by parol, at so much per sack, a crop of potatoes then in the ground. The defendant was to dig them up and remove them without delay, as the plaintiff wanted the ground for other purposes. The defendant accordingly dug up and carried away more than half the crop, but was prevented by the frost from taking the remainder. The plaintiff brought his action to recover the value of the whole crop. The defendant paid into court a sum of money equivalent to the value of that portion of the crop which he had taken. It was objected, that this was a contract or sale of an interest in land. But per Lord Ellenborough, C. J. The liberty which the defendant had of entering the close for the purpose of taking the crop, amounted to an easement, and nothing more. No interest in the land itself passed, or was intended to pass, by the contract. The defendant could not have maintained ejectment to recover possession of the crop. In this respect this case differed materially from that of Crosby v. Wadsworth, which he was not disposed to extend; in that case the subject matter of the contract was the prima vestura, for which ejectment lies, as does also trespass quare clausum fregit. But trespass quare clausum fregit could not be brought by this defendant for a trespass to the close in which the crop of potatoes grew. It did not follow, that, because the crop of potatoes was not at the time of the contract a chattel, it was, therefore, an interest in land. Bayley, J., said, it was a thing whose growth was at an end, and in this respect distinguishable from the case of Bristow v. Waddington (o), which was a contract for the next year's crop of hops; and that he considered the land merely as a warehouse, and that the contract was substantially the same thing, as if the potatoes had been deposited in a warehouse at the time of the sale. And if the potatoes had been sold while growing, and at so much per acre (p), to be dug and carried away by the purchaser, without any time limited; or if they had been in a growing state, and sold by the cover (q), to be turned up by the seller; or if they had been sold in a similar state at so much per sack (r), to be dug by the purchaser at the usual time, and to be then paid for; the decision would have been the same, that such sales do not fall within the 4th section. Plaintiff (s) and defendant orally agreed, (in August,) that defendant should give £45 for the crop of corn on plaintiff's land, and the profit of the stubble afterwards; that plaintiff was to have liberty for his cattle to run with defendant's; and that defendant was also to have some potatoes growing on the land, and whatever lay grass was in the fields; defendant was to harvest the corn and dig up the potatoes; and plaintiff was to pay the tithe. It was holden, that it did not appear to

(0) 2 Bos. & Pul. 452, in which case the question indirectly arose, but did not require decision.

(p) Warwick v. Bruce, 2 M. & S. 205. (g) Evans v. Roberts, 5 B. & C. 829 ;

8 D. & Ry. 611.

(r) Sainsbury v. Matthews, 4 M. & W.

343.

(8) Jones v. Flint, 10 A. & E. 753; 2 P. & D. 594.

be the intention of the parties to contract for any interest in land, and, therefore, not within the statute of frauds, but a sale of goods and chattels, as to all but the lay grass, and, as to that, a contract for the agistment of the defendant's cattle. A parol agreement for the sale of crops may be good between an outgoing and incoming tenant, for there would be no sale of any interest in the land, for that would come from the landlord (s). But where a landlord agreed to let a farm by parol, and the tenant was to take the growing crops and pay for them, and also for the work, labour, and materials in preparing the land for tillage, it was holden, that the case was within the 4th section. At the time when the contract was made, the crops were growing upon the land, the tenant was to have had the land as well as the crops, and the work, labour, and materials were so incorporated with the land as to be inseparable from it (t). An action of indebitatus assumpsit (u), with a count on a quantum meruit, for moieties of crops of wheat sold by the plaintiff to the defendant, and accordingly reaped for his, the defendant's, own use; and also a count for money had and received. The case was, that the plaintiff, by a parol agreement, had let land to the defendant, for which he was to take two successive crops, and to render the plaintiff a moiety of the crops in lieu of rent. While the crops of the second year were on the ground, an appraisement of them was taken by both parties, and the value ascertained. The defendant having afterwards refused to pay a moiety of the value, this action was brought. It was objected, on a case reserved, that the agreement was within the statute, because it related to land; but the court overruled the objection; Eyre, C. J., observing, that the circumstance of the appraisement seemed to put an end to this point. It was true, that, as the case originally stood, the plaintiff had a claim to a moiety of the produce of the land, under a special agreement; but that special agreement was executed by the appraisement. This circumstance of the appraisement afforded clear proof that the plaintiff sold what the defendant had agreed was his; and the price having been ascertained, brought this to the case of an action for goods sold and delivered (9). Where tenant, on expiration of term being about to remove fixtures, to

(8) Mayfield v. Wadsley, 3 B. & C. 357; 5 D. & Ry. 224.

(t) E. of Falmouth v. Thomas, 1 Cr.

& M. 89; 3 Tyrw. 26.

(u) Poulter v. Killingbeck, 1 Bos. & Pul. 397.

(9) "The contract, if it had originally concerned an interest in land, after the agreed substitution of pecuniary value for specific produce, no longer did so it was originally an agreement to render what should have become a chattel, i. e. part of a severed crop in that shape, in lieu of rent, and by a subsequent agreement it was changed to money instead of remaining a specific render of produce." Per Ellenborough, C. J., 6 East,

which he was entitled, agreed to sell them to his landlord at a valuation, which was afterwards, and after the time expired, made and signed by the two brokers; it was holden (x), that this was not a sale of any interest in land. But although the contract is not itself wholly void (y) under the statute, merely on account of its being by parol, so that, if the same is executed, the parties cannot treat it as a nullity; yet, while it remains executory, it may be discharged by parol, before any thing is done under it which can amount to a part execution of it. An agreement to occupy lodgings at a yearly rent, payable in quarterly portions, (the occupation to commence on a future day,) is an agreement relating to an interest in land, within the meaning of this clause (2). A., being possessed of a messuage and premises for the residue of a certain term of years, agreed with B. to relinquish possession to him, and to suffer him to become tenant thereof for the residue of the term, in consideration of B.'s paying a sum of money towards completing some repairs. It was holden (a), that this was an agreement relating to the sale of an interest in land. This clause comprehends sales of land by auction as well as other sales (b); hence, where land had been sold by auction, and the contract having been abandoned, an action was brought to recover the deposit, in which action the plaintiff declared specially on the contract; it was holden, that it was incumbent on the plaintiff to prove a contract in writing (c), in the manner specified in the statute; and that the entry by the auctioneer of the buyer's name could not be considered as a sufficient memorandum and signature of the agreement so as to satisfy the requisitions of the statute: although a different doctrine had been laid down with regard to the 17th section, relating to the sale of goods, upon the construction of which it has been holden (d), that the auctioneer must be considered as the agent of both parties, and a memorandum made by him sufficient to bind the bargain. But in a latter case of Emmerson v. Heelis (e), it was solemnly decided that a signing by the auctioneer is a signing by an agent for the purchaser, although the contract be a contract for the sale of an interest in land. N. The purchaser was not present at the sale, but bid by an agent. The entry of the name of the best bidder by the auctioneer in his book, is just the same as if the bidder had written his own name.

(x) Hallen v. Runder, 1 Cr. M. & R. 266.

(y) Crosby v. Wadsworth, 6 East, 602. (z) Inman v. Stamp, 1 Stark. N. P. C. 12, Ld. Ellenborough, C. J., recognized in Edge v. Strafford, ante, p. 835.

(a) Buttemere v. Hayes, 5 M. & W. 456.

(b) Walker v. Constable, 2 Esp. N. P. C. 659; 1 Bos. & Pul. 306, per Erskine, C., in Buckmaster v. Harrop, 7 Ves. 341.

But putting down the name in

(c) Stansfield v. Johnson, coram Eyre, C. J., 1 Esp. N. P. C. 101. But see the remarks of Eldon, C., in Coles v. Trecothick, 9 Ves. jun. 249, adopted by Erskine, C., in Buckmaster v. Harrop.

(d) Simon v. Metivier, 1 Bl. R. 599; 3 Burr. 1921, recognized as to this point in Hinde v. Whitehouse, 7 East, 558.

(e) 2 Taunt. 38, recognized in White v. Proctor, 4 Taunt. 209.

catalogue, neither attached to, nor referring to, conditions of sale, will not suffice (f). See cases decided upon the 17th section, post, p. 863, and ante, tit. "Auction," p. 172.

Or upon any Agreement that is not to be performed within the Space of One Year from the making thereof.]—This clause extends to those cases only, where, by the express agreement of the party, the act is not to be performed within a year. Hence it has been holden (g), that a promise to pay money on the return of a ship, which happened not to return within two years after the promise made, was not within the statute; for, by possibility, the ship might have returned within a year. So where an action was brought upon an agreement (h), in which the defendant promised, for one guinea, to give the plaintiff so many on the day of his marriage. The marriage did not take effect until nine years after the agreement; and the question was, whether the agreement ought to have been in writing. Holt, C. J., (before whom the cause was tried,) advised with all the judges, and it was said by the majority of them, (for there was a diversity of opinion, and Holt differed from the majority) (10), "Where the agreement is to be performed upon a contingency, and it does not appear on the face of the agreement that it is to be performed after the year, there a note in writing is not necessary; for the contingency might happen within the year; but where it appears, from the whole tenor of the agreement, that it is to be performed after the year, there a note in writing is necessary." So where the plaintiff declared (i), that the defendant's testator, in consideration that the plaintiff would become his housekeeper, and take upon herself the care and management of his family, as long as it should please both parties, undertook to pay her wages at the rate of £ for one year; and also by his will to bequeath to her an annuity of £ for life, payable yearly from the day of his death; and then averred, that she became his house

(f) Kenworthy v. Schofield, 2 B. & C. 945.

(g) By the judges, ex. rel. Treby, C. J., Anon., Salk. 280, recognized by Wilmot, J., in 3 Burr. 1281.

(h) Peter v. Compton, Skin. 353, cited by Denison, J., in Fenton v. Emblers, 3 Burr. 1281.

(i) Fenton v. Emblers, Exor., 3 Burr. 1278; 1 Bl. R. 353, S. C.

(10) If the marriage had taken effect within the year, all the judges agreed no writing was necessary; but as, in the case before them, the marriage did not happen within the year, but nine years after the promise, Holt, C. J., and the minority of the judges, were of opinion that it ought to have been in writing, because the design of the statute was, not to trust to the memory of witnesses for a longer time than one year. See Smith v. Westall, Lord Raym. 316, 7. Holt, C. J., had expressed the same opinion with respect to the necessity of the contingency happening within the year in order to take a case out of the statute, in Francam v. Foster, Skin. 326.

keeper, and so continued for three years and upwards, but that the defendant's testator had not bequeathed her the annuity; the agreement having been by parol, it was contended, that the case was within the statute, for it could not be performed on the part of the testator within a year; for a whole year from his death was to elapse, before the annuity, or any part of it, would become payable. To this it was answered, that the action was brought for the testator not having done what he ought to have done in his lifetime, viz. bequeathing the annuity by will, which might have been done within the year. The court held the case not within the statute; and Denison, J., said, "The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it, nor any case that depends upon a contingency. It does not extend to cases, where the thing may be performed within the year." Nor to a case, where the work agreed to be done was done entirely within the year (k), and it was the intention of the parties, founded on a reasonable expectation that it should be so; although no time was fixed by the agreement for the performance. So where A., being indebted to the plaintiff, promised plaintiff that in consideration of his forbearing to sue, A.'s executor should pay him £10,000; it was holden (1), that the statute did not require this promise to be in writing.

An objection upon this clause was taken in the case of Poulter v. Killingbeck, 1 Bos. & Pul. 397, (ante, p. 852,) but the court were of opinion, that the subsequent agreement relieved the case from the objection. By the word performed, in this clause, the legislature meant a complete and not a partial performance. Hence, if it appear to have been the understanding of the parties to a contract at the time, that it was not to be completed within a year (m), although it might, and was in fact in part performed within that time, such contract is within this clause, and if the requisites of the statute are not complied with, it cannot be enforced. A contract for a year's service, to commence at a subsequent day, being a contract not to be performed within the year, is within this clause, and must be in writing (n). A contract (o), whereby a coachmaker agreed to let a carriage for a term of five years, in consideration of receiving an annual payment for the use of it, but which, by the custom of the trade, is determinable at any time within that period upon the payment of a year's hire, is an agreement not to be performed within a year, within the meaning of this clause, and, therefore, must be in writing.

(k) Donellan v. Read, 3 B. & Ad. 906, distinguishing Boydell v. Drummond. (1) Wells v. Horton, 4 Bingh. 40. (m) Boydell v. Drummond, 11 East, 142.

(n) Bracegirdle v. Heald, 1 B. & A. 722; Snelling v. Lord Huntingfield, 1 Cr. M. & R. 20, S. P.

(0) Birch v. E. of Liverpool, 9 B. & C.

392.