he acknowledged in accepting the demise; the rule being that whenever the possession is acquired under any species of tenancy, whether the action be assumpsit, debt. covenant or ejectment, the tenant is estopped from denying the title of the landlord. Taylor, Land. and T., sec. 629 and 705; Jackson v. Harper, 5 Wend., 246; Sharpe v. Kelly, 5 Den., 431; Doe v. Smythe, 4 M. & S., 347.

Attempt is made to take the case out of the protection of the Statute of Frauds by the receipts given in evidence; but it is clear that they fall far short of what is required to accomplish that object. 3 Phil. Ev., 4th Am. ed., 351; Talman v. Franklin, 14 N. Y., 584; Elmore v. Kingscote, 5 B. & C., 583.

Decided cases everywhere require that the memorandum should mention the price. Nothing is contained in either receipt to fulfill that requirement, nor do the receipts contain anything of an unambiguous character to enable the court to determine what real estate is the subject of the purchase. Part of the property lying west of the tenement, the evidence shows, was never occupied by the respondent; and the second receipt, in terms, limits the purchase to the tenement which the respondent occupied and repaired. None of the terms, says Mr. Phillips, can be left to be supplied by parol; and, if not, it is clear that the receipts are not sufficient to support the theory of the defense. Bap. Ch. v. Bigelow, 16 Wend., 28; Morton v. Dean, 13 Metc., 385.

456] *Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute; and, if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent. 2 Kent, Com., 12th ed., 511; Norris v. Lain, 16 Johns., 151; Dung v. Parker, 52 N. Y., 494; Baltzen v. Nicolay, 53 N. Y., 467; Wright v. Weeks, 25 N. Y., 153; Parkhurst v. Van Cortland, 1 Johns. Ch., 273; Parkhurst v. Van Cortland, 14 Johns., 15.

Any note or memorandum in writing which furnishes evidence of a complete and practicable agreement is sufficient under the statute, an parol evidence is admissible to explain latent ambiguities, and to apply the instrument to the subject-matter. Barry v. Coombe, 1 Pet., 640; Clark v. Burnham, 2 Story, 1; Story, Sales, 4th ed., sec. 257.

Diversity of decision undoubtedly exists; but this court decided, in the case of Purcell v. Miner, 4 Wall., 513, 18 L. ed., 435, that the proof as to the terms of the contra must be clear, definite and conclusive, and L. show a contract, leaving no jus deliberandi or locus penitentiæ; that it cannot be made out by mere hearsay or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witnesses have no reason to recollect from interest in the subject matter, and which may have been imperfectly heard or inaccurately remembered, perverted or altogether fabricated; that the proof must also show that the consideration has been paid or tendered, or that there has been such part performance of the contract that its rescission would be a fraud on the other party, which could not be compensated by the recovery of

damages; or that the delivery of possession has been made in pursuance of the contract, and has been acquiesced in by the other party.

Tested by these considerations, it is clear that the attempt to prove a written contract utterly fails, and that there is no satisfactory evidence to prove any such part performance of the supposed contract as will take the case out of the operation of the statute.

Where the attempt is to take the case out of the statute *upon the ground of part per- [457 formance, the party making the attempt must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and the act of part performance must be of the identical contract which he has in that manner set up and alleged. It is not enough that the act of part performance is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer. Phillips v. Thompson, 1 Johns. Ch., 131; Browne, Frauds, sec. 452.

Specific performance in such a case will not be decreed, unless the terms of the contract are clearly proved or admitted; and a sufficient part performance is made out to show that fraud and injustice would be done if the contract was held to be inoperative; and all the authorities agree that the acts of part performance must be such as are referable to the contract as alleged, and consistent with it. Woodfall, Land. and T., 9th ed., 942; Price v. Salusbury, 32 Beav., 446; Tomkinson v. Straight, 17 C. B., 697.

Nothing is part performance for this purpose which is only ancillary or preparatory; it must be a direct act which is intended to be a substantial part performance of an obligation created by the contract as proved; and it must be an act which would not have been done but for the contract; and it must be directly in prejudice of the party doing the act, who must himself be the party calling for the completion of the contract. Jones v. Peterman, 3 Serg. & R., 543; Morphett v. Jones, 1 Swanst., 172; Ex parte Hooper, 19 Ves., 477; Frame v. Dawson, 14 Ves., 385; Buckmaster v. Harrop, 7 Ves., 341; 3 Pars. Cont., 6th ed., 60.

Where one of the two contracting parties has been induced or allowed to alter his position on the faith of such contract, to such an extent that it would be fraud on the part of the other party to set up its invalidity, courts of equity hold that the clear proof of the contract and of the acts of part performance will take the case out of the operation of the statute, if the acts of part performance were clearly such as to show that they are properly referable to the parol agreement. Chit. Cont., 10th ed., 66 and 278; 1 Story, Eq. Jur., 9th ed., sec. 761.

*Courts of equity sometimes, in cases [458 of concurrent jurisdiction. follow by analogy the Statute of Limitations which govern courts of law in like cases; but there is nothing in the facts of the case before the court to bring it within the operation of that rule.

Beyond all question, the fee simple title of the property was in the original lessor; and it is equally clear that the respondent entered into the possession of the premises as the tenant of the lessor, under an agreement to pay a stipulated rent. and the record shows that he continued to hold possession of the same until the

time of his decease, or until he rented the same to the United States; nor does the fact that he, subsequently to the entry, denied the title of his landlord, have any just influence to support the defense of limitation or laches, inasmuch as the case shows that he did so without any just cause or legal excuse. Authorities to support that proposition are quite unnecessary, as to hold otherwise would be to sanction injustice and encourage fraud.

From these suggestions it follows that the decree in the court of original jurisdiction was correct; but inasmuch as the account was not taken, the case will be remanded. Nellis v. Lathrop, 22 Wend., 121.

Decree reversed and the cause remanded, with directions to enter a decree for the complainants for further proceedings in conformity to the opinion of this court.

Dissenting, Mr. Justice Field and Mr. Justice Bradley.

560] *DANIEL EDDY et al., Appts.,

V.

PAUL DENNIS.

PAUL DENNIS, Appt.,

V.

DANIEL EDDY et al.

(See S. C., Reporter's ed., 560-570.)

Patent for shovel plows. Dennis's patent for improvement in shovel plows considered, and held not to have been infringed by defendants. His first claim is not novel.

[Nos. 28, 29.]

Argued Oct. 19, 1877. Decided Oct. 29, 1877.

Cross Appeals from the Circuit Court of the United States for the Northern District of New York.

The case is stated by the court.
Mr. E. F. Bullard, for Dennis.
Mr. Esek Cowen, for Eddy et al.

Mr. Justice Hunt delivered the opinion of the court:

On the trial of the first of these actions, Dennis, who was the plaintiff therein, recovered damages against Eddy and others for an infringement of his letters patent for an improvement in shovel plows. The original letters were issued on the 23d day of February, 1858, and the patent was re-issued on the 4th day of August, 1863. The action was commenced in December, 1866, and the damages demanded were for a violation of the reissued patent.

The claim made under the re-issued patent is in the words following:

"Having thus described my invention, I wish it distinctly understood that I do not claim broadly the idea of passing a portion of the earth over the mold-board into the furrow behind, as I am aware that this has before been done.

described in an application of J. Drummond, rejected October 25, 1844. Neither do I claim the use of projecting blades at the outer ends *of the share, as described in the patent [565 of B. Langdon, granted June 22, 1842, and others; but,

Having thus described my invention, what I claim as new and desire to secure by letters patent is, 1, the inclined shovel mold-board B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each side of the standard A a recess c, through which recesses a portion of the earth into the furrow in the rear of the plow. may, after rising upon the mold-board, descend

2. The combination with the beam A and mold-board B of the adjustable wheel F, arranged and operating substantially as and for the purposes specified."

The original patent claimed only what is here described as the second claim. The point of the re-issue is in the claim as first above set forth.

The use of the shovel plow is in cultivating the soil between the rows of growing crops, after they are somewhat advanced in their growth, to stir up and loosen the soil, and to free it from weeds. This plow is distinct in many parts of its construction, as well as in its intended effect, from the plow used in breaking up the soil; that is, from the plow in common use.

In first considering the claim contained in both the original and re-issued patents, and in the latter described as the second claim, we remark, that we concur entirely with the learned Judge, who tried this case at the circuit, in his view of it.

The adjustable wheel is the important feature of this claim. The bar or beam and the moldboard suggest nothing in the way of novelty, invention, or of peculiarity. The use of the base

not make a claim for invention in using the shovel of this plow in an inclined form. He does not even give the angle of inclination at which it shall be used, whether it shall be 75°,

That an adjustable wheel was deemed by the inventor to be quite a different thing from the simple bar or shoe in ordinary use, is manifest from the careful description of its advantages in the original patent. It is described in these words:

"F is an adjustable metallic roller, which is attached to the bar A just back of the mold566] board B. The axis of the roller F is *fitted or has its bearings in arms (ff) which project obliquely from a plate (g); said plate being slotted longitudinally, so that bolts (hh) which secure the mold-board to the bar, may pass through said slots, the bolts (h) having each a nut (i) on them, by screwing up which, the plate and consequently the roller may be secured higher or lower, as may be desired."

It is also set forth that the point or share of the plow may be made to penetrate the soil at a greater or less depth, by adjusting the roller and draught-chain; the roller serving as a gauge or guide, and the draught-chain being adjusted at the end of the beams, so that the draught may aid the roller; the point or share may be made to penetrate the soil, or otherwise.

The plows proved to have been manufactured by Eddy & Co., the defendants, have none of them this element of an adjustable wheel or roller. Their plow rests upon a plain bar or shoe of iron. It has no mechanical contrivance for fixing the angle at which the point shall penetrate the earth. This is done by the strength of the plowman, who uses the shoe as a fulcrum for that purpose.

No argument is needed to show that there has been no violation by the defendants of the Dennis patent in this particular.

In considering the effect of the remaining claim of the re-issue, we are greatly aided by the clear and explicit statement of the patentee of what he does not claim as his invention.

There are three mechanical advantages in his plow, which he says he does not claim to have invented:

1. The idea of passing the earth over the mold-board into the furrow behind. This result is really the fundamental advantage in both the plaintiff's and defendants' plows. In other words, the principal benefit to be derived from either is found in the fact that the earth, loosened and broken, will be deposited in the furrow behind the plow, the movable mold-boards and the projecting blades at the outer ends of the share both contributing to this result. But the patentee says that he is aware that this had been done before his invention, and he makes no claim to an invention or discovery in this respect. 567] *2. The patentee does not claim the application of a movable mold-board to one of the outer edges of the share. This, he says, was described in an application previously made (in 1844) by Drummond.

3. The patentee does not claim the use of projecting blades at the outer ends of the share. This had been described in a patent granted to Langdon in 1842.

since plows have been used, and there is no secular history of man in which the plow and the hoe are not recorded, we may safely believe that there has been an inclination, sometimes greater and sometimes less, in the shovel and moldboard. A perfectly upright shovel would be nearly immovable, except in a light soil and to a very slight depth, while one perfectly flat would be of little value.

Remembering these four items as not being parts of the plaintiff's invention, we are prepared to consider what he claims to have invented and desires to secure by a patent. In his own words, it is "The inclined shovel moldboard B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each side of the standard A a recess (c), through which recesses a portion of the earth may, after rising upon the mold-board, descend into the furrow in the rear of the plow."

An inclined shovel mold-board, simply and alone, is not spoken of as an invention. It had long been in use in other plows. What the claim means to appropriate is a shovel "formed and mounted and constructed as described." There is nothing in the form of mounting, that is, placing it upon the beam of the plow, that is peculiar. It is the construction that gives it effect.

How is it formed and mounted and constructed? He says, in the general description, that it is a metallic bar so formed or curved that the front will form the beam of the implement, and the back an inclined portion to which the mold is attached, while the upper edge of the moldboard is so scolloped out as to form a re- [568 cess over which the earth may pass, to which is attached a metallic adjustable roller, serving as a gauge or guide to regulate the depth that the point shall penetrate the earth.

The defendants insisted that, like the other, this claim also describes a combination, of which the adjustable roller is an essential element, and that there can be no infringement unless the roller is used. There is much force in this argument.

There is also another view of this part of the case. Eliminate from this description, first, the idea of an inclined shovel or mold-board, and, second, the idea of passing the earth over the plow into the furrow, both of which are outside of the plaintiff's invention, and nothing remains. except a recess formed by a scolloped edge on which the earth will pass, and an adjustable roller in connection with the beam of the plow. As has been before said, the defendants have never used the adjustable roller. The infringement, then, if any, consists in the use of a recess formed by a scolloped edge over which the earth will pass. The learned Judge at the circuit held that the patent was good for this claim, and that the defendants had infringed it. We have reached a different conclusion.

We think the use of the expression, "scolloped out so as to form a recess," was not intended to say that the particular form in which the recess was made should be that of a curve.

Mr. Chief Justice Waite delivered the opinion of the court:

In Terry v. Tubman, 92 U. S., 156, 23 L. ed., 537, we decided that where the charter of a bank contained a provision binding the individual property of its stockholders for the ultimate redemption of its bills in proportion to the number of shares held by them respectively, the liability of the stockholder arose when the bank refused or ceased to redeem, and was notoriously insolvent; and that when such insolvency occurred prior to June 1, 1865, an action against a stockholder not commenced by January 1, 1870, was barred by the Statute of Limitations of Georgia of March 16, 1869. That Act, as recited in its preamble, was passed on account of the confusion that had "grown out of the distracted condition of affairs during the late war," and substantially barred suits upon all actions which accrued before the close of the war, if not commenced by the first day of January, 1870.

This is a suit to enforce the liability of the stockholders of a bank, under a provision of the charter similar to that considered in Terry v. Tubman; and it is expressly averred in the bill that the bank stopped payment on the 20th of February, 1865, and never resumed. The affairs of the bank were closed up, under an assignment made May 24, 1866, and which paid only a small percentage upon its liabilities. The case is thus brought directly within our former ruling; but it is insisted that the Act of 1869 is unconstitutional, because it impairs the obligation under which the complainants claim, and, as that question was not directly passed upon in the other case, we are asked to consider it now. The argument is, that as the Statute of Limitations in force when the liability of the defendants was incurred did not bar an action until the expiration of twenty years from the time the action accrued, a statute passed subsequently, reducing the limitation, impaired the contract, and was, consequently, void.

This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the 633] *bar takes effect. Hawkins v. Barney, 5 Pet., 457; Jackson v. Lamphire, 3 Pet., 280; Sohn v. Waterson, 17 Wall., 596, 21 L. ed., 737; Christmas v. Russell, 5 Wall., 290, 18 L. ed., 475; Sturges v. Crowninshield, 4 Wheat., 122. And it is difficult to see why, if the Legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more vested interest in a particular limitation which has been fixed, than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remain. We have had occasion to consider this subject at the

In all such cases, the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the Legislature is primarily the judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed. In judging of that, we must place ourselves in the position of the legislators, and must measure the time of limitation in the midst of the circumstances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its particular facts.

Here, nine months and seventeen days were given to sue upon a cause of action which had already been running nearly four years or more. The 3d section of the statute is as follows:

"That all actions on bonds or other instruments under seal, and all suits for the enforcement of rights accruing to individuals or corporations under the statute or Acts of incorporation, or in any way by operation of law which accrued prior to the 1st June, 1865, not now barred, shall be brought by the 1st January, 1870, or the right of the party, plaintiff or claimant, and all right of action for its enforcement, shall be forever barred."

The liability to be enforced in this case is that of a stockholder, under an Act of incorporation, for the ultimate redemption *of 1634 the bills of a bank swept away by the disasters of a civil war which had involved nearly all of the people of the State in heavy pecuniary misfortunes. Already the holders of such bills had had nearly four years within which to enforce their rights. Ever since the close of the war, the bills had ceased to pass from hand to hand as money, and had become subjects of bargain and sale as merchandise. Both the original bill-holders and the stockholders had suffered from the same cause. The business interests of the entire people of the State had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influence of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon or an abandonment claimed. That, as we think, has been done here, and no more. At any rate, there has not been such an abuse of legislative power as to justify judicial interference. As was said in Jackson v. Lamphire [supra], "The time and manner of their operation (statutes of limitation). the exceptions to them, and the Acts from which the time limited shall begin to run, will generally depend upon the sound discretion of the Legislature, according to the nature of the titles, the situation of the country and the emergency which leads to their enactment."

The Supreme Court of Georgia, in George v. Gardner, 49 Ga., 441, held that the time prescribed in this Act was not so short or unreasonable under the circumstances as to make it unconstitutional; and the Circuit Court of the United States for the Southern District of