Drace v. Wyat

8 Ky. 336, 1 A.K. Marsh. 336, 1818 Ky. LEXIS 131

• Court: Court of Appeals of Kentucky
• Decided: October 14, 1818
• Status: Published

Opinion

Judge Oivslev

delivered the opinion of the court.

This case turns upon the decision of the court below, in overruling the motion of Drace, made in arrest of judgment.

. ,. , , , . , , , , 1 he motion was preaicated upon the idea of the decla-tioo being defective, in not alledging the promise upon w'n¡ch ⅛6 is brought, to have been in writing.

As the promise purports to relate to the sale of an interest in land, there is no doubt, according to the statute against frauds and perjuries, that Wyat, to authorise a recovery, should have proven the promise, or some memorandum or note thereof, to have been in writing.

Talbot for appellant.

But, although that description of evidence should have been introduced, yet, according to the settled construction of the statute, it is not necessary that the declaration should contain an averment of the promise having been reduced to writing.

Without such an averment the declaration is good at common law, and the statute has never been construed to alter the manner of declaring, but is held barely to change the character of the evidence necessary to support the action.

Judgment must be affirmed with cost.