Reader, contra, contended, 1st, That the contract, not being in writing, was void by the statute of frauds. 2dly, That at any rate trespass would not lie in this case. 1st, This is either a parol contract for the sale of goods, in which case it is void by the 17th sect. of the statute; or it is a contract for some interest in or concerning land, when it is void by the 4th section (a). The case in 1 Ld. Ray. 182, was merely a nisi prius decision, and has been much broken in upon by the subsequent case of Waddington v. Bristow (b), where two if not three of the Judges considered that the contract for the sale of the growing hops gave the vendee an interest in the land; and they all agreed that the subject-matter did not come within the exception of a contract for the sale of "goods, wares, and merchandizes,” within the stamp-act. [Lord Ellenborough having intimated an opinion that this was an agreement for an interest in the vesture of the land, and so gave an interest in or concerning the land, asked how the case would be affected by the first and second clauses of the statute?] All interests created by any parol agreement in land, are made voidable, as estates at will, by the 1st section, which in general terms enacts, "That all leases, estates, &c. terms of years, or any uncertain interest of, in, to, or out of any lands, &c. by parol, &c. shall have the force and effect of leases or estates at will only," &c. with an exception in the 2d clause of leases not exceeding three years, which exception does not affect this case, as this was no lease of the land itself, but only the sale of an interest arising out of it; and then it comes expressly within the 4th clause, which respects contracts of sale and not of letting, and has no such exception as the 2d makes to the provisions of the 1st section. The contract was, therefore, either void under the 4th clause, or voidable under the 1st, and avoided by the subsequent notice before it became executed. Rough, in reply, contended, That if this contract were to be considered as conveying an interest in the land, it (a) By 29 Car. 2, c. 3, s. 4, "No action shall be brought, &c. to charge ang person upon any contract or sale of lands, &c. or any interest in or concerning them, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note hereof shall be in writing and signed by the party," &c. (b) 2 Bos. & Pall. 452. 1805. CROSBY against WADSWORTH. 609 } operated 1805. CROSBY against operated in law as a lease of the vesture; and then being for a less period than three years, it was saved out of the operation of the 1st by the 2d clause of the statute. That WADSWORTH, the taking of an aftermath (a) had been holden to be a tenement so as to confer a settlement by 40 days occupation, which shewed that it gave an interest in the land, such as exists between landlord and tenant. Then the 4th clause was not meant to operate as a repeal of the second, but merely takes away the remedy upon contracts voidable by the first clause and not saved by the second, and which are afterwards legally avoided. [ 610] Cur, adv. cult. Lord ELLENBOROUGH, C. J. (after stating the case): As the plaintiff appears to have been entitled (if entitled at all under the agreement stated) to the exclusive enjoyment of the crop growing on the land during the proper period of its full growth, and until it was cut and carried away, he might in respect of such exclusive right maintain trespass against any persons doing the acts complained of in violation thereof, according to the authority of Co. Litt. 4, b, the authorities cited from Brook and Fitzherbert, and the case of Wilson and Mackreth, 3 Burr. 1826, &c. which fully maintain this position. This brings us to the question, Whether the plaintiff had, under the agreement and circumstances stated, any legal title to this growing crop at the time when the injury complained of was done? or, Whether his supposed title thereto was not wholly void, as being created by parol, under any, and which of the provisions in the statute of frauds, or on any and what other account? And in the outset I feel myself warranted in laying wholly out of the case the provision contained in the 17th sect. of this statute, as not applicable to the subject matter of this agreement, which cannot be considered in any proper sense of the words as a sale of goods, wares, or merchandizes; the crop being at the time of the bargain (and with refer ence to which time I agree with Mr. Justice Heath, in Waddington and Bristow, 2 Bos. & Pull. 452, that the subject-matter must be taken) an unsevered portion of the (a) Rex v. Stoke, 2 Term Rep. 451. freehold, freehold, and not moveable goods, or personal chattels. The next question then is, Is it 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 1st section, so as to be void, as not having been put into writing? I think, collecting the meaning of the first by aid derived from the language and terms of the second section, "and the exception therein contained, that the leases, &c. meant to be vacated by the 1st sect. must be understood as leases of the like kind with those in the 2d sect." 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; neither of which circumstances are to be found in this agreement for the growing crop. Supposing it, therefore, on this construction of the statute, not vacated as a lease, &c. under the 1st sect. it then comes to be considered under the 4th sect. of the act, Whether this pur chase of the growing crop be "a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them?"—and if it be so, then, Whether this action of trespass be an action brought to charge the defendant on such contract.or sale," within the meaning of the statute? Upon the first of these questions I think that the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time and for given purposes, is a contract or sale of an interest in, or at least, an interest concerning lands. But the statute does not expressly and immediately vacate such contracts, if made by parol; it only precludes the bringing of actions to enforce them by charging the contracting party or his representatives on the ground of such contract, and of some supposed breach thereof; which description of action does not properly apply to the one now brought, viz. a mere general action of trespass, complaining of an injury to the possession of the plaintiff, however acquired, by contract or otherwise. But although the contract for this interest in or concerning land, may not be in itself wholly void under the statute, merely on account of its being by parol; so that if the same had been executed the parties could have treated it as a nullity, yet, being executory, and as for the non-performance of it no action could have been by the VOL. VI, provisions I i 1805. CROSBY against WADSWORTH. [611] 1805. CROSBY [612] provisions of the 4th sect. maintained, we think it might be discharged before any thing was done under it which against could amount to a part execution of it. And this discharge, WADSWORTH. unfortunately for the plaintiff, appears to have been given in the present instance, on the 2d of July, by the countermand and refusal of the defendant of that date, before the plaintiff had done any one act towards carrying the agree ment into effect. On this latter ground, therefore, viz. that this parol executory contract, supposing it to have been otherwise valid, was competently discharged by parol, we feel ourselves obliged to say that the plaintiff is not entitled to recover. The case suggested at the close of the argument, of Poulter v. Killingbeck, 1 Bos. & Pull, 397, has no material application in favour of the plaintiff. That was an action of indebitatus assumpsit and quantum meruit, for moieties or crops of wheat sold by the plaintiff to the defendant, and accordingly reaped for his, the defendant's, own use and benefit, and upon a count for money had and received. The case was, that the plaintiff had let to the defendant land without rent, from which he was to take two successive crops, and to render to the plaintiff a moiety of the crops in lieu of rent. Afterwards, the value of the crops was ascertained by appraisement, and the defendant became liable for the moiety of the value of the crops which he took to his own benefit, instead of a moiety of the crops themselves. It was objected that the agreement was within the statute of frauds, 1st, as relating to land; 2dly, as not being to be executed within a year. As to the first objec tion, 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. So that one wonders rather how it should ever have been thought an interest in land, than that it should have been decided not to be so. The subsequent agreement relieved the case also from the second objection. Postea to the Defendant. WELCH 1805. Monday, WELCH against IRELAND. THIS was an action of debt on bond, conditioned to s. July 1st. In debt on bond, condiform an award, tiozed to per the plaintiff must assign a breach under the stat 8 & 9 w. 3, and cannot have judgment for the penalty and take out execu tion for the single sum awarded, damages be as Wood now shewed cause, and endeavoured to distinguish this from the former cases (b), because here there was only though the a single sum to be paid, and the jury had nothing to inquire measure of of, but were bound to give the sum awarded, which was certained by the now verified by affidavit and not disputed. And he award. suggested that the first case, that of Drage v. Brand, wherein it is stated that it is compulsory on a plaintiff to assign breaches on the statute, was wrongly reported; for the Court decided, that it was optional in the plaintiff to go for the penalty or to assign breaches; but that if he did assign breaches, as was done in that case, it was compulsory on the jury to assess damages on the breaches so assigned; and, therefore, the verdict being taken for the debt in that case, the Court awarded a venire de novo. But The Court said, that it had been so often and so solemnly decided that the statute of King William was compulsory . on the plaintiff to assign breaches, that it could not be questioned; and that they thought that construction right. And that though it turned out that there was only a single sum to be paid upon the bond, yet the bond being to perform an award, in other words, to perform an agreement, it came directly within the words of the statute, the sum to be recovered being ascertained through the medium of the award. Rule absolute. (a) Vide Willoughby v. Swinton, ante, 551, n. (g), where the statute is set out. (b) Drage v. Brand, a Wils. 377. Roles v. Rosewell, 5 Term Rep. 538. Hardy. Bern, ib. 638. Walcot v. Goulding, 8 Term Rep. 126, and Willoughby v. Swinton, ante, 550. HANSON [614] |