I'JIOOF OF 8Uun EXECUTED CONTRACT. C>:} 



to move to euter a nonsuit, or a vci'dict fur liim, if tlic Court should 

 l)C of opinion that there was not suffieicnt evidence to sustain the 

 verdict upon the special count or the account stated. The Court 

 entered the verdict for the defendant on the first count, Ijut ordered it 

 to stand for the plaintiff on the second. 



Tindal C.J. said : " It was not contended that a contract under 

 which the plaintiflF, in consideration of a sum of money, gave up the 

 tenancy in the land, and procured the defendant to be put in her place, 

 was not a ' sale of an interest in the land ' within the meaning of the 

 Statute of Frauds ; but the argument before us was, that although if 

 this contract had been executory, it must have been proved by an 

 agreement or memorandum in writing : yet, as it was executed, as tlie 

 plaintiff had surrendered her tenancy and had procured the defendant 

 to be made tenant instead of herself, the case was not to be held 

 within the statute : and the case of Price v. Leylmrn, before Dcdias 

 C.J., was relied on as an authority to that effect. But as the special 

 count in this action is framed upon the very contract itself, to enforce 

 the payment by the defendant of the sum stipulated to be paid as the 

 2)rice of the interest in the land which the plaintiff gave up, and to 

 which the defendant succeeded, we think the contract itself cannot ])e 

 considered as altogether executed, so long as the defendant's part still 

 remains to be performed. The case appears to us to fall within the 

 principle adverted to by Le Btcvnc J. in Griffith v. Yowig ; and farther, 

 Ave think the case of Buttemere v. Hayes is an authority in point, that 

 the present contract, though executed on the part of the plaintiff, yet 

 not being executed on the part of the defendant also, is still to be con- 

 sidered as a contract within the Statute of Frauds. The plaintiff, 

 therefore, failing upon the special contract, the remaining question is 

 whether she is in a condition to recover the £100 under the count upon 

 an account stated. There was distinct evidence in this case that after 

 the plaintiff had given up the possession, and after the defendant had 

 succeeded to it through the plaintiff's application to the landloi'd, the 

 defendant admitted that he owed the £100 to the plaintiff, and this 

 appears to us to be sufl&cient evidence to enable the plaintiff to recover 

 on the account stated." 



" The objection was that the admission of a debt will only enable a 

 plaintiff to recover as upon an account stated, where the debt itself 

 does not appear to be incapable of being recovered as a debt ; and that 

 here the plaintiff could not recover upon the original contract, inas- 

 much as it was not evidenced by a writing signed, but in the first place 

 such an exception is contrary to the authority of several decided cases. 

 In Knoivles v. llichel the ground of the original debt was a sale to the 



