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party who has received the advantage, should be admitted to say that such a contract was never made.

35. Lord Cowper, in confirmation of this doctrine Gilb. R. 2. has said, that wherever a parol agreement is begun to be put in execution, and intended to be continued, there, though there be no writing, yet the Court of Chancery will enforce its execution, notwithstanding the statute of frauds.

36. With respect to the acts which have been held What Acts to be a part performance of an agreement, the general Performrule is, that they must be such as could be done with ance. no other view or design than to perform the agreement; such as delivery of possession ; and payment of the whole, or a considerable part of the consideration. 37. The delivery of possession and laying out Delivery of

Possession. money has always been held to be a part performance of a parol agreement; so as to take it out of the 3 Atk. 1. statute of frauds. 38. The plaintiff having a house in London, agreed Floydv.

Buckland, with the defendant for a lease of a piece of ground 2 Freem. 268. adjoining, for as long time as he had in the house : thereupon the plaintiff entered upon the ground, built a wall, and made a vault, for the convenience of his house: when he had so done, the defendant refused to make him a lease ; whereupon the plaintiff preferred his bill to have an execution of the agreement. The defendant pleaded the statute of frauds; the agreement not being in writing. The plea was over-ruled by the Lord Keeper; and the Master of the Rolls decreed the defendant to perform the agreement, saying, that the statute was not made to encourage frauds and cheats; for the plaintiff having 1 Vern. 363. laid out his money in pursuance of the agreement,



Wills v.

3 Atk. 1.

Main v.

and taken possession of the land, the defendant

ought to execute a lease. Aylesford's 39. There was a parol agreement for a lease for Case, Stra. 783. 21 years, upon which the lessee had entered and

enjoyed for six years, then the lessor brought a bill to oblige the lessee 'to execute a counterpart, for the

residue of the term ; to which he pleaded the statute Stradling, 3 Ves. 378.

of frauds; which was over-ruled, the agreement

being in part performed. Payment of 40. It is laid down by Lord Hardwicke in the Purchase Money.

case of Lacon v. Mertins, that payment of money had

always been held to be a part performance of an ante, $ 19. agreement. But in Seagood v. Meale, where a

guinea only was paid out of £150; that was said not to be a part performance; it being only meant as earnest.

41. In a modern case, where five guineas were Melbourne, 4 Ves. 720. paid, upon a parol agreement, for the purchase of

a lot of land, of which the price was 105 l.; Lord Rosslyn said, that though payment of a substantial part of the purchase money would take an agreement, as to land, out of the statute of frauds, on the ground of part performance ; yet that payment of a small sum would not do so; and allowed the plea of

the statute. Introductory 42. It has however been always held, that acts Acts not a

merely introductory to the completion of an agreeformance. ment, such as giving instructions for a settlement, or

going to view an estate contracted for, are not such

a part performance as to take it out of the statute. Bawdes v. 43. In consequence of a treaty of marriage, the Amburst, 1 Ab, Eq. 21. lady's father and the intended husband went to Mr. Prec, in Cha. Minshul's chambers, who was to draw the settlement, 402.

as counsel for the lady; and Mr. M. took down minutes thereof in writing. The next day the lady's father died, and the day after the marriage took

Part Per

place. The husband and wife brought a bill for a specific execution of the agreement; but it was declared not to be such as the Court of Chancery would execute. And Lord Cowper said he had always been tender in laying open that just and wise provision the Parliament had made. That the act had not only directed such agreements to be in writing, but went further, and directed them to be signed by the parties themselves, or some other lawfully authorized by them for that purpose.

44. Mr. Bagenel entered into a parol agreement Whaley v. with Whaley for the sale of an estate in the county of Bagepel;

Bro. Parl. Carlow, delivered to him a rent-roll of the lands, Ca. 345. which was dated and altered with Bagenel's own hand, and showed by the title of it, that an agreement had been made, between him and Whaley, for the sale of the estate at 21 years purchase : an abstract of the title was also delivered to Whaley together with the deeds. Bagenel wrote letters to several of his creditors, informing them that he had contracted with Whaley for the sale of his estate at 21 years purchase, and sent the tenants to treat with Whaley for the renewal of their leases. Upon an inquisition held by virtue of a writ of elegit, sued out by one of Bagenel's creditors, his agent produced a witness to prove that the lands were sold by Bagenel to Whaley, in consequence of which the jury found a verdict that Bagenel was not seised of the lands. Bagenel afterwards refused to perform his agreement. Whaley filed a bill in Chancery in Ireland for a specific performance : Bagenel pleaded the statute of frauds, in bar of the discovery and relief; which was allowed.

On an appeal to the House of Lords of England, it was contended by the appellant, that the statute of frauds was made in order to prevent the danger of Vol. IV.


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perjury, which might arise from parol agreements ; but where there was written evidence that an agreement was made, and acts had been done by the parties, in part execution of it, the danger of perjury was removed. That where a bill was framed with proper charges of facts and circumstances, tending to take the case out of the statute of frauds, the plea of the statute ought not to be allowed in bar of the discovery sought by the bill, without a full and negative answer to such charges, as would, if proved true, be sufficient in equity to entitle the plaintiff to relief.

: In support of the plea it was said, that the Irish statute of frauds was little else than a transcript of the English statute the intent of both was the same, and every rule of construction applicable to the one, was equally so to the other. A written agreement signed by the party, or some person by him thereunto authorized, was by both acts precisely and positively required, for establishing contracts for sale of lands: and being of the substance of the contract, had never, while the contract remained executory, been dispensed with. Of this the appellant himself seemed sensible, by his charge of the respondent's having with his own hand inserted in figures in the rent-roll the amount of the rent; added the date, and struck out a denomination which he meant to preserve; which the appellant would have considered as amounting to a written agreement: but it was clearly no more than one of those many loose and unmeaning circumstances, which, if attended to, would in their consequences let in all the mischiefs meant to be prevented by the act; which gives credit only to a writing, and the party's, or his agent's, signature.

Contracts partly executed by delivery of possession,

receipt of some of the purchase money, or attended with some fraud, on the part of the vendor, who had made use of the act for sheltering fraud, were very justly decreed to be specifically performed. But those were quite foreign to the present case, which appeared, upon the appellant's own statement of it, to be no more than a proposal or treaty, attended with some inquiries, but never carried into the least execution: and no imputation of fraud lay upon the respondent throughout the whole transaction. That the plea went to the discovery as well as the relief ; and rightly so, for wherever a plea is sufficient to bar the relief prayed, it must go to the discovery : otherwise the plea to the relief would be nugatory and idle. Here the whole charge rested upon a supposed agreement, which being neither reduced into writing, nor signed by the respondent, could never be decreed against him; if so, a discovery of all the matters charged in the bill would be a discovery of nothing at all, and leave the appellant in just the same state as he was. The order was affirmed. 45. In a modern case Lord Thurlow said " If 2 Bro. R.

559. there be general instructions for an agreement, consisting of material circumstances, to be afterwards extended more at large, and to be put into the form of an instrument, with a view to be signed by the parties, and no fraud, but the party takes advantage of the locus penitentiæ, he shall not be compellable to perform such an agreement as that, when he insists upon the statute of frauds."

46. Lord Alvanley, when Master of the Rolls, has 3 Ves. 712. said." I admit my opinion is, that the Court has gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute; then, unavoidably perhaps, after establish

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