the option, a sufficient notice of intention to exercise the option must be given within the prescribed time, and time is of the essence of the contract (ƒ). An option to purchase or right of pre-emption must be so limited as not to be obnoxious to the rule against perpetuities unless the right is expressly conferred by statute (g), and an unlimited option of purchase, although contained in a lease, is void for remoteness and cannot be enforced by specific performance (h). In one case a right of pre-emption created by contract was construed as limited to the life of the owner of the property (i).

Assignment of Option.-Primâ facie an option is not personal to the donee, and may be exercised by his assigns, but an option of purchase conferred by a testator on his son has been held to be personal to the son (k).

An option in a lease for the lessee, his executors, administrators, or assigns, to purchase the reversion, is attached to the lease, and passes with it, the word assigns meaning assigns of the term (1). An equitable assignee of a lease cannot exercise an option to purchase the reversion (m).

(f) Bird v. Brown (1850), 4 Ex. 786; Holland v. King (1848), 6 C. B. 727; Dibbins v. Dibbins, [1896] 2 Ch. 348.

(g) London and South Western Rail. Co. v. Gomm (1882), 20 Ch. D. 562; Manchester Ship Canal v. Manchester Racecourse C., [1901] 2 Ch. 37.

(h) Woodall v. Clifton, [1905] 2 Ch. 257; but as to the right to damages, see Worthing Corporation v. Heather, [1906] 2 Ch. 532.

(i) Stocker v. Dean (1852), 16 Beav. 161, sed quære. (k) Re Cousins (1885), 30 Ch. D. 203.

(1) Adams v. Kensington Vestry (1884), 27 Ch. D. 394. (m) Friary Holroyd & Co. v. Singleton, [1899] 1 Ch. 86.

If an option of purchase is not exercised until after the death of the person who created the option, notice of intention to exercise the option should be given to both the real and personal representatives (n). According to the principle laid down in Lawes v. Bennett (0), the purchase-money forms part of the personal estate of the person creating the option, unless he has in his will indicated an intention to exclude the operation of this rule (p).

(n) Cf. Re Isaacs, [1894] 3 Ch. 506, where notice was given both to the heir-at-law and the administrator.

(0) (1785), 1 Cox, 167.

(p) Re Pyle, [1895] 1 Ch. 724.

CHAPTER II.

HOW THE CONTRACT MUST BE EVIDENCED.

IT is enacted by s. 4 of the Statute of Frauds (a) that no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or interest in or concerning them (b), unless the agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised.

SECTION 1.

THE SIGNATURE.

It is to be observed that the contract need only be signed by the party to be charged, and it was established in the leading case of Seton v. Slade (c) that an agreement signed by one party only is good to charge him within the Statute of Frauds. Moreover,

(a) 29 Car. 2, c. 3.

(b) Cf. Jarvis v. Jarvis (1893), 63 L. J. Ch. 10, where certain machinery was held to be an interest in land within this section. As to trees and growing produce, see Smith v. Surman (1829), 9 B. & C. 561; Marshall v. Green (1875), 1 C. P. D. 35. to "building materials" of a house, see Lavery v. Pursell (1888), 39 Ch. D. 508. See also learned article in 2 Jur. (N.s.) Part II.

(c) Wh. & Tu., Vol. II., 475, and notes thereto.

As

where an offer in writing signed by one party contains the terms which he proposes as an agreement, the other party may accept by parol, e.g., by conduct, for the statute only requires a "memorandum in writing," and not an "agreement in writing" (d). Thus a verbal acceptance of one of two alternatives contained in a written and signed offer is sufficient to constitute an enforceable contract as against the writer (e). The signature may be printed or stamped (f), and a signature by mark or initials or by the surname without the Christian name is sufficient (g). Moreover, there is no necessity for the signature to be at the foot of the memorandum; it may be at the beginning or in the body of the document (h), but it must be placed in such a position as to authenticate and refer to the material part of it (i).

Intention in Signing. Moreover, "the question is not one of the intention of the party who signs the document, but simply of evidence against him. The court is not in quest of the intention of parties, but

(d) Reuss v. Picksley (1866), L. R. 1 Ex. 342, explained by COTTON, L.J., in In re New Eberhardt Co. (1889), 43 Ch. D., at p. 118; see also Filby v. Hounsell, [1896] 2 Ch., at p. 740.

(e) Lever v. Koffler, [1901] 1 Ch. 543. The dictum of FRY, J., in Munday v. Asprey (1880), 13 Ch. D. 857, that the statute requires a concluded agreement existing at the date when the memorandum is signed cannot be accepted as sound.

(f) Schneider v. Norris (1814), 2 M. & S. 286

(g) Leake on Contracts, p. 185.

(h) Evans v. Hoare, [1892] 1 Q. B. 595; Bleakley v. Smith (1840), 11 Sim. 150; but cf. Hucklesby v. Hook (1900), 82 L. T.

117.

(i) Kronheim v. Johnson (1877), 7 Ch. D, at p. 60.

only of evidence under the hand of one of the parties to the contract that he has entered into it. Any document signed by him and containing the terms of the contract is sufficient for that purpose" (k). Consequently, provided there is a concluded agreement, it is immaterial that the writing which is relied on as a memorandum of the agreement for the purpose of the Statute of Frauds was signed alio intuitu (1). Thus a letter written by the vendor to a third party, containing directions to carry the agreement into execution, is a sufficient memorandum, and so also is a letter which contains an admission of the bargain, and all the essential terms of it, notwithstanding that the writer repudiated his liability (m). Again, the signature of the chairman. of company affixed to the minute book for the purpose of verifying an entry therein may constitute a memorandum which satisfies the requirements of the statute (n); and it has been held by KEKEWICH, J., that a signed engrossment of a lease, although only delivered as an escrow, is sufficient evidence of an agreement (o).

(k) Per Lord BOWEN in Hoyle v. Hoyle, [1893] 1 Ch. 99. (1) This doctrine is now fully established, and many of the cases cited by Dart, p. 272, require reconsideration.

(m) See cases cited in Gibson v. Holland (1865), L. R. 1 C. P., at p. 1.

(n) Jones v. Victoria Graving Dock Co. (1877), 2 Q. B. D.

314.

The

(0) Moritz v. Knowles, W. N. (1899) 40, sed quære. case would be far stronger with respect to a conveyance which almost invariably recites the contract of sale. Cf. Munday v. Asprey (1880), 13 Ch. D. 855.