1801.

COOTH

v.

JACKSON.

[*14]

Still, commissioners named on the part of the Defendant. The three commissioners first mentioned met and executed the commission upon the 30th and 31st of October, 1798; and the examination was made up and closed, but never returned. After all the witnesses were examined, the Defendant proposed a compromise by dividing the said farms and lands: the Plaintiff accepted the proposal; and it was thereupon agreed, that the Plaintiff should take the whole Burnthouse farm and so much of the Lye farm as should make up an equivalent to a moiety of the whole; and that the Defendant should retain the remainder; and it was farther agreed, that the commissioners should not return the commission; and that all proceedings in the suit should cease. Upon the said agreement being concluded the Defendant and Plaintiff named Bartlett, Reade, and James Still to divide and allot the said farms and lands between Jackson and the Plaintiff in manner aforesaid, and to arbitrate and settle all matters between them incident to such division and allotment. Bartlett, Reade, and Still accepted the appointment of arbitrators; and undertook to divide and allot said farms and lands, as aforesaid; and mutual bonds of arbitration were executed to abide by and perform the award and final determination of the said arbitrators.

The bill farther stated, that though the bonds purported to be to submit to the award of the arbitrators to be made of all matters in difference, yet they were intended to relate to their division of the said farms, &c. between the Plaintiff and Jackson: all other matters, which had been in difference between them, being at that time ended by the aforesaid agreement; and the bonds were executed for no other purpose than to bind them to abide by the allotment and division of the said farms, &c. In pursuance and part-performance of the said agreement, the said commission so made up and closed by the said commissioners hath never been returned; and in farther pursuance of the said agreement the 14th of November, 1798, was appointed for a meeting of Bartlett, Reade, and Still, to proceed to make the allotment, &c. of the said premises, as aforesaid, and to make their award upon said arbitration; and in the mean time Still, Bartlett, and Reade, but particularly Still, went over the whole of the

premises;

premises; and formed an estimate of the value; and marked out part of the Lye farm, to be allotted and added to the Burnthouse farm, &c.; but Bartlett and Reade mistook the day; and in consequence did not attend the meeting: but it was attended by Still and the Plaintiff. The meeting was adjourned to the 22d of December, 1798; and in the mean time Still, Bartlett, and Reade, caused the lands to be surveyed and valued, for the purpose of making their award and concluding said business upon the said 22d of December, 1798. They did meet accordingly; the Plaintiff was present: but Jackson did not come; and they were ready to settle the allotment and division, and make their award; but Jackson caused his solicitor to write to the arbitrators, that he should not abide by their award; which letters they received a few days before the 22d of December. The meeting was therefore adjourned to the 31st of December. Notice in writing, signed by the arbitrators, was given to Jackson; but before that day he prevailed upon Still to refuse joining in the award; and he informed the other arbitrators, he would not join, and should not attend. The other two arbitrators met on that day, but as Still did not attend, no award was made.

The bill then stating, that the Plaintiff was always ready to perform his part, prayed, that the Defendant may be decreed to perform the agreement: and that the said two farms may be divided into two equal parts; and that the Burnthouse farm, with so much of the other farm as shall render the same of equal value with the remainder of the latter, may be decreed to the Plaintiff; with the necessary directions and a production of all title-deeds.

To this bill the Defendant put in the following plea and

answer.

As to so much of the bill as seeks, that the Defendant may be decreed to perform the agreement alleged, &c. and that the said two farms may be divided into two equal parts, and that the Burnthouse farm, with so much of the Lye farm as shall together be equal to the remainder of the Lye farm, may be decreed to belong to the Plaintiff and his heirs, and a

commission

1801.

COOTH

v.

JACKSON.

1801.

COOTH

v.

JACKSON.

commission for making such division, with the necessary directions for that purpose, and that the title-deeds and writings relating to the said estates may be produced and left with the Master, or any other relief founded upon the said agreement, the Defendant pleaded in bar the statute of frauds (20); with an averment, that there was no contract in writing concerning any division of the said two farms, &c.

The Defendant admitted the proceedings in the former suit; and stated, that being advised, that it was not necessary for him to produce witnesses at the execution of the commission, he attended unaccompanied by his solicitor, with James Still, one of the commissioners, named by or on behalf of the Defendant. The two commissioners named by or on behalf of the Plaintiff met them; and examined witnesses; and the commission was closed. In October 1798, on the last day of executing the commission, after the commission was made up and closed, Smith, who had been examined as a witness for the Plaintiff, came to the Defendant, and proposed, and pressed him, as he had frequently done, to compromise the cause; intimating, that, if the cause proceeded to a hearing, such a string of evidence would be brought forward, as would ruin his uncle's (Richard Jackson) character for ever; and that a settlement of the estates in dispute had been made, which was in favor of the Plaintiff's father; and that the Defendant's said uncle and his wife had upon some occasion made an affidavit thereof. The Defendant saying, he must take the advice of his solicitor, Smith intimated, that, if the cause was not immediately settled, the Plaintiff would probably afterwards refuse to settle it. James Still shortly afterwards called the Defendant into his room; and also recommended to him to settle the cause on account of the evidence, which he intimated to the Defendant had been adduced on the part of the Plaintiff; and Still not having prevailed upon the Defendant to agree to settle it, Smith came again, and brought Rideout, another witness for the Plaintiff; and they pressed the Defendant with the same arguments; and particularly, that his late uncle had: written several letters (which had been proved under the commission), which were in contradiction to his answer in

the

́(20) 29 Car. II. c. 3.

the cause; and that, if the cause proceeded, and the letters were brought into Court, his character would be ruined. During the execution of the commission Bartlett and Reade severally recommended the Defendant to compromise the suit; and the Defendant being greatly alarmed at such representations, and believing them true, though he now believes them unfounded, and being very anxious, that nothing should be brought forward, which might affect the character of his uncle, and believing, that Smith was his friend, and well acquainted with the facts urged by him, he did at length, and for such reasons, (and which otherwise he would not have done) propose to the Plaintiff and verbally agree to settle said suit, by dividing the estate in dispute between them; to which the Plaintiff acceded; and thereupon such bonds of arbitration were entered into. It was understood by the Defendant, and, as he believes, by the Plaintiff, that the basis upon which the arbitrators would proceed to settle the differences referred to them, was by making an equal division' of the property in question between the Plaintiff and the Defendant; and that said bonds were intended to relate only to such division, and to bind the Defendant and the Plaintiff by such allotment and division, as said arbitrators should make between them; all other matters being then agreed to be settled between them. The Defendant did not attend the adjourned meeting. He admits the notice of the last adjournment; and that Still did not attend, and would not join in the award, in consequence of the representations made to him by and on behalf of the Defendant, and of his conviction of the impropriety of so doing; having declared to the Defendant, that he was ignorant of some important facts, when he recommended to the Defendant the compromise. It may be true, that between the time of entering the bonds and the 14th of November, 1798, the day first appointed for making the arbitration, the arbitrators, and particularly Still, did go over the premises, and value the same, and mark out great part of so much of the great farm, called Lye, as was (as is pretended by the bill) to be allotted and added to the Burnthouse farm; in order that the premises might be divided into moieties equivalent in quantity and value between the Defendant and the Plaintiff; and that between the 14th of November and the VOL. VI. 22d

B

1801.

COOTH

v.

JACKSON.

1801.

COOTH

v.

JACKSON.

[ *17 ]

1800.

Jan. 29th.

22d of December they caused the lands to be surveyed and valued for the purpose of making the award.

The answer then insisted, that the not returning the commission and the circumstances aforesaid are not to be considered as done in performance of the said agreement, especially as the Defendant was led to compromise the suit by such unfounded representations, so as to take the case out of the statute.

This cause was set down upon the plea; which was sup→ ported by Mr. Mansfield and Mr. Stratford. The Attorney General and Mr. Hart for the Plaintiff insisted, that the agreement being admitted by the answer, and being in part performed by the Plaintiff, as far as he could perform it, by not proceeding to the examination of witnesses, the commissioners proceeding no farther, and the depositions taken not being returned, the case was not within the statute; and if the Defendant was improperly induced to come to the agreement, that is a distinct defence, and waives the benefit of the plea. The bonds of arbitration are certainly in their terms general, for all matters in dispute: but nothing remained between them but the division of the land; for it was expressly agreed, the suit should be put an end to; that there should be no farther proceedings; and the land should be equally divided between them.

Lord CHANCELLOR (21).

Lord LoughThis is a double defence. I cannot allow the plea of the borough's opi- statute, where it is coupled with another defence. There is nion, that upon no purpose in pleading it. He may have the benefit of the a bill for spe- statute at the hearing. He says distinctly, he was drawn in cific perform- by misrepresentation. It struck me at first, he would have ance of a pa- done better to have demurred; for I do not conceive, how the rol agreement within the sta- bill can be sustained. The consequence of there being no tute of Frauds, award is, that the suit must go on. Upon the case made by the Defendant, this bill the strict decree would be to order another reference; though admit- for upon the state of the case there is a division to be made ting the agree of the estate by giving one farm to one, another to the other, ment by his

answer, may,

if he insists

(21) Lord Loughborough.

upon the statute, have the benefit of it at the hearing.

and