Agree. ments upon con "Any agreement made upon consideration of marriage." A promise to marry is not within these words, the consideration sideration being not marriage, but the other party's reciprocal promise to marry. For further remarks on the effect of this clause see chapter XII., on Agreements of Imperfect Obligation, infra. of mar. riage. Interests in land. Leases. In the old books we frequently meet with another sort of difficulty touching agreements of this kind; it was much doubted whether matrimony were not so purely spiritual a matter that all agreements concerning it must be dealt with only by the ecclesiastical courts: the type of these disputed contracts is a promise by A. to B. to pay B. 107. if he will marry A's daughter. But this by the way (a). d. "Any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them." This clause is usually and conveniently considered as belonging to the topic of Vendors and Purchasers of real estate; and the reader is referred to the well-known works which treat of that subject (b). Questions have arisen, however, whether sales of growing crops and the like were sales of an interest in lands within the 4th section or of goods within the 17th; and these cases are accordingly discussed by Mr. Justice Blackburn and Mr. Benjamin in their expositions of the 17th section (c). By the 1st and 2nd sections of the statute leases for more than three years, or reserving a rent less than two-thirds of the improved value, must be in writing and signed by the parties or their agents authorized in writing, and now by 8 and 9 Vict. c. 106, s. 3, they must be made by deed. But an informal lease, though void as a lease, may be good as an agreement for a lease (d). (a) Such promise may be sued on in the King's Court if by deed, 22 Ass. 101, pl. 70; otherwise if he had promised 101. with his daughter in marriage, then it should be in the Court Christian; Trin. 45 Ed. 3. 24, pl. 30; action good without specialty where the marriage had taken place, Mich. 37 H. 6. 8, pl. 18; contra (not without dissent) Trin. 17 Ed. 4. 4, pl. 4. (b) As to an agreement collateral to a demise of land not being within the statute, see the late cases of Morgan v. Griffith, L. R. 6 Ex. 70, Erskine v. Adeane, 8 Ch. 756, Angell v. Duke, L. R. 10 Q. B. 174. As to the distinction between a demise and a mere licence or agreement for the use of land without any change of possession, Wells v. Kingstonupon-Hull, L. R. 10 C. P. 402. (c) Blackburn on the Contract of Sale, 9-21, Benjamin on Sale, 91-105. And see Leake, 131-5. (d) Dart, V. & P. 1, 184, E. "Any agreement that is not to be performed within the Agreespace of one year from the making thereof." ments not to be per within a year. "Is not to be," not "is not" or "may not be." This means formed an agreement that on the face of it cannot be performed within a year. An agreement capable of being performed within a year, and not showing any intention to put off the performance till after a year, is not within this clause (a). Nor is an agreement within it which is completely performed by one party within a year (b). randum." The seventeenth section of the statute (sixteenth in the Revised As to s. 17. Statutes, but it will probably keep its accustomed name) (c) is extended by Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 7, and as so extended includes all executory sales of goods of the value of 101. and upwards, whether the goods be in existence or not at the time of the contract. Its effect is thoroughly discussed and explained by Mr. Justice Blackburn (on the Contract of Sale, 5-119) and in Mr. Benjamin's later work (Book 1, Part 2, 72-226) (d). We will here only refer very briefly to the question of what is a sufficient memorandum of a contract within the Statute. Mr. Benjamin exhibits (pp. 161, 167, sqq.) the The "note curious difference in the judicial interpretation of the "agreement" or memoof which a memorandum or note is required by s. 4, and the "bargain" of which a note or memorandum is required by s. 17. The "agreement" of s. 4 includes the consideration of the contract, so that a writing which omits to mention the consideration does not satisfy the words of that section: but the "bargain' of s. 17 does not. So far as regards guaranties, however, this construction of s. 4 having been found inconvenient is excluded by the Mercantile Law Amendment Act 1856, 19 & 20 Vict. c. 97, s. 3, which makes it no longer necessary that the consideration for a "special promise to answer for the debt default or miscarriage of another person" should appear in writing or by necessary inference from a written document. (e). (a) Smith v. Neale, 2 C. B. N.S. 67, 26 L. J. C. P. 143. (b) Cherry v. Heming, 4 Ex. 631, 19 L. J. Ex. 63. See notes to Peter v. Compton, 1 Sm. L. C. 296. (c) The difference arises from the preamble and the enacting part of s. 13 being separately numbered as (d) For a shorter account see (e) See notes to Birkmyr v. Darnell, 1 Sm. L. C. 275, Wain v. Warlters, 2 Sm. L. C. 230. The note or memorandum under the 4th as well as the 17th section must show what is the contract and who are the contracting parties («), but it need be signed only by the party to be charged, whether under the 4th or the 17th section: it is no answer to an action on a contract evidenced by the defendant's signature to say that the plaintiff has not signed and therefore could not be sued, and if a written and duly signed proposal is accepted by word of mouth the contract itself is completed by such acceptance and the writing is a sufficient memorandum of it (b). It has also been decided that an acknowledgment of a signature previously made by way of proposal, the document having been altered in the meantime and the party having assented to the alterations, is equivalent to an actual signature of the document as finally settled and as the record of the concluded contract. The signature contemplated by the statute is not the mere act of writing, but the writing coupled with the party's assent to it as a signature to the contract: and the effect of the parol evidence in such a case is not to alter an agreement made between the parties but to show what the condition of the document was when it became an agreement between them (c). Nor need the particulars required to make a complete memorandum be all contained in one document: the signed document may incorporate others by reference, but the reference must appear from the writing itself and not have to be made out by oral evidence: for in that case there would be no record of a contract in writing, but only disjointed parts of a record pieced out with unwritten evidence (d). One who is the agent of one party only in the transaction may be also the agent of the other party for the purpose of signature (e). There is considerable within the authority (though short of an actual decision) for holding that the Statute of Frauds does not apply to deeds. Signature is unnecessary for the validity of a deed at common law, and it is not likely that the legislature meant to require signature where the Semble, deeds not Statute. (a) Williams v. Byrnes, 1 Moo. P. C. C. 154, Newell v. Radford, L. R. 3 C. P. 52; and as to sufficiency of description otherwise than by name, Sale v. Lambert, 18 Eq. 1, Potter v. Duffield, ib. 4, Commins v. Scott, 20 Eq. 11. (b) Smith v, Neale, 2 C. B. N. S. 67, 26 L. J. C. P. 143, Reuss v. Picksley, in Ex. Ch. L. R. 1 Ex. 342. (c) Stewart v. Eddowes, L. R. 9 C. P. 311. (d) The last case on this subject is Peirce v. Corf, L. R. 9 Q. B. 210. Cp. Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140 (e) As to this, Murphy v. Boese, L. R. 10 Ex. 126, higher and more formal solemnity of sealing (as it is in a legal point of view) is already present (a). But as in practice deeds are always signed as well as sealed, and distinctive seals are hardly ever used except by corporations, the absence of a signature would nowadays add considerably to the difficulty of supporting a deed impeached on any other ground. Sale Acts. The law as to the sale and disposition of personal chattels is Bills of affected, in addition to the Statute of Frauds, by the Bills of Sale Acts, 1854 and 1866, 17 & 18 Vict. c. 36, 29 & 30 Vict. c. 96, and though we do not propose to enter on that subject, references to late decisions on the principal Act may perhaps be found useful. As to the validity of a series of renewed bills of sale, of which only the last is registered: Burr v. Smale, L. R. 8 C. P. 64, Ramsden v. Lupton (Ex. Ch.) L. R. 9 Q. B. 17. Cp. however Ex parte Cohen, 7 Ch.20. As to the description of residence and occupation required by s. 1, Brodrick v. Scalé, L. R. 6 C. P. 98, Jones v. Harris, L. R. 7 Q. B 157, Grant v. Shaw, ib. 700, Larchin v. N. W. Deposit Bank, L. R 8. Ex. 80, 10 Ex. 64, in Ex. Ch. What is a defeasance or condition within s. 2: Ex parte Collins, 10 Ch. 367. As to equitable assurances being within the Act, so that an agreement to execute a bill of sale cannot be relied on as an equitable assurance unless registered, Ex parte Mackay, 8 Ch. 643, Ex parte Conning, 16 Eq. 414. As to the interpretation clause, s. 7: "Fixtures:" Hawtry v. Butlin, L. R. 8 Q. B. 290, Ex parte Daglish, 8 Ch. 1072, Ex parte Barclay, 9 Ch. 566. What acts sufficient to take goods out of the possession or "apparent possession" of the grantor: Emanuel v. Bridger, L. R. 9 Q. B. 286. "Formal possession:" Ex parte Jay, 9 Ch. 697. Transfers of British ships are required by the Merchant Ship- Transfers of ships and ping Act 1854 (s. 55 sqq.) to be in the form thereby prescribed. copyright. Assignments of copyright are directly or indirectly required by the various statutes on that subject to be in writing, and in the case of sculpture by deed attested by two witnesses (54 Geo. (a) Cherry v. Heming, 4 Ex. 631, 19 L. J. Ex. 631. Blackstone (2. 306, and see note in Stephen's Comm., 1. 510, 6th ed.) assumed signature to Sale of horses in market overt. Marine Transfer of 3, c. 56, s. 4). But we are not aware of anything that makes it necessary for an executory agreement for an assignment of copyright to be in writing. And informal executory agreements for the sale or mortgage of ships seem now to be valid as between the parties, though under earlier Acts it was otherwise (a). There is "An Act to avoid Horse-stealing" of 31 Eliz. c. 12, which prescribes sundry forms and conditions to be observed on sales of horses at fairs and markets: and "every sale gift exchange or other putting away of any horse mare gelding colt or filly, in fair or market not used in all points according to the true meaning aforesaid shall be void." The earlier Act on the same subject, 2 & 3 Phil. & Mary, c. 7, only deprives the buyer of the benefit of the peculiar rule of the common law touching sales in market overt. These statutes are believed to be in practice inoperative. B. Marine Insurances. By 30 Vict. c. 23, s. 7, marine insurances must (with the exception of insurances against owners' liability for certain accidents) be expressed in a policy. But the words are not so strict as those of the repealed statutes on the same subject, and the preliminary "slip," which in practice though not in law is treated as the real contract, has for many purposes been recognized by recent decisions. These will be spoken of in another place under the head of Agreements of Imperfect Obligation (chap. XII). C. Transfer of Shares. There is no general principle or provision applicable to the transfer of shares in all companies. But the general or special Acts of Parliament governing classes of companies or particular companies always or almost always prescribe forms of transfer. In cost-book mining companies it seems no particular form is needed, and an executory contract for the sale of shares need not as a rule be in writing. It would be useless to enter here into details the reader will find full information in Mr. Justice Lindley's treatise, 1. 723 sqq. Assuming joint stock partnerships with transferable shares to Act of 1862, 25 and 26 Vict., c. 63. s. 3. (a) Maude and Pollock on Merchant Shipping, 3rd ed., pp. 23, note, 33-35. And see the Amendment |