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1802.

CLINAN

7. COOKE.

after twelve months) by a merchant's clerk, void, unless he was authorized in writing: (a) it would extend also to all contracts for the sale of personal chattels made by an agent.

For the plaintiff, in reply.

The circumstance to which the first and second clauses.. of the statute of frauds are intended to apply, are in their nature essentially different; the first clause applies to cases where the estate itself actually passes by the writing: where possession may be had by ejectment, and where there is nothing for a court of equity to act upon; in such cases mischievous consequences might follow, if the execution of the deed were not guarded by the formality of a written authority ; but the cases to which the second clause applies are properly within the cognizance of equity, and upon recourse being had to the court for performance of the contract, it will fully investigate the circumstances of the execution so as to prevent fraud. This distinction has always prevailed in England. Walker v. Hendon and Cox, 5 Vin. Abr. 524, Pl. 45. And from the following case, (furnished by Mr. Fitzgerald from Mr. Malone's M. S. notes) it clearly appears 30 to have been understood in this court.

Barryv. Lord Barrymore, before Lord LIFFORD, in Chanchery, Mich. 1770.“ Bill to stay proceedings at law, and “ for a specific execution; the plaintiff had been in under " the defendant, under a lease which expired in 1768: in

1767, defendant published an advertisement, importing " that said lands would be out of lease and would be let “ by himself, or his agent Mr. Underwood, for three lives " or thirty-one years, from May 1768. Plaintiff propos"ed for the lands, and offered by writing, sigued by “ himself, and delivered to the agent, to pay a rent of $ 1781. 10s. per annum. The defendant wrote in

(a) Vide sect. 19.

1802.

CLINAN

V. COOKE.

“ a certain book, called the proposal book, under certain “ denominations of lands, which were the lands in ques“tion, Agreed 1781. : 10: 0,' and drew a line under “ a certain other part of the same book, which it was “ acknowledged was a mark of his acceptance. The

agent wrote to the plaintiff and made use of these words: « « You are declared for (naming the denomination) at “ 1781. : 10: 0,' and another letter was written by the

agent to the plaintiff, letting him know that his offer was accepted. The defendant put in a plea, which he

supported by his answer ; the plea under the statute of “ frauds, was to this effect, that the defendant did not put “ in writing any contract or agreement for making the “ lease in the bill, nor lawfully authorize in writing James Underwood, or any other person as agent for him, to “ make or sign any agreement in writing for any of the “ lands in the bill, or any memorandum or note for mak“ing any lease, otherwise than as defendant had set « forth.”

“Serjeant Dennis (afterwards Lord Tracton) said, this “ plea is not within the statute in two particulars ; first, “Defendant says he did not authorize in writing, that is “ not necessary; one may be authorized in such case by “ parol; and all the pleas of this sort are generally, that “the party did not authorize; secondly, The plea is, that " the defendant did not authorize Underwood as his agent. « But it is no matter how he authorized him ; the statute

makes no difference as to that."

“ Lord LIFFORD, " What the transaction will amount to must be decided

at the hearing, the plea is evidently bad, for the defen“dant says, that he did not authorize in writing. But " the statute does not require the authority to be given in

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For the plaintiff, in

The circumstance of the statute of fra nature essentially dif where the estate itsel possession may be ha thing for a court of chievous consequence deed were not guard thority; but the cases properly within the co being had to the cou will fully investigate as to prevent fraud. England. Walker v 45. And from the f gerald from Mr. M to have been unders

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CASES IN CHANCERY.

31

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id the defendant by his answer confessed the 1802. without insisting on the statute of frauds. The

CLINAN ed exccution of the agreement.

V.

COOKE. CHANCELLOR.

Dec. 14th. ating the facts ;) It is insisted, that wherever an Authority to

an agent to congiven to another to enter into a contract of this tract for the it must be in writing. There is no foundation demise of

lands, need not tion ; the words of the statute of frauds do not be in writing. such thing, and there are decided cases to the rticularly the case furnished by Mr. Fitzgerald Calone's notes, which is a precise determination I think was decided in perfect conformity to the refore the authority in this case is a sufficient ar as it is admitted ; that is, it is an authority n agreement with the plaintiff for a term either or thirty-one years, but that was unquestionaessed in any agreement to be made between the cannot be taken to be an authority otherwise ressed. It has been questioned, whether an given to conclude this agreement. I think aot contend, that an authority to conclude the not intended to be given, because fifty guineas im in consideration of it, which he accepted, e must have understood that Meagher had rely informing these persons that they might ent, provided the Cahills agreed to give up ve must have understood that they had come

and therefore I must presume that the nade, and made pursuant to an authority.

stion is, whether this agreement was made
authority. The words of Cooke's answer
was satisfied, that he could give peaceable
” he was authorized. It depended entirely

1802.

CLINAN

“ writing, and therefore the defendant is not within the “statute; also, he says, 'not lawfully authorized as agent;' “ the statute is not followed here; on the whole the plea “ must be over-ruled.”

V.

COOKE.

As to the case of Brodie v. St. Paul, cited to shew that a defect in the written agreement could not be supported by parol, in that case there was contradictory evidence with respect to the nature of the covenants to be inserted in the lease. But the case of Allan v. Bower, referred to in that case, (1 Ves. fun. 351) shews the disposition of the court, not to lay hold of slight technical objections against the equity of the case. There a paper was found signed by the deceased, saying, that it was reasonable to grant the plaintiff a lease, on account of the improvements he had made : the

paper did not express for what interest the lease was to be granted; but Lord THURLOW directed an inquiry, what interest was intended to be granted ; the Master refused parol evidence, and upon the ground of the statute, reported that the plaintiff was only entitled to a lease for three years, and it was again referred to him to state the promise made and referred to by the paper. And in Joynes v. Statham, 3 Atk. 388, where, in answer to a bill for a specific performance of an agreement for a lease, defendant insisted that it was part of the original agreement, that the plaintiff should pay the rent clear of taxes, and offered to prove it by parol. Lord HARDWICKE thought the evidence ought to be admitted, and that if the defendant had been the plaintiff, and had brought his bill for the specific performance, he might have resorted to it.

But the defendant has not relied on the statute of frauds in his answer; and in cases where the party does not rely on it, the court considers itself discharged from it, as in Croyston v. Banes, Prec. Chan. 208, where a bill was brought for execution of a parol agreement, which was in no part ex

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