.1789. WHITCHURCH against Brvis. [ *561 ] tain their part-performance, it should be a demurrer, although the practice has been to plead it. (4) Mr. Ambler. The course has been to plead the statute, and to deny the facts charged as a part-performance. Lord Chancellor. When a court of equity said, that, if a parol agreement came out, there should be a specific performance, they said it was matter of honesty to carry it into execution. If I say that, upon a parol agreement appearing it shall be performed, I must say, I shall compel the discovery whether there was a parol agreement or not. [*] Mr. Ambler. Upon the face of this case, I deny that there is a part-performance. Lord Chancellor.- If it proceeds on the ground of part-performance, the whole cause must turn upon it, and if the plea should be allowed, they must take issue upon it, or else admit the facts. Mr. Ambler. The common case of part performance, is the laying out of money on the premises (5): the merely delivering the deeds is no part-performance; no more is the appointing of an appraiser. This was held insufficient in the case of Whitbread v. Wainwright, (ante, vol. i. p. 404.) It must be something done as owner of the estate, and which the party would not have done had he not considered himself in that light. (6) Lord Chancellor. - I wish the case to stand over, in order that it may be argued upon the form of the plea itself. It is argued that, if there has been an agreement which has been partly carried into execution, there must be a decree for a specific performance. I want to go into the question, as to the supporting of a plea by the answer. The rule as to this matter seems very much confined. If the Court is of opinion, that if part of the agreement is performed, that will take it out of the statute. I cannot quite understand the rule. If the plea of the statute is a total bar to the relief, and only a partial bar to the discovery, it seems to be anomalous. (7) If the Court is right in the rule, that if any agreement comes out it must be performed, I see no reason why there should not be a discovery, for the discovery is only an incident to the natural justice of performing the unwritten agreement. The plea stood over, but came on again the 25th January, [1786.] Mr. Ambler, in support of the plea. This case now comes on again upon the plea, and the state of facts in support of it. Where a plea is to part of a bill, it takes up that part and pleads in bar to it, but if there are further facts stated in the bill, which would give the plaintiff a right to a relief, there must also be an answer. In the case of pleading a purchase for valuable consideration, you must by answer deny notice, because, though if there were nothing more in the case, the pur. [*562] chase would be a [*] good plea; yet there is something behind, because notice would affect the defendant's conscience; therefore he must deny So, in the case of a trust, if a defendant pleads that he is a pur it. (4) As courts of justice ought to take notice of the public statute law of the realm, it should seem, that it would be as competent for the Court to decide such a case on demurrer, as well as on a plea. See fol. 568. Cases on the Ship Registry Statutes have been determined on demurrer. Battersby v. Smyth, 3 Madd. Rep. 110. (5) See contrà, 1 Scho. & Lef. 40. (6) Lord Redesdale C. seems to have placed the doctrine on just and clear grounds, when he held," that nothing is to be considered as a part-performance, which does not "put the party into such a situation, as that it is a fraud upon him if the agreement be "not performed.' See in Clinan v. Cooke, 1 Scho. & Lefroy, 41. (7) The whole confusion in these instances seems to have arisen from the double pleading first adopted in bills, instead of introducing traverses by special replications, as before; so that a defendant appears driven to the necessity of following the example, or making his defence by plea incomplete. See Mitf. Treat. 199. note, (3 ed.) & Beam. Elem. Pleas, 4. 175, &c. chaser So, in WHITCHURCH against BEVIS chaser for a valuable consideration, he must deny the trust. Suppose a 1789. bill stated a mortgage, the defendant may plead that he is a purchaser for a valuable consideration; but, he must deny the trust. another case, where the bill suggests fraud, if the defendant, in this case, pleads purchase for valuable consideration, if the fraud be only charged generally, he may deny it so, but, if a particular fraud be alleged, it must be particularly denied. Price v. Price, 1 Vern. 185. The reason is, the plea or answer must do away every part of the bill, upon which the plaintiff could have a remedy. This is a plea to the discovery, as well as to the relief. The defendant is not, in this case, bound to discover; for, if you discover the agreement, it is, then, out of the statute, Wanley v. Sawbridge, Exch. East. 4 Geo. 2. that was a plea of the statute, by an executor, to a bill for a discovery of a parol agreement. The Lord Chief Baron objected that it could not be pleaded to the discovery, but only to the relief. It was held it could not be pleaded to the part-performance. If, in our answer, we had admitted our consent to the lease to Webb, that would prevent the plea from applying to the discovery. In this case, the bill states an agreement within the statute. If, upon issue joined upon the plea, the fact was found against the plea, the party must be examined upon interrogatories. Lord Chancellor.-Suppose this plea to be allowed to the remedy, with the exception of the part-performance, then you would have a plea allowed because the agreement was not in writing, to a bill which does not state an agreement in writing, and which would put the equity on a different ground. Mr. Ambler.-Gunter v. Halsey (8).—Foxecraft v. Lister, 2 Vern. 456. show, that the acts done here, are not sufficient to constitute a part performance. In Brownsword v. Edwards, 2 Vesey, 243., it is laid down that, if the plea should turn out false in fact, the party must be examined upon interrogatories, and then the plaintiff would have the full benefit of the discovery. In Hawkins v. Holmes, I Wms. 770., the alterations in the deed in the hand-writing of the defendant was not held to amount to signing. What is the appointing a man to value the goods? Is that a part [] performance? In Foxecraft v. Lister, much more had been done. Here nothing is done in consequence. In Whitbread v. Wainwright, your Lordship laid all these facts of part-performance out of the case. Lord Chancellor. If the bill has not stated a part-performance, it is an objection against the bill on an agreement not in writing. If the statute meant that the agreement not being in writing should destroy the remedy, the part-performance would be immaterial. But the case here is, that of an agreement stated, and confessed not to be in writing. Mr. Madocks. As to the cases where the agreement is not in writing, but acknowledged, and the court has decreed upon them, Baron Eyre, in a case in the exchequer lately (Eyre v. Ivison, Trin. 1785,) said, he would examine whether they were not cases where the statute had not been insisted upon; for he doubted whether a performance could be decreed, although the agreement was confessed, if it was not in (9) writing. That was a case of part-performance, and, there being a plea of the statute, the plaintiff insisted, that though the part-performance should (8) Ambler, 586. (9) Lord Eldon C. seems to have set this point at rest, agreeably to Mr. Baron Eyre's impression, and that of Lord Thurlow's stated afterwards in this case; and it appears now settled, that specific performance of a parol agreement will not be decreed, although such an agreement be admitted by the defendant, if he insist upon the statute of frauds; and that, if admitting it, he says nothing about the statute in his answer, &c. he shall be taken to renounce its benefit. See in Cooth v. Jackson, 6 Ves. 37. 39, &c. Sparrier v. Lady Fitzgerald, ibid. 548. 555, 556. Beam. Elem. Pleas, p. 178. and cases there cited. [*569] not 1789. not be proved, the defendant would be bound by the confession of the agreement. Baron Eyre over-ruled the plea, and said that he thought WHITCHURCH the cases would not turn out to be, that the court could decree a peragainst formance on the confession of the defendant. BEVIS. [ *564] [ *565] The case stood over, but came on again the 8th of February. The plea is in the nature of a plea of an award, or of the statute of limitations. A plea of the statute of limitations without any particular fact stated in the bill, to take it out of the statute would go to the relief, and to the discovery; so does this plea, if the bill states no particular fact of part performance. Lord Chancellor.- You assume it to be clear that, in the usual case, the pleas without an answer would have been good. How do you prove that? [*] Mr. Ainge.- Hollis v. Whiting, 1 Vern. 151., the Court was of opinion, that, without particular circumstances, the plea was good, but if the bill had stated that it was part of the agreement, that it should be reduced into writing, it would alter the case and might require an answer. Lord Chancellor.— Hollis v. Whiting was never decided, and Lord Aylesford's case, 2 Stra. 783., is directly contrary. (10) Mr. Ainge. Cottingham v. Fletcher, 2.Atkyns, 155., shows that if the plea stood single it would have been good. So Pre. Ch. 533. Croyston v. Banes, Pre. Ch. 208. Symondson v. Tweed, Pre. Ch. 374, and Baron Eyre in the case of Stewart v. Careless, Exchequer, 10th April, 1785, thought that if the defendant by his answer insisted upon the statute of frauds, a specific performance could not be decreed, although he confessed the agreement. (11) The cases out of the statute are enumerated. Attorney General v. Day, 1 Vesey, 221. Potter v. Potter, 1 Vesey, 441. Mr. Madocks for the plaintiff. A demurrer admits the premises, but denies the conclusion drawn from them. A plea introduces some new facts, which destroys the conclusion. In a plea you may select any fact in the case, and plead to it, answering the rest, and though you cannot plead doubly to the same part of the bill, you may to the distinct parts of the bill so as to make out a proper defence. It is necessary to distinguish what pleas go to the relief, and what to the discovery. In a plea to the relief, it must be of something which will put an end to the plaintiff's case. This is a plea to the relief: now the Court will always inforce a performance of the agreement, where there is a part performance, or the agreement is signed by the party to be bound by it. Indeed it used formerly to be held, that the agreement must be signed by both parties, but in a case of Cotton v. Lee, before the Lords Commissioners, in the year 1770, it was held sufficient, if the party to be charged had signed it. And the same has been determined in the Exchequer. Hence exceptions have arisen, taking some cases out of the statute, as this, where the party to be charged has signed it. Another is, where the agreement appears by the confession of the party, as in Croyston v. Banes. Another, where it is part of the agreement, that it should be put into writing, it is held to take it out of the statute. [*] Lord Chancellor.-I take that to be a single case, and to have been over-ruled.(12) If you interpose the medium of fraud, by which the agree ment is prevented from being put into writing, I agree to it, otherwise I take Lord North's doctrine "that if it had been laid in the bill, that it was part of the agreement that it should be put into writing, it would (10) See Beam. Elem. Pl. 181. hereon. (11) Quite settled now accordingly. Vide 16 Ves. 57. 39, 40. have done," to be a single decision, and contradicted, though not expressly, yet by the current of opinions. 1789. against BEVIS. Mr. Madocks.-This is a parol agreement stated in the bill with alle- WHITCHURCH gations of a part-performance, and that the plaintiff with the defendant's privity, has made an agreement with a third person, to let him a lease of the premises, that it is fraudulent in the defendant not to empower the plaintiff to perform that agreement. The defendant pleads the statute, and avers that no written agreement was signed between the parties. The question is, whether that plea is a complete answer to the relief, so that if the plea is replied to, and the plaintiff cannot produce an agreement in writing, the Court will not execute it. That plea brings it directly to an issue, whether there was an agreement signed. So far it is a plea to the relief, but is it a plea to the discovery, and shall it bar that? But it would be extraordinary, as this Court would decree the performance of the agreement if admitted by the defendant, that this should be held a good plea to the discovery. Mr. Baron Eyre's idea in Stewart v. Careless, was, that all the cases in the books which had been determined on the defendant's admission, were cases where the statute was not insisted upon. The plea was over-ruled, because there were allegations of part-performance which ought to be answered. Lord Chancellor.- Over-ruling the plea, was taking from the defendant his power of insisting upon the statute in his answer, unless the plaintiff excepted. Mr. Madocks. There seem to be some expressions in that case, that look like Baron Eyre's idea, that the defendant in his answer did not insist upon the statute. Croyston v. Banes, and Symondson v. Tweed, show that if the defendant admits the agreement, without insisting on the statute, the Court must carry it into execution. Here the allegation is, that of a part performance, the validity of which cannot be argued upon the plea, but must be reserved to the hearing. [*] Lord Chancellor.- Supposing you to have laid a sufficient part-per- [*566] formance in your bill, I cannot conceive the plea would have held; it would have been like Lord Aylesford's case, where the agreement was carried into execution, and the plea of the statute over-ruled. But the great point is, whether you can plead the statute of frauds, without supporting the plea by an answer, averring that there was no parol agreement. (13) I put out of the case all the facts, charged in the bill as a part performance, considering them as weak and trivial, and by no means amounting to a part-performance; and my determination now goes upon the bill, as brought to enforce the performance of a parol agreement. (14) In Child v. Godolphin (15), before Lord Macclesfield, in 1725, a bill was brought for the specific performance of an agreement to assign a lease held of the dean and chapter of St. Paul's, the plea was as to such part of the bill as went to the assignment of the lease, it set forth the clause of the statute, and averred that neither the defendant or any other person authorised by her, had signed any writing or note concerning the assignment of the lease, saving a letter in the plaintiff's bill mentioned, which was brought to her ready wrote by the plaintiff, who desired her to sign it as a letter of recommendation, and insisting that this was not such a writing as was within the statute, the terms of the agreement not being expressed therein. The case was argued before Lord Macclesfield, by great and eminent counsel, when the plea was ordered to stand for an answer, with liberty to except; and, upon a re (13) This seems clearly wrong, and some mistake of the reporter. (14) Mr. Dickins states Lord Thurlow to have said ultimately, "if there ever were a› "case on which the statute of frauds was intended to attach, it must have been this." 2 Dick. 666. (15) 1 Dick. 39. See the observations of Sir William Grant M. R. on Lord Thurlow's statement of this case, 6 Ves. 555. hearing. 1789. hearing obtained by the defendant, the order was confirmed, and Lord Macclesfield said, the plea of the statute was right, but that she ought to WHITCHURCH have denied the agreement by answer, for if she confessed it the Court against would enforce it. That if the bill had stated the agreement, generally, BEVIS. a demurrer might have been allowed, but where the agreement is stated to be in writing, the plea must be supported by the answer. (16) Actions at law continue to be brought, as they used to be, upon a general statement of the agreement in the declaration, and the defendant introduces the statute by the plea. So in this Court; but this Court has laid down two exceptions, by which, if they are to be sustained, it amounts to the same thing as if the statute had made the exception of the two cases, that is where the agreement is confessed by the answer, or where there [*567] is a part-performance. The consequence is that if the bill [*] states a part-performance, the defendant must answer to the agreement, as well as to the part-performance; according to Lord Aylesford's case, which is founded on extreme good sense. So, where the Court has laid it down as a clear exception from the statute, that the danger of fraud and perjury is avoided, where the defendant admits the agreement. (17) That leads to the doctrine laid down in the Court of Exchequer. If the party may or may not take advantage of the statute, by insisting, or not insisting, upon it, there is no foundation for the exception out of the statute, but if the exception is founded, it makes it like any other equitable case. But what will become of the statute? The bill will not be sustained unless the defendant confesses the agreement by his answer; you shall not prove it aliundè. If the bill had only stated the parol agreement without the part-performance, the plea would not have applied, the agreement must be answered. I am aware, that except the case determined by Lord Macclesfield (18), there is no other; the opinion I give is, that if nothing had been stated in the bill but a parol agreement, if the defendant pleads, he must support his plea by an answer, denying the parol agreement (19), the only effect of the statute being that it shall not be proved aliundè. If he answers and says there was no parol agreement, I think no evidence that can be given will sustain the suit. If this doctrine be not maintainable, the judgment I am giving is wrong. [ *568 ] Plea over-ruled, and ordered to stand for an answer with liberty to except and to reserve the benefit of the plea till the hearing. The plea was afterwards re-argued [on the 8th November, 1786,] much to the same purpose as before, and standing for judgment, this day, [2d March, 1789.] Lord Chancellor, after stating the case, proceeded to this effect.- In this case the agreement stands confessed in the answer. The rule seems to carry a necessary conclusion with it, that whatever in conscience affords a title to the plaintiff, it is impossible to exempt the defendant from disclosing, in order to enable the plaintiff to obtain relief: but the cases have been uniform in that point only; where the defendant has pleaded the statute of frauds, and has not confessed a written agreement, the Court has in no case, compelled the defendant to execute it. The case of [*] Whaley v. Bagenal, (6 Bro. P. C. 45.) was so determined upon great argument, in 1768, and has fixed the rule upon a basis of authority, a great deal too strong, in my opinion, to be over-turned or answered. I have, therefore, d turned over, with much deliberation, all the cases cited, and all I can find (16) See note (12) in preceding page. (17) But if he then insists on the benefit of the statute, he will be entitled to it. 6 Ves. 39, 40, &c. (18) Child. Godolphin, I Dick. 39. (19) This seems incorrect, and that to such a bill it would be only necessary to plead the statute with an averment in the plea, that the agreement was not reduced into writing, if indeed such an averment be requisite to a bill stating merely an agreement by parol. The ultimate decision on the principal case over-ruled the opinion here stated. are |