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perjury, which might arise from parol agreements; but where there was written evidence that an agreement was made, and acts had been done by the parties, in part execution of it, the danger of perjury was removed. That where a bill was framed with proper charges of facts and circumstances, tending to take the case out of the statute of frauds, the plea of the statute ought not to be allowed in bar of the discovery sought by the bill, without a full and negative answer to such charges, as would, if proved true, be sufficient in equity to entitle the plaintiff to relief.

In support of the plea it was said, that the Irish statute of frauds was little else than a transcript of the English statute: the intent of both was the same, and every rule of construction applicable to the one, was equally so to the other. A written agreement signed by the party, or some person by him thereunto authorized, was by both acts precisely and positively required, for establishing contracts for sale of lands and being of the substance of the contract, had never, while the contract remained executory, been dispensed with. Of this the appellant himself seemed sensible, by his charge of the respondent's having with his own hand inserted in figures in the rent-roll the amount of the rent; added the date, and strùck out a denomination which he meant to preserve; which the appellant would have considered as amounting to a written agreement: but it was clearly no more than one of those many loose and unmeaning circumstances, which, if attended to, would in their consequences let in all the mischiefs meant to be prevented by the act; which gives credit only to a writing, and the party's, or his agent's, signature.

Contracts partly executed by delivery of possession,

receipt of some of the purchase money, or attended with some fraud, on the part of the vendor, who had made use of the act for sheltering fraud, were very justly decreed to be specifically performed. But those were quite foreign to the present case, which appeared, upon the appellant's own statement of it, to be no more than a proposal or treaty, attended with some inquiries, but never carried into the least execution: and no imputation of fraud lay upon the respondent throughout the whole transaction. That the plea went to the discovery as well as the relief; and rightly so, for wherever a plea is sufficient to bar the relief prayed, it must go to the discovery: otherwise the plea to the relief would be nugatory and idle. Here the whole charge rested upon a supposed agreement, which being neither reduced into writing, nor signed by the respondent, could never be decreed against him; if so, a discovery of all the matters charged in the bill would be a discovery of nothing at all, and leave the appellant in just the same state as he was. The order was affirmed.

45. In a modern case Lord Thurlow said—“ If 2 Bro. R. 559. there be general instructions for an agreement, consisting of material circumstances, to be afterwards extended more at large, and to be put into the form of an instrument, with a view to be signed by the parties, and no fraud, but the party takes advantage of the locus penitentiæ, he shall not be compellable to perform such an agreement as that, when he insists upon the statute of frauds."

46. Lord Alvanley, when Master of the Rolls, has 3 Ves. 712. said-" I admit my opinion is, that the Court has gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute; then, unavoidably perhaps, after establish

17 Ves. 347.

ante, § 44.

ing the agreement, to admit parol evidence of the contents of that agreement. As to part performance, it might be evidence of some agreement; but of what, must be left to parol evidence? I always thought the Court went a great way. They ought not to have held it evidence of an unknown agreement, but to have had the money laid out, repaid. It ought to have been a compensation. Those cases are very dissatisfactory. It was very right to say, the statute should not be an engine of fraud; therefore compensation would have been very proper. They have, however, gone farther, saying it was clear there was some agreement, and letting them prove it; but how does the circumstance of a man's having laid out a great deal of money, prove that he is to have a lease for 99 years? The common sense of the thing would have been to have let them bring an action for the money. I should pause upon such a case.

47. This doctrine has been confirmed by Sir W. Grant, who has said-" I am aware there are cases, that acts done by the defendant can make a ground for compelling him to perform the agreement; but it is difficult to bring those cases to bear; for to what do those acts amount, when there is no prejudice to the plaintiff? only to proof of the existence of an agreement. The existence of the agreement may be put out of all doubt by the acts; but the objection upon of the statute, that the agreement is not in writing, remains where it did. The Court does not profess to execute a parol agreement merely because it is satisfactorily proved. In Whaley v. Bagenel, which being before the House of Lords, must supersede the authority of every other case, various acts had been done which implied that the party had sold the estate, and did not consider himself any longer the

owner of it. The question still remained, whether that agreement should be carried into execution; and it was held, that the acts done by the defendant did not entitle the plaintiff to have it specifically performed."

ments not

fessed.

48. It was formerly held, that if a bill was brought Parol Agreein Chancery for the execution of a parol agreement, decreed which was in no part executed, and the defendant though conby his answer confessed the agreement, without in Prec. in Cha. sisting on the statute of frauds, the Court would 208. 374. decree an execution of the agreement; because, when the defendant confessed it, there was no danger of perjury, the only thing the statute intended to prevent.

Jackson,

6

Ves. 17.

49. This doctrine has been altered, and it seems to Cooth v. be now settled, that upon a bill for a specific performance of a parol agreement, the defendant, though admitting the agreement by his answer, may, if he insists on the statute, have the benefit of it at the hearing; and Sir W. Grant has decided, that where Blagden v. Bradbear, the defendant insists on the statute of frauds, admis- 12 Ves. 466. sions by the answer are immaterial.

50. If, however, the defendant admits the agree. Spurrier v. Fitzgerald, ment in his answer, and submits to perform it, he 6 Ves. 548. will not be allowed to take advantage of the statute of frauds, in his answer to an amended bill. ¡

Agreement

51. Although a written agreement cannot be A written altered or contradicted, in particular parts, by parol discharged evidence; yet it is laid down by Lord Keeper by Parol. North, that an agreement might, notwithstanding 2 Ab. Eq. 32. the statute of frauds, be discharged by parol.

52. An agreement was entered into in writing for Legatt v. a lease of a house at 321. a year: part of the agree. 2 Ves. 299. Miller, ment was, that the owner should put the house in repair. It was afterwards discovered not to be worth

while, barely to repair the house, but better to pull it down; therefore, without alteration of the written agreement, the house was pulled down by consent of the tenant, and an agreement was made by parol to add 81. a year to the 321. The tenant brought his bill for a specific performance of the written agreement, and the defendant set up the parol agreement, which Sir J. Strange, M. R allowed. This doctrine 113, 3d Edit, has been assented to in modern times.

3 Ves. 40. n.

9 - 250. Sugd. Vend.

Where an Averment is admissible.

53. In consequence of this statute, no averment, founded on parol evidence, is admissible of what passed, before or at the time when a written agreement was entered into, which tends to contradict or vary it. But in many cases, averments founded on parol evidence are admitted to explain, elucidate, or support a deed or written instrument; of which an infra, c. 19. account will be given in a subsequent chapter.

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