(y) Scorell v. Boxall, 1 Y. & J. 396; Teal v. Auty, 2 B. & B. (6 E. C. L.E.) 99.
(z) Rodwell v. Phillips, 9 M. & W. 501.
(a) Smith w. Surman, 9 B. & C. (17 E. C. L. R.) 561.
(b) Lord Falmouth v. Thomas, per Bailey, B., 1 C. & M. (41 E. C. L. R.) 105.
Terest in the land within the *meaning of the statute (c).1 Thus, too, a sale of growing timber to be cut down by the purchaser and taken away by him as soon as possible is not a sale of an interest in land within the meaning of this section, but of goods within the meaning of the 17th section (d). In another case on this subject where the plaintiff and defendant orally agreed (in August) that the defendant should give £45 for the crop of corn on the plaintiff's land, and the profit of the stubble afterwards, that the plaintiff was to have liberty for his cattle to run with the defendant's, and that the defendant was also to have some potatoes growing on the land and whatever lay grass was in the fields, and the defendant was to. harvest the corn and dig up the potatoes, and the plaintiff was to pay the tithe; it was held, that it did not appear to be the intention of the parties to contract for any interest in land, and the case was not, therefore, within the statute, but a sale of goods as to all but the lay grass, and as to that a contract for the agistment of the defendant's cattle (e).
(c) 9 B. & C. (17 E. C. L. E.) 573; Evans v. Roberts, 5 B. & C. (11 E. C. L. E.) 829.
(d) Marshall v. Green, 1 C. P. D. 35; 45 L. J. (Q. B., etc.) 153.
(c) Jones v. Flint, 10 A. & E. (37 E. C. L. E.) 753; Duppa v. Mayo, 1 Wras. Saund. 277 c, n. (f).
1 In Brown v. Morris, 83 N. C. 251, the parties entered into a parol agreement by which one A was to make bricks upon the land of the plaintiff, the property in the bricks to remain in the plaintiff until he was paid for the clay and wood used in their manufacture. A sold the bricks to defendant, who was then sued for the price by the plaintiff. He endeavoured to defend on the ground inter alia that the parol contract between the plaintiff and his vendor was void. But the Court held it valid, and Smith, C. J., said: " The land on and from which the bricks were manufactured belonged to the plaintiff, and it was perfectly competent for him to agree that the property should remain unchanged and follow the material into the manufactured article. The Statute of Frauds has no application to a contract concerning personalty, which the brick became, and which but leaves the title where it was, in the owner of the soil."
Upon very similar reasoning, when a tenant having a right to remove fixtures, left them in the house upon a parol agreement with the landlord that he should take them at a valuation, the Court *were quite satisfied that this was not a sale of any interest in land (f).1
Neither does an agreement for board and lodging amount to a contract for an interest in land; and a person having agreed with a boarding-house keeper for board and lodging for himself and servant, and accommodation for a horse, for £200 a year, and having afterwards refused to enter on the occupation, was held liable to an action, although the whole that passed between them was by word of mouth. The agreement was merely that the proposed lodger should become and be received as an inmate in the house and family (g).
But an agreement to occupy lodgings at a yearly rent, the occupation to commence at a future day, is an agreement for an interest in land within the 4th section (h).
And such also is an agreement, that, if one will take possession of a house and become tenant upon its being properly furnished, the other will furnish it properly (i). So also an agreement between one who desired to obtain the transfer of the lease of a public-house and a public-house broker who had no interest in the public-house himself, that the *latter would procure him the lease, has been held to be a contract or sale of an interest in land within the 4th section (k).
(f) Hallen v. Runder, 1 C. M. & E. 266; Lee v. Gaskell, 1 Q. B. D. 700; 45 L. J. (Q. B., etc.) 540.
(g) Wright v. Stavert, 29 L. J. (Q. B.) 161.
(h) Inman v. Stamp, 1 Stark. N P. C. (2 E. C. L. R.) 12.
(i) Mechelen v. Wallace, 7 A. & E. (34 E. C. L. E.) 49; Vaughan v. Hancock, 3 C. B. (54 E. C L. E.) 766.
1 As to what constitute fixtures, discussion of which would be out of place here, the student is referred to the case of Elwes v. Mawe, 2 Smith's L. C. (8th Am. ed.) 191 and the notes.
Such also was considered an agreement on the sale of a milk-walk for £80, in which it was agreed that the purchaser should go into and occupy the premises of which the vendor was tenant, and should be tenant of them from Midsummer then past, and should pay the rent, rates, and taxes. The defendant entered, but finding the business not so extensive as he expected, refused to pay the whole of the £80. The Court considered that the plaintiff agreed to consign his interest in the premises, such as it was, to the defendant, and the latter agreed to pay the rent, rates, and taxes, from the last quarter, and that it was, therefore, expressly within the statute (I).
The same conclusion has been come to where one entered into an agreement with another to relinquish, and give possession to him of a furnished house for the residue of a term which the former had therein, in consideration of a sum of money to be paid by the latter for certain repairs to be done to the house. It was considered that the contract was not merely that one side should repair and relinquish possession, and the other pay the money for the repairs, but that the relinquishment being *for the remainder of a term, an assignment was contemplated, which was clearly an interest in land (m). The law is the same whether the interest agreed to be assigned or parted with be legal or equitable (n). And the same rule that the contract cannot be enforced unless in writing applies, al(k) Horsey v. Graham, L. E. 5 C. P. 9; 39 L. J. (C. P.) 58. (l) Smart v. Harding, 24 L. J. (C. P.) 76; 15 C. B. (80 E. C. L. E.) 652. (m) Buttemere v. Hayes, 5 M. & W. 456; Cocking v. Ward; 1 C. B. (50 E. C. L. E.) 858. (n) Kelly v. Webster, 21 L. J. (C P.) 163; 12 C. B. (74 E. C. L. E.) 283. 144 though the consideration for the defendant's part of the contract has been performed, and nothing remains to be done but the payment of the money (o).