1788-08-14 (static/transcriptions/1788/08/115.jpg)

Another considerable difficulty has arisn with respect to the effect of a past execution. There certainly are cases which had considered an Agreement, which has 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 & 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 the same. At the same time it must be acknowledged, that this case is treated in the books as being out of the Statute. 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.

On this case Mr. Mitford ground this doctrine In a late case it was conceived that the Court of Equity in determining cases arising upon this Statute had laid down two propositions founded on rules of Equity, and had given a construction to the act accordingly, which amounted to this, that the act was to be constructed as if there had been an express exception, to the extent of those miles, in favour of Court of Equity, and that no action was to be sustained, except
upon