donellan v. Read, 3 B. & Adol. 906.

(t) Teal v. Auty, 2 Br. & B. 99; 4 Moore, 542, S. C.; Crosby v. Wadsworth, 6 East, 611; Mayfield v. Wadsley, 3 B. & Cr. 357; 5 D. & Ry. 224.

growing trees, which was void under the Statute, a party deriving the benefit of the contract by carrying away the timber, was held answerable on the implied assumpsit for their value.

So where a party repaired certain leasehold premises belonging to the defendant, on a parol promise made by him to assign his lease to the plaintiff, it was ruled(u) that, although the contract for the assignment of the lease was void under the Statute, yet the defendant was liable in an action for work and labour to pay for the repairs.

12. By the general rules of the common law(v), if a contract has been reduced into writing, oral evidence is not admissible of what passed between the parties either before the written instrument was executed, or while it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract; but after the agreement has been reduced into writing, the parties are competent at any time before its breach, by a new contract, though not in writing, either altogether to waive, dissolve, or annul the former agreement, or to add to or subtract from, vary, or qualify its terms, so as to substitute a new contract, which may be proved partly by the written agreement and partly by the subsequent verbal stipulations engrafted upon what will be thus left of the written agreement. The object of the Statute was to exclude all oral evidence as to contracts for the sale of lands, or for any interest in or concerning them, and that any such contract which is sought to be enforced should be proved by writing only.

A contract in writing having been entered into for the sale of several lots of land at a stipulated price, and to make out a good title, it was afterwards verbally agreed between the parties that the purchaser should not require any title to be made out to one of the lots agreed to be sold: the purchaser paid a deposit, and having taken possession of all the lots of ground, in an action for recovery of the residue of the purchase money, it was decided (w) that oral testimony was not admissible for the purpose of shewing a waiver by the purchaser of his claim to a good title in the whole of the premises; but if the contract had not been governed by the Statute of Frauds, it would have been competent for the parties, by word of mouth, to dispense with requiring a good title to the lot in question.

It is still undecided, whether a written agreement concerning lands

(u) Gray v. Hill, Ryan & M. 420. () Goss v. Lord Nugent, 5 B. & Adol. 58-64; 2 Nev. & M. 28, S. C.

(w) Goss v. Ld. Nugent, 5 B. & Adol. 58; 2 Nev. & M. 28, S. C.; Ld. Fal

mouth v. Thomas, 1 Cro. & M. 89; 3 Tyrw. 26; Harvey v. Grabham, 5 Ad. & Ell. 61; 6 Nev. & Mann. 754, S. C.; Stowell v. Robinson, 3 Bing. N. C. 928; Marshall v. Lynn, 6 Mees. & W. 109.

may not be wholly(z) abandoned by parol, but it is settled, that there cannot be a partial(y) abandonment or waiver by parol, of a contract in writing, affecting any interest in land; nor can any new stipulation for enlargement of the time for completing the contract be introduced, or substituted(z), in consequence of a subsequent parol agreement to that effect between the parties.

Premises having been let by agreement in writing, at the yearly rent of £29, without specifying any days of payment, after the signing of the contract, the tenant said he would like to pay his rent quarterly; the landlord distrained for a quarter's rent, and in an action for an unlawful distress, it was decided(a), that nothing but an entirely new agreement between the parties, operating as a fresh demise on different terms of letting, could put an end to the original agreement, and that under the written contract, stipulating for a yearly reservation, a distress for a quarter's rent could not be supported.

An award founded on a parol submission to arbitration, directing that a party should execute a lease(b) for twenty-one years, is within the Statute, and cannot be specifically enforced in equity; but a parol engagement to pay such damages as should be ascertained by arbitrators in consequence of a road(c) having been made through another's land is not a contract relating to an interest in land within the provi

sions of the Statute.

13. If a party make a verbal promise to do several acts, some of which relate(d) to an interest in land, and are required by the Statute of Frauds to be in writing, and others do not come within the Statute, the contract being entire cannot be enforced. A party having entered into a verbal agreement to take a house, partly furnished, at a yearly rent of £170, to be paid quarterly in advance, with a stipulation on the part of the proprietor that it should be suitably furnished; the tenant accepted the possession, and in an action(e) for not completing the furniture of the house pursuant to the contract, the Court held that the agreement related to an interest in land, and being entire, that one

(x) Goss v. Ld. Nugent, 5 B. & Ad. 58; 2 Nev. & M. 28, S. C.; Harvey v. Grabham, 5 Ad. & Ell. 61; 6 Nev. & M. 755, S. C.

(y) Harvey v. Grabham, 5 Ad. & Ell. 61; 6 Nev. & M. 755, S. C.

(z) Stowell v. Robinson, 3 Bing. N. C. 928-937; 5 Scott, 196, S. C.

(a) Turner v. Allday, Tyrw. & Gr. 819; Marshall v. Lynn, 6 Mees. & W. 109, overruling Cuff v. Penn, 1 M. & Selw. 21.

(b) Walters v. Morgan, 2 Cox, 369. (c) Gillanders v. Lord Rossmore, 1 Jones, 504.

(d) Chater v. Beckett, 7 T. R. 201; Ld. Lexington v. Clarke, 2 Ventr. 223; and see Wood v. Benson, 2 Tyrw. 93; 2 Cro. & Jerv. 94, S. C.

(e) Mechelen v. Wallace, 2 Nev. & P. 224; 7 Ad. & Ell. 49, S. C.; Ld. Falmouth v. Thomas, 1 Cro. & M. 89; 3 Tyrw. 26.

part could not be separated from the other, and the action was not maintainable.

If a person get goods into his possession on which the landlord has a right to distrain for rent, and such person undertake to pay the rent, though it be clearly the debt of another, yet a note in writing is not necessary(ƒ), but there must be a new consideration to the person making the engagement distinct from the original demand, and the undertaking must not exceed the extent of the consideration.

One Thomas being tenant of a farm, at a rent of forty pounds payable half-yearly at Lady-day and Michaelmas, the defendant, an auctioneer, was about to sell the tenant's effects in the month of August, when the landlord on the day of sale claimed a balance of £17 as due to him for rent on the preceding gale day, and threatened to distrain unless it were settled, upon which the auctioneer verbally promised, if the landlord did not distrain, he the auctioneer would pay not only the rent then due, but also the rent which would be due at the ensuing Michaelmas in an action (g) against the auctioneer for not performing his engagement, it was decided that the promise to pay the rent which would be due at Michaelmas was within the fourth section(h) of the Statute, and not being in writing was absolutely void, as the undertaking to pay the future rent exceeded the consideration, and was nothing more than a promise to pay money that would become due from a third person, and was within the mischief intended to be remedied by the Statute; and the promise being void, so far as related to the accruing rent, it could not be deemed valid as to the part which applied to the arrears due at Lady-day.

(f) Edwards v. Kelly, 6 M. & Selw. 204; Houlditch v. Milne, 3 Espin. N. P. C. 87; Williams v. Leper, 3 Burr. 1886; 2 Wils. 308.

(g) Thomas v. Williams, 10 B. &

Cress. 664, 5 M. & Ry. 625; Lord Lexington v. Clarke, 2 Ventr. 223.

(h) 29 Car. II. c. 3, s. 4, English; 7 Will. III. c. 12, s. 2, Irish.

K

14. A LEASE is a contract for the possession and profits of land for a determinate period, where a reversion is retained by the grantor, and if made to exceed three years must be in writing signed by the lessor. A lessee may assign or grant over his whole interest, or may underlet for any lesser estate than he himself holds, unless restrained by covenant or by Statute. Every absolute transfer(a) of an interest or estate holden by the grantor for lives or for years, in lands or tenements, where no reversion is retained, is termed an assignment.

A person, by the grant of a chattel interest for a less portion of time than his own term, either by excepting the last day(b) of the original term, or by limiting the premises for a certain number of years which may expire before the end of the original demise, will create an underlease. A total alienation of the whole, or of any part of the premises comprised in the original lease for the grantor's entire estate, is an assignment either of the whole or of such part, even though it clearly appear from the terms of the grant that the parties only(c) contemplated an underletting, nor will the mere reservation of an increased or profit rent to the party transferring his interest, render the instrument an underlease.

(a) Poultney v. Holmes, 1 Stra. 405; Palmer v. Edwards, 1 Doug. 187, n.; Thorn v. Woolcombe, 3 B. & Adol. 586-590.

(b) 2 Prest. Abstr. 5; 3 Prest. Abstr. 115.

(c) Parmenter v. Webber, 8 Taunt. 593; 2 Moore, 656; Preece v. Corrie, 5 Bing. 24; 2 Moo. & P. 57; Thorn v. Woolcombe, 3 B. & Adol. 595; but see Baker v. Gostling, 1 Bing. N. C. 19– 27; 4 Moo. & Sc. 539, S. C.