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respondent in pursuance of that agreement. The performance of an agreement, either in whole or in part, as to the terms whereof there is no uncertainty, has always been considered by Courts of Equity, as a circumstance to take it out of the statute of frauds, which was only intended to prevent the consequences of perjury, where agreements were uncertain; and therefore they have decreed in favour of parol agreements, when ascertained by the confession of the party in his answer; and when a parol agreement is in part performed, by the party contesting the same, and there is no doubt concerning the terms of it, as in the present case; such agreements are established and decreed for in Courts of Equity, if not unequal or unreasonable in themselves, or liable to some other objection than that of their not being signed by the parties. It was therefore hoped that the decree would be reversed, the first agreement vacated, and the second established.

On the part of the respondent it was insisted (F. Chute, T. Clarke), that the agreement of June 1737, was a very reasonable agreement, being made between two near relations of a noble family; the one having no issue, and the other being his first cousin and next heir male, who, in default of issue male of the appellant, must succeed to the honour and earldom, and who was clearly intended to succeed to the Anglesey estate; and that such agreement was the more reasonable, because it was made to quiet disputes and differences then subsisting, which were occasioned by the confusion that had been introduced by the two wills and six codicils, and to secure a convenient part of the estate to support the honours of the family; [299] and therefore fit and proper to be carried into execution by a Court of Equity. That this agreement took its rise from a proposal originally made by the appellant, and was afterwards carried on by treaties between the common friends of both parties, till at last, upon full consideration, it ended in a manner more favourable for the appellant than his own first proposal. And after due time had been taken for drawing and engrossing the articles, they were fairly and voluntarily executed by both parties, without the least ground for any imputation of fraud, surprise, or imposition; the appellant having previously taken the advice of learned counsel concerning his title, and having had full opportunity of inspecting into it, if he had thought proper. That as this agreement had, in the several particulars above-mentioned, been carried into execution on the part of the respondent, the circumstances of the estates were so far varied, that the respondent could not now be put into the same condition he was in before the agreement; and it would be very inequitable to let the appellant loose from his agreement, when so many acts had been done by the respondent in favour of the appellant, and to quiet his title to the estates he enjoyed under it, in which the respondent was no otherwise bound to assist or concur, than in compliance with the agreement. That the pretended second agreement could not vary the case, or amount to a waiver of the first, because it was never perfected according to the statute of frauds, nor properly carried into execution, nor could the appellant have compelled a specific performance of it; for although possession of part of the Dublin estate was delivered to the respondent's agent, without his consent, yet those premises were held only by chattel leases from the city of Dublin, and therefore, in their nature, could not be applied in performance of this pretended agreement: besides, this possession, such as it was, as soon as the respondent knew of it, was restored, and the appellant had ever since been in the receipt of the rents and profits of the premises. And therefore it was hoped that the decree would be affirmed, and the appeal dismissed with costs.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 26. p. 72.)