trees growing in a nursery, and raised for sale and transplanting, to be delivered on the ground where they are growing, upon payment of the price, as being an interest in or concerning lands, &c. Whitmarsh v. Walker, 1 Met. 313.

5. A verbal license to enter upon land and remove trees is valid, Ibid. as it passes no interest in the land.

6. Part performance of a contract for the sale of lands, &c. does not take the case out of the Statute of Frauds. Ibid.

7. By an indenture between the plaintiff and defendant, the former agreed to convey to the latter a house-lot in Boston, free from incumbrances, and the defendant agreed to indemnify the plaintiff from all claims, by reason of the wall of the house on the adjacent lot being set partly on the plaintiff's land. The plaintiff afterwards conveyed the lot to the defendant, at his request cancelling the indenture, and certifying upon it that it had been fulfilled on the defendant's part; and thereupon the defendant verbally promised, that, if any claim should be made and enforced against the plaintiff respecting the wall, he would indemnify the plaintiff against all sums that he should be so obliged to pay, and all costs and expenses. The defendant made use of the wall, and the adjoining owner sued the plaintiff, and recovered judgment, on that ground. Held, the defendant's parol promise was not a contract concerning an interest in land, nor a collateral promise to pay the debt of another, within the meaning of the Statute of Frauds. Weld v. Nichols, xvii. 538.

8. Held, the plaintiff's liability to pay for the wall was merely personal, and therefore not repugnant to his covenant against incumbrances. - Ibid.

9. Held, the cancelling of the written agreement, at the defendant's request, was a valid consideration for the new promise. Ibid.

C. The sale of goods.

1. Section 4, c. 74 of the Revised Statutes, the Statute of Frauds, does not apply to an agreement to make machines for a specified price, and find the materials. - Spencer v. Cone, 1 Met.

283.

2. A., the defendant, selected a lining for a carriage at the shop of B., the defendant. B. had on hand the body of a carriage, nearly finished, but not lined; and it was agreed, that he should finish a carriage for A. in a fortnight. The unfinished carriage was accordingly completed, and A. was notified thereof, and re

quested to take it away. Held, this was not a contract of sale, but an agreement by one to construct an article for another, and therefore valid, though not in writing. — Mixer v. Howarth, xxi. 205.

3. A., the defendant, offered B., the plaintiff, a certain sum for a steam-engine, a part to be paid when A. should take it away, which was to be in two or three weeks, the rest secured by note. B. accepted the offer, saying, "then you consider the engine to be yours as it is." A. said "yes." The boiler was set in bricks in B.'s shop, and could not be removed without taking them away, which was to be done, and was done the next week, by B. A. said he had bought the engine, and inquired the expense of getting it removed. Held, the facts showed no delivery, and, A. not having paid any part of the price, nor taken away the engine, the contract was within the Statute of Frauds, and void. Dole v. Stimpson, xxi. 384.

4. Shares in a manufacturing corporation fall under the description, "goods or merchandise," in the Statute of Frauds; and a contract for the sale of them must be proved accordingly. dale v. Harris, xx. 9.

Tis

5. So a contract for the sale of promissory notes, unless the purchaser has done some other act mentioned in the statute. Baldwin v. Williams, 3 Met. 365.

D. To answer for the debt, &c. of another.

1. Agreement between A. and B., that A. should board B.'s workmen at B.'s expense. These parties, together with C., afterwards mutually agreed, that C. should deliver and charge provisions to A., for which B. would see him paid. Held, B.'s promise was within the Statute of Frauds. Cahill v. Bigelow,

xviii. 369.

2. A., being indebted to B., agreed to pay him in labor, B. to call on him when he should be ready. Afterwards, A. agreed to work for C.; and, while with C., B. went with him to C., and asked C. if he would give him up. C. replied that he would not, and that he would pay the debt or see it paid, in consequence of which promise, A. remained with C. Held, it seems, the advantage derived by C. from retaining A. was a valid consideration for C.'s promise; but, as B. did not discharge A., C.'s promise was within the Statute of Frauds. Stone v. Symmes, xviii. 467.

3. This statute applies to, and requires some writing to prove, a promise to pay the note of a third person which is in suit and

secured by attachment, in consideration of the discontinuance of such suit. Nelson v. Boynton, 3 Met. 396.

E. Contracts not to be performed within a year.

1. Where a parol contract depends upon a contingency which may, though it actually does not, happen within a year; it is not within the Statute of Frauds. - Peters v. Westborough, xix. 364.

2. Thus, a contract to support a person for so many years; because, if he dies within one year, having been supported till his death, this will be a full performance of the contract. — Ibid.

3. Agreement, that A. might cut certain trees on the land of B. at any time within ten years. Held, as such contract might be performed within a year, it did not fall within that section of the Statute of Frauds, which forbids an action upon any agreement not to be performed within one year from the making. - Kent v. Kent, xviii. 569.

4. Action, by one surety in an administration bond against another, for contribution. The latter signed the bond at the request of the former, and upon his verbal promise of indemnity. Held, this fact was a good defence, because the promise might be performed within a year, and therefore need not be in writing. Blake v. Cole, xxii. 97.

Gift.

1. Where, at or about the time of a marriage, the father of the woman places furniture in the house, provided by the husband for the abode of himself and wife, with the consent of the husband; the law presumes a gift, and not a loan, to the daughter. — Nichols v. Edwards, xvi. 62.

2. But where, without the knowledge of the husband, the father told his daughter before marriage, that he could not give them much furniture, but would loan them enough to make them comfortable, and, two or three days after the marriage, she gave the father a receipt, acknowledging the transaction as a loan, and the husband afterwards mortgaged the furniture; held, in a suit between the father and the mortgagee, it was a question for the jury, whether there was a gift or a loan. Ibid.

3. A negotiable promissory note may be the subject of a gift inter vivos, from the party to whose order it is payable, without indorsement or other writing. Grover v. Grover, xxiv. 261.

4. Nor is such gift avoided, by the donee's handing back the note to the donor, after receiving it, and requesting him to keep it till called for, or to collect it for the donee. Ibid.

5. After the donor's death, the donee may maintain an action against the promisor, in the name of the administrator, against his consent. Ibid.

ant.

Guaranty.

1. Action on the following instrument, signed by the defend"To whom it may concern. The bearer, A. B., son of the subscriber, is about to establish a store in P., of books and stationery, and now goes on to Boston to obtain an assortment of stock for that purpose. He will commence on a limited scale, with the intention of enlarging the business next spring. He wishes to purchase school-books, &c., upon a credit of four or six months, and miscellaneous books, paper, &c., on commission. For the faithful management of the business, and punctual fulfilment of the contracts relating to it, the subscriber will hold himself responsible." Held, this was a guaranty, not an original promise; and, it seems, that it was not limited to a single purchase by the son, but was a continuing contract, embracing the general business of establishing a bookstore, and procuring further supplies, either to keep the stock good or enlarge it, if necessary. — Mussey v. Rayner, xxii. 223.

2. Held, the defendant was not liable upon the guaranty, unless notified within reasonable time that it had been accepted, and a credit given upon the strength of it. — Ibid.

3. The guaranty was signed October 4, 1831. On the 12th, the plaintiff sold books to A. B., and also at various other, subsequent times, till February 20th, 1834; but did not notify the defendant, that the guaranty was accepted, that such sales had been made, or that A. B. was in arrears to the plaintiff, or make any claim upon the guaranty, till July 1834. Held, the reasonableness of the notice depended on the time when the guaranty was originally accepted, not when the last sale was made; and, though the accounts between the plaintiff and the son remained open during most of the period, that the defendant was discharged, by reason of not being seasonably notified. — Ibid.

4. In July or August, 1834, the plaintiff's counsel called on the defendant for a settlement, by payment or giving security, but could obtain only an order, drawn by the defendant upon a third person, for certain books. Held, this order was not per se an ac

knowledgment of liability, or a waiver of the objections above mentioned. Ibid.

5. A. sends to B. the following writing :-"Please send C. goods to the amount of $100, and I will guaranty the same in four months"; immediately after the presentation of which, B. delivered goods to C. Held, this was not an original undertaking of A., but strictly a guaranty of C.'s debt; that a demand of payment from C., by letter, was a sufficient demand; and that notice of non-payment, received by the defendant, within five or six days after the four months had elapsed, was given in reasonable time. Dole v. Young, xxiv. 250.

6. After commencement of the suit against him, A. admitted that he was notified before the action was brought. Held, such admission was competent evidence. - Ibid.

7. The defendant gave to the plaintiff the following writing: "I agree to be responsible for the price of goods purchased of you, either by note or account, by A. B., at any time hereafter, to the amount of $1000." Held, a continuing guaranty to this amount, for goods at any time sold A. B., before the credit was revoked. Bent v. Hartshorn, 1 Met. 24.

8. The defendant verbally requested the plaintiff to aid his son in business, and engaged to indemnify him therefor. The plaintiff accordingly became surety upon a note of the son, and afterwards paid it. Held, the statute of frauds was no defence to an action against the defendant, upon his promise. Chapin v. Lap

ham, xx. 467.

9. Held, it was sufficient to notify the defendant that the plaintiff had signed the note on the faith of his promise, without notifying him that he had also paid it. Ibid.

10. The jury were instructed, that the defendant's promise embraced only liabilities incurred by the plaintiff in the ordinary course of business, which the son followed at that time; that this was a question for the jury, upon the whole evidence; and that the son's ceasing to board with the plaintiff, and removing to the distance of a few miles, did not per se discharge the defendant. Held, a correct instruction. Ibid.

11. The defendant guarantied a note to be "good and collectable two years." Held, he was liable at any time within the two years, after the note became due. Marsh v. Day, xviii. 321.

12. The defendant, the payee of a negotiable note, payable in four annual instalments, indorsed it to the plaintiff, stating that he would guaranty it, and over his name the plaintiff wrote thus :"I order the within note paid to A., and guaranty the payment of the same." The plaintiff also took from the defendant an assign