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1 802.

CLINAN

COOKE.

as part payment, and no distinction can be drawn : but the great reason, as I think, why part payment does not take such agreement out of the statute is, that the statute has said(a) that in another case, viz. with respect to goods, it shall operate as part performance. And the courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the legislature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands.

In such case,

But I take another reason also to prevail on the subject. I take it that nothing is considered as a part per- performance

nothing is part formance which does not put the party into a situation that does not that is a fraud upon him, unless the agreement is per- into a situation formed; for instance, if upon a parol agreement, a man is that is a fraud

upon him if the admitted into possession, he is made a trespasser, and is liable agreement be

not performed. to answer as a trespasser if there be no agreement. This is put strongly in the case of Foxcraft v. Lister ;(6) there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong doer, and to account for the rents and profits, and why? because he entered in pursuance of an agreement. Then for the purpose of defending himself against a charge which might otherwise be made against him, such evidence was admissible, and if it was admissible for such purpose, there is no reason why it should not be admissible throughout. That, I apprehend, is the ground on which courts of equity have proceeded, in permitting part performance of an agreement to be a ground for avoiding the statute; and I take it therefore that nothing is to be considered as part performance which is not of that nature. Payment of money is not part performance, for it may be repaid; and then the parties will be just as they were before, especially if repaid with interest.

(a) Sect. 13.
(6) Cited, Prec. Ch. 519; 2 Vern. 456 ; Vid. Colles's Parl. C. 103.
VOL. I

1802.

CLINAN

СооКЕ. .

It does not put a man who has parted with his money into the situation of a man against whom an action may be brought; for in the case of Foxcraft v. Lister, which first led the way, if the party could not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent.

On this ground therefore I think this is not a case in which I can consider that there is a part performance to warrant my decreeing performance of an agreement, the terms of which are left thus imperfect, and must be supplied by parol evidence, which would be contrary to the statute ; there is no sufficient ground to consider this case out of the statute, and I am of opinion that the bill must be dismissed.

;

There is another part of the case which requires a little notice ; the plaintiff does appear in the light of a person who at least offered some money to Meagher; though that fact is not distinctly alleged by the answer, yet it is alleged that Meagher entered into this agreement with the plaintiffs in consequence of some money which he received from them, and that he did it to the prejudice of the defendant it also appears that the sum of twenty guineas was paid by the plaintiffs to Meagher, and that it was paid without a receipt. These are suspicious circumstances ; the bill insists that this money was paid on account of rent, if so, why was not some receipt given for it as well as for other payments of the same kind ? I think the case on the part of the plaintiff very suspicious and not at all favourable. But I think the conduct of the defendant, also very unjustifiable-quite unwarrantable after retaining the fifty guineas as he has done ; he receives fifty guineas in February in consequence of an agreement which was to be executed in May; he takes advantage of the imperfection of the agreement; but with the impression on his mind that it was imperfect, he retains

1802.

the money in his hands without even tendering it, until a bill is on the point of being filed.

CLINAN

COOKE,

Although I dismiss this bill as to the performance of the agreement for a lease, yet there is one part of the agreement clear and distinct, that in case of failure, the fifty guineas was to be repaid with interest, and therefore I shall direct the register to compute what is due on the foot of the fifty guineas and interest. I have a great inclination to give the plaintiffs costs on that part of the case ; and I shall dismiss the bill so far as it seeks a lease, without costs. As to the Cahills they have acted a dishonest part ; they knew of the agreement; and I shall dismiss the bill as againt them, without costs.

Reg. Lib. xlviii. 432.

END OF THE SITTINGS AFTER MICHAELMAS TERM.

1803.

HILARY TERM, 1803.

MATTER OF PATRICK MURPHY, A Jan. 25,

B.INKRUPT. A bond is gir. MR. HENCHY, on the petition of Agnes Murphy, (wife en by a trader previous to his of the bankrupt) and of the trustee in her marriage settlemarriage, to

ment, moved that she might be admitted a creditor under a trustee, and by marriage the commission for the sum of sool. settlement of same date, it is covenanted On the 3d October, 1795, previous to the marriage of that the sum mentioned in the bankrupt with the petitioner Agnes, a bond was executed the bond is to, by him to the trustees in the penal sum of 1,6001, conin the event of ditioned for the payment of 8001 on the. 3d day of viving the

hus

. March, 1796, with warrant of attorney to confess judgband ; and it is ment with stay of execution till the 3d day of March also covenanted that in case 1796. A settlement, of same date with the bond, was of the husband executed between the bankrupt of the first part, Mary failing in his circainstances, Nolan, and Agnes Nolan her daughter, of the second part but not other and Thomas F. Nolan of the third part, which referred to the wise the trustee shall sue on bond, and whereby it was covenanted, " that the sum of the bond. The husband fails,

8001. therein mentioned was payable, and to be sued for living the wife. “ only in the event of the wife surviving the husband,” and The trustee ought not to be in case of her dying before him, it was provided that the admitted a

children of that marriage should have a share of his property creditor.

equal to the children by any after taken wife. Then (after reciting that the husband was a trader) it was further covenanted, “ that in case of failing in his circumstances, but

not otherwise, the trustee was empowered to enter judg“ ment on the bond, and to issue execution for the amount “ thereof."

The settlement was duly registered on the 12th October, 1795, pursuant to the stat. 5 Geo. 2. c. 4, sect. 10. The bankruptcy happened long subsequent to the 3d of March, 1796.

The Lord CHANCELLOR, on the facts being disclosed, 1803. said, that he considered the whole device to be a fraud upon

MUYPHY, the bankrupt laws; that under the first mentioned covenant, a Bankrupt. the debt was merely contingent, and that the subsequent provision, in case of insolvency, &c. was fraudulent.

Mr. Henchy. The question is, whether this be a debt proveable under the commission ? now, the wife's trustee has always been admitted to prove, where there was a remedy at law prior to the bankruptcy. In the case Ex parte Winchester, 1 Ath. 117, Lord HARDWICKE says, “If a hus“ band becomes bankrupt after a breach of payment to “ trustees, (which is the present case) they have always “ been admitted creditors upon equitable terms,” and his Lordship added, “ If judgment had been given at law by “the husband for this sum, 'tis a debt notwithstanding the

defeasance, and the trustees would have been admitted “ creditors, though the terms of the bond itself be other“ wise.” And in 1 Atk. 121, Lord HARDWICKE says, “ In " those cases where he had let in such creditors, a judgment

was given at the time, which is an immediate debt at law, “ and suspended in equity only upon the defeasance.” And in 1 Atk. 118, his Lordship says, “ In Groome's case, I

am of opinion (though I am sorry I must go upon such “niceties) that he cannot be admitted a creditor : on all the “ other cases, there was a remedy at law before such time " as the act of bankruptcy was committed, or commission “ taken out, but here there was not.” It remains therefore to shew, that there was in the present case a remedy at law prior to the bankruptcy. It is not denied, that the settlement was duly registered pursuant to the statute ; and there was a breach of the condition of the bond by non-payment on the 3d day of March, 1796, by which the debt then became absolute at law. Then if the trustee had proceeded by action on the bond subsequent to 3d March, 1796, he

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