ing (u). One party to a contract cannot be the agent of the other, but one agent may sign for both parties, as in the case of a broker or auctioneer.

c. 97.

acknowledg

By Lord Tenterden's Act (x) it is provided that no 9 Geo. 4, c. 14. acknowledgment by a debtor to take a case out of the Statutes of Limitations shall be binding unless in writ- 19 & 20 Vict. ing, signed by the debtor, or (by the Mercantile Law Amendment Act, 1856 (y)) by his agent; and it may be noticed here that any such acknowledgment must Nature of an either contain a promise to pay, or be of such a nature ment. that a promise to pay may be implied, so that where the defendant wrote "I know that I owe the money, but I will never pay it," this was held to be no sufficient acknowledgment (*). It seems that an unqualified admission of an account being open, or one which either party is at liberty to examine, implies a promise to pay the balance found due (a). Lord Tenterden's Act (b) also provides that no action Representashall be brought to charge any person by reason of any representation as to the character, conduct, credit, ability, trade, or dealing of any other person, that he may obtain money or goods upon credit, unless in writing, signed by the person to be charged therewith.

tions.

annuity.

An annuity is a yearly payment of a certain sum of As to an money granted to another in fee, for life, or years, and charging the person of the grantor only or his person and estate, in which latter case it is usually termed a rent-charge (c); and by the Annuity Act (d) writing is required for the grant of an annuity.

(u) Ball v. Dunsterville, 4 T. R. 313.

(x) 9 Geo. 4, c. 14, s. I.

(y) 19 & 20 Vict. c. 97, s. 13.

(2) A'Court v. Cross, 3 Bing. 328.

(a) Banner v. Berridge, L. R. 18 Ch. D. 254; 50 L. J. Ch. 630; 29

W. R. 844.

(b) 9 Geo. 4, c. 14, s. 6; see also post, pp. 238-240.

(c) Brown's Law Dict. 36.

(d) 53 Geo. 3, c. 141.

D

As to copyright.

As to ships.

Bills and other negotiable

Copyright is the sole and exclusive liberty of multiplying copies of an original work or composition (e), and by the Copyright Act (f) writing is necessary, it being assignable by an entry of the transfer in the registry in the manner prescribed by the Act.

By the Merchant Shipping Act, 1854 (g), a registered ship, or any shares therein, must be transferred by bill of sale under seal in the form given, and attested by a witness and registered.

Bills of exchange, promissory notes, and other like instruments. negotiable instruments have always been required to be in writing and signed by the custom of merchants, and they are regarded now to be so by statute (h).

(e) Brown's Law Dict. 134; see further as to copyright, post, pp. 178,

179.

(f) 5 & 6 Vict. c. 45.

(g) 17 & 18 Vict. c. 104, ss. 55 & 57; see also as to ships, post, pp. 168-173.

(h) 45 & 46 Vict. c. 61. As to such instruments generally see post, ch. v. pp. 139-167.

CHAPTER III

OF CONTRACTS AS TO LAND, AND HEREIN OF LANDLORD
AND TENANT.

sale of land

would carry

Ir was stated in the previous chapter that contracts Contracts for for the sale of lands, tenements, or hereditaments, or must always any interest in or concerning them, must be in writing, be in writing 6' under 29 Car. this being one of the contracts specified by the 4th 2, c. 3. section of the Statute of Frauds (29 Car. 2, c. 3). Any sale of land, even though by auction, must therefore be in conformity with the provisions of this section, as a general rule, though it should be mentioned that sales under an order of the Chancery Division have Chancery been held not to be within the statute (i); and as out a parol Chancery has been in the habit of decreeing specific contract, howperformance of a parol contract in three cases, viz.: cases. (1) Where set out and admitted in the pleadings and the defendant does not set up the statute as a bar; (2) Where prevented from being reduced into writing by the fraud of the defendant; and (3), After certain acts of part performance (j); now, in consequence of Effect of Judithe Judicature Act, 1873 (k), in any of such cases 1873. effect would be given to the contract in all divisions of the High Court of Justice.

ever in three

cature Act,

extends to any

But the statute does not mention merely contracts The statute for the sale of lands, but also "any interest in or con- interest in cerning them;" and it is frequently a point of some land. nicety to determine what is and what is not an interest in land within the statute. A good instance of what

(i) Attorney-General v. Day, 1 Ves. Sen. 218.

(j) Snell's Principles of Equity, 528-532.

(k) 36 & 37 Vict. c. 66, s. 25 (11).

What is an interest in land.

has been held to be, and what has been held not to be an interest in land, is found in the decisions that a contract for the sale of growing grass upon land is an interest in land within the statute (1), but a contract for the sale of growing potatoes is not (m). The rule on this point is stated in Mr. Chitty's work on Contracts (n) as follows: "With respect to emblements, or fructus industriales, a contract for the sale of them while growing, whether they have arrived at maturity or not, and whether they are to be taken off the ground by the buyer or seller, is not a contract for the sale of an interest in land; but a contract for the sale of a crop which is the natural produce of the land if it be unripe at the time of the contract, and is to be taken off the land by the buyer, is a contract for the sale of an interest in land within the statute." To determine accurately what is an interest in land within this section and what is not, is, however, frequently a most difficult matter; indeed a learned judge (o) once stated that there was no general rule laid down in any of the cases that was not contradicted by some other; and in a recent case (p) Lord Coleridge said: "I despair of laying down any general rule that can stand the test of every conceivable case." It has been held that a contract for the sale of growing timber, to be cut by the vendor or vendee, if it is to be cut immediately, or as soon as possible, does not confer any interest in land, and therefore is not within the section now under discussion, though if the price exceeds £10 it is within the 17th section (9), as being a contract for the sale of goods (r). In the case of Marshall v. Green above referred to, Lord Chief Justice Coleridge, in deciding

(1) Crosby v. Wadsworth, 6 East, 602.

(m) Evans v. Roberts, 5 B. & C. 829.

(n) Pages 282, 283.

(0) Lord Abinger, in Rodwell v. Phillips, 9 M. & K. 501.

(p) Marshall v. Green, L. R. 1 C. P. D. 38; 45 L. J. C. P. 153.

(q) As to which, see post, ch. iv. p. 82.

(r) Smith v. Surman, 9 B. & C. 561; Marshall v. Green, L. R. 1 C. P. Div. 35; 45 L. J. C. P. 153.

that timber to be taken away immediately is not an interest in land within this section, said: "Planted trees cannot in strictness be said to be produced spontaneously, yet the labour employed in their planting bears so small a proportion to their natural growth that they cannot be considered as fructus industriales, but treating them as not being fructus industriales, the proposition is that where the thing sold is to derive no benefit from the land and is to be taken away immediately, the contract is not for an interest in land. Here the contract was that the trees should be got away as soon as possible, and they were almost immediately cut down. Apart from any decision on the subject, and as a matter of common sense, it would seem obvious that a sale of twenty-two trees, to be taken away immediately, was not a sale of an interest in land, but merely of so much timber" (s). From these observations it would seem that if timber is not to be immediately taken away it will be an interest in land. The follow- Particular ing contracts may also be mentioned as having been de- the point. cided not to be an interest in land within the statute :

A contract for the sale of railway shares.

A contract by a tenant in possession by which he agreed to pay an additional sum per annum in consideration of improvements by the landlord.

An agreement for lodging and boarding in a house.

An agreement by a landlord with a quitting tenant to take the tenant's fixtures (t).

I

(8) Marshall v. Green, L. R. 1 C. P. Div. 39, 40; 45 L. J. C. P. 153. In a case of Scovell v. Boxall, 1 Y. & J. 396, it was held that a contract for the sale of growing underwood was a contract or sale of an interest in land within this section, but in that case it did not appear when it was to be cut, and probably had it been that the underwood was to have been cut immediately it would have been decided the other way. As a further instance of a contract held to relate to an interest in land, see Whitmore v. Farley, 28 W. R. 908; 43 L. T. 192.

(t) See Chitty on Contracts, 282-285. It has been held that an agree

cases upon