66 EIGHT TO TAKE WATER FROM A WELL. 



purchase-money, according to Cochlng v. Ward. Bat the interest in 

 land in this case has passed, and tlic pin-chase-money has been paid. 

 As far as the land is concerned the contract is completely executed, and 

 cannot now be rescinded. In the present action the whole considera- 

 tion for the promise now sued on was money, viz., £37. The whole of 

 the promise now sued on is for money, viz., £10. It therefore appears to 

 us not to be within the Statute of Frauds ; but, on the contrary, to be 

 within the class of cases where, after the contract directly concerning 

 an interest in land has been executed, the action has been held to be 

 upon a separate promise to be performed after such execution. In 

 Griffith X. Young, a tenant agreed to pay the landlady £40 out of £100 

 to be received by him from an incoming tenant ; this he was to pay to 

 her for consenting to the assignment by him of his term ; the assign- 

 ment was made, and consented to by the plaintiff, and the £100 was 

 received by the defendant ; and in an action by the landlady for £40, 

 it was held that the action lay without any writing, the contract con- 

 cerning the interest in land having been executed. The same reasoning 

 was applied in Poultcr v. KilUng'beclc, and Seaman v. Price. Also the 

 reasoning of Tindal C.J. in Souch v. StraivMdge, that the enactment in 

 section 4 of the Statute of Frauds, relating to contracts not to be per- 

 formed within a year, has no application in an action of indehdatus 

 assumpsit on an executed consideration, applies equally to the present 

 action of indebitatus assumpsd for money had and received, when the 

 defendant seeks to avail himself of the part of the same section relating 

 to land." Orompton J., on the contrary, thought that there was only 

 one indivisible contract. 



It was also held in Tgkr v. Bennett, that a right to take water from a 

 well by reason of the occupation of a dwelling-house, and for the more 

 convenient occupation thereof, is an interest in land. • Lord Denman 

 C.J. observed, "There is no doubt that a right to take water is an in- 

 terest in land." And j^er Patteson J. : " In Edmonson v. Edmonson it 

 was not doubted that if the right (to dig turves) had come in question 

 it would have been an interest in land, and within the exception." 



In Mechelm v. Wallace the declaration stated, as the consideration for 

 the defendant's promise, that the plaintiff was to become tenant to the 

 defendant, of the house and furniture together, at a certain rent, from a 

 given day, if complete furniture were sent into the house in reasonable 

 time, and it was held by the Court of Queen's Bench that the de- 

 fendant's agreement to send in furniture was an inseparable part of a 

 contract for an interest in land, and that the promise to do so, for 

 neglect of which the defendant was sued, must be in writing. But it 

 was ruled in ffallm y. Runder that an agreement by an outgoing tenant 



