(x) 1 C. & J. 391; 1 Tyr. 293.
The last case provided for is that of any agreement that is not to be performed within the space of one year from the making thereof. It has been decided, that the agreements meant by this section are not agreements which may or may not happen to be performed within a year, but agreements which, on the face of them, con(y) 1 Stark. (2 E. C. L. E.) 12.
1 " The effect then," said Bayley, B., in Edge v. Strafford, " of the Statute of Frauds, so far as it applies to parol leases, not exceeding three years from the making, is this, that the leases are valid, and that whatever remedy can be had upon them in their character of leases, may be resorted to; hut they do not confer the right to sue the lessee for damages for not taking possession."
Although the statute enacts that all leases by parol for more than three years shall have the effect of leases at will only, yet it has been held, on both sides of the Atlantic, that occupation and payment of rent under such a lease, will create a tenancy from year to year: Clayton v. Blakey, 8 T. E. 3. And although the parol lease for more than three years is void under the statute, as to the duration of the term, yet the contract will regulate the terms of the holding in other respects, as, for instance, the amount of rent, etc.: De Medina v. Poison, 1 Holt, N. P. E. (3 E. C. L. E.) 47; Richardson v. Gifford, 1 A. & E. (28 E. C. L. E.) 52; Beale v. Sanders, 5 Scott, 58; Schuyler v. Leggett, 2 Cow. 660; Edwards v. Clemans, 4 Wend. 480; Prindle v. Anderson, 19 lb. 391; Hollis v. Pool, 3 Metc. 350; M'Dowell v. Simpson, 3 Watts, 135. But under the statute as expressed in Maine and Massachusetts, as all leases, unless they be written, are leases at will only, it has there been held that a tenancy created by parol, cannot, by occupation and payment of rent, be subsequently enlarged into a tenancy from year to year: Ellis v. Paige, 1 Pick. 43; Hingham v. Sprague, 15 lb. 102; Kelly v. Waite, 12 Metc. 300; Little v. Pallister, 3 Me. 15; Davis v. Thompson, 13 Do. 214.
A recent English statute (8 & 9 Vict. c. 106, § 3) has enacted that every lease required by law to be in writing, of any tenements or hereditaments, made after the 1st of October 1845, shall be void at law unless made by deed; but Mr. Chitty has remarked of this, that it would probably receive the same construction as the section above referred to, as it would seem not unreasonable to hold that the provisions of the statute would be satisfied by restricting its effect to the avoidance of the lease, as a lease simply : Chitty on Contracts, 283, 4th Eng. ed - s. 148 template a longer delay than a year before their accomplishment. Peter v. Compton (z), the case usually cited as establishing this distinction, affords also a very good illustration of it. It was an action upon an agreement, in which the defendant promised for one guinea to give the plaintiff ten on the day of his marriage. The case was tried before Lord Holt, who reserved the question, whether a writing was necessary, for the opinion of all the Judges, a majority of whom were of opinion, "that, where the agreement is to be performed upon a contingency, and it does not appear within the agreement that it is to be performed 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.1
One consequence of this section is, that if a servant be hired for a year, and the service is to begin at a future time, the agreement ought to be in writing, since it will not be performed within a year (a). On the other hand where, 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; 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 (b). In Wells v. Horton (c), 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 (d) 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. a week, 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.
Ter, 48 L. J. (Q. B.) 362; 11 Q. B. D. 123. See Cawthorn v. Cordrey, 13 C. B. (N. S.) (106 E. C. L. R.) 406; 32 L. J. (C. P.) 152.
(z) Skinner, 353; 1 Smith, L. C, 8th ed. 357.
(a) Bracegirdle v. Heald, 1 B. & Ald. 722; Snelling v. Lord Huntingfield, 1 Cr. M. &. R. 20; Giraud v. Richmond, 2 C. B. (52 E. C. L. R.) 835; Lerous v. Brown, 22 L. J. (C. P.) 1; 12 C. B. (74 E. C. L. R.) 801; Britain v. Ross