
    Babcock against Stanley.
    NEW-YORK,
    May, 1814.
    In order to maintain an action for the pnceofserwce must & delivery, or of-Whether a pal toLhoHeTthe services of a ara™ of goods,' tute of frauds! dabitatur.
    
    IN ERROR, on certiorari, from a justice's court. Stanley . . u ° brought an action against Babcock, before the justice. On the jgj. Qc¿0¿er^ 1812, he declared on an agreement, stating that B. a£reed to purchase of him the service of a certain negro woman, for four years, at ten dollars per annum, which S. agreed to accept; and that B. had refused to perform the contracti pleaded the statute of frauds. There was no evidence that the negro woman was delivered, or offered to be delivered, by S. to B., or that any earnest money was paid, or a note or memorandum in writing made of the agreement. The justice gave judgment for the plaintiff below.
   Per Curiam.

It may be questionable whether the contract for the sale of the service of the negro woman, could be considered as a sale of goods, &c. within the statute for the prevention of frauds: but it was incumbent on the plaintiff below to show a performance on his part, by an offer of the wench to the defendant, before he called upon him for the payment of the money. (2 Saund. Rep. 252. n. 3.) No such offer appears to have been made. The judgment below must, therefore, be reversed.

Judgment reversed.  