Bostwick v. Leach , 3 Day 476 ( 1809 )

By the Court.

The contract was.not embraced by the statute of frauds and perjuries. When there is a sale of property, which would pass by a deed of land, as such, without any other description, if it can be separated from the freehold, and by the contract is to be separated, sue it contract is not within the statute. Such are the contracts for the purchase of gravel, stones, limbi r trees, and the hoards and brick of houses to be puiled down and carried away.

The agreement not to use his mill, after a certain day, is not within the statute of frauds and perjuries; for this statute contemplates only a transfer of lands, or some interest in them. In this case, there was %o transfer of any right, but only an agreement not to exercise a right. He parts with no interest to any person. There Is no conveyance of the stream, or indeed of any interest whatever. Thus, it differs nothing in principle from the case where a man has carried on a trade in his house, or shop, and agrees, for a valuable consideraron, not to carry On his business at that particular stand : and yet such contract has never been held to be within the statute.

New trial net to be granted.