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and such shares are not within the description of "goods, wares, and merchandise," contained in the 17th section (a).

The property in fixtures, that is to say, things annexed to Fixtures. the freehold but subject to a right of removal in the tenant, while they remain fixed to the land, constitutes an interest in land; so that such fixtures cannot be recovered in an action of trover (b); nor can the price of them be recovered under a count for goods sold and delivered (~); after severance they become goods and chattels (7). The right of removing fixtures is not an interest in land within the statute, and may be assigned without writing (e); nor is it within the description of "goods, wares, and merchandise," contained in the 17th section of the statute (ƒ).

The sale of emblements, or the annual growing crops Emble sown by the tenant of land (g), is not considered as a contract ments and the produce concerning an interest in the land for the purpose of the of land. statute (h). An agreement for the sale of a growing crop of potatoes is not a contract for an interest in land within the fourth section of the statute (i); so, a sale of growing crops of corn (j); but these contracts are within the 17th section of the statute as being sales of goods (k). It has been held that a contract for the sale of growing crops of hops was not merely a sale of goods, but gave an interest in the land within the fourth section (7); also that a sale of a growing crop of turnips was within the fourth section (m); but these cases, it is said, would now probably be decided differently (n).

A contract for the sale of a growing crop of grass, being a natural and permanent crop and not coming within the

(a) See post, p. 138.

(b) Minshall v. Lloyd, 2 M. & W. 450; Mackintosh v. Trotter, 3 M. & W. 184; Wilde v. Waters, 16 C. B. 637.

(c) Lee v. Risdon, 7 Taunt. 188; Hallen v. Runder, 1 C. M. & R. 266, 276.

(d) Ib.; Dalton v. Whittem, 3 Q. B. 961.

(e) Hallen v. Runder, supra. (f) Ib.; and see Horsfall v. Hey, 2 Ex. 778.

(g) See Co. Lit. 55 a, b; Williams Ex. 5th ed. 630.

(h) 1 Wms. Saund. 277 b, n. (ƒ).

(i) Evans v. Roberts, 5 B. & C. 829; Sainsbury v. Matthews, 4 M. & W.

343.

(j) Jones v. Flint, 10 A. & E. 753. (k) Post, p. 138; Evans v. Roberts, supra; and see Smith v. Surman, 9 B. & C. 561.

(1) Waddington v. Bristow, 2 B. & P. 451.

(m) Emmerson v. Heelis, 2 Taunt. 38.

(n) See Erans v. Roberts, 5 B. & C. 829, 835; Rodwell v. Phillips, 9 M. & W. 501, 503; Jones v. Flint, 10 A. & E. 753, 759.

Licenses to enter land.

description of emblements, is a contract for an interest in land within the statute and must be in writing (a); so, a contract for the sale of a growing crop of trees or underwood (b). A contract for the sale of crops of fruit, growing on fruit trees, was held to be a contract for the sale of an interest in land within the Stamp Act (c).

Where a contract is made for the tenancy or possession of land, together with the growing crops left upon the land, and the benefit of work, labour, and materials, previously expended in tilling the land, though the crops and tillages may be agreed to be paid for at a separate valuation, they are considered as forming part of the land, and the contract must be in writing (d).

A contract for the sale of the produce of land, to be taken as goods, does not give any interest in the land, though it is not severed from the land at the time of the contract; as a contract for the sale of potatoes, then being in the ground, at so much per sack, or so much per acre (e). A contract for the sale of timber at so much per foot, being the produce of certain trees then growing, when they should be cut down, was held not to be a contract for the sale of the growing trees, and therefore not to give any interest in the land (ƒ). A contract for the right to feed cattle on certain land was held to be a contract for the agistment of cattle, and not to give an interest in the land (g).

Such contracts are not brought within the fourth section, as giving an interest in land, merely because they give to the purchaser a license to come upon the land to take the produce (h). A license to enter land conveys no interest in the land; it only renders the entry lawful which would otherwise be unlawful (). A parol license coupled with a valid

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(e) Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & S. 205.

(f) Smith v. Surman, 9 B. & C. 561. (g) Jones v. Flint, 10 A. & E. 753. (h) See Smith v. Surman, 9 B. & C. 561, 573.

(i) Wood v. Leadbitter, 13 M. & W. 838, 844; and see Winter v. Brockwell, 8 East, 308, 310 (a); Hewlins v. Shippam, 5 B. & C. 221.

grant is irrevocable, by reason of the grant which the grantor cannot defeat (a); thus, where a quantity of hay, being upon a person's land, was sold by him upon the terms that the purchaser might enter upon the land to remove it when he liked within a certain time, the license to enter the land was held to be irrevocable (b); but where an agreement was made without writing for the sale of a growing crop of grass, with liberty to enter the land for the purpose of cutting and taking it, the license was held to be revocable, because the vendor could not be charged with such a contract without writing (c).

Agreement that is not to be performed within the space of one year from the making thereof.

not to be

year.

By this description is intended such contracts as are inca- Agreement pable of being completely performed within the year (d). A performed contract of service for a term of more than a year is within within a the statute (e). A contract for a year's service, to commence at a future day, cannot be performed within the year and is within the statute (f). Where parties after a yearly hiring continue the service by common consent without express agreement, a fresh hiring for a year is implied from the expiration of the first year, and such hiring is not within the statute (g).

A contract to pay an annuity for five years is within the statute (h); so, a contract for a partnership for ten years (i). A contract contained in a prospectus to publish by subscription a series of prints of scenes from Shakespeare's plays, seventy-two in number, to be published in parts containing four prints at the price of three guineas, one part at least to be published annually, was held to be a contract not to be performed within a year (j). A contract by which the incum

(a) Wood v. Leadbitter, 13 M. & W. 838, 845.

(b) Wood v. Manley, 11 A. & E. 37. (c) Carrington v. Roots, 2 M. & W. 248; ante, p. 133; and see Crosby v. Wadsworth, 6 East, 602.

(d) See Boydell v. Drummond, 11 East, 142.

(e) Giraud v. Richmond, 2 C. B.

835.

(f) Bracegirdle v. Heald, 1 B. &

Ald. 722; Snelling v. Lord Hunting-
field, 1 C. M. & R. 20; and see Caw-
thorn v. Cordrey, 13 C. B. N. S. 406;
32 L. J. C. P. 152.

(g) Beeston v. Collyer, 4 Bing. 309.
(h) Sweet v. Lee, 3 M. & G. 452.
(i) Williams v. Jones, 5 B. & C.
108, 110.

(j) Boydell v. Drummond, 11 East,
142; and see Mavor v. Pyne, 3 Bing.
285.

Contract

which may

be perform

ed within

the year.

bent of a parish engaged a curate, to be paid by an annual grant made by a society, and undertook to apply in each and every year according to the rules of the society for the payment of the grant to the curate, was held to be within. the statute (a).

Contracts which may be performed within the year are not within the statute; and contracts, the performance of which depends upon a contingency which may happen within the year, are not within the statute. A promise to pay money upon the return of a ship, which might return within a year, was held not to be within the statute, although the ship in fact did not return within two years (b). So, an agreement in which the defendant promised for one guinea to give the plaintiff so many at the day of his marriage was held not to be within the statute, though the marriage did not take place within a year (c). So, an agreement to leave money by will (d); a promise by a person that his executor shall pay a sum of money (e); and a contract to pay a guinea a day during the life of a person (ƒ), are not within the statute. A contract by the defendant to pay the plaintiff one guinea per month for the maintenance of a child, to continue so long as the defendant should think proper, was held not to be within the statute (g).

The statute includes only those contracts which cannot be performed within a year on either side; contracts which may be performed within the year on one side, though they cannot be performed within the year on the other side, are not within the statute; thus, a contract for the sale of goods to be delivered in six months, and to be paid for in eighteen months, would not be within the statute (h). A contract for the sale and assignment of a patent, to be paid for by payments at periods extending beyond a year, is not within the statute, because it is capable of being performed by the

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seller within the year (a). So, a contract between a landlord and tenant for the landlord to lay out £50 in improvement of the premises, no time being given for so doing, and the tenant to pay £5 a year increased rent during the remainder of the term, was held not within the statute (b).

which may

be put an

end to within the year.

A contract which cannot be performed within the year is Contract not taken out of the operation of the statute by reason that it may be defeated, or put an end to, within the year (c). Thus, a contract for the hire of a carriage from a coachmaker for five years for an annual payment, but which by the custom of the trade is determinable at any time within that period on payment of a year's hire, is within the statute (). A contract of service determinable by three months' notice before a certain date, otherwise to continue for another twelve months, was held within the statute (e).

Contract for the sale of goods of the value of £10.

Contract

for the sale

the value of

The contracts affected by the 17th section are contracts "for the sale of any goods, wares, and merchandises, for the of goods of price of ten pounds sterling or upwards." Lord Tenterden's £io. Act, 4 Geo. IV. c. 14, s. 7, after reciting this section of the statute, and that it had been held that it did not extend to certain executory contracts for the sale of goods which nevertheless were within the mischief thereby intended to be remedied, and that it was expedient to extend to such executory contracts, enacted "that the said enactment shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery" (f).

(a) Cherry v. Heming, 4 Ex. 631; Smith v. Neale, 2 C. B. N. S. 67; 26 L. J. C. P. 143.

(b) Donellan v. Read, 3 B. & Ad. 899; and see Hoby v. Roebuck, 7 Taunt. 157.

(c) Per Alderson, B., Roberts v. Tucker, 3 Ex. 632, 613.

(d) Birch v. Earl of Liverpool, 9 B. & C. 392.

(e) Dobson v. Collis, 1 H. & N. 81; 25 L. J. Ex. 267.

(f) As to contracts of this kind before Lord Tenterden's Act see Towers v. Osborne, 1 Str. 506; Mucklow v. Mangles, 1 Taunt. 318; Buxton v. Be

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