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1802.

CLINAN

Cooke.

« the said P. and M. Clinan are to have lawful interest on
" the money they deposited ; which sum a receipt speci-
“ fies : same leases to be perfected at the requisition of
“ either party.--Given under our hands and seals this 25th
“ day of Feb. 1799."
Attested by two

E. MEAGIER. (Seal.)
Witnesses.

P. CLINAN. (Seal.)

}

The money alluded to in the memorandum was a sum of fifty guineas which Cooke had received from the plaintiffs in consideration of the lease, at the recommendation of Meagher, who also appeared to have received a sum of twenty guineas from the plaintiffs for which no receipt was given. The plaintiffs had prepared and tendered a lease for three lives : Mr. Cooke, however, refused to perform the agreement, and in May, 1799, granted a new term of the lands to the defendants, the Cahills, who knew of the agreement made with the plaintiffs. The bill alleged that Meagher was a general agent for Mr. Cooke, and as such was authorized to let the lands for him, to this fact there was no evidence; but the answer of Cooke admitted that he had caused the advertisement to be inserted and referred to it, and believed the lands were advertised to be set for 3 lives or 31 years, that being the limits of his power of demising under his marriage settlement: it admitted that there was a reference to Meagher in the advertisement; but denied that he did either by power of attorney or by any other means authorize Meagher to set the lands; but that he had a great reliance on the honesty of Meagher, that he would not impose on him; and then it stated a conversation with Meagher concerning the proposal of the plaintiffs, and that Meagher knowing the defendant had some occasion for some ready money advised him to accept the fifty guineas which as he told him the plaintiffs had offered ; and admitted that he did accept the money and did thereupon order and direct Meagher to go to the defendants, the Cahills, and to the

1802.

CLINAN

V. СооКЕ. .

plaintiffs, and if he was satisfied that he could give peaceable possession with the concurrence of the Cahills, that then the plaintiffs should have said lands agreeable to their proposal but not otherwise ; and that Meagher without being satisfied on that subject entered into the agreement stated. It appeared that shortly before the bill was filed, Cooke tendered the fifty guineas to the plaintiffs, who refused to accept it. As to the term, the answer did not state whether Mr. Cooke considered the proposal as a proposal for three lives or thirtyone years, but said that the parties were mutually to determine whether it should be for three lives or thirty-one years. Parol evidence was offered also, that defendant acknowledged Meagher as his agent and said he would abide by his bargains, and referred persons to him on matters respecting the lands.

Mr. O'Grady, Mr. J. Ball, and Mr. C. Ball for the plaintiff.

Sufficient appears

from the evidence in this case to entitle the plaintiffs to the relief sought by their bill. The agreement of which a specific execution is sought, is signed, not by the defendant himself, but by Meagher; and a doubt is attempted to be raised in the answer as to the extent of Meagher's authority: now, Meagher appears to have been employed by the defendant not merely as a bailiff, or as receiver of his rents, but as a person generally entrusted with the disposal and management of his affairs, as making bargains with the tenants on his behalf, and receiving fines from them. But whether the authority given to Meagher was in general absolute or qualified, it is not now competent to the defendant on that ground to object to the relief sought by the plaintiffs, because after Meagher had made the bargain with the plaintiffs, the defendant confirmed it by actually accepting the sum of fifty guineas which they had agreed to give him, and for the same reasons he cannot

1802.

now be heard to say that the agreement was merely conditional, that is to say, provided the Cahills would give up the possession, a defence which is at least insinuated in his

CLINAN

V. COOKE.

answer.

If the defendant should attempt to protect himself under the statute of frauds upon any supposed omission in the agreement, it is to be observed in this case, first, That there is a part performance of the agreement by the payment of fifty guineas, and if that ground should fail, that, secondly, Though the agreement taken singly, may be defective as not expressing for what time the lease was to be made, yet that deficiency is supplied by reference to the advertisement published in the newspapers, in which the term “ for three "lives or thirty-one years,” is expressed; and Meagher, who subscribes the agreement for the defendant, is the same person referred to by the defendant himself in the advertisement. But, thirdly, There is an authority to shew that the agreement may be decreed to be carried into specific execution, though no certain term is mentioned. 5 Vin. Abr. 522. Pl. 38.

Mr. Burston, Mr. Plunket, Mr. Lockington, and Mr. Bushe, for the defendant.

This bill ought to be dismissed: as to the part of the Compensation prayer which seeks compensation in case the defendant had for non-per.

formance of an put it out of his power to execute a lease, that relief is to be agreement is sought at law, and cannot be obtained in equity: (to this not a mode of his lordship assented). Then as to the specific performance lif. which is sought; the instrument on which that prayer is founded cannot be taken to be the act of the defendant. Meagher himself had at best but a limited authority from the defendant, as appears from the parts of the answer read

Vol. I.

1802.

CLINAN

V.

СооКЕ.

by the plaintiffs : he was authorized to agree with them, that is in case, or provided he could persuade the Cahills to give up possession, which it appears he could not do. But Meagher was not legally authorized to make such contracts as the present to bind the defendant. The statute of frauds, (a) requires such an authority to be in writing, and there is no proof of any written authority given by the defendant to Meagher. It is a rule of construction that judges shall give to every part of a statute that construction that will be most effectual to carry the plain and obvious meaning of the legislature into effect; and the court will have recourse to the whole statute, and to all the expressions contained in it, in order to discover that meaning. Now, it is clear on the 1st sect. of the act that no person not authorized by writing can execute for a third person, any deed or writing conveying any estates, leases, or interests. Then follows the clause which relates to what are called executory contracts, and that clause enacts that no action shall be brought to charge any person upon any contract or sale of lands, tenements, hereditaments, or in any of the other cases there enumerated," unless the agreement upon which such action shall “ be brought; or some memorandum or note thereof, shall “ be in writing and signed by the party to be charged there“ with, or some other person by him thereunto lawfully authorized.It is not easy to distinguish between the cases referred to in the first and in the second sections, nor to assign any reason why the legislature should thus guard actual leases from all manner of parol evidence with respect to their execution, and yet leave the case of agreements for leases open to parol evidence. It seems absurd to say, that a man must have an authority in writing in order to enable him to execute a deed, and yet, that he may on a mere parol authority execute an agreement which a court of equity will

(a) 7, W.c. 12. The clauses of the statute referred to in this case are copied from the Engl. Stat. 29 Car, 2. c. 3.

or

1802.

CLINAN

V. COOKE.

decree to be executed dy a deed; therefore the words “ lawfully authorized,” at the end of the second sect. must be construed to mean such an authority as the spirit and meaning of the statute requires, viz. an authority in writing: and such was the interpretation given to these words in the case of the lesseeof Finestonv.Downing in the King's Bench in 1800; (as to this case Mr. Solicitor General, amicus curiæ, said that he had been counsel in it; that this was not the question in the case, but that two of the judges had obiter expressed an opinion to the effect stated.)

It was also insisted for the defendant, that parol evidence could not be received to supply the deficiency in the written agreement, in not expressing the term to be demised. Brodie v. St. Paul, 1 Ves. Jun. 326.

Lord CHANCELLOR.

The point as to the sufficiency of a parol authority ought not to remain in doubt, because if it appear to be insufficient, there is an end of the case. But, I confess, I have always had an impression on my mind, that the resolutions in the first and second sections of the statute had been different, founded upon the difference in their wording, and that the statute would have used the same words in the second section as in the first, if it had meant the same thing. I am certain there are many dicta to that effect in the books. It has always been understood in England, that the legislature only required such an authority under this clause, as was a lawful one at the time of passing the act, to make contracts binding; and though at all times (as well before the act as since) it was necessary to have an authority in writing for creating or passing an estate for another, it was otherwise as to contracts, which passed no estate. struction insisted on by the counsel for the defendant, would extend to make the acceptance of a bill, (not payable till

The con

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