Common of Fishery.

A common of fishery is a right of fishing in common with other persons in a stream or river, the soil whereof belongs to a third person. This does not differ in any respect from any other right of common', and trespass will not lie for an injury to it. A person having common of fishery in another's land, cannot cut the grass growing on the bank.

Under ancient deeds recognising a right in the owner of an estate to have a weir across a river for taking fish', if it appear that such weir was heretofore made of brushwood, through which the fish might escape into the upper part of the river, he cannot convert it into a stone weir, whereby the possibility of escape is debarred, except in times of extraordinary flood.

r Salk. 637.

13 H. 8. p. 15. b.

t Weld v. Hornby, 7 East, 195.

CHAP. XXII.

FRAUDS, STATUTE OF.

Stat. 29 Car. 2. c. 3. entitled, An Act for Prevention of Frauds and Perjuries.

I. Introduction. The first, second, and third Sections, relating to parol Demises, Assignments, and Surrenders.

II. The fourth and seventeenth Sections, relating to Agreements.

III. The fifth and sixth Sections, relating to the Execution and Revocation of Wills.

I. Introduction. The first, second, and third Sections, relating to parol Demises, Assignments, and Surrenders.

INTRODUCTION.-This statute, the wise provisions of which have been so often and so justly commended (1), is supposed to have been the joint production of Sir Matthew Hale, Sir F. North, and Sir Leoline Jenkins, an eminent civilian. Sir M. Hale, however, died a few months before

a See Gilb. Eq. R. 171. and Ld. Keeper Guilford's Life, p. 109.

(1) Lord Nottingham used to say of this statute, that every line of it was worth a subsidy. Ld. Keeper Guildford's Life by R. North, p. 109. See also Chaplin v. Rogers, 1 East, 194, where Lord Kenyon, C. J. said, "It is of great consequence to preserve unimpaired the several provisions of the statute of frauds, which is one of the wisest laws in our statute book.”

the act passed into a law (2); and this circumstance may possibly account for the inaccuracies, which have been discovered in the composition. To detail all the clauses of this statute, and to notice the construction which they have received in a variety of decisions, would far exceed the limits prescribed to this abridgment: it would, indeed, be in a great measure superfluous, since this arduous task has been already, in part, performed by a learned gentleman, who has signified an intention to complete his valuable treatise (3). The object of the present chapter will be merely to select such of the provisions of the statute of frauds as fall within the scope of this work, and to subjoin, in a regular series, the cases which have arisen, and the decisions thereon.

1st Section. By this statute, for prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury and subornation of perjury, it is enacted, that, "All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of any mes"suages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not "put in writing, and signed by the parties so making or "creating the same, or their agents thereunto lawfully au"thorized by writing, shall have the force and effect of leases or estates at will only."

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2d Section." Except all leases not exceeding the term of "three years from the making thereof, whereupon the rent "reserved to the landlord, during such term, shall amount "unto two third parts, at the least, of the full improved "value of the thing demised."

Collecting the meaning of the first section, by aid derived

b See Doug. 244. n.

e Per Ellenborough, C. J. in Crosby v. Wadsworth, 6 East, 602.

(2) Sir M. Hale died on the 25th of December, 1676. The parliament met on the 15th February following, and this statute received the royal assent on the 16th April, 1677. From the circumstance of this statute not having passed until after the death of Sir M. Hale, Lord Mansfield inferred, that it could not have been drawn by him; more especially as the bill was introduced in the usual manner, and not upon any reference to the judges. See Wyndham v. Chetwynd, 1 Burr. 418.

(3) See a Treatise on the Statute of Frauds, by W. Roberts, of Lincoln's Inn, 8vo. 1805.

d

from the language and terms of the second, and the excep tion therein contained, I think, that the leases, &c. meant to be vacated by the first section, must be understood as leases of the like kind with those in the second section, but which conveyed a larger interest to the party than for a term of three years, and such also as were made under u rent reserved thereupon. Hence, where the plaintiff agreed by purol, with the defendant, for the purchase of a standing crop of mowing grass, then growing in a close of the defendant's, for a certain sum; it was holden, that the agreement was not 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 first section, so as to be void on the ground of not having been in writing.

A lease by parol for a year and a half, to commence after the expiration of a lease which wants a year of expiring, is good; for it does not exceed three years from the making. Ryley v. Hicks, M. 2 Geo. 2. per Raym. Bull. N. P. 173. 1 Str. 651. S. C. but probably from a different note. In Inman v. Stamp, B. R. Trin. 55 Geo. 3. Dampier, J. said, the practice had been with the foregoing case of Ryley v. Hicks, although he rather inclined to think that the second section of this statute, taken with s. 4. was confined to leases executed by possession, on which two thirds of the improved rent were reserved.

In an action for the breach of an agreement, whereby the defendant agreed to take of the plaintiff certain premises for 15 years, it appeared, by the evidence of an attorney, that he had prepared a draft of a lease, which he had sent to an attorney on the part of the defendant for perusal, who made some alterations in it, and returned it; that soon after, the defendant, being unable to perform the agreement, applied to the plaintiff to cancel it; to which the plaintiff did not object, upon being indemnified against the expense which he had incurred; but before he would try to let it again, he required the defendant to relinquish the agreement by writing, whereupon the defendant wrote on the draft of the lease as follows: "I hereby request Mr. Shippey, to endeavour to let the premises to some other person, as it will be inconve nient to me to perform my agreemeut for them, and for so doing, this shall be a sufficient authority. I Derrison." The defendant having refused to make any compensation, this action was brought. It was admitted, that at the time when

d S. C.

e Shippey v. Derrison, 5 Esp. N. P. C.

the agreement for the lease was entered into, it was not reduced into writing, nor was any memorandum made or note of it. It was objected, that the agreement was void by the statute of frauds; and Hawkins v. Holmes, 1 P. Wms, 770. was cited. But, per Lord Ellenborough, C. J. "It is not necessary that the note in writing should be contemporaneous with the agreement. It is sufficient if it has been made at any time, and adopted by the party afterwards; and then any thing under the hand of the party, expressing that he had entered into the agreement, will satisfy the statute, which was only intended to protect persons from having parol agreements imposed on them. In this case, the indorsement says, that he was unable to perform the agreement for the premises, and it is written on the draft of the lease of those premises, which had been perused and altered by his own attorney. It is sufficient with respect to the case from Peere Williams, to observe, that was an agreement purely executory, and nothing more than the bare draft of the lease, which was not signed by the party."

Where the lessee of a house, and his partner in trade, agreed to pay the lessor annually, during the residue of the lessee's term, 10 per cent on the cost of new buildings if the lessor would erect them; it was holden', 1. That this agreement was not required by the statute of frauds to be in writing; 2. That although the partner quitted the premises, he was liable on this collateral agreement during the residue of the term.

Any uncertain interest in land.] The defendant had agreed, by parol, that the plaintifi should have the liberty of stacking coals upon part of a close belonging to the defendant, for the term of seven years; and that, during this term, the plaintiff should have the sole use of that part of the close (4). After the plaintiff bad, pursuant to this agreement, enjoyed the liberty of stacking coals for three years, the defendant locked up the gate of the close. The question was, whether this agreement was good for seven years? Lee, C. J. and Denison, J. were of opinion, that it was; observing, that in the case of Webb v. Paternoster, Palm. 71. it was laid down, that the grant of a licence to

f Hoby v. Roebuck and another, 7 Taunt. g Wood v. Lake, Say. Rep. 3.

157.

(4) From a MS. note of this case it appears, that the consideration to be paid by the plaintiff for the liberty of stacking the coals, was 20s. for every stack.