parties deemed the agreement a concluded one. The acceptance of the contract on the part of the other party is perhaps implied by the use of the term " agree" in the memorandum by the defendant; for, in order to made an agreement, the assent of two parties is necessary. But we do not deem it necessary that the assent of both parties should appear on the face of the instrument, any further than that the writing should import a contract between the parties, and be signed by the party to be charged therewith. It is in proof that the complainant agreed to take the land at the price named in the agreement. This, we think, upon well-settled principles, may be proved aliunde the instrument. The contract was therefore mutual.

The respondent objects that there was no consideration expressed in the instrument moving from the complainant to the defendant. A promise without a consideration, or a nude pact, is void. We do not understand the promise to be of that character. The defendant agrees with the plaintiff to sell the land in question for the sum of fifteen thousand dollars, the said sum to be paid on the twenty-fifth of March, when possession is to be given. True, no consideration had passed from the plaintiff to the defendant; neither had the land, which was the subject of the agreement, passed. The consideration for the agreement to sell the land for fifteen thousand dollars was the agreement of the other party to buy it for fifteen thousand. dollars, and the agreement was thus mutual. The plaintiff cannot have the enforcement of the contract without the payment of the sum which was the consideration moving the defendant to make the agreement.

It is no objection that the defendant had not the power to enforce the contract at the time it was made. If he had chosen to have that power, he might have obtained it, or refused to give such power to the plaintiff. The statute of frauds requires that to give a party power to bring an action upon a contract for the sale of land he must have the contract, or some note or memorandum of it, in writing, and signed by the party to be charged. If the defendant had chosen to have his remedy or his right to enforce the contract by action, he should have obtained this requisite wherewith to charge the complainant, as he gave it to the plaintiff, whereby he made himself chargeable.

It is now well settled by authority that mutuality of remedy, existing at the time of action brought, is all that is required to enable a plaintiff to maintain his action; and that where there is a bill for specific performance in a court of equity, the bring

ing of the bill makes the complainant chargeable as on a memorandum of the contract signed by him. This renders the remedy mutual between the parties at the time when the action is commenced. The cases in which this doctrine is decided and settled are numerous: See Flight v. Bolland, 4 Russ. 298; S. C., 3 Cond. Ch. 677; Batten on Specific Performance, 62; Salisbury v. Hatcher, 2 You. & Coll. Ch. 64; Telfair v. Telfair, 2 Desau. Ch. 271; 1 Sugd. Vend. 241, 242, 246; 2 Story's Eq. Jur., sec. 736.

The allegations in the answer, of haste and confusion and surprise, are not sustained by the proof in the cause in any manner sufficient to render void the contract. The statements in the answer, setting up a condition of the contract contingent upon the approval of the defendant's wife, not being responsive to the bill, must be proved to have effect. We do not find in the cause any legal evidence to prove that there existed any such condition in the contract between the parties. Such a condition, if it existed, would alter or vary the terms of the written contract, and must, at least, be proved by evidence independent of the answer and declarations of the respondent before it can avail to prevent a decree for the specific performance of a contract in writing: See 2 Daniell's Ch. Pr. 984, note; Rogers v. Saunders, 16 Me. 96 [33 Am. Dec. 635]; Jones v. Belt, 2 Gill, 120.

It is no bar to the remedy which the complainant here seeks that the memorandum in writing does not contain a specific agreement to pay the future annuities, which it appears are a charge upon the land. That was a part of the contract to be performed by the other party, not by the party signing the memorandum in a manner to be charged therewith. It is not necessary that the whole agreement should be in writing, but the substance of it; "a note or memorandum of the contract," not a detail of all its particulars, is what is required: See Laythorp v. Bryant, 2 Bing. N. C. 735, 29 Eng. Com. L. 472; Atwood v. Cobb, 16 Pick. 230 [26 Am. Dec. 657].

The complainant, in his bill, admits his agreement to pay the future annuities, and alleges his readiness to do so. If this was a parol condition of the contract to be performed on his part, and he consents to it, the fact that it was not embodied and detailed in the written memorandum is no reason why he should not have a decree against the respondent, he being ready to perform all the conditions of the contract which are incumbent on him: See Martin v. Pycroft, 15 Eng. L. & Eq. 378; London & Birmingham R. R. Co. v. Winter, 1 Cr. & Ph. 57.

We think, therefore, that there is sufficient proof in the cause

to establish the contract set out in the complainant's bill, and must decree that the contract be specifically performed.

Decree: The decree, in substance, ordered Hazard to convey his title to the premises to the complainant, upon receiving the amount of purchase money stipulated, deducting therefrom the value of his wife's right of dower in the premises, if she should refuse to release the same, such value to be ascertained by the master who settled the conveyance.

MEMORANDUM UNDER STATUTE OF FRAUDS, sufficiency of, in general: See Pipkin v. James, 34 Am. Dec. 652; Ide v. Stanton, 40 Id. 698; Craig v. Godfrey, 54 Id. 299; James v. Patten, 55 Id. 376; Parvill v. McKinley, 58 Id. 212; McConnell v. Brillhart, 55 Id. 661, and cases cited in the notes thereto. See particularly, as to the sufficiency of a memorandum signed by only one of the parties, James v. Patten, supra, and note.

MUTUALITY OF REMEDY IN SPECIFIC PERFORMANCE: See Rogers v. Saun ders, 33 Am. Dec. 635; DeCordova v. Smith, 58 Id. 136; Bodine v. Glading, 59 Id. 749. See also the note to Kerr v. Day, 53 Id. 532.

AVERMENTS IN ANSWER NOT RESPONSIVE TO BILL are not evidence, but must be proved: Sanborn v. Kittredge, 50 Am. Dec. 58; Buck v. Swazey, 56 Id. 681, and notes.

FOSTER V. BROWNING,

[4 RHODE ISLAND, 47.]

REVOCABILITY OF MERE LICENSE TO ENTER UPON AND USE LAND of the licensor, whether it be given by deed or by parol, is a well-settled doctrine of the common law.

PERPETUAL RIGHT OF WAY IS SUBJECT OF GRant, and not of License, and can be conveyed at law only by deed or prescription.

LACENSE PURPORTING TO GIVE PERPETUAL RIGHT OF WAY IS REVOCABLE at law, although money may have been expended upon the faith of it by the licensee in building the way; but it seems that in equity the licensee may have relief upon the grounds of estoppel and part performance of a parol contract.

NEW TRIAL REOPENS ALL ISSUES IN CAUSE when asked and granted in general terms, although some of the issues were found in favor of the party asking for the new trial, and the court will not ordinarily restrict the new trial to the issues found against such party, without the consent of the adverse party.

TRESPASS quare clausum fregit. Pleas: 1. The general issue; 2. A prescriptive right of way over the locus in quo appartenant to the adjoining farm of Abiel T. Browning, of whom one of the defendants was tenant, the other defendant being the tenant's servant; 3. A license from one Elisha Watson, former owner of the plaintiff's close, to Abiel T. Browning, his heirs

and assigns, and his tenants, servants, etc., to pass and repass at any and all times over the locus, upon faith of which the said Browning had expended a considerable sum in opening and building a passway. The general issue was afterwards waived. The jury found against the defendants on the second issue, and in their favor on the third. The plaintiff moved for a new trial for error in an instruction stated in the opinion. On the argument, the plaintiff asked that the new trial, if granted, should be restricted to the plea of license.

E. R. Potter and Dixon, for the plaintiff.

Updike and A. C. Greene, for the defendants.

By Court, AMES, C. J. This is a motion for a new trial on the ground of misdirection of the jury by the judge trying the cause, in matter of law. It appears that he, in substance, charged the jury that if they were satisfied that Elisha Watson, the former owner of the locus, or so-claimed servient estate, had licensed by parol Abiel T. Browning, his heirs and assigns, as owners or occupiers of the farm appurtenant to which the right of way was claimed, or so-claimed dominant estate, forever to use the way, and Browning had expended moneys in opening and building the way on the faith of the license, the license thereby became irrevocable at law by Watson or by the plaintiff, as his successor in title to the locus, at least unless the moneys so expended had been first paid back or tendered to Browning; and that notwithstanding any proof that there might be of revocation of the license, unaccompanied by such payment or tender, it afforded a full defense to one of the defendants as the tenant, and to the other as the servant of the tenant, of Browning, against the trespasses complained of in using the way licensed, and in casting down walls built by the plaintiff in obstruction of the same.

We are all of opinion that the learned judge erred in this direction to the jury, and that consequently a new trial of the cause must be awarded. The revocability of a mere license to enter upon and use the lands of the licensor, whether the license be by deed or by parol, is an ancient and well-settled doctrine of the common law. A license of this sort, as such, is revocable in its very nature, without regard to the solemnities with which it is executed. If, however, the right intended to be granted was a fixed, and especially if a perpetual, easement in lands of another, as a right of way, or the like, to one and his heirs, or to one, his heirs and assigns, as owners of a certain

estate, it never was the subject of a license, properly so called, but of a grant, and could be proved or maintained at the common law only by the production of the sealed instrument entitled a grant, or by prescription or long use which supposes such an instrument.

But even if this were questionable at the common law, it is settled here by the statute of this state, Dig. 1844, p. 257, entitled "An act regulating conveyances of real estate," which provides by its first section "that no estate of inheritance or freehold, or for a term exceeding one year, in lands or tenements, shall be conveyed from one to another by deed, unless the same be in writing, signed, sealed, and delivered by the party making the same;" and which further provides, in substance, by the second section, that such conveyances shall be void, except between the parties and their heirs, unless also acknowledged and recorded.

The word "tenements," in the first section of this statute, by its own force, includes everything which may be holden, and so, things incorporate, though they do not lie in tenure: Co. Lit. 6 a; 3 Kent's Com., 4th ed., 401. That this word is thus inclusive, in the sense in which it is used in the statute, is evident from the second section, which, in reference to the same subject-matter, adds the word "hereditaments," the words of that section being "lands, tenements, or hereditaments." The last word, says Coke, "is the largest word of all in that kind; for whatever may be inherited is an hereditament, be it corporeall or incorporeall, reall or personall, or mixt:" Co. Lit. 6 a.

We know not upon what pretense a court of law can hold, against such a statute, a parol conveyance of a perpetual easement in land good because a consideration therefor has passed from the grantee to the grantor; or, to use the language of the common law improperly in application to such a conveyance, that a license of this sort is irrevocable when executed by expenditures made upon the faith that the license will not be revoked, even though it be added, unless such expenditures be first repaid or tendered. Decisions to that effect may undoubtedly be found; but we may say of them, as was said by Mr. Sugden, referring to the statute of frauds, of one of them, Wood v. Lake, Sayer, 3, "that they are in the very teeth of the statute: ' 1 Sugd. Vend., 7th Am. ed., 97.

The more recent English cases of Wood v. Leadbitter, 13 Mee. & W. 838, in the court of exchequer 1845; of Taplin v. Florence, 3