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ecuted, and the defendant by his answer confessed the 1802. agreement without insisting on the statute of frauds. The

CLINAN court decreed execution of the agreement.



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

an agent to conauthority is given to another to enter into a contract of this tract for the

demise of description, it must be in writing. There is no foundation

lands, need not for this position; the words of the statute of frauds do not be in writing. import any such thing, and there are decided cases to the contrary, particularly the case furnished by Mr. Fitzgerald from Mr. Malone's notes, which is a precise determination in point, and I think was decided in perfect conformity to the statute. Therefore the authority in this case is a sufficient authority as far as it is admitted ; that is, it is an authority to conclude an agreement with the plaintiff for a term either of three lives or thirty-one years, but that was unquestionably to be expressed in any agreement to be made between the parties, and it cannot be taken to be an authority otherwise than as so expressed. It has been questioned, whether an authority was given to conclude this agreement. I think Mr. Cooke cannot contend, that an authority to conclude the agreement was not intended to be given, because fifty guineas were paid to him in consideration of it, which he accepted, and therefore he must have understood that Meagher had gone beyond merely informing these persons that they might have an agreement, provided the Cahills agreed to give up the possession; he must have understood that they had come to an agreement, and therefore I must presume that the agreement was made, and made pursuant to an authority.

The next question is, whether this agreement was made according to the authority. The words of Cooke's answer are,

" that if he was satisfied, that he could give peaceable possession, &c.” he was authorized. It depended entirely




on the mind of Meagher, and I think we must take it, that he was satisfied as far as the nature of the thing admitted of it; he could not know with absolute certainty, whether the Cahills would quit or not. It is indeed clear, that he was not perfectly satisfied on that subject, because in the agreement which he signed, he has introduced a provision, which shews he was still apprehensive that the Cahills would hold out, but this apprehension did not weigh so far as to prevent the agreement, else it would have been absurd to have entered into the agreement at all until the Cahills had quitted. Besides, Cooke himself having accepted fifty guineas, was bound to satisfy himself on that subject. I do not therefore think that that is a ground for objecting to the performance of this agreement.

Agent, autho

Then comes the question, whether there is an agreement rized to make agreements for in writing sufficiently expressed ; now, whenever an act is leases for lives done under an authority, it must be in pursuance of that or years, makes an agreement authority. If you suppose that Meagher was authorized in which the term of the to make an agreement with these persons, and to sign it in proposed lease the name of Cooke, it must be a perfect agreement that is not mentioned. This is an is to be made ; it must be an agreement which is to conagreement not

tain that which is to bind Cooke : now, if there was in the pursuant to his authority, and agreement any fraudulent omission on the part of Meagher, not binding on his principal.

to which Cooke was not privy, he would not be bound by it, as he had not authorized Meagher to commit a fraud. However, there is no suggestion of fraud in Meagher: the utmost that can be said is, that the not inserting the term in the agreement was ignorance, mistake, or blunder; but the agreement is therefore imperfect, and being so, it is not an agreement according to the authority, and on that ground I think it would be extremely difficult to decree what the bill seeks.


It is contended that this omission may be supplied by pa- 1802. rol evidence, and particularly by reference to the advertise

CLINAN ment. The plaintiffs have taken it to be a contract for a

СооКЕ. . lease of three lives ; therefore the contract they propose to perform is a contract at the rent expressed in the paper for three lives. Now, a reference to the advertisement will not serve their purpose, because the ambiguity remains, for in the advertisement it is “three lives or thirty-one years ;" there is nothing in the advertisement that gives a choice to the tenant. Cooke's answer says, that it should be either the one or the other as the parties should agree, and the case is perfectly silent as to the fact of any agreement on the point, except as to the plaintiffs having prepared a lease for three lives, for it is not stated in their bill that they meant the agreement to be for three lives, or that Meagher signed it meaning it to be so; for this reason therefore, it is impossible to connect this agreement with the advertisement. But suppose there were no uncertainty in this particular, and that the advertisement had expressed three lives only, you then are to connect these two transactions ; how? by parol evidence. Now if the agreement had referred to the adver- If one writ

ten instrument tisement, I agree parol evidence might have been admitted refers to anoto shew what was the thing (namely the advertisement) so ther written

instrument, pa. referred to, for then it would be an agreement to grant for rol evidence so much time as was expressed in the advertisement, and may be ad.

mitted to shew then the identity of the advertisement might be proved by what was the

thing so reparol evidence ; but there is no reference whatever to the ferred to. advertisement in this agreement.

The case of Tawney v. Crowther, 3 Bro. C. C. 318, was The case of

Tawney v. mentioned in argument: there the agreement was prepared Crowther, in writing ; the defendant declined to sign it, but he wrote a doubted, whe

ther the facts letter, which Lord THURLow said he relied on as referring support the

decree. to the written paper containing the terms of the agreement, and he thought that letter was tantamount to signing the written agreement, which written agreement, by the bye, Vol. I.



7. CookE.

was in the defendant's own hands. It is a misfortune, that persons publishing reports of cases in equity, do not take the trouble of looking into the decrees; in that case Lord THURLOW, though he pronounced that decree, yet he gave the defendant his costs provided he consented to deliver up possession within a certain time; his Lordship was diffident of his opinion, and intimated that he did so to secure against an appeal, the property being but small ; and this shews that he did consider that as a doubtfnl case, otherwise it would be extraordinary that the defendant should have his costs where he was wrong. However, Mr. Brown has not taken any notice of that circumstance, which I am sure was as I have stated it. I have often discussed that case, and I never could bring my mind to agree with Lord Thurlow's decision, for this reason : he considered the letter tantamount to a signing of the agreement; I thought the true meaning

“ I will not bind myself, but you shall rely on my word.” The case is not very accurately reported ; ; however, it appears to me strong in favour of the opinion I

entertain in this case, supposing Lord Thurlow to be right; because Lord THURLOW considered a reference to the written agreement essentially necessary; he considered the letter and the agreement one and the same thing, and the letter as a recognition of the agreement, as of a paper referred to in the possession of the defendant, and as a thing in which parol evidence was no otherwise necessary than to identify the thing produced.

of it was,

There is a case in Bunb. 65. Bindstead v. Coleman ; the position there is a mere general assertion ;“ where there is an

agreement by writing executed, you cannot come by evi“ dence to supply any defect in that agreement which was “ intended to be part of that agreement, but not inserted “ in it; for that would be to evade the statute of frauds and “ introduce more perjury.” This is stated as having been said by the Chief Baron, and it is added that the whole


court were of the same opinion, but whether said in the case before the court, whether said judicially, we cannot learn, and there is, therefore, no great dependence to be had on that case.



In Parteriche v. Powlett, 2 Atk. 383, Lord HAIDWICKE is made to say “ To add any thing to an agreement in wri“ting, by admitting parol evidence which would affect lands, “ is not only contrary to the statute of frauds and perjuries, “but to the rule of the common law before that statute was “ in being.” That appears to be a mere dictum when you look into the circumstances of that case, which I have reason to know is most imperfectly stated by Atkyns, because I have a collection taken from the register's books by Mr. Hollist, a gentleman of the English bar who has been very accurate, and it appears from his note that this was said incidentally by Lord HARDWICKE, and that it does not apply to the case ; however, these expressions do tend to shew à general opinion on the subject.

In the case of Brodie v. St. Paul, 1 Ves. Yun. 326, Mr. Justice BULLER came to a decision of the point, though it is extremely difficult to collect that from the report of the case, for I observe that the reporter has omitted to state the fact on which the question turned; he does not state the agreement, and you only discover from the argument what was really the question between the parties. The agreement was signed on the second of February, 1787, it refer i red to certain covenants which had been read, contained in a described paper; it was clear that all the covenants contained in that paper had not been read, and which of them had been read and which had not was the difficulty ; I recollect that one way by which we attempted to get out of the difficulty was, that every thing in dispute was to be left to Mr. Askew, and we insisted that he was to determine what had been read, and what had not ; but Mr. Justice BULLER

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