the act passed into a law (2); and this circumstance may possibly account for the inaccuracies, which have been discovered in the composition". To detail all the clauses of this statute, and to notice the construction which they have received in a variety of decisions, would far exceed the limits prescribed to this abridgment: it would, indeed, be in a great measure superfluous, since this arduous task has been already, in part, performed by a learned gentleman, who has signified an intention to complete his valuable treatise (3). The object of the present chapter will be merely to select such of the provisions of the statute of frauds as fall within the scope of this work, and to subjoin, in a regular series, the cases which have arisen, and the deci sions thereon.

ck

1st Section.-By this statute, for prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury, and subornation of perjury, it is enacted, that, "All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any mes"suages, manors, lands, tenements, or hereditaments, made "or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully au"thorized by writing, shall have the force and effect of leases or estates at will only."

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2d Section." Except all leases not exceeding the term of "three years from the making thereof, whereupon the rent "reserved to the landlord, during such term, shall amount "unto two-third parts, at the least, of the full improved "value of the thing demised."

Collecting the meaning of the first section, by aid derived

b See Doug. 244. n.

c Per Ellenborough, C. J. in Crosby v. Wadsworth, 6 East, 602.

(2) Sir M. Hale died on the 25th of December, 1676. The parliament met on the 15th February following, and this statute received the royal assent on the 16th April, 1677. From the circumstance of this statute not having passed until after the death of Sir M. Hale, Lord Mansfield inferred, that it could not have been drawn by him; more especially as the bill was introduced in the usual manner, and not upon any reference to the judges. See Wyndham v. Chetwynd, 1 Burr. 418.

(3) See a Treatise on the Statute of Frauds, by W. Roberts, of Lincoln's Inn, 8vo. 1805.

from the language and terms of the second, and the excep tion therein contained, I think, that the leases, &c. meant to be vacated by the first section, must be understood as leases of the like kind with those in the second section, but which conveyed a larger interest to the party than for a term of three years, and such also as were made under a rent reserved thereupon. Hence, where the plaintiff agreed by parol, with the defendant, for the purchase of a standing crop of mowing grass, then growing in a close of the defendant's, for a certain sum; it was holden, that the agree ment was not a lease, estate, interest of freehold, or term of years, or an uncertain interest of, in, to, or out of lands created by parol," within the meaning of the first section, so as to be void on the ground of not having been in writing.

In an action for the breach of an agreement, whereby the defendant agreed to take of the plaintiff certain premises for 15 years, it appeared, by the evidence of an attorney, that he had prepared a draft of a lease, which he had sent to an attorney on the part of the defendant for perusal, who made some alterations in it, and returned it; that soon after, the defendant, being unable to perform the agreement, applied to the plaintiff to cancel it; to which the plaintiff did not object, upon being indemnified against the expense which he had incurred; but before he would try to let it again, he required the defendant to relinquish the agreement by writing, whereupon the defendant wrote on the draft of the lease as follows: "I hereby request Mr. Shippey, to endeavour to let the premises to some other person, as it will be inconve nient to me to perform my agreement for them, and for so doing, this shall be a sufficient authority. I. Derrison." The defendant having refused to make any compensation, this action was brought. It was admitted, that at the time when the agreement for the lease was entered into, it was not reduced into writing, nor was any memorandum made or note of it. It was objected, that the agreement was void by the statute of frauds; and Hawkins v. Holmes, 1 P. Wms. 770. was cited. But, per Lord Ellenborough, C. J. "It is not necessary that the note in writing should be contemporaneous with the agreement. It is sufficient if it has been made at any time, and adopted by the party afterwards; and then any thing under the hand of the party, expressing that he had entered into the agreement, will satisfy the statute, which was only intended to protect persons from

d S. C.

e Shippey v. Derrison, 5 Esp. N. P. C.

having parol agreements imposed on them. In this case, the indorsement says, that he was unable to perform the agreement for the premises, and it is written on the draft of the lease of those premises, which had been perused and altered by his own attorney. It is sufficient with respect to the case from Peere Williams, to observe, that was an agreement purely executory, and nothing more than the bare draft of the lease, which was not signed by the party."

Any uncertain interest in land.] The defendant had agreed, by parol, that the plaintiff should have the liberty of stacking coals upon part of a close belonging to the defendant, for the term of seven years; and that, during this term, the plaintiff should have the sole use of that part of the close (4). After the plaintiff had, pursuant to this agreement, enjoyed the liberty of stacking coals for three years, the defendant locked up the gate of the close. The question was, whether this agreement was good for seven years? Lee, C. J. and Denison, J. were of opinion, that it was; observing, that in the case of Webb v. Paternoster, Palm. 71. it was laid down, that the grant of a licence to stack hay upon land did not amount to a lease of the land; and, although it was said in that case, that such a licence, provided the grant were for a time certain, was irrevocable, yet it did not follow, that an interest in the land did thereby pass. As the agreement, in the present case, was only for an easement, and not for an interest in the land, it did not amount to a lease; and, consequently, it was, notwithstanding the statute, good for seven years. Foster, J. concurred in opinion, that the agreement did not amount to a lease; but he inclined to be of opinion, that the words in the statute, any uncertain interest in land," extended to this agreement, and, consequently, that it was not good for more than three years. Lee, C. J. and Denison, J. were of opinion, that these words related only to interests, which are uncertain as to the time of their duration. After consideration, it was holden, that the agreement, though by parol, was good for seven years.

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Shall have the force and effect of leases at will ONLY.]

f Wood v. Lake, Say. Rep. 3.

(4) From a MS. note of this case it appears, that the consideration to be paid by the plaintiff for the liberty of stacking the coals, was 20s. for every stack.

Notwithstanding these words, a lease by parol, for a longer, term than three years, will enure as a tenancy from year to year.

In an action against a tenants, for double rent, for holding over after the expiration of his term, and a regular notice to quit, the first count in the declaration stated a holding under a certain term, determinable on the 12th of May then last past; and other counts stated a holding from year to year, determinable on the same day. It appeared in evidence, that the defendant had held the premises for two or three years, under a parol demise for twenty-one years from the day mentioned, to which the notice to quit referred. It was contended at the trial, that the holding should have been stated according to the legal operation of it, as a tenancy at will; and, as there was not any count adapted to that statement, the plaintiff ought to be nonsuited. Rooke, J. however, considering that it amounted to a tenancy from year to year, overruled the objection, and the plaintiff obtained a verdict. On motion to set aside the verdict, on the ground of a misdirection, Lord Kenyon, C. J. said, that the direction was right, for such holding now operates as a tenancy from year to year. The meaning of the statute was, that such an agreement should not operate as a term; but what was then considered as a tenancy at will has since been properly construed to enure as a tenancy from year to year.

If a landlord lease for seven years by parol, and agree that the tenant shall enter at Lady Day and quit at Candlemas, though the lease be void by the statute of frauds, as to the duration of the term, the tenant holds under the terms of the lease in other respects, and, therefore, the landlord can only put an end to the tenancy at Candlemas.

3rd Section." And, moreover, that no leases, estates, or "interests, either of freehold, or terms of years, or any un"certain interest, not being copyhold or customary interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or "surrendered, unless it be by deed, or note in writing, signed by the party so assigning, granting, or surrendering "the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law."

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The mere cancelling in fact of a lease cannot be consi

g Clayton v. Blakey, 8 T. R. 3.

h Doe d. Rigge v. Bell, 5 T. R. 471.

i Roe d. E. Berkeley v. Abp. of York, 6 East, 86.

dered as either a deed or note in writing within the meaning of this clause, and, consequently, will not be a surrender. A parol assignment of a lease from year to year is void under this clause.

II. Fourth and Seventeenth Sections relating to Agree

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ments.

4th Section." No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate; or to "charge the defendant upon any special promise to answer "for the debt, default, or miscarriage, of another person; or "to charge any person, upon any agreement made upon "consideration of marriage; or upon any contract or sale "of lands, tenements, or hereditaments, or any interest in

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or concerning them; or upon any agreement that is not to "be performed within the space of one year from the making "thereof, unless the agreement upon which such action shall "be brought, or some memorandum or note thereof, shall "be in writing, and signed by the party to be charged there"with, or some other person thereunto by him lawfully "authorized."

It will be proper to remark, that this section was intended for the relief of personal representatives and others, and it was not thereby intended that they should be charged further or otherwise than by common law they were chargeable. Before the statute, a promise made, with reference to any of the subjects mentioned in this section, would not have made the party promising liable, unless such promise had been founded on a sufficient consideration'. The same rule holds since the statute, with this addition, that such promise, and the consideration" on which it is founded, must be in writing, and signed by the party to be charged, or his agent. If an action is brought for the non-performance of the promise, it is not necessary that it should be stated in the declaration", that the agreement was in writing; it will be sufficient for the plaintiff to produce a written agreement in evidence at

k Botting v. Martin, Sussex Lent Ass. 1808, coram Sir A. M'Donald, C. B. 1 Camp. N P. C. 318.

1 Barrell v. Trussell, 4 Taunt. 117.

m Wain v. Warlters, 5 East, 10.

n Anon. Salk. 519. 3 Burr. 1890. per Yates, J., S. P.