memorandum or note made 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 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." Where the lessee of a house, and his partner in trade, agreed to pay the lessor annually, during the residue of the lessee's term, ten per cent. on the cost of new buildings if the lessor would erect them; it was holden (g), 1. That this agreement was not required by the statute of frauds to be in writing; 2. That although the partner quitted the premises, he was liable on this collateral agreement during the residue of the term. So where a landlord who had demised premises by a lease for a term of years at 50l. a year, after some years were expired, agreed with the tenant to lay out 501. in making improvements upon them, the tenant undertaking to pay the landlord an increased rent of 51. a year during the remainder of the term, to commence from the quarter preceding the completion of the work: the agreement was reduced into writing, but the defendant refused to sign it. The improvements were finished in November, 1827, and the defendant, after the Christmas following, paid the increased rent for that quarter; but refused to pay it afterwards. An action of assumpsit having been brought for the arrears for two years and upwards; it was holden (h), that the landlord was entitled to recover; for this case did not fall within the statute, for though called a rent, it was not so in the strict technical meaning of the term; it was a matter of mere personal contract, and that this case was governed by the foregoing of Hoby v. Roebuck.

Any unknown Interest in Land.]-The defendant had agreed (i), by parol, that the plaintiff should have the liberty of stacking coals

(g) Hoby v. Roebuck and another, 7 Taunt. 157.

(h) Donellan v. Read, 3 B. & Ad. 899. (i) Wood v. Lake, Say. Rep. 3 (3).

A short note of this case, when it was first argued and adjourned, will be found in Serjt. Hill's MSS. vol. 26, p. 287.

(3) This authority appears questionable, upon the ground that an easement cannot be granted even for a term of years without deed.

Bird v.

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 license 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 license, 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.

Not

Shall have the Force and Effect of Leases at will ONLY.] withstanding 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 tenant (k), 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;

(k) Clayton v. Blakey, 8 T. R. 3.

Higginson, 4 Nev. & M. 505. Although the parol grant of an easement cannot be enforced, yet it may operate as a license, and may be set up as a defence to an action of trespass. Wood v. Manley, 11 A. & E. 34; 3 P. & D. 5. See Sugden's Law of Vendors and Purchasers, vol. 1, p. 138, 10th ed., on the case of Wood v. Lake.

(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.

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 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 (1), 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.

or

3rd Section." And moreover, that no leases, estates, interests, either of freehold, or terms of years, or any uncertain 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 (m) of law." The mere cancelling, in fact, of a lease (n), cannot be considered 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 (o). So a parol surrender of a lease (p). An insufficient notice to quit, accepted by the landlord, does not amount to a surrender by operation of law; and there cannot be a surrender to operate in futuro (9).

II. Fourth and seventeenth Sections relating to Agreements, p. 838; On the Effect of Parol Evidence of a Variation or Waiver of a Written Agreement, p. 867.

4th Section." No action shall be brought, whereby to charge any executor or administrator, upon any special promise, to answer

(1) Doe d. Rigge v. Bell, 5 T. R. 471. (m) Thomas v. Cook, 2 B. & A. 119. (n) Roe d. Berkeley v. Abp. of York, 6 East, 86; Doe d. Courtail v. Thomas, 9 B. & C. 288.

(0) Botting v. Martin, 1 Campb. 318.

(p) Matthews v. Sawell, 8 Taunt. 270 ; 2 Moore, 262, S. C.

(q) Johnstone v. Hudlestone, 4 B. & C. 922, cited by Parke, in Doe d. Murrell v. Milward, 3 M. & W. 332.

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 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 therewith, or some other person thereunto by him lawfully authorized." 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 (r). The same rule holds since the statute, with this addition, that such promise, and the consideration (s) on which it is founded, must be in writing, and be signed by the party to be charged, or his agent. It is not, however (t), necessary that such consideration should appear in express terms; it would undoubtedly be sufficient in any case, if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it, that the consideration stated in the declaration, and no other, was the consideration upon which the undertaking was given. If an action is brought for the non-performance of the promise, it is not necessary that it should be stated in the declaration (u), that the agreement was in writing; it will be sufficient for the plaintiff to produce a written agreement in evidence at the trial (5); but if such agreement be pleaded in bar of another action, it must be shown, on the face of the plea, that it was in writing; for, otherwise, it would not appear, that it was an agreement whereon an action might be maintained (x).

Barrell v. Trussell, 4 Taunt. 117. Wain v. Warlters, 5 East, 10; recognized in Saunders v. Wakefield, 4 B. & A. 595, and Jenkins v. Reynolds, 3 B. & B. 14; although Ld. Eldon, in Exp. Minet, 14 Ves. 189, and in Exp. Gardom, 15 Ves. 286, had questioned the authority of Wain v. Warlters, according to the remark of Dallas, C. J., in Boehm v. Campbell, 8 Taunt. 682. But see the observations of Best, C. J., on the two cases in

Chancery in Morley v. Boothby, 3 Bingh. 113. See also Clancy v. Piggott, 2 Ad. & Ell. 481.

(t) Hawes v. Armstrong, 1 Bingh. N. C. 761, and see Raikes v. Todd, 8 A. & E. 846; 1 P. & D. 138; Kennaway v. Treleavan, 5 M. & W. 498.

(u) Anon., Salk. 519; 3 Burr. 1890; per Yates, J., S. P.

(x) Case v. Barber, T. Raym. 450.

(5) A plea of tender to the action will supersede the necessity of this proof; for by payment of money into court upon that plea, the defendant admits the cause of action. Middleton v. Brewer, Peake's N. P. C. 15.

The objection (y), that there is no contract in writing, need not be pleaded specially, but may be set up under non assumpsit. The word "action," duly interpreted, embraces every suit in equity (z). Having premised that the preceding remarks apply to each of the clauses in this section, and that they are introduced in this place for the sake of avoiding repetition, I shall proceed to consider the several clauses separately.

No Action shall be brought to charge any Executor or Administrator, upon any special Promise, to answer Damages out of his own Estate.]-The leading case on this clause is that of Rann v. Hughes. It was stated in the declaration (a), "that disputes had arisen between the testatrix and the intestate, which had been referred to arbitration; that the arbitrator awarded, that the intestate should pay to the testatrix a sum of money on a day appointed; that afterwards the intestate died, possessed of effects sufficient to pay the sum awarded; that at the time of the death of the testatrix, the sum awarded remained unpaid, by reason of which the defendant, as administratrix, became liable to pay the plaintiffs, as executors, the said sum, and, being so liable, the defendant, (not saying as administratrix,) in consideration thereof, promised to pay the same." Pleas.-1. Non assumpsit. 2. Plene administravit. 3. An outstanding debt, on bond, and plene administravit præter. The replication took issue on all the pleas. Verdict for the plaintiffs on the first issue, and damages assessed: on the other issues, for the defendant. The plaintiffs entered judgment for the damages assessed and costs, against the defendant generally. On a writ of error in the Exchequer Chamber, it was assigned for error, that the defendant was impleaded as administratrix of the intestate, yet judgment was given against her generally, and without any regard to her having goods of the intestate in her hands to be administered. The Court of Exchequer Chamber reversed the judgment. Upon a writ of error from this judgment, in the House of Lords, the following question was put to the judges: Whether sufficient matter appeared upon the declaration to warrant, after verdict, the judgment entered up against the defendant in error in her personal capacity (b) Skynner, C. B., delivered the unanimous opinion of the judges, 1. That there was not a sufficient consideration to support this demand, as a personal demand against the defendant: inasmuch as the defendant did not derive any advantage from the promise, for it was a promise generally to pay upon request, what she was liable to pay upon request in another right, and the promise was not founded on any consideration of forbearance, or the

(y) Eastwood v. Kenyon, 3 P. & D. 276; 11 A. & E. 438; Buttemere v. Hayes, 5 M. & W. 456, ante, p. 118.

(z) Per Lord Eldon, C., Cooth v. Jackson, 6 Ves. 31.

(a) Rann and another, Executors of Mary Hughes, v. Isabella Hughes, Administratrix of John Hughes.

(b) D. P. 14 May, 1778; 4 Bro. P. C. p. 27, Tomlin's ed.; 7 T. R. 350, n.