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STONE v. ANGLESEY (EARL OF) [1725]

I BROWN.

averment in this declaration was in itself defective and insufficient, as was agreed by both Courts, it was hoped, that their Lordships would not enforce an action of this nature beyond the stated and prescribed rules of law; but would reverse the judgment of the Court of King's Bench, and affirm that of the Common Pleas.

On the other side it was contended (P. Yorke, N. Fazakerly), that the articles contained mutual covenants; and therefore it was not necessary for the plaintiff in the action to alledge either a transfer or tender, to intitle him to recover for the non-payment of the money, that not being a condition precedent to the payment thereof. That supposing it necessary to alledge a tender, such tender was sufficiently alledged; but if not, the defendant in the action had aided that defect in the declaration, by pleading a collateral matter; whereby he had put himself upon a defence, which amounted to a full admission of a tender. And therefore it was hoped, that the judgment of the Court of King's Bench would be affirmed with costs.

But after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of King's Bench, reversing the judgment given in the Court of Common Pleas, should be reversed. (Jour. vol. 22. p. 518.)

[218] Case 25.—Richard Stone,—Appellant; Earl of Anglesey, and others,—Respondents [5th May 1725].

[J. S. agreed to sell a wood upon his estate to W. and to give him a certain time for cutting and carrying it away. The purchaser being interrupted by persons who pretended a title to the estate after the death of J. S. who they insisted was only tenant for life, and therefore had no power to sell, brought his bill for a performance of this agreement. The Court, upon the hearing, were of opinion, that this was only a colourable agreement, set up in order to try the defendant's title in equity, which was properly triable at law, and therefore dismissed the bill with costs. But on an appeal, the decree was reversed, and an issue directed to try the title.]

The respondent the Earl of Anglesey, being, as he declared, seised in fee-simple or fee-tail of a parcel of inclosed ground, called Camolin-park, formerly and before the same was inclosed, known by the name of Knockangarrow, in the county of Wexford, on which there were standing a great quantity of timber and other wood; and being disposed to sell such timber and wood, the appellant treated with him for the purchase thereof, and in consequence of such treaty, the Earl, by deed dated the 20th of August 1719, agreed to sell the said wood to the appellant, for the sum of £5000, and to give him seven years time for the cutting and carrying it away.

The appellant afterwards, and in order to dispose of the timber again, treated with several persons for the sale thereof; but the respondents the Lord Altham and Mr. Bayley, with a design to prevent the appellant's disposing of the woods, gave nut, that the Earl was but tenant for life of the same, and therefore had no power to sell. They also pretended, that the Lord Altham was seised of a remainder in tail of the said premises, and that Bayley had bought all the said wood from the Lord Altham and they both threatened, that they would hinder any vendee from cutting or carrying away the wood, and would get the injunction of a Court of Equity for that purpose.

Whereupon the appellant exhibited his bill on the 25th of January 1719, in the Court of Chancery in Ireland, against the respondents, praying, that the Earl and the other defendants might discover and set forth their respective titles to the premises; and if it should appear that the Earl had a good title to, and could sell and dispose of the said woods, then that the appellant and his vendees might be quieted therein against the respondents Lord Altham, Bayley, and Annesly; but if the Earl should not make out a good title to the woods, then that the appellant might be released and discharged from his purchase.

The Earl, by his answer to this bill, admitted the agreement with the appellant,

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