synonymous with common of piscary." Whatever be the nature of free fishery, whether it be, as Mr. J. Blackstone supposes, an exclusive right, or as Mr. Hargrave seems to think, only the same with common of fishery; since the case of Smith v. Kemp, before mentioned, it is too late now to contend, that an action of trespass vi et armis will not lie for an injury to it (2). But it may admit of a question, whether the declaration ought to state the fish taken to be the fish of the plaintiff. It seems, that such allegation ought to be made.

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 (x), and trespass will not lie for an injury to it. A person having a common of fishery in another's land, cannot cut (y) the grass growing on the bank. Under ancient deeds recognizing a right in the owner of an estate to have a weir across a river for taking fish (2), 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. Weirs erected in public rivers before the time of Edw. I., although an obstruction to navigation, are legalized by subsequent acts of the legislature (a). The right of the public to navigate a public river is paramount to any right of property in the crown, which never had the power to grant a weir so as to obstruct the public navigation; and if a weir, which was legally granted in such a river caused obstruction at any subsequent time, it became a nuisance (b).

(x) Salk. 637.

(y) 13 Hen. VIII. p. 15, b.

(z) Weld v. Hornby, 7 East, 195.

(a) Williams v. Wilcox, 3 Nev. & P. 606. (b) S. C.

(2) It should be remarked, however, that the declaration in Smith v. Kemp was for breaking and entering the close of the plaintiff, and fishing in the free fishery of the plaintiff in the said close. See Carthew's Rep. p. 285.

CHAPTER XXII.

FRAUDS, STATUTE OF.

Stat. 29 Car. II. 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, p. 840.
II. The fourth and seventeenth Sections, relating to Agreements,
p. 845; On the Effect of Parol Evidence of a Variation or
Waiver of a Written Agreement, p. 874.

III. The fifth and sixth Sections, relating to the Execution and Revocation of Wills, p. 877; and the Stat. 1 Vict, c. 26, for the Amendment of the Laws with respect to Wills, p. 895.

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), originated with Lord Nottingham, who probably was assisted by Sir Matthew Hale, Sir F. North, and Sir Leoline Jenkins, an eminent civilian (a). Sir M. Hale, however, died a few months before the act passed into a law (2); and this circumstance may possibly account for the inac. (a) See Ash v. Abdy, 3 Swanst. 664; ford's Life, p. 109. Gilb. Eq. R. 171, and Lord Keeper Guild

(1) Lord Nottingham, used to say of this statute, that every line of it was worth a subsidy. Lord 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."

(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

curacies which have been discovered in the composition (b). 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. The object of the present chapter will be merely to select such of the provisions of the statute of frauds as will 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 messuages, 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 authorized by writing, shall have the force and effect of leases, or estates at will only.

2nd 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 (c), by aid derived from the language and terms of the second, and the exception 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 a rent reserved thereupon. Hence, where the plaintiff (d) agreed by parol, 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, 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. II. per Raym., Bull. N. P. (b) See Doug. 244, n.

Per Ellenborough, C. J., in Crosby

v. Wadsworth, 6 East, 602.
(d) S. C.

or

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.

173; 1 Str. 651, S. C., but probably from a different note. But a parol lease for three years, to commence from a future day, is void. Baker d. Nelson v. Reynolds, B. R. E. 1785, from Mr. Balguy's note, Serjt. Hill's MSS. vol. 21, p. 167. In Inman v. Stamp, B. R. Trin. 55 Geo. III. 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 sect. 4, was confined to leases executed by possession, on which two thirds of the improved rent were reserved. This opinion of Dampier, J., was discussed in Edge v. Strafford, 1 Tyrw. 295; 1 Cr. & Jerv. 391, S. C., (recognizing Inman v. Stamp, 1 Stark. N. P. C. 12); in which it was holden, that a verbal agreement to take ready furnished lodgings "for two or three years," inasmuch as it did not exceed three years, was valid as a lease; and whatever remedy could be had upon it, in the character of a lease, might be resorted to; but being a contract for an interest in land, and consequently falling within the 4th section, which requires a note in writing, no action would be supported for not entering on or occupying the demised premises. A parol demise (e), valid under the 2nd section, may contain the same special stipulations as a regular lease, and such stipulations may be proved by parol. In an action for the breach of an agreement, whereby the defendant agreed to take of the plaintiff certain premises for fifteen years (f), 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 inconvenient to me to perform my agreement 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 the agreement for the lease was entered into, it was not reduced into writing, nor was any memorandum or note made 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 anything under the hand of the party, expressing that he had entered into the agreement will satisfy the statute, which was (e) Lord Bolton v. Tomlin, 5 A. & E. (f) Shippey v. Derrison, 5 Esp. N. P. 856. C. 190.

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, ten per cent. on the cost of new buildings if the lessor would erect them; it was holden (g), 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. So where a landlord who had demised premises by a lease for a term of years at 50l. a year, after some years were expired, agreed with the tenant to lay out 50%. in making improvements upon them, the tenant undertaking to pay the landlord an increased rent of 51. a year during the remainder of the term, to commence from the quarter preceding the completion of the work: the agreement was reduced into writing but the defendant refused to sign it. The improvements were finished in November, 1827, and the defendant, after the Christmas following, paid the increased rent for that quarter; but refused to pay it afterwards. An action of assumpsit having been brought for the arrears for two years and upwards; it was holden (h), that the landlord was entitled to recover; for this case did not fall within the statute, for though called a rent, it was not so in the strict technical meaning of the term; it was a matter of mere personal contract, and that this case was governed by the foregoing of Hoby v. Roebuck.

Any uncertain Interest in Land.]-The defendant had agreed (i), by parol, that the plaintiff 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 (3). After the plaintiff had, 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 argued and adjourned, will be found in Serjt. Hill's MSS. vol. 26, p. 287; Sugden's Law of Vendors and Purchasers, vol. 1, p. 138, 10th edition.

(g) Hoby v. Roebuck and another, 7 Taunt. 157.

(h) Donellan v. Read, 3 B. & Ad. 899. (i) Wood v. Lake, Say. Rep. 3. A short note of this case, when it was first

and see

(3) 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.