Сн. 10 Mass R. 308, Allen v. Smith. Dexter, Odiorne, and Hamilton assigned their interest in the premises to the plts., and Dexter made certain covenants with the plts. for their benefit; and by this indenture the plts. covenanted with Odiorne to pay him $12,500 in one year, and $12,500 in two years with interest, in trust for said creditors. Plts. then alleged, September 4, 1809, in consideration that they by their deed poll of that date, assigned to the defts. said indenture of June 23, 1809, annexed to the deed, and all the furniture &c., and the residue of the term, and all rights secured to them by this indenture; the defts. promised the plts. to pay Odiorne said two sums of $12,500 each, and interest in the manner above mentioned, and to do all the plts. were bound to do by force of said indenture &c. The defts. took possession. Judgment for the plts. for $15,109. The court held, first, if A grant lands to В by deed poll, reserving certain duties to be performed by B, for A's benefit, A may have assumpsit against A, on his non-performance, as B entered under the deed, and no action lies against him on it: Second, the court said it was objected this was an agreement concerning an interest in lands, and that no memorandum being signed by the party, the case is within the statute of frauds; but, said the court, "when the law raises the promise, it is not within the statute," and "the same answer may be made to the objection, that it was a promise to pay the debt of another, and not in writing." § 16. Debtor remains in possession, &c. to some purposes. This was an action for the deft's. taking 40,000 of the plt's. bricks. February 1812, the plt. was hired by Samuel Mixer of Ward, to make bricks in his yard there, to be paid for his labour, and that of another workman the plt. provided, at $1.50 every thousand he made and burnt the season; Mixer to board them, to find tools, teams, &c. The plt. received a lease of the brick-yard of Mixer, and the plt. and his man worked there till October 1812, and in that time made and burnt two kilns; one, 72,000, Mixer sold and removed; second, estimated at 108,000, remained entire in the yard. October 6, 1812, the plt. and Mixer adjusted accounts and found due to the plt. $283. Mixer saying he was not able to pay in money, the plt., in some fear of losing his debt, accepted Mixer's proposal to pay in two pair of oxen, estimated at $120, and bricks to be set off in the remaining kiln. The oxen were delivered to the plt. and taken away. The lease was given up and destroyed, and a new memorandum signed and sealed by Mixer was made, expressing he leased to the plt. or bearer, all the brick-yard in which the bricks were, until his bricks should be sold and removed. Then the parties in the presence of witnesses counted off eight or nine arches FRAUDS. of fifteen the kiln consisted of, and put marks and stakes accordingly; and Mixer declared he sold such part to the plt.; and the plt. and Mixer agreed Mixer might sell all, or any part so set off to the plt., first securing him the amount of the debt, or of any sale he made; the payment or security to be made to Fitz, the plt's. agent. Plt. delivered to Fitz the new lease; he took charge accordingly, and the plt. left Ward and returned home to Franklin. Mixer continued in the use and occupation of the yard; and October 7, bricks were delivered from the kiln, which Mixer offered to take from any part of it, but were taken from the part left to him; and he daily sold and delivered bricks from the kiln, and also from the part set off to the plt., and this without any security or payment to Fitz, or any leave obtained of him; but Fitz, as soon as he knew this, forbid Mixer selling any more from that part. From this part Mixer sold certain 5,000 for money, but ordered the money, as the teamster stated, to be paid to Fitz; but Fitz testified he received the money and paid it over to Mixer, deducting the expense of carting them. Mixer's creditors broke upon him, and the deft. attached the bricks in question, and caused seventeen or eighteen thousand to be removed; then Fitz notified the officer of the plt's. claim, and forbid him to remove them, &c. Allen, the plt. claimed them. Judgment for the plt. on a verdict for him, and the court said the jury had, in effect, found that the plt. had taken a visible. and notorious possession of the brick-yard, and continued it It was not necessary for the plt. conby himself, or agent. stantly to keep an agent in the yard to watch his property and keep possession of it. The lease was a bona fide possession"It is not always necessary that was delivered at the time. there should be an actual removal of the goods, and a change of the possession from hand to hand." Here, the bricks could not be removed without expense, aad it is not usual to remove them till sold. Mixer did not acquire any false credit, nor could his creditors be deceived, as the jury have found the plt's. possession was visible and notorious. Mixer's power to sell was merely for the plt., as to his part of the kiln. Upon this case it may be observed, first, this sale to the plt. of the eight or nine arches of bricks, was not absolute, as Mixer might have kept them, securing the plt's. debt &c.; so no absolute change of property: second, though the lease was of the brick-yard, it was not of it exclusively, for Mixer had a rightful possession, first, to sell and remove his own remaining part of the kiln in it; second, to sell and remove the part marked off to the plt., accounting to him for the sales or otherwise securing his debt; but third, the vendee of the goods of an insolvent debtor is not obliged actually to remove them, 641 CH. 32. Art. 4. CH. 32. Art. 4. 5 Johns. R. 272, Frear v. though in the nature of a pledge; but the possession may be in common between them, or apparently and legally in the debtor to some purposes, as in this case to sell and deliver even the plt's. part of the kiln, on certain conditions agreed on by them, or as the plt's. agent: and there is no evidence of fraud to avoid the sale or pledging, if the business be transacted in the usual way, and if the debtor's creditors may know the truth of the case by the common and usual inquiries: fourth, in this case there was no evidence when the plt. for his balance of $283, took the oxen and bricks, he discharged that balance, otherwise than his taking them for it, operated a discharge in law. 17. The intruder's case on land. B owned a tract of new land, and without his knowledge A entered upon it, clearHardenbugh. ed a part, built and made improvements on it. B brought ejectment against him, and recovered the land. Afterwards B agreed by parol with A to sell him the land, as wild land, or pay him for the said improvements. Held, the promise to sell the land was clearly void by the statute of frauds. 2d. The promise to pay for the improvements was not within the statute. 3d. The promise to pay for the work and improvements made, without request, was nudum pactum. 4th. There is neither a legal or moral obligation on the owner of Also 5 Johns. land, to pay for labor done on it by one who has entered without the owner's consent, or any pretence of right, and has held the land against the owner's will. R. 35. 3 Johns. R. v Smith. 264. § 18. If the plt. sell a farm to the deft., the plt. to recover 87, Comstock the consideration money in assumpsit, must aver he conveyed See 1 Saund. it at the deft's. request; the promise without this, being a part consideration. And it is a general rule, if a promise be found1 Caines' 585. ed on a past consideration, the plt. to enforce it, must allege the act done as the consideration of the deft's. promise, was done at his request, or shew he is under a moral obligation to do the act. Held, on a motion in arrest of judgment. Onland. 2 Johns. Cas. 19. A claimed a piece of land that in fact was C's. A 52, Allaine v. directed B, his servant, to enter upon it, and promised to save him harmless &c. B entered &c. Held, this was a valid promise, and an original one, so need not be in writing to take the case out of the statute of frauds. 2d. That B's act in obeying this command was lawful, and a good consideration to support this promise of indemnity. 5 Johns R. 85, Gillet admr. v. Maynard. § 20. In 1803, the plt's. intestate agreed, by parol, with the deft. to buy 100 acres of land of him, and paid part, cleared part, and made improvements, and died in 1807. The plt. tendered the residue of the purchase money, and demanded a deed. This the deft. refused, but took possession of the land. Held, 1st. The plt. in assumpsit for money had and received, was entitled to recover back the part of the purchase money paid, for the contract was rescinded. 2d. But not entitled to recover for his labor on the land, or for his improvements. In this case the contract (void by the statute of frauds) was in part performed by the plt's. intestate, but in no part after rescinded by the deft's. default, and the deft had not performed any part. Hence this rescinding comes within the principles stated, Ch. 122 &c. Cн. 32. Art. 4. Wilson v. § 21. Fraud, as before stated, will vitiate every contract, 6 Johns. R. and when void on account of it, the party may waive the fraud 110, 111, and bring assumpsit. As on a sale of goods the vendor took Force. a third person's note, payable at a future day, and at his own. risk, but there was a fraudulent representation made by the vendee as to the note. Held, the contract as to it, was void, and the vendor might sue immediately for the goods James v. sold. The contract as to the particular mode of payment be- Morgan, ing void by the fraud of the vendee, he immediately became 1 Lev. 111. liable for the goods he purchased, on assumpsit, in law. dle. See a. borne v.Moss. 5 Johns. 258, and 8 Johns. R.446, Beals v. 309.-Cowp. Johns. Cas. 156.-1 Ld. Raym. 286. 22. Fraud consists in intention, or in an intention to de- 5 Cranch351, ceive and defraud. This intention is a fact that must be aver- Moss v. Ridred in a plea of fraud, and proved. And though a fraudulent 1, s. 34. conveyance of goods by A is void as to his creditors, it is val- 7 Johns. R. id as to him, and his executor &c.; the same if A confess 161, 164, Osjudgment fraudulently, to defeat his creditors, and on execution B fraudulently buys A's goods, with the same intent to defeat A's creditors, and if he be dead, C, a creditor of A, may take administration on his estate, and the same goods will Guernsey; be liable for A's debts. As Bis party to the fraud, he has but 1 Cranch not the protection of a fair purchaser, at the officer's sales. 432.But C, as administrator of A, cannot impeach the judgment 1 confessed by him, but may sue B as executor de son tort. But the non-delivery of the goods to the vendee at the time of the 5 Johns. R. sale, is but prima facie evidence of fraud, and may be explained by circumstances. So are the late English authorities. And it is not evidence of fraud if the insolvent remain in possession after assignment of all his property &c., if at the request of the assignees, and for their benefit; and see Barrow v. Paxton, above. And if a debtor assign property to pay certain creditors, and there is a resulting trust to him, this is not conclusive evidence of fraud, but fraud or not, depends on the intention; but as to vendors remaining in possession on a bill of sale, as a notorious badge of fraud, see Master v. Podger, and 2 W. Bl. 701, and 5 Burr. 2631. 335. v. Titus. § 23. A Blank, with hand and seal affixed, is not a memo- 2 Johns. K. randum within the statute of frauds. As where L wrote his 430, Jackson name and affixed his seal on the back of a lease, and agreed See Ch. 11, by him and T, that C should write an assignment over the a. 13. CH. 32. 2 Sel. 732, Rann & al. exrs. v. Hughes, admr.; and 7 T. R 350. - Roberts on Frauds 8, 201, Barrell v. Trassell. 4 Taun. 121; and 1 Phil. name and seal, so as absolutely to convey the lease to T. C did it accordingly, and delivered the lease to T. Held, a nullity, and no note in writing. Rob. on Frauds 113, 119. 3. ART. 5. Statute of Frauds. Further cases on it, as it respects paying another's debt, see Ch. 9, a. 20. And as to, 1. Executors and administrators. 2. As to another's debt. As to marriage. 4. As to agreements not to be performed in a year. And 5. As to contracts for £10 or more, see Ch. 11, a. 4, for sundry cases, and Mass. Act of June 20, 1788, copied from 29th of Ch. II., passed April 16, 1677. As to lands and interest out of lands, see Covenants, Ch. 11. ART. 6. As to executors and administrators. § 1. Disputes arose between the testator and intestate. Award that the latter pay the former £-, on a given day. The intestate died leaving sufficient to pay this sum. This was not paid when the testatrix died; by reason of which, as the declaration stated, the deft., as administratrix, became liable to pay the plts., as executors, this sum, and being so liable, the deft. (not saying as administratrix) promised to pay. First plea, non-assumpsit and issue, and three other pleas. Verdict on the first issue, and judgment against the deft. generally. Error brought -and held, there was not sufficient consideration to support this Pr. Ch. 16. demand, as a personal demand against the deft., as she derived no benefit from the promise; for it was a promise generally, to pay on request, what she was liable to pay as administratrix, not on any foundation, as forbearance &c., and its being in writing (as presumed after verdict,) would not aid the case, for a mere written agreement requires a consideration. And 3d, this consideration is still essential, notwithstanding the statute, and this does not charge executors and administrators further than by common law they were chargeable. Evid. 359, Wheeler v. Newton. Roberts on § 2. To be within this act, one must be executor, that is, Frauds 200, actually appointed by will, though not proved, or administrators having actually received administration, at the time of making the promise. 204. Ch. 9 & 11. Barber 202, Evid. 359. 3. This act has made no difference in pleading; hence if the promise be in writing, it need not be stated in the declarcited I Phil. ation; but the consideration must be stated, where it was necessary to state it before the statute. But whether the consideration must be stated in the writing is a question already considered; but a plea must state the promise in writing, when pleaded in bar of another action, that it may appear to be a contract on which an action will lie; for to take away the plt's. present action, another must be given him on the agreement or promise pleaded. For the plt. may declare, at common law, and prove in evidence the writing, the statute adds; but where the deft. pleads a second promise necessary to be in writing, |