OWINGS VS. BALDWIN AND WHEELER. 125

ant, which they say, correctly sets forth the terms upon which
they were willing to purchase, when the title could be rendered
unexceptionable. Now, if a contract of purchase, was in fact
made, it is impossible to determine from the evidence, what the
terms were ? Did the parties agree upon the terms of the pa-
per exhibited by the plaintiff, or by the defendants ? Is there
in truth, a single witness, who undertakes to prove all the
terms of the alleged contract ? Some of them certainly do
speak of particular terms, but upon a careful examination of
the depositions, I do not find a single witness who professes
to know all the terms, and stipulations of the agreement; and,
especially, there is no witness who has undertaken to prove
the identical agreement charged in the bill. There can be no
doubt, that the plaintiff has succeeded in proving some agree-
ment; and indeed, the answer admits, that some agreement
was made. But this, Chancellor Kent says, is not sufficient;

the particular agreement charged must be proved, as must the
part performance of the same agreement, or the statute will be
a bar,

And the plaintiff, has not only, as I think, failed in proving
the agreement laid in his bill, but he has also failed in his proof
of the act of part performance.

The bill alleges, that possession was delivered by plaintiff,
and received by the defendants, according to the form and effect
of the agreement, as charged. This averment is likewise flatly
denied, and the possession which the defendants admit they
took, is referred to a totally different agreement. The burden
of proof in regard to the alleged act of part performance of the
contract, as well as of its alleged existence, is of course upon
the plaintiff, and the weight of the burden is most essentially in-
creased by the positive denials of the answer, in direct response
to the bill. Has the plaintiff been sucessful in proving such an
act of part performance of the contract, as he has stated in his
bill ? An act, in the language of Lord Hardwicke, "as could be
done with no other view, or design, than to perform the agree-
ment;" and "with a direct view to its performance?" I think not.
There is not a single witness who speaks of the terms upon
II*