after the year, there a note in writing is not necessary, for the contingency might happen within the year; but where it appears by the whole tenor of the agreement that it is to be performed after the year, there a note in writing is necessary, otherwise not.” There was a difference of opinion among the Judges in this case, and it is remarkable that Lord Holt himself differed from the majority. However, their construction has been frequently adopted since that time.

Thus, also in Fenton v. Emblers (n), in consideration that the plaintiff would be and continue his servant as long as they should both please, the defendant promised to leave her, by his last will, an annuity for her life; and it was considered that the statute did not apply, it not being expressly and specifically agreed that the agreement should not be performed within the year. In Wells v. Horton (o), which was a promise by a testator that his executor should, at his death, pay the plaintiff £10,000., it was held that no writing was required to prove it; and Best, C. J., said, the plain meaning of the words of the statute is confined to contracts which, by agreement, are not to be carried into execution within a year, and does not extend to such as may by circumstances be postponed beyond that period; otherwise, there is no contract which might not

fall within the statute. Souch v. Strawbridge (p) was a case in which it was proved that there had been a proposal that the plaintiff should keep an infant child for the defendant for one year, at 5s, aweek, which he objected was too much for so young a child; and it was then settled that it should remain with the plaintiff till the defendant gave notice or should think proper. It remained with the plaintiff more than two years. The Court considered no writing to be necessary to prove the agreement; and Erle, J., said, the treaty certainly did once contemplate the endurance of the contract for the child's maintenance beyond a year; but the ultimate contract was, that the period should be as long as the defendant should think proper.

Thus, also it is held that, where it appears not to have been the intent of the parties that the agreement should extend beyond a year, although it might extend far beyond that time, it need not be in writing; but where it appears to be the intent of the parties that the agreement shall not be performed within one year from the making, it must be in writing, although determinable upon a contingency, within a year. Therefore, where by the terms of the contract it period than a year, a custom by which it might be put an end to by one of the parties within that

was to last for a longer

(p) 2 C. B. 808.

period, does not take it out of the operation of the statute (q). In like manner an undertaking to pay an annuity for life must be in writing, although it may terminate by death within a year (r). And where a person having been the defendant's traveller since 1852, entered, in October, 1854, into a fresh agreement at an increased salary, whereby either party was to be at liberty to determine the agree ment by giving the other three months' notice before 1st Sept., 1855, otherwise they were to go on for another year from that time; this stipulation for its determination did not take it out of the statute. In truth, said Alderson, B., this contract is not incapable of being performed within a year; it may be more truly said that it is liable to be defeated within that time. In its original conception it is a contract for more than a year. A tenancy from year to year, with power to determine it within the year, is still a tenancy from year to year (s).

Where, however, all that is to be done by one party, as the consideration for what is to be done by the other, actually is done within the year, the statute does not prevent that party suing the other for the non-performance of his part of the contract. Where the one has had the full benefit of the contract, the law will not permit the other to withhold

(4) Birch v. Earl of Liverpool, 9 B. & C. 392.

(r) Sweet v. Lee, 3 M. & G.

452.

(8) Dobson v. Collis, 25 L. J. (Ex.) 267; 1 H. & N. 81.

per

the consideration. As, where a landlord had agreed to lay out £50. on improvements on the premises demised, and the tenant, in consequence, to pay £5. a-year additional rent for the remainder of his term, of which there were several years, and the landlord laid out the £50. within the year, he was allowed to recover the additional rent, although the agreement was not in writing (t); for this enactment applies only to contracts not to be formed on either side within the year. Therefore, in a case where the defendant, in a letter signed by him, proposed to the plaintiff that she should assign to the defendant, in trust for an institution managed by him, a patent which she had obtained for making toys, such patent to be used by the institution, the plaintiff to have 5 per cent. on the profits, and the defendant to provide for the next payment in respect of the patent; and if the payments made should not equal a certain sum in the first and subsequent years, the plaintiff to have the right to reclaim the patent, and this proposal was accepted by the plaintiff by word of mouth; it was held that the contract did not require to be in writing under the 4th section of the Statute of Frauds, inasmuch as all that was to be done by the plaintiff as the consideration of defendant's promise was capable of being done within a year, and it did

(t) Donellan v. Reed, 3 B. & Ad. 899; Souch v. Strawbridge, 2 C. B. 808; Cherry

v. Heming, 4 Ex. 631. See Nunn v. Fabion, 35 L. J. (Ch.) 140.

Recapitulation of Lectures.

not appear that any part of it was to be postponed until after a year (u).

I have now gone through the five cases to which the 4th section of the Statute of Frauds applies, and in which it requires a written memorandum of the contract. There are one or two cases of very considerable importance in practice on which I shall briefly observe in the next Lecture, in which a writing is required by the express enactment of the legislature. Having mentioned them, I shall say something of the consideration upon which a simple contract may be grounded, and which is, as you are aware, an essential part of every such contract; and then, having finished the remarks I had to make on Simple Contracts exclusively, shall resume the consideration of the general law of contracts, and shall speak of the competency or incompetency of the contracting parties, and of remedies by which, in case of breach of contract, their performance is to be enforced.

(u) Smith v. Neale, 26 L. J. (C. P.) 143; 2 C. B. (N. S.) 67.