Mary Kent versus Stephen Kent, 18 Pick. 569

Wilde J. afterward drew up the opinion of the Court. It was insisted on the part of the plaintiff, that evidence of a paroi license, to control the effect of the partition, was inadmissible, and undoubtedly if it had been offered for that purpose it would have been; but it was offered for no such purpose, nor could it have any such effect. It was offered merely to show, that the defendant entered, and did the act complained of, with the plaintiff’s consent, and therefore was no trespasser. That a paroi license is sufficient for this, can admit of no doubt.

In the next place the plaintiff’s counsel contend, that the paroi license was revoked by the partition. This might have been so had not the license been renewed at the time of the partition. But as it was renewed in reference to the partition, and was to take effect after its completion, this implied revocation is clearly rebutted. The only remaining question is, whether the paroi agreement is void by the statute of frauds ; and we are clearly of opinion that it is not. By the first

section of the statute of 1788, c. 16, it is enacted, that no action shall be maintained on any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.

This branch ot the statute extends only to such agreements as are not to be performed within a year and expressly and specifically so slip ulated ; and not to agreements which may be performed within a year, although not performed until afterwards. 1 Com. Contr. 86; 1 Salk. 280; 3 Burr. 1278; Skin. 353. In this case the trees might have been taken away within the year, although in fact they were not. Whether the license was oí was not revocable, is a question upon which we give no opinion, as there was no proof of any revocation.

The verdict, according to the agreement of the parties, is to be altered and amended, so as to stand as a general verdict for the defendant. Judgment fox the defendant.