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1802.

CLINAN

71. 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 of it was, “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.

There is a case in Bunb. 65. Bindsteadv. 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 1802. •

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.

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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. Jun. 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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thought that was a matter of mere evidence, and not a thing that was meant to be left to Mr. Askew's determination. In the course of the argument of that case, Allan v. Bower was mentioned, and Mr. Justice Buller, speaking of that case, says, if that case was right it depended on part performance that the agreement being partly performed opened the case to parol evidence : and there the whole agreement was by parol—there was no agreement in writing ; there was an instrument under the hand of Bower, which was produced for the purpose of shewing that he had made some parol agreement with the tenant. But in Brodic v. St. Paul, Mr. Justice BULLER says he was clear that the agreement was not sufficient to sustain an action at law, for that nobody could tell, except by parol testimony, what covenants had been read, and what not ; that part performance takes a case out of the statute, but that in that case there was nothing that could do so. “The question here is, what “is the agreement? the whole depends upon parol. If " the agreement is certain, and explained in writing, signed “ by the parties, that binds them ; if not, and evidence is “ necessary to prove what the terms were; to admit it “ would effectually break in upon the statute and introduce “ all the mischief, inconvenience, and uncertainty, the sta“tute was designed to prevent.” Now I must confess I feel this to be perfectly right, and I am convinced that though the counsel for Mr. Brodie felt that he was very ill used, yet they felt also that it was impossible that relief could be afforded him, and that this blunder had made the agreement so imperfect that the statute forbids its execution.

The case of Allan v. Bower appears in 3 Bro. C. C. 149, to have come on again on a rehearing, and upon that rehearing it appeared that the proceeding was in itself irregular ; that it was a decree made, not when the cause was at hearing, but upon a motion for an injunction, and therefore Lord Thurlow was under the necessity of setting it 1802. aside, as being irregularly made. I know it never came on

CLINAN again. Whether the decision would have been the same if

СоокЕ. it had, I cannot venture to say, but that must at all events have depended on its being or not being considered a part execution of a parol agreement, for Lord Thurlow thought that the paper left behind by Mr. Bower shewed that he had come to some parol agreement, and having done so had let the plaintiff into possession, that the plaintiff had laid out great sums of money on the farm. This he considered as proved by that paper, which he considered as a confession by Bower of that fact, and this he thought sufficient ground for directing an inquiry what was the agreement entered ito, to which that paper referred. That is, he considered that - paper not as an agreement to be supplied by parol evidence, but as evidence of a parol agreement. There were very great doubts whether that was a solid opinion, though Lord THURLOW took it up very strongly, and his decisions were very seldom unsatisfactory. Any person who reads his decision in 3 Bro. will find that he did not feel Allan v. Bower, himself very strong when he delivered his opinion. There doubted., was something of the same impression as was on his mind in the case of Tawney v. Crowther. In the first of those cases, where a man said he would not sign a paper, Lord THURLOW considered this tantamount to a signature ; and in the latter, when the expressions of the party were, “that he had not “ given his tenant a lease because he was not willing to grant “ leases,” his Lordship held this as an agreement to grant a lease. I confess ny mind could never follow these two cases, and there was great doubt amongst the bar on both of them. However, I think neither of these cases decides the present. So far as they touch it, they rather confirm the opinion I have formed, and particularly Tawney v. Crowther, for there Lord Thurlow considered the letter as referring distinctly to the other paper.

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A case was also mentioned from 3 Atk. 388 (Joynes v. Statham) where a bill was filed for a specific performance of an agreement for a lease. The defendant alleged that there was a mistake in the agreement with respect to the rent; that the rent was to be clear of taxes, and that that was not inserted in the agreement, and on that ground he resisted performance, and he offered to read parol evidence to shew that that was part of the agreement. Now, that was admitted on a ground which I take to be perfectly clear : the bill was filed to compel performance of an agreement; the defendant says, “the agreement you have got signed was not “the agreement I entered into, and I therefore am not bound “ to perform it.” Suppose the omission fraudulent : the plaintiff might have proved a case of fraud to avoid it, and it is quite equal whether it is insisted on as a mistake or a fraud ; so says Lord HARDWICKE.

It is true Mr. Atkyns makes Lord HARDWICKE say, “ Suppose the defendant had been the plaintiff, and had " brought the bill for a specific performance of the agrec“ ment. I do not see but he might have been allowed the “ benefit of disclosing this to the Court.” This passage vas cited for the purpose of shewing that Lord HardWICKE thought there might be an addition to the agreement by parol. I have found a reference to a note of the same case by Mr. Brown, who was king's counsel in Lord HARDWICKE's time, and in great business, and the manner in which he has put this case is thus—“But, query, “ if on a bill for performance of an agreement, and an at“ tempt to add to the agreement by parol, whether plaintiff “ can do it in that case ?” Therefore Mr. Brown certainly did not understand Lord HARDWICKE as saying that it could be done, and looking attentively at the words used by Atkyns, I do not think they import any thing positive.

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