Page:The English Reports v1 1900.pdf/631

delay, be carried into complete execution, by perfecting proper conveyances, and by the application of the purchase money. That Hornidge, on this occasion, did from day to day alledge, that he was endeavouring to perform his part on the respondent's behalf; and in particular, that he had made great progress in the necessary searches for judgments and incumbrances, and had procured negative certificates from several of the public offices, on the occasion. That during the progress of these matters, the respondent, at different times, in the presence of several persons, declared to the appellant, that he would not attempt to recede from his agreement with him, even though any other person should offer him thirty years purchase for the lands; and made many declarations and assertions to that or the like effect; and the appellant, at the instance and desire of the respondent, applied to several of the creditors named in the respondent's list of debts, who agreed, upon being paid their arrear of interest, to accept the appellant's security, and exonerate the respondent and his estate from their demands. That upon the 14th or 15th of September 1762, the appellant's agent applied on his behalf to the respondent then in Dublin, and informed him that he apprehended it would be necessary for the respondent and his wife to levy a fine to the appellant of the lands agreed to be sold; and the respondent then told the appel-[351]-lant's agent, that whenever it should be necessary, he and his wife would, upon being informed thereof by letter, come immediately to Dublin and levy such fine. That pending these several transactions, and between the 13th of May and the 16th of November following, the respondent by many letters and otherwise, to several of his creditors, and other persons, informed them that he had agreed to sell part of his estate to the appellant for twenty-one years purchase, and that so soon as the sale should be completed, he would pay his debts. That after the agreement, and when the appellant was viewing the lands, Nathaniel Evans, gent. a tenant of the mansion-house and part of the lands of Ballywilliamroe, applied to the respondent to accept a surrender of his lease, and grant him a new one, with a covenant for renewals for ever; on which occasion the respondent informed Evans, that he had sold the lands to the appellant, and had it not in his power to alter the lease, and that Evans must apply to the appellant, and acquaint him that he was directed by the respondent so to do for the reason aforesaid. Some others of the tenants also applied to the respondent, for leave to cut timber on part of the estate so agreed to be sold, but the respondent refused to give such leave, and informed the persons applying, that it was not in his power, for that he had sold the lands to the appellant, and desired they might apply to him. And upon an application for that purpose made to the appellant, by one of the tenants, in the presence and by the direction of the respondent, the appellant gave the tenant leave to cut trees as desired, for building on the lands. That in further execution of the agreement, the respondent applied to James Fitzgerald and William Garrett, to surrender their leases, and to accept distinct leases as before-mentioned, which they severally agreed to do. That the appellant having a large sum of money, to the amount of £15,000 and upwards, in bills and specie, in his hands at the time of his agreement with the respondent, he not only forbore to engage in any other purchase, or to lend the same out on securities, but kept it lying dead, and called in several large sums of money which were out upon good securities, and gave notice to several persons who stood indebted to him by mortgages and judgments, forthwith to prepare to pay in their debts. That the appellant, from his known credit and fortune, was well qualified on his part to enter into the agreement, and was always ready and well prepared to perform his part thereof, and by his bill offered to do so, upon proper deeds of conveyance being executed to him pursuant to the agreement. But the respondent, in order to deprive the appellant of the benefit of his agreement, not only neglected and declined to perform the requisites on his part in execution thereof, but on the 14th or 15th of November 1762, and when several of those requisites remained unperformed by the respondent, he wrote a letter to Hornidge, directing him to acquaint the appellant that the respondent would not convey the lands to the appellant. That the appellant, by letters and otherwise to the respondent, made several applications for a specific execution of his said [352] agreement, which he absolutely refused to comply with, and had since offered for sale and mortgage all or most of the lands so agreed by him to be conveyed to the appellant; notwithstanding which refusal, the respondent by Gurly