covenant it is sufficient to assign the breach in the words of the cove

nant,

Assumpsit.-If the agreement be by writing without deed or by parol, damages for the breach of it may be recovered in an action on the case upon a special assumpsit.

By the Statute of Frauds (a), no action shall be brought to charge, &c. upon any contract, or sale of lands or tenements, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement, or some memorandum or note thereof, be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized.

One contracts with the owner of a close for the purchase of a growing crop of grass there, for the purpose of being mown and made into hay by the vendee: this is a contract of sale of an interest in or concerning land, within the 4th section of the Statute of Frauds (b).

If a party has entered into a parol agreement for a lease, and a draft of it is prepared (c), though the agreement is void under the Statute of Frauds, yet an indorsement by the party, referring to the draft, admitting the agreement, is sufficient within the statute.

An action may be brought in consideration that the plaintiff will make a lease according to a former agreement (d); for the agreement is not executed till the lease is made.

So if an agreement be to assign a term of years, as well as where it is for an interest created de novo (e).

But in an action upon an agreement to deliver possession for certain considerations subject to a forfeiture on failure by either party, the person who was to deliver possession cannot sue for the forfeiture, without shewing in his declaration a possessory title in himself (f).

Action for money had and received on the common counts (g). Defendant was possessed of a lease for years, which he sold to plaintiff for sixteen guineas, and at the time of the sale observed that it was a good lease for seven years; it turned out afterwards that the lessor was tenant for life only, and had no right to make a lease for a longer term than his own life; in consequence of which the plaintiff was turned out of possession in two years after the assignment of the lease had taken place, the lessor having died previously to the bargain between the plaintiff and the defendant. The plaintiff brought this action, therefore, to recover the money paid for the

(a) 29 C. 2. c. 3.

(b) Crosby v. Wadsworth. 6 East, 602.
(6) Shippey v. Derrison. 5 Esp. 190.
(d) I Roll. 12. L. 15.

(e) Anon. I Vent. 361.

(f) Luxton v. Robinson. Doug. 620. (g) Matthews v. Hollings. Cor. Lawrence, J. at Shrewsbury. Ox. Sum, Cir. MSS.

lease, as paid on a consideration which had failed. On Leycester objecting to plaintiff recovering on this declaration, which contained only the common counts, Lawrence, J. referred to the case of Crips v. Reade, 6 T. R. 606. tried before him at Oxford, in which a lease had been sold by one as administrator, whose letters of administration were afterwards repealed, and there he permitted the plaintiff to recover on a similar declaration, and the Court of King's Bench confirmed his opinion. Verdict for the plaintiff.

But a contractor for the purchase of an estate to which the title proves (without collusion) defective, is not entitled to any satisfaction for the loss of his bargain (a): for such contracts are merely on condition frequently expressed, but always implied, that the vendor has a good title; if he has not, the return of the deposit, with interest and costs, is all that can be expected, the purchaser cannot be intitled to any damages for the fancied goodness of the bargain which he supposes he has lost.

An agreement, though not under seal, may be declared on specially, in which case it may be said to bind the parties by its own force or the plaintiff may, in some instances, declare generally, and give the written contract in evidence (b).

Where money has been paid under an agreement, which has not been performed, it may be recovered in an action for money had and received: and though the agreement be in writing, the party need not declare specially (c).

Thus A. having sold certain leasehold premises to B. assigned them by indenture containing a proviso that B. should not assign over until the whole of the purchase-money should have been paid, and B. and C. covenanted for themselves, their executors, administrators, and assigns, for the payment of the money. The premises having been taken in execution for a debt of B. who had not paid the purchase-money, were sold by the sheriff to D. who paid down the deposit, and agreed to complete the purchase on having a good title: held, that the non-payment of the purchase-money by B. was a sufficient objection to the title, and that D. might recover back his deposit in an action for money had and received (d).

A. (e) agreed with B. to let him land rent-free, on condition that A. should have a moiety of the crops; while the crop was on the ground, it was appraised for both parties; A. declared in indebitatus assumpsit for a moiety of the crop sold to B. without stating the special agreement: and it was held that he might well do so, as the special agreement was executed by the appraisement, and the action

(a) Flureau v. Thornhill. 2 Bl. R. 1087. (6) Robinson v. Drybrough. 6T.R. 317-19. (<) Farrer v. Nightingale. 2 Esp. R.639.

(d) Elliot v. Edwards, 3 Bos. & Pul. 181. (e) Poulter v. Killingbeck. 1 Bos. & Pul.

397.

arose out of something collateral to it. Semb. such an agreement need not be in writing, under the Statute of Frauds.

A. agreed in consideration of 10l. to let a house to B. which A. was to repair and execute a lease of within ten days; but B. was to have immediate possession, and in consideration of the aforesaid, was to execute a counterpart and pay the rent. B. took possession and paid the 10%. immediately; but A. neglected to execute the lease and make the repairs beyond the period of the 10 days, notwithstanding which B. still continued in possession; held that B. could not by quitting the house for the default of A. rescind the contract and recover back the 1ol., in an action for money had and received; but could only declare for a breach of the special contract (a).

A. agreed to under-let his house to B. the latter paying for the furniture at an appraisement; A. at the time that he quitted the house, was in arrear for rent to his landlord: held, therefore, that B. was excused from the performance of the agreement, for the furniture would be liable to be distrained for the rent due by A. (b).

In an action of assumpsit for non-performance of a contract for the sale of a house with counts to recover back the deposit, the plaintiff having in his first count alleged that the defendant who was to make a good title, had delivered an abstract which was insufficient, defective, and objectionable," the Court obliged the plaintiff to give a particular of all objections to the abstract arising upon matters of fact; for the party ought to specify every matter of fact which he meant to rely upon at the trial (c).

A case was sent to a jury by way of inquiry of damages by the Court of Chancery; where it appeared that the parties who applied to the Court for a specific performance of an agreement, had by their committee and surveyor, viewed, without complaint, the progress of the party in repairing premises which they at last insisted on being rebuilt (d).

A purchaser discovering an incumbrance, may retain so much for it as remains in his hands (e).

SECTION II. Of the Stamps required to Leases and Agreements, &c.

A lease must be stamped as a lease by deed, though it be not by deed; for it has been held that the statute 23 G. 3. c. 58. which imposes a stamp duty on "indentures, leases, and other deeds," ap

(a) Hunt v. Silk. 5 East, 449.

(6) Partridge v. Sowerby. 3 Bos. & Pul. 172. (c) Collett v. Thompson. Ibid. 246.

(d) Godfrey v. Watson. 3 Atk. 517.
(e) Troughton v. Troughton. I Ves. 86-88.

plies to every instrument that operates as a lease, whether it be by deed or not (a).

A deed is good though executed before it be stamped, provided that when it is offered in evidence it be stamped, and with the proper stamp appropriated to the particular instrument (b).

Whether or not the instrument were valid, by the revenue being satisfied in point of amount of duty, though the particular stamp or stamps were not used, was a point on which the Court had, at different times, held contradictory opinions, but now by stat. 50 G. 3. c. 35. s. 15., and stat. 55 G. 3. c. 184. s. 4. it is enacted that wherever an instrument has been stamped with a stamp of equal or greater value than such instrument required, but not of the proper denomination, it shall nevertheless be deemed valid and effectual in law, except where the stamp used on such instrument shall have been specially appropriated to any other instrument, by having its name on the face thereof.

Though a parol lease for three years is good, yet if a man, through caution, will reduce it into writing, he must pay for the stamp, otherwise the Court are inhibited from receiving it in evidence (c).

Where an instrument contains a written contract of demise in its general terms, with a several operation in respect to the different tenants who sign it for different estates, at the different rents set opposite their signatures, and one stamp only appears upon the paper, it is matter of evidence to which contract such stamp applies; and the circumstance of juxta-position of the stamp to the defendant's signature, which stood untouched, while the other names appeared to be cancelled, together with the date of the stamp-office receipt for the stamp and penalty which shewed that it had been affixed recently before the trial, and there being no evidence of a dispute with any other tenant, which could make the stamp necessary for another purpose, are evidence that it was intended to be applied to the contract with the defendant (d).

By the last stamp act, stat. 55 G. 3. c. 184. the following duties are imposed upon leases for lives or years :

For every lease granted in consideration of a sum of money by way of fine or premium, without any yearly rent, or with any yearly rent under 20%., the same duty as for the conveyance on the sale of lands for a sum of money of the same amount, (except leases for a life or lives not exceeding three, or for a term of years determinable with a life or lives not exceeding three, by whomsoever granted, and also leases for a term absolute not exceeding 21 years, granted by ecclesiastical corporations, aggregate or sole).

(a) Goodtitle d. Estwick v. Way. I T.R. 735. Harker v. Birckbeck. 3 Burr. 1556-63. (b) Rex v. Bishop of Chester. I Str. 624.

(6) Bull. N. P. 269.

(d) Doe d. Copley v. Day. 13 East,241.

For every lease at a yearly rent without any sum of money paid by way of fine or premium, where the yearly rent shall not amount to 20, 1/; where the same shall amount to 20%. and not to 100%., rẻ. 10s.; to 100%. and not to 200l., 2l.; to 200l. and not to 400l., 31.; to 400/., and not to 600l., 4/.; to 600l. and not to 800l., 5%; to 800l, and not to 1000l., 6.; to 1000l. and upwards, 107.

For every lease with fine or premium, and also a yearly rent amounting to 20/. and upwards; both the ad valorem duties payable for a lease in consideration of a fine only, and for a lease in consideration of a rent only of the same amount, (except the leases above excepted).

For leases not otherwise charged 11. 155.

For the counterpart of any lease charged with a duty not exceeding 17, the same duty as the lease, for the counterpart of every other lease 11. 10s.

And where the lease, (together with schedule, receipts, &c.) shall contain 2,160 words or upwards, a further progressive duty of 17., for every entire quantity of 1,080 words.

A lease for years made before this statute in consideration of a sum certain, and at a pepper corn rent, does not require the ad valorem duty chargeable upon leases under stat. 48 G. 3. c. 149 (a).

(a) Roe d. Larkin v. Chenhalls. 4 M. & S. 23.

CHAPTER III.

Of the Parties to a Lease, wherein by whom a Lease may be made.

SECTION I. Who may make Leases, and herein of Leases by Tenants in Fee Simple.

WITH respect to the persons who are capable, by the common

law, of making leases, it may be laid down, that all those who are capable of alienating their property, or of entering into contracts respecting it, may make leases, which will endure as long as their interest in the thing leased, but no longer (a).

As an estate in fee simple is the largest estate which a man can have in lands, giving him a full dominion over property with an absolute power of alienation; it necessarily includes the smaller power of granting leases, which, consequently, he may do without limitation or restraint.

(a) Cruis. Dig. Leases.