was allowed to prove a verbal agreement, omitted from the writing, that the plaintiff should pay the rent clear of taxes (9). But parol evidence is not admissible to prove a subsequent agreement to vary the terms of a written contract, such as an agreement for a mining lease, which is by law required to be in writing, although it may be admitted to prove the rescission of such a contract (h).

Specific performance may be enforced against executors, pro- Specific vided this can be done without imposing upon them personal performance liability (i).

against executors.

The bankruptcy of a person who has contracted to grant, or to The effect of accept, a lease does not, of itself, put an end to the contract. bankruptcy. The trustee in bankruptcy may be willing to enter into the covenants which the bankrupt would have had to enter into; and in such a case specific performance of the contract may presumably be enforced (k). On the analogy of the authorities on cases between vendors and purchasers of leaseholds (1), it is conceived that, where a person who has contracted to grant a lease becomes bankrupt, the intended lessee may insist upon specific performance, if he be content to waive the insertion in the lease of any personal covenant on the part of the trustee; and that, where a person who has contracted to take a lease becomes bankrupt, the contract cannot be specifically enforced against his trustees without the latter's consent.

addition to

By Lord Cairns' Act (21 & 22 Vict. c. 27, s. 2), the Court of Damages in Chancery was empowered, where a plaintiff had a case for lieu of or in specific performance, to give him damages either in addition to specific performance. or in substitution for specific performance (m). The Act has been repealed (n), but the jurisdiction conferred by it was not affected by the repeal (o), and is now vested in the High Court of

(y) Joynes v. Statham (1746), 3 Atk. 387. See, too, Williams v. Jones (1888), 36 W. R. 573, where evidence of a contemporaneous parol proviso, not contradicting, but explaining, a written agreement for a lease was admitted.

(h) Vezey v. Rashleigh, [1904] 1 Ch. 634, at p. 636.

5) Phillips v. Everard (1831), 5 Sim. 102; Stephens v. Hotham (1855), 1 K. & J. 571. Cf. Page v. Broom (1810), 3 Beav. 36.

(k) Brooke v. Hewitt (1796), 3 Ves. at p. 255; Fry on Spec. Perf. 4th ed.

p. 415.

(1) Pearce v. Bastable's Trustee in Bankruptcy, [1901] 2 Ch. 122; Holloway v. York (1877), 25 W. R. 627.

(m) Lewers v. E. of Shaftesbury (1866), 2 Eq. 270; Lavery v. Pursell (1888), 39 Ch. D. p. 519. See Proctor v. Bayley (1889), 42 Ch. D. 390; and as to lien of lessee for expenses and costs, see Middleton v. Magnay (1864), 2 Hem. & M. 233.

() Stat. Law Rev. Act, 1883 (46 & 47 Vict. c. 49).

(0) Sayers v. Collier (1884), 28

Ch. D. 103.

Specific performance distinguished from other specific relief.

Where necessary.

Justice (p). Apart, however, from this special jurisdiction, the High Court has, under the Judicature Act, 1873 (q), power to give all such remedies as any of the parties may be entitled to, and it may consequently award damages under this general power, even though no case for specific performance has been made out (). These damages will be for breach of the contract, as though the action had been for damages in the first instance (s). Nowadays it is usual, in an action for specific performance, to claim damages also.

66

It is to be borne in mind that the common expression specific performance," as applied to actions known by that name, presupposes an executory agreement, such, for instance, as an agreement for a lease, as distinct from an executed agreement, such, for instance, as an indenture of lease (t). Accordingly, the remedy of specific performance, properly so called, must not be confused with that specific relief which the Court in many cases gives on executed contracts, as when, for instance, it indirectly enforces the observance in specie―according to its terms of some covenant in a lease, by means of an injunction restraining acts in contravention of it (u).

(5) STAMPS.

A written offer to let, assented to verbally, is admissible in evidence without being stamped (x). But, where a verbal proposal is accepted in writing, such acceptance must be stamped (11). A mere proposal can be given in evidence without a stamp (≈).

(p) See Judicature Act, 1873, ss. 16, 76. As to giving damages by virtue of the special jurisdiction conferred by Lord Cairns' Act, see White v. Boby (1877), 26 W. R. 133.

(7) See sect. 24 (7), also sect. 16. (r) Elmore v. Pirie (1887), 57 L. T. 333; Tamplin v. James (1880), 15 Ch. D. p. 222.

(8) See Rock Portland Cement Co. v. Wilson (1882), 52 L. J. Ch. 214; Re Northumberland Avenue Hotel Co. (1885), 54 L. T. 76.

(t) See per Lord Selborne in Wolverhampton, &c., Railway Co. V. London & North Western Railway Co. (1873), L. R. 16 Eq. 433, at p. 439.

(u) See Lane v. Newdigate (1804), 10 Ves. 192; Rigby v. Great Western

Railway Co. (1846), 15 L. J. Ch. 266, 271, 2 Ph. 44; and Fry on Spec. Perf. 4th ed. p. 363. Cf. Frogley v. Earl of Lovelace (1859), Johns. 333, where a landlord was restrained by injunction from interfering with his tenant's exercise of sporting rights pursuant to an agreement not under seal, pending the execution of a legal grant of those rights.

(r) Edgar v. Blick (1816), 1 Stark. 464; Drant V. Brown (1825), 3 B. & C. 665; Laing v. Smith (1862), 3 F. & F. 97. See, too, Turner v. Power (1828), 7 B. & C. at p. 626.

(y) Hegarty v. Milne (1854), 14 C. B. 627.

(z) Hawkins v. Warre (1825), 3 B. & C. 690.

Minutes of the terms of letting, signed by an auctioneer, must be stamped (a); but, if not signed, it seems they may be given. in evidence without a stamp (b). Signature, however, is not necessary to bring a document within the phrase in the Stamp Act "under hand only," and an agreement approved by the solicitors to the parties but not signed, which has been treated as an agreement, has been held not to be admissible in evidence. without a stamp (c). Where an agreement embodies the terms of an abandoned lease, it is sufficient if the agreement only is stamped (d), but otherwise where the incorporated lease has been operative (e). Where there is an agreement in writing, it must be given in evidence; the lessor cannot sue for use and occupation generally (f). If an unstamped agreement has been lost parol evidence cannot be given of its contents (g).

An agreement for a lease, or with respect to the letting of any lands, tenements, or heritable subjects for any term not exceeding thirty-five years or for any indefinite term, is to be charged with the same duty as if it were an actual lease made for the term and consideration mentioned in the agreement (i). A lease made subsequently to, and in conformity with such an agreement duly stamped, is to be charged with the duty of sixpence only. This must be done by means of a denoting stamp" under sect. 11, the agreement, stamped with the ad valorem lease duty, being at the same time produced for inspection.

duty-paid

take lease.

An agreement to take a lease signed only by the lessee requires Agreement to no more than a sixpenny stamp (k).

Where there is a counterpart of the agreement, the part Counterpart. signed by the lessor will bear the ad valorem stamp, and the counterpart either the same stamp or five shillings, whichever is the less, and the counterpart does not require a denoting stamp (1).

29 Car. 2, c. 3, ss. 1, 2.

Parol leases

to be leases at will only, with certain exceptions.

8 & 9 Vict.
c. 106, s. 3.
Leases to be
by deed.

1. Leases of land, &c., to end within three years.

and reserving rent equal to

two-thirds of full value. Computation of the three years.

SECT. II.-LEASES GENERALLY.

(1) STATUTORY REQUISITES.

It is enacted by the Statute of Frauds that (sect. 1) all leases of any messuages, manors, lands, tenements, or hereditaments, made by parol, and not put in writing and signed by the parties making the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases at will only; except (sect. 2) leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts at the least of the full improved value of the thing demised.

Further, it is enacted by the Real Property Act, 1845, that a lease, required by law to be in writing, of any tenements or hereditaments, made after the first day of October, 1845, shall be void at law, unless made by deed. Signature is not essential to a lease by deed, such a lease not being within the Statute of Frauds (m).

The practical effect of these statutory provisions, and of the decisions upon them, may be stated as follows:

Leases of land, and other corporeal hereditaments, for a term not exceeding three years from the time of making, and whereby there is reserved to the landlord a rent equal to two-third parts at least of the full improved value of the demised premises, may be made verbally (n), or by writing not under seal.

The first section of the Statute of Frauds applies only where the tenancy, if good, must of necessity last for more than three years; if at the time of the agreement the tenancy may last for less than three years, it is within the exception of the second section (6). So also is an agreement which operates as an actual demise for less than three years, although coupled with an agreement or an option for a further term (p). The contract is divisible, and the actual demise, being within the exception in sect. 2 of the Statute of Frauds, will be valid (q). The exception is not restricted to leases commencing from the day of making (r);

(m) Aveline v. Whisson (1842), 4 M. & Gr. 801; Cherry v. Heming (1849), 4 Ex. 631.

(n) But verbal leases do not confer the right to sue the lessee for damages for not taking possession. See Edge v. Strafford (1831), 1 Cr. & J. 391, p. 397.

(0) Ex parte Voisey (1882), 21 Ch. D. 442, p. 458.

(p) Rollason v. Leon (1861), 7 H. & N. 73; Hand v. Hall (1877), 2 Ex. D.

355.

(g) Hand v. Hall, supra.

(r) Ryley v. Hicks (1726), 1 Stra.

651.

it is sufficient that they expire within three years computed from the date of the agreement (s).

Any words will make a parol lease which sufficiently express Parol lease. the intent. "You shall have a lease of my lands in D. for twenty-one years, paying therefor ten shillings per annum ; make a lease in writing and I will seal it," was good before the statute, though no writing made (t).

Leases of land and other corporeal hereditaments for a term which will not expire till more than three years from the day of making, or reserving less rent than two-third parts of the full improved value of the demised premises, must be made by deed. But an instrument not under seal purporting to demise land or other corporeal hereditaments for a longer term than three years, or reserving a rent not amounting to two-thirds of the full improved value, though void as a lease, will, if containing the requisites of a valid agreement (u), be construed as an agreement for a lease (x), of which specific performance may be enforced (y).

It was formerly considered that if the lessee had entered and paid rent under an instrument of this nature, a tenancy from year to year might be created (z); and that the instrument might indicate the terms of such tenancy (2). At the present day, where possession has been given and taken under an agreement for a lease, the applicability of the doctrine of Walsh v. Lonsdale (a) to the particular case has to be considered.

2. Leases of

land, &c.,

for more than three years

or reserving

less rent than two-thirds of

full value.

Leases of rights of common (b), rights of way, tithes (c), 3. Leases of

(u) Supra, p. 108.

(x) Tidey v. Mollett (1864), 16 C. B. N. S. 298; Hayne v. Cummings (1864), 16 C. B. N. S. 421; Bond v. Rosling (1861), 1 B. & S. 371. See also Cowen v. Phillips (1863), 33 Beav. 18.

(y)_Parker v. Taswell (1858), 2 De G. & J. 559. In Zimbler v. Abrahams, [1903] 1 K. B. at p. 581, Vaughan Williams, L.J., referring to the decision in Parker v. Taswell, said: "I feel strongly that the result of Lord Chelmsford's decision is to neutralize the effect of the statute 8 & 9 Vict. c. 106."

incorporeal hereditaments.