1788-08-14 (static/transcriptions/1788/08/114.jpg)

Argumt of Mr. Mitford

Thurlow Ch.

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 agreemts; yet in fact the Co has in one case admitted this plea, & in antr has sid, that if the defdt will admit the agreemt by ana, the action shall be sustained, & this tends to a more palpable consequence when the Plf 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 Defdt from ansg, and then, to say that the action shall be sustained, at the [ill] twice that the statute expressly says it shall not be sustained, seems to simply a manifest contradiction. It shd rather seem, that if the defdt confesses the agreemt in his ans, but insist upon the statute, it wod be more simple & conformable to reason to say that the stat shd be a bar to the Plf’s claim. If, on the [ill] hand, it is roundly asserted that the stat does not apply to an agreet with the defdt is ready to admit, the length of that principle will be, that he Defdt shall be obd to decl, so she there was such an agreemt, & it will be like all othr cases, the defdt must assist the Court with the discovery.