plead that he is a purchaser without notice, and go on to say, that Lord Chancellor.-A very serious difficulty seems to me to arise from the different cases upon this fourth clause of the statute, which declares that no action shall be sustained upon any contract or sale of lands unless the agreement shall be in writing, and attended with the forms therein required. This Court has adopted the provision of the statute so far, as to admit it to be pleaded to bills for the specific performance of such agreements; yet in fact the Court has in one case admitted this plea, and in another has said that if the defendant will admit the agreement by answer, the action shall be sustained, and this tends to a more palpable consequence when the plaintiff by his bill charges the ulterior circumstances as part execution of the contract; for I do not at present see any means of delivering the defendant from answering; and then to say that the action shall be sustained, at the same time that the statute expressly says it shall not be sustained, seems to imply a manifest contradiction. It should rather seem, that if the defendant confesses the agreement in his answer, but insists upon the statute, it would be more simple and conformable to reason to say that the statute should be a bar to the plaintiff's claim. If, on the other hand, it is roundly asserted that the statute does not apply to an agreement, which the defendant is ready to admit, the length of that principle will be, that the defendant shall be obliged to declare whether there was such an agreement, and it will be like all other cases, the defendant must assist the Court with the discovery.—This point seems, from Lord Camden's opinion in Cole v. White, to have struck him much in the same manner; but as the matter appears upon the case, I take it if the defendant confesses an agreement short of the whole, and any thing is left to proof, the Court would say that, so far as it is left to proof, the plaintiff shall not proceed.-Another considerable difficulty has arisen with respect to the effect of a part execution. There certainly are cases which have considered an agreement which has been been partly executed as never having been within the original view of the statute; and this has been a ground to induce the Court of King's Bench, as I am told, to determine this case to be entirely out of the statute. I acknowledge I always thought the Court considered it as fraudulent in the party to make the contract, and to lead on the other party to lay out his money in the melioration of the estate, and then to withdraw from the performance of the contract. Indeed, whether the money has been well or ill laid out is indifferent, the fraud is thè same. At the same time it must be acknowledged, that this case is treated in the books as being out of the statute (a). These points deserve a great deal of consideration, as applying to other cases, but they do not seem to apply particularly to this case; nor do I think I can go into the merits of the case in determining upon the form of a plea (b). The question before me is, whether it is possible to put together, in one plea, all that is put together in this case.—Mr. Ambler argues it on this ground; that although it is necessary the plea should bring the matter to a single point, yet it is not necessary it should be to a single fact, so as the facts are consistent. This is not my idea, I think no facts can be averred unless they conduce to the one single point, when forty conveyances may conduce to one title. So in the Papist's case before Lord Hardwicke (c), every point which went to the incapacity might be pleaded. But here are two points; first, that there is no agreement in writing, and this by itself is an adınitted bar but secondly, it goes on that no act has been doue in part execution, which is a totally distinct fact. Whether you consider it, as the Court of King's Bench have done, as an agreement totally out of the statute, or with the court of equity, as matter of fraud, they are two pleas applying to cases of different natures; distinct, not only in the form of the plea, but in the justice to be applied to them. I determine it therefore on the ground of its containing two different and distinct points, and the reason the Court does not admit such pleas is, that you may put all the different circumstances together in your answer, which you cannot do at common law; therefore there is not the same reason for pleading double; but the use of a plea here is to save time, expence, and vexation; therefore, if one point will put an end to the whole cause, it is important to the administration of justice that it should be pleaded; but if you are to state many matters, the answer is the more commodious form to do it in. If it is asked why you may not bring two facts into a plea, the answer is, that convenience does not require it; and the argument must go to three or to twenty (a) As to the doctrine upon the subject of part performance of parol agreement, vide Whitchurch v. ‘Bevis, post, vol. ii. 559. and the Editor's note to it. (b) There is a much better report of the remainder of the judgment from a (c) Harrison v. Southcote, 1 Atk. 528. 1784. WHITBREAD v. BROCKHURST, &c. [ 418 ] facts. 1784. WHITBREAD บ. BROCKHURST, &c, facts. In fact it would tend to the very delay the policy of justice has meant to prevent, by admitting of a plea. The plea therefore must stand for an answer, with liberty to except (a). (a) Upon the subject of duplicity in pleading, vide Nobkissen v. Hastings, post, vol. iv. 252. S. C. 2 Ves. jun. 84. Corporation of London v. Corporation of Liverpool, 3 Anstr. 738. Ritchie v. Aylwin, 15 Ves. 79. Wood v. Strickland, Ves. & Bea. 150. Beames Elements of Pleas in Equity, 10. et seq. Tha mere surplusage will not vitiate a plea in this respect, Claridge v. Hoare, 14 Ves. 65. over-ruling Beachcroft v. Beachcroft, cit.ib. As to amending pleas, vide New man v. Wallis, post, vol. ii. 143. and the Editor's note to it. ty of a bond is only to secure the enjoyment of a collateral object, equity will grant an injunction against a suit for the recovery, and an issue quantum damnificatus, to try the real damage. SLOMAN V. WALTER. Where the penal- UPON shewing cause why an injunction should not be dissolved, the case appeared to be thus: That the plaintiff and defendant were partners in the Chapter coffee-house, and upon entering into the partnership it had been agreed that the business should be conducted entirely by the plaintiff, but that the defendant should have the use of a particular room in the house whenever he thought proper. And, in order to enforce this agreement, a bond was entered into by the plaintiff to the defendant in the penalty of £500. After some time the defendant demanded the use of the room, and being refused, brought an action for the penalty of the bond. Plaintiff filed this bill, praying an issue to try quantum dammificatus, and an injunction in the meanwhile. He obtained an injunction till answer or further order; and the answer being now come in, the only question, in respect to continuing the injunction till the hearing, was whether the penalty of the bond was merely intended as a security for the enjoyment of the room, or in the nature of assessed damages between the parties. [ 419 ] Mr. Scott and Mr. Harvey, for the defendant,-contended the injunction ought to be dissolved, and the defendant permitted to have his remedy upon the bond. It was impossible a jury, upon an issue of quantum damnificatus, could assess any other damages than those already assessed by the parties themselves.-They referred to the case in the House of Lords, where £5 per acre penalty for plowing up meadow-land was reserved in a lease, and the Court of Chancery having relieved against the penalty, and directed an issue to try the actual damage, the decree was reversed, (Rolfe v. Peterson, 6 Bro. P. C. 470.) and also cited 2 Atk. 190.Roy v. the Duke of Beaufort, and Ch. Ca. 183. Lord Chancellor said, the only question was,-whether this was to be considered as a penalty or as assessed damages. The rule that that where a penalty is inserted, merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only is accessional, and therefore only to secure the damage really incurred, is too strongly established in equity to be shaken. This case is to be considered in that light.-The injunction must be continued till the hearing (a). The same had been done by the late Lords Commissioners, in a case of Hardy v. Martin, 7th of May, 1783 (b), where plaintiff and defendant had been partners as brandy-merchants; on plaintiff's quitting the business, and selling the lease and good-will of the shop to defendant for £300, he entered into bond in £600 penalty not to sell for 19 years, any quantity of brandy less than six gallons, within the cities of London and Westminster, or five miles thereof, or to permit any person so to do in his name, &c. Upon a breach action brought, and a verdict for the penalty, plaintiff filed this bill, praying that an account might be taken of the actual damage sustained by defendant, and an issue directed for that purpose; and that, on payment of the damages, defendant might be restrained from taking out execution, for the penalty of the bond.-Upon motion to dissolve the injunction, and cause shewn, the injunction was continued and an issue directed, when the jury gave a verdict for the plaintiff's at law, (defendants in this Court), with 18. damages. (a) In the following cases the sum secured has been considered in the nature of liquidated damages. Ponsonby v. Adams, 6 Bro. P. C. 417. Ed. Tomi. vol. ii. 431. Rolfe v. Peterson, cit. sup. Lowe v. Peers, 4 Burr. 2229. Fletcher v. Dyche, 2 T. R. 52. and semble, Cock v. Richards, 10 Ves. 429. In the two cases above reported, and in Astley v. Weldon, 2 Bos. & Pul. 346. Smith v. Dickenson, 3 Bos. & Pul. 630. Harrison v. Wright, 13 East, 313. it has been considered as in the nature of a penalty in which case the remedy for a breach is an action, or issue quantum damnificatus, and an injunction against proceeding under a judgment for the consideration. Shackle v. Baker, 14 Ves. 468. In Astley v. Weldon, though it was remarked to be very difficult to lay down any general principle upon these cases, it was admitted to be clear, that if a certain damage less than the sum is made payable upon the face of the same in- (b) This case has been since report- 1784. SLOMAN v. WALTER Earl 1784. An answer shall not be amended after an indict ment for perjury preferred or threatened, in order to avoid the indictment. Earl VERNEY U. MACNAMARA. PON a motion to amend a schedule to the defendant's answer, UPON an indictment for perjury having been preferred, or at least threatened, Lord Chancellor refused to interfere, although he took it to be clear that the defendant did not intend to perjure himself, as he had no interest in so doing. That question would be proper before the grand jury, who, if they thought the defendant did not intend to perjure himself, would throw out the indictment; on the other hand, if there were ground for the indictment, it would be wrong for him to interpose (a). Motion denied *. The Reporter has been informed that a similar application had been rejected a few days before, in the case of Vaux v. Lord Waltham, where, however, the Lord Chancellor seemed inclined to grant the motion, if the affidavit had clearly shewn it to be a mistake. (a) A great number of instances of permitting and refusing amendment by way of supplemental answer, (amendment of the original answer being now never permitted), are collected and arranged in a note to the case of Live sey v. Wilson, 1 Ves. & Bea. 1.50. Vide also Tenant v. Wilsmore, 2 Anstr. 368. Moggridge v. Hodgson, ib. 443. Harris v. Daubeny, 3 Anstr. 717. Strange v. Collins, 2 Ves. & Bea. 163. Edwardsv. M'Leay, ib. 256. [420] In Court, Easter, 1783, before Lord Lough borough, Ashhurst, and Hotham, Lords Commissioners,15th May, 1784,-29th January, 1785, before Lord Thurlow. Where, upon a sale of lands, bonds are taken for the purchase money, which are not paid, quere whe HILARY TERM. 25 GEO. III. 1785. BLACKBURN and another, Assignees of SARAH CLAYTON, a SARAH CLAYTON, being seised in fee, (subject to mortgages to a great amount) of large coal estates, and being much embarrassed in her circumstances, determined to sell the estates, and entered into contracts with Thomas Case for that purpose, and the purchase money was settled at £30,000. The 23d May, 1774, she conveyed the estates, in consideration of his paying off mortgages to the amount of £12,000, and the clear sum of £17,800 Where the mate- to her, at instalments, for which three bonds, one for £12,000, for the party who one for £4,000, and one for £1,000, were given.-Case had sets down the been an agent on the estate; he entered into possession, did ther the vendor has a lien upon the lands. rial issue is found cause for further directions, he must have his costs at law. (<) This case is much more fully reported, 1 Cox, 90. acts |