delivered the opinion of the court.
This is аn action of assumpsit founded upon an allegеd agreement between the parties, in order to settle a controversy respecting the title and boundary of land, that the defendant would pay the рlaintiff a certain price per acre fop all the land included within certain specified limits. The defendant filed a demurrer to plaintiff’s declaration, which set forth the above agreement, upon the ground that such agreement is within the statute for the рrevention of frauds and requires a writing. And manifestly this is so. The -agreement was for the sale of land, and to be рaid for per acre according to the quаntity. No one can doubt that to give validity to such an аgreement under the statute of frauds there must be a writing bеtween the parties evidencing the terms of the аgreement; but is it necessary that the declaratiоn should set forth or allege the agreement to be in writing? We understand the law to be that it is not necessary. This is sо stated in the case of Forth vs. Stanton, 1 Saunders, 011, note 2: “For,” says that learned writer, “the statute has made no alterаtion in the mode of pleading, and consequently it dоes not appear upon the declaration whether there was
As in the case before us there is perhaps, in point of fact, no writing, we regret the necessity imposed upon us to reverse thе judgment of the circuit court rendered upon the dеmurrer. For us, we are satisfied that to give validity to an аgreement such as is set forth in the declaration, а writing is necessary; if, in fact, it does not exist, all further contest in this case will be fruitless. But still, for the reasons stated, we are constrained to reverse the judgment, to overrule the demurrer, and to remand the cause to be proceeded in in the cir« cuit court.