delivered the opinion of the court.

We can discover nothing in the record, to warrant a decree for the relief sought in the bill. The ditch, for the preservation of which, the aid of Chancery is invoked, was made by the permission of a tenant for life, then in possession, through the land of the defendant, the remainder-man, without (for any thing that appears) his sanction or authority'. The ditch, morever, was exclusively for the convenience and benefit of the complainant, and the assent of the tenant for life to the making of it, appears to have been given without consideration. It was a mere naked license to the complain-, ant, for his exclusive accommodation, voluntarily given by the tenant for life. The tenant for life, died in July, 1825, and in October of the same year, the remainder-man who had then taken possession, informed the complainant, that his land was injured by the ditch, and that ho must make him some compensation, or he would be obliged to obstuct it. There was no acquiescence therefore, by the defendant, in what had been done prejudicial to the complainant, or affording him any ground of complaint; or of a character to give him any standing in a Court of Equity. At most, it was but an acquiescence for a month or two, in the enjoyment by the complainant, of an easement over the defendants land, for the exclusive accommodation of the complainant, and to the prejudice of the defendant, and is wholly unlike the case of a remainder-man, who continues to receive the rent, and lies by, and with notice, suffers the lessee to rebuild, &c. to the improvement of the estate, and to the injury of the lessee, if evicted. The ground upon which Chancery interposes its aid, in the case of a clear part performance of a verbal agreement, is, that to withhold relief, would be to suffer a party seeking *132to shelter himself under the statute of frauds, himself to commit fraud. But what fraud was there here, in merely suffering the complainant to enjoy an easement erected for his own benefit, on the land of the defendant, and to his prejudice, and that too, without any consideration? With respect to the alleged agreement by the defendant, to secure to the complainant and his heirs, the privilege of conveying the water to his mill through the ditch, on his paying to him as a consideration therefor, such sum as should be adjudged by arbitrators appointed by them, it is admitted by the answer; but it was a verbal agreement, and the statute of frauds is insisted upon, and nothing has been done to entitle the complainant to a decree for a.specific performance.

The ditch was not made in pursuance, or upon the faith of that agreement, but was dug long before, by the permission of the, tenant for life, without the sanction of the defendant, who had not then come into the possession of the land. It was not an improvement by which the value of the land was advanced, but directly the reverse, and the defendant has derived no benefit or advantage from it. The complainant has paid no money upon the agreement, nor been put to any costs or expense in consequence of, or upon the faith of it. There has been no part performance? nor any act done by him in part execution of it, from which he could suffer an injury, by the refusal of the defendant to execute it on his part. All he did, the making op the ditch, was done before the agreement, and not resulting from it. It was in reference to what had been already done, that the agreement was entered into, and what he had to do, to entitle himself to the beneficial enjoyment of it, was the payment of the sum determined on by the umpire as a sufficient consideration, which he might have declined doing, if he had seen fit; and the refusal by the defendant to accept it and fulfil his engagement, gives him no ground to stand upon, in the face of the statute of frauds.

*133It is the mere case of a verbal agreement within the statute of frauds in relation to an interest in land, which the defendant refuses to fulfil, relying upon the statute ; without any part performance by the complainant or other act done, for Ms claim to the interposition of Chancery to lean upon. The leaving of it to others to say, what would be a sufficient consideration for the privilege of continuing to convey the water by means of the ditch, through the defendant’s land, does not distinguish it from any other verbal agreement; and the circumstance alone, that the umpire determinded on a sum, that he supposed would be a sufficient consideration, cannot have the effect to take it out of the statute; and notwithstanding the defendant in his answer, admits the agreement, yet as he insists on the statute, he is entitled to the benefit of it.

DECREE AFFIRMED.