#### Gardner P. Comstock, Appellant, v. Julius Ward, Appellee.

APPEAL EROM KANKAKEE.

A verbal contract, not to be performed within a year, will not sustain an action. The statute of frauds, etc., is presumed to have been pleaded in an action before a justice of the peace.

This was an appeal from a justice, commenced November. 3rd, 1858.

Justice’s transcript shows that suit was brought on book account for $100.

Verdict in Circuit Court, $70, for plaintiff; motion for new trial overruled, and judgment upon the verdict.

The suit was brought to recover for work and labor, wood, rails, posts, hay, and damages for the breach of a contract for letting forty acres of land by defendant to plaintiff.

Alexander Ward testified, that he was brother of plaintiff, and that plaintiff and defendant stated over the contract to him in relation to defendant’s letting plaintiff said land, and that it was as follows: that defendant was to let plaintiff have the land for one year on shares, the plaintiff to do all labor, and give one-half the crops to defendant; would have house empty as soon as he could get family out that was then in the house; the year for which the land was let, was to commence running from the *249time plaintiff moved into the house, which it was expected would be about a week; contract took place about fore part of August, 1858; family in the house did not move out for several weeks after making of contract, and not until Comstock sold the land. Drawing the posts, rails, hay and wood on to the land, was all done in pursuance of the contract. Witness knows of no claims of plaintiff, except those growing out of the contract. The contract was an oral one; there were no writings connected with it.

Defendant asked the court to give the following, among other instructions, to the jury:

3. If the jury believe, from the evidence, that the full completion of the contract sued on was not to be performed within the space of one year from the making of such contract, then no action can be maintained on such contract, unless some writing was made and signed by the party to be charged therewith, upon which the action was brought. If the plaintiff has proved no demand except such as depended upon a parol contract not to be performed within a year, he cannot recover upon them, and the law is for the defendant.

The court refused to give the said instruction, and defendant excepted.

B. C. Cook, for Appellant.

W. K. McAllister, for Appellee.

Breese, J.

This action was commenced before a justice, and tried on appeal de novo, in the Circuit Court. We are satisfied the contract proved was in relation to an interest in land, and was not to be performed within one year from the time of making it, and therefore the third instruction asked by the defendant should have been given, as it does substantially declare the law of the case.

In a justice’s court, it is presumed the statute is pleaded.

The judgment is reversed.

Judgment reversed.