(id) Cocking v. Ward, 1 C. B. 858; Kelly v. Webster, 12 id. 283; Towsley v. Moore, 30 Ohio St. 184.

(e) Ham v. Goodrich, 37 N. H. 185; see also Segars v. Segars, 71 Me. 530.

(ee) Nutting v. Dickinson, 8 Allen, 540.

(ef) Copper, etc. Co. v. Spencer, 25 Cal. 18.

(eg) Anderson v. Simpson, 21 Iowa, 399.

(eh) Houston v. Laffee, 46 N. H. 505: New Orleans, etc. R. R. Co. v. Moye, 39 Miss. 374.

(ei) Lesley v. Rosson, 39 Miss. 368; Trowbridge v. Wetherbee, 11 Allen, 361; Morrill v Colehour, 82 111. 618; Coleman v. Eyre, 45 N. Y.38.

(ej) Thouvenin v. Lea, 26 Texas, 612.

E. B. & E. 685. In Eastham v. Anderson, 119 Mass. 526, a lessee of a fishery, after having enjoyed the same, was held liable on his promise to pay the stipulated rent, although not in writing; but in Sanderson v. Graves, L. R. 10 Ex. 234, it was held, that after the delivery of a lease, a bonus orally agreed to be paid therefor could not be recovered. A delivery of a deed in escrow is not such an execution as will render the purchaser liable to an action for the price. Cagger v Lansing, 43 N. Y. 550. Contra, Negley v. Jeffers, 28 Ohio St. 90. See Remington v. Palmer, 62 N. Y. 31; Worden v. Sharp, 56 III. 104: Jewett v. Ricker. 68 Me. 377. - K.

1 Scott v. Bush, 26 Mich. 418, was to the effect that a verbal agreement for the purchase of land, with a stipulation that the money paid down may be retained as stipulated damages if the purchaser should fail to complete the bargain, forms a single contract within the statute and the money may be recovered back where no possession is given, as paid without consideration. Where a person in pursuance of an oral agreement had set out peach-trees on another's land, and was to receive two-thirds of their product, and the land was sold before the trees bore any fruit, a recovery on an implied contract to pay for the benefit received was allowed. Wiley v. Bradley, 60 Ind. 62. - K.

2 An oral agreement by a municipal corporation to pay the value of land taken to payment for land sold by the quantity, if it "should be found more or less than was supposed and paid for;"(ek) a contract for sale of corn to be gathered and shocked before delivery; (el) and a contract for the delivery of a certain number of bushels of hop roots, (em) are all valid and enforceable at law without writing.1 And that a vendor's promise, while negotiating a sale of lands, to procure his wife's relinquishment of dower; (en) and an agreement to give a right to flow land by a permanent mill-dam, (eo) must be in writing. So it is held that a verbal promise to convey an estate, followed by a payment of the price, does not of itself authorize the purchaser to take possession of the land, (ep)

The fifth clause of this section declares, that "no action shall be maintained upon any agreement that is not to be performed within the space of one year from the making thereof, unless," etc.2 Much the most important rule in reference to this section, we have had occasion to allude to already. (f) It may be stated thus. If the executory promise be capable of entire performance within one year, it is not within this clause of the statute. The decision of this question does not seem to depend entirely upon the understanding or intention of the parties. They may contemplate as probable a much longer continuance of the contract, or a suspension of it and a revival after a longer period; it may in itself be liable to such continuance and revival; * and it may in this way be protracted so far that it is not in fact performed within a year; but if, when made, it was in reality capable of a full and bona fide performance within the year, without the intervention widen a street is invalid, but not its agreement to compensate the owner for expenses incurred by such taking Coleman o. Chester, 14 S. C. 286.

(eh) Seward v. Mitchell, 1 Cold 87. (el) Reutch v. Long, 27 Md. 188. (em) Webster v. Zielly, 52 Barb. 482. (en) Martin v. Wharton, 38 Ala. 637.

See Wright v. De Groff, 14 Mich. 164. (eo) Clute r. Carr, 20 Wis. 531. (ep) Whitcher v. Morey, 39 Vt. 459. (f) See ante, vol. ii. p. *45, n. (i).

1 An equity of redemption cannot be bought or sold without writing. Udell v. Montross, 68 N. Y. 499. See Cowles v. Marble, 37 Mich. 158. A judgment which is a lien on land is not an interest in the land within the statute of frauds, and may be assigned without writing. Winberry v. Koonce, 83 N. C. 351. A contract to make bricks on the plaintiff's land, the property in the bricks to remain in the plaintiff until he was paid for his clay and wood used in their manufacture, is not within the statute of frauds. Brown v. Morns, 83 N. C. 251. But an agreement by a devisee to assign a devise of rents is an agreement to transfer an interest in land, and must be in writing. Brown v. Brown, 6 Stewart, 650. An oral agreement by a mortgagor to convey the land to the mortgagee, and to apply wheat growing upon it in payment of his debt, will not pass the title to the wheat against his other creditors. Jackson v. Evans, 44 Mich 510. The surrender of a lease to the landlord need not be in writing. Auer v. Penn, 92 Pa. 444.-K.

2 If the year is exceeded never so, little, the statute applies. Hearne v. Chad-bourne, 65 Me. 302; Sharp v. Rhiel, 55 Mo. 97.

of extraordinary circumstances, then it is to be considered as not within the statute, (g) l

(g) The cases which have arisen upon this clause of the statute may be conveniently arranged in three classes. 1. Where, by the express agreement of the parties, the performance of the contract is not to be completed within one year. 2. Where it is evident, from, the subject-matter of the contract, that the parties had in contemplation a longer period than one year as the time for its performance. 3. Where the time for the performance of the contract is made to depend upon some contingency, which may or may not happen within one year. Cases falling within the first class are clearly within the statute. Thus, in Bracegirdle v. Heald, 1 B. & Ald. 722, it was held, that a contract made on the 27th of May, for a year's service, to commence on the 30th of June following, was within the statute. So where A, on the 20th of July, made proposals to B to enter his service as bailiff for a year, and B took the proposal and went away, and entered into A's service on the 24th of July, it was held, that this was a contract on the 20th, and so not to be performed within the space of one year from the making, and within the fourth section of the statute of frauds. Snelling v. Lord Huntingfield, 1 Cromp., M. & R. 20. And, in Birch v. The Earl of Liverpool, 9 B. & C. 392, it was held, that a contract whereby a coachmaker agreed to let a carriage for a term of five