But it will be more convenient to state the law in this behalf under the title Guaeanty. The third clause, which relates to promises "in consideration of marriage," is held not to apply to a promise or contract to marry, but to all promises of settlement, advancement, or other provision in view of marriage, and therefore all these must be in writing and signed. And it must be a promise to the other party; thus a promise of an advancement made to a daughter, in writing, not known to the intended husband until after the marriage, is not a promise to him and cannot be enforced by him. The fourth clause relates to any promise or contract for "the sale of lands, tenements, or hereditaments, or any interest in or concerning them." The very broad scope of this phraseology has been considerably curtailed by adjudication. Thus, a contract for the sale of growing crops may be within the requirement of the statute or without it, according to cir-cumstances. If the crop is already reaped, it is certainly severed from the land, and is of course a mere chattel; but even if it be still growing, if the intention of the parties be to reap it when grown and remove it at once from the land, this is not held to be a contract for a sale of an interest in lands; and the same rule was applied to a sale of mulberry trees in a nursery.

While there is some uncertainty in the cases, we think the same rule of construction applies to growing grass, trees, or fruits, making writing unnecessary for the enforcement of a contract respecting them; at least, if the seller himself is to sever and deliver them. A mere license to use land for some special purpose, as to stack hay, or leave a wagon on it for a short time, is not a bargain for an interest in lands. But a contract to convey lands for certain services is within the statute; and if it be not in writing, and the services be rendered, the party rendering them cannot enforce the contract or have the lands; but he may sue for the value of his services, and in determining that value the value of the lands may be taken into consideration. The fifth clause relates to an agreement that is not to be performed within one year from the making thereof." Here the important principle has become well settled that a contract or agreement is not within the statute, and therefore need not be in writing, if it be in reality and in good faith capable of a full and substantial performance within one year, unless extraordinary circumstances interfere to prevent it; and this principle is applied even where the parties themselves do not contemplate any performance of the contract within a year from the making of it.

Thus, if one agrees to work for another "for one year," no time for the beginning of the service being fixed, he has a right to begin instantly, and then all his service will be rendered within the year, and the contract need not be in writing. It is important to remember, that if a contract which should have been in writing, but is not, is wholly performed on one side, and is such that nothing remains but the payment of the consideration money, there are many cases in which an action may be maintained in some form for the money due.-Another section (the 17th of the English statute) enacts that "no contract for the sale of any goods, wares, or merchandises, for the price of £10 or upward, shall be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something by way of earnest to bind the bargain, or in part payment," or that some note or memorandum be signed as before. This provision, in some form or other, is very common in the United States. The sum is variously fixed, in different states, at about $30 to $50, rarely less or more. The principal questions which have arisen under this clause are, what delivery and acceptance, or what earnest, or what part payment, will satisfy the statute, so as to make the writing unnecessary.

In the first place, there must be both delivery and acceptance. A meets B, and they agree orally that A shall buy 100 bales of cotton which B has for sale for $25,000. B sends the cotton forthwith to A's store. This, according to common law, completes the sale and B's right to demand the price. But by the statute of frauds, if there be no note or memorandum in writing signed by A, he may instantly, and without assigning any reason, send all the cotton back to B. As to what is a delivery, it may be said, in general, that it is any transfer of possession and control, made by the seller, for the purpose and with the effect of putting the goods out of his hands and into the hands of the buyer. It may be an actual delivery; or it may be constructive, as by the delivery of the key of a warehouse, or making an entry in the books of the warehouse keeper, or the delivery of an indorsed bill of lading, or even pointing out as the buyer's own massy goods that are difficult of removal, as timber in a dock, or a large stack of hay. So a part may be delivered for the whole, and carry with it constructively the delivery of the whole.

On the other hand, as to what constitutes acceptance, we must look mainly at the intention of the party; for if he so acts as to manifest his assent to the delivery, and his intention to accept and retain the goods, or so as to justify the seller in believing that the buyer so assents and intends, this will have the effect of fixing his liability for the price, whatever be the way in which he expresses this assent and intention. Hence, mere delay, or holding the goods for a considerable time in silence, is an assent and acceptance. But as he has a right to examine the goods and see whether he chooses to accept them, he must be allowed time enough for this purpose; and his silence during a period of time that is not more than sufficient for this is not evidence of acceptance. It has been much questioned whether the sale of shares or stocks in incorporated companies, as, for example, in corporations for manufacturing purposes, for railroads, and the like, is a sale of " goods, wares, and merchandises," within the meaning and operation of the statute. In England the prevailing authority is that these shares are not "goods, wares, or merchandises" within the statute, and therefore the bargain need not be in writing. Perhaps the prevailing rule in the United States is the other way.

But the authorities are to some extent conflicting, and the question may not be considered settled. As to giving something by way of earnest (the exact words of the English statute are in earnest"), almost anything which has an actual value, though a small one, may suffice. Thus, a dime, or even a cent, might be sufficient, but not a straw or a chip, though it were called "earnest money;" it would be safe, however, if earnest were relied upon as clinching the bargain (to use an old phrase), to give money of some real and considerable value. So, part payment has the same effect as earnest money; but it must be an actual part payment. Therefore, if the seller owes the buyer, and it is a part of the bargain that the debt shall be discharged and be considered as a part of the price to be paid, the contract must nevertheless be in writing, because this is not a part payment within the meaning and requirement of the statute. If, however, the debt were certainly and irrevocably discharged, as by the giving up of a note of hand, the decision might be otherwise.

The difficult question has been much considered whether a bargain that A should make and sell a certain article to B is a contract for the sale of the thing, which must be in writing, or a mere bargain whereby B hires A to work for him in a certain way, which need not be in writing. Perhaps no better rule or principle for deciding this question can be found than the following: A contract to buy a thing presently, which the seller has not now, is just as much within the requirement of the statute as a bargain for a present sale; and if by the bargain the seller may himself buy, or make, or procure in any way he likes, the thing he agrees to sell, this is only a contract for the sale of the goods, and must be in writing. But if the seller, and he alone, is by the bargain to manufacture these, and in a certain way, and of certain materials, or after a certain model, or if in any way it appears that the seller is to make certain things and charge therefor a price for his labor, skill, and material, although all these are included in the mere sale price of the article, then it is a contract for the manufacture of the goods, and not merely a contract for their sale, and it need not be in writing.

The statute itself, both in England and the United States, speaks of part payment only; but courts of equity, both there and here, have strongly inclined to the rule that part performance of any of the contracts within the statute of frauds shall have the same effect that part payment has upon a contract of sale by the statute. Some doubt has been expressed as to the expediency of the rule; but it may now be considered settled that courts of equity, or courts of law having equity powers (as most American courts of law now have), will enforce an oral contract which should have been in writing, provided there has been an actual and substantial part performance of it by the party sought to be charged.-In regard to other sections of the English and some of the American statutes of frauds, or analogous statutes, see Lease, Trust, and Will.