Page:The English Reports v1 1900.pdf/633

The appellant apprehending himself aggrieved by this order, appealed from it; contending (C. Yorke, A. Wedderburn), that the statute of frauds was made in order to prevent the danger of perjury, which might arise from parol agreements; but where there is written evidence that an agreement was made, and acts have been done by the parties in part execution of it, the danger of perjury is removed. And where a bill is 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 to be true, be sufficient in equity to entitle the plaintiff to relief. That in the present case, the agreement did not rest on parol testimony alone; for it had been acknowledged and confirmed by the respondent in a variety of instances. The rent roll delivered by him to the appellant, and which was altered and dated by himself, in his own handwriting, proved from its title, that an agreement had been previously made between them for the sale of the estate, at twenty-one years purchase. In consequence of this agreement, the respondent delivered the deeds to the appellant's agent, to be com-[354]-pared with the rent-roll, and laid an abstract of his title, and a case thereupon, before counsel, in which it was stated, that the appellant had agreed with him for the purchase of these lands, at twenty-one years purchase. He also gave the appellant a list of his debts which affected the estates, and authorised him to apply to his creditors; to several of whom, and to other persons, he was charged by the bill to have written letters himself, informing them, that he had agreed with the appellant, to sell him this estate at twenty-one years purchase. He afterwards sent the tenants to treat with the appellant, as owner of the estate, for renewal of leases, and for liberty to cut down timber. And to close all, he, with a view of preventing the effect of an elegit against himself, produced evidence before a jury, that such agreement and purchase had been made. These were certainly facts and circumstances very material to be answered, and, if fully proved, might, according to the construction put upon this statute in many instances, be sufficient, in a Court of Equity, to take this case out of the statute. It was therefore hoped, that the order allowing the plea would be reversed; and that the respondent would be compelled to answer the appellant's bill.

In support of the plea it was said (F. Norton, A. Forrester), that the Irish statute of frauds and perjuries, 7 Will. III. is little else than a transcript of the English statute, 29 Car. II. cap. 3. the intent of both is the same, and every rule of construction applicable to the one, is equally so to the other. A written agreement signed by the party, or some person by him thereunto authorised, is by both acts precisely and positively required for establishing contracts for sale of lands, and being of the substance of the contract, has never, while the contract remains executory, been dispensed with upon the 29 Car. II. and can no more be so upon the act in question. And this the appellant himself seemed sensible of, by his charge of the respondent's having with his own hand inserted in figures in the rent-roll, the amount of the rent and fees of thirty-five acres, added the date 13th of May 1762, and struck out a denomination which he meant to preserve, and 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 consequence 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 vender, who has made use of the act for sheltering such fraud, are very justly decreed to be specifically performed: but those were quite foreign to the present case, which appeared, upon the appellant's own state of it, to be no more than a proposal or treaty, attended with some enquiries, 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 [355] 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; and