24th of February, 1847, a letter, of which the following is the only material portion:

"I have no objection to give 50l. more of premium for *the lease of No. 8, Stratton Street, and take the fixtures and furniture at a valuation, provided I get the profit rent of the present tenant."

Mr. Reily, on the receipt of this offer, applied for instructions to the plaintiff, who authorised him to accept it on her behalf; and accordingly, on the 26th of February, 1847, Mr. Reily, as the agent of the plaintiff, wrote to the defendant as follows:

"SIR,-I beg to acknowledge the receipt of your letter of the 24th instant, offering to give an additional 501. premium for the lease of the house No. 8, Stratton Street, (making 3001. premium,) and to take the fixtures and furniture at a valuation, on condition that you had the profit rent to be made by letting the house to Mr. Campbell from the 18th February to 6th May; these terms I have submitted to Mrs. Skinner, and I am authorised to say they are accepted, and that her solicitor will draw up a proper agreement in accordance for signature, which I will forward to you, and make arrangements for valuing the furniture and fixtures with as little delay as possible."

The draft of an agreement was accordingly prepared by the plaintiff's solicitor, and sent to the defendant's solicitor; upon which differences arose as to whether any interest should be paid upon the purchase-money, and on other points.

The defendant by his answer insisted, that, if any such agreement as the plaintiff alleged existed, he was entitled to be furnished with the title of the plaintiff's lessor.

The defendant's answer also contained the following passages:

66

Saith, that no formal note of such agreement as in the bill of complaint is alleged to have been come to, or any other agreement, was made; and he submits to the judgment of this honourable Court, that it is not the fact that any such agreement as in the bill of complaint in that behalf mentioned, or any other agreement, is fully proved or made out by the letters therein stated and set forth, and therein alleged to have been written and signed by this defendant, and by his agents thereunto authorised by him; and he submits, that such letters do not amount to, and are not a sufficient note or memorandum of, the alleged agreement signed by this

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defendant and his authorised agents in fact, under the circumstances in the bill of complaint in that behalf mentioned, or any or either of them or otherwise.

'Saith, he does allege, and it is the fact, that the alleged agreement was never entered into by him, and that he ought not to be compelled to perform the same; and he submits, that the same is too indefinite to be performed by this Court; and he submits, that he ought not to perform the alleged agreement, and he makes out the contrary in manner herein appearing.

"Submits, that no binding agreement for the purchase of the house, fixtures, and furniture has ever been entered into by him or on his behalf; and that, if this honourable Court shall be of opinion that he is bound to complete such purchase, then that the plaintiff is bound to make out and establish a good and sufficient title thereto, including the title of the lessor."

But the answer did not expres ly claim the benefit of the Statute of Frauds.

Mr. Russell and Mr. Batten, for the plaintiff :

The contract which the plaintiff seeks to enforce is to be extracted from the letters; and from them the amount and nature of the consideration to be paid, and the description of the subjectmatter of the contract, is sufficiently clear. A contract thus evidenced is enforceable in this Court: Kennedy *v. Lee (1) : nor will the want of a more formal agreement affect the plaintiff's right to a specific performance: Fowle v. Freeman (2), Gibbins v. The Board of Management of the North Eastern Metropolitan Asylum District (3).

Mr. Glasse, for the defendant:

There appears to be no case expressly deciding that the Statute of Frauds must be pleaded by name, to entitle the *defendant to avail himself of it.

If specific performance is decreed against the defendant, he is entitled to have the lessor's title shown.

Mr. Russell, in reply:

The rule in equity of pleading the statute is laid down by Lord ELDON in the following words: "If the defendant in his answer admits the agreement, but insists upon the benefit of the statute,

there is no occasion to inquire about the part performance; the statute protects him: if he does not say anything about the statute, then he must be taken to renounce the benefit of it:" Cooth v. Jackson (1). *

It was agreed at the Bar on both sides, that what the defendant meant and described by the words "profit rent of the present tenant," in his letter of the 24th of February, 1847, was accurately described in the letter of the 26th, by the words "profit rent to be made by letting the house to Mr. Campbell from the 18th of February to the 6th of May."

SKINNER

v.

M.DOUALL.

THE VICE-CHANCELLOR :

The admission of the meaning of the expression "profit rent" may not entitle the plaintiff to a decree. The answer does not suggest as a defence the endeavour to let or sell, or any delay.

The case is one in which the defendant is not precluded from calling for the lessor's title. The question possibly may be confined to this whether there is evidence admissible to show what is meant by the expression "50l. more of premium." I will consider the

case.

THE VICE-CHANCELLOR:

In this case, the state of the pleadings, and of the merits, possibly, but of the pleadings certainly, in my opinion, excludes any defence on the ground of delay, if any, or conduct, since the making of the contract alleged, if such a contract was made.

As both parties admit that "the profit rent to be made by letting the house to Mr. Campbell from the 18th of February to the 6th of May," mentioned in the letter of the 26th of February, was what was meant by the expression "profit rent of the present tenant," contained in the letter of the 24th of February, and as the answer and evidence satisfy me of the fact, that, by the phrase " 50l. more of premium," contained in the letter of the 24th, the defendant meant 3001., and the plaintiff understood 300l. to be meant; and, as the defendant and plaintiff appear clearly to me, one to have intended, and the other to have considered, the letter of the 26th of February as simply and absolutely an acceptance of the proposal and offer contained in the letter of the 24th, I think the plaintiff entitled to a decree for specific performance, if, for the purpose of the cause, she

(1) 10 R. R. 190 (6 Ves. 12, 36).

May 2.

[272]

May 8.

SKINNER

M'DOUALL.

1817.

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Λου. 25.
Dec. 1.

1818.

Feb. 22, 23. 24.

March 3, 27.

May 26. 1849.

March 13.

KNIGHT BRUCE, V.-C. [274]

1848. May 6.

KNIGHT BRUCE, V.-C. [294]

can, upon these pleadings, avail herself of the fact already mentioned, that, by the expression " 50l. more of premium" in the letter of the 24th of *February, the defendant meant 300l.; or, in other words, I think her so entitled if she has a right to have the suit treated substantially, as it would have been, if "300l." had been written in the letter, instead of the words "fifty pounds more of premium."

This one point did not, and perhaps does not, appear to me perfectly clear; but my opinion upon it is in her favour. I consider the correct conclusion to be, that she has proved an agree ment coming within the allegations of the bill. I do not say whether she has proved the whole of the allegations made by the bill. She has, I think, as I have said, proved a case covered by them, and enough for a decree.

It may be (though I do not decide) that the defendant could successfully have pleaded, or claimed by his answer, the benefit of the Statute of Frauds. However this may be, he has, in my judgment, not done so, and appears to me, upon this record, not entitled to any benefit from the statute. His counsel, I may add, having contended that no letter from Mr. Reily to the plaintiff was capable of being used as evidence against the defendant, I have assumed that, in his favour, conceiving that the plaintiff, with or without any letter to her from Mr. Reily, of which I am aware, as part of the case for or against her, ought to have a decree; but no such letter should be entered as read, unless by the defendant's consent, which, of course, he may either give or withhold.

PHELPS v. PROTHERO.

(2 De G. & Sm. 274-294.)

[SEE the report of further litigation between these parties in respect of the same matter, reported in 7 De M. & G. 722.]

ROWE v. ROWE (1).

(2 De G. & Sm. 294-298; S. C. 17 L. J. Ch. 357; 12 Jur. 909.) A husband, with his wife's concurrence, received a legacy bequeathed upon trust for her separate use. Some time afterwards he made his will, bequeathing to her a much larger sum, and directing his executor, who was also his residuary legatee, to pay all his just debts: Held, first, that the

(1) Fairer v. Park (1876) 3 Ch. D. 309, 45 L. J. Ch. 760, 35 L. T. 27;

Wussell v. Leggatt [1896] 1 Ch. 554, 65 L. J. Ch. 240, 74 L. T. 99.

concurrence of the wife in the receipt of the legacy by the husband was not a gift of it to him; secondly, that the bequest by the husband to the wife was not a satisfaction of the wife's claim against his estate in respect of the first-mentioned legacy.

THIS was a suit instituted by the widow of a testator named William Rowe, claiming to be a creditor of her late husband, in respect of a sum of 600l., bequeathed by a former testator named John Sobey for the plaintiff's separate use. The principal questions in the cause were, whether there had been a gift of the 6001. by the plaintiff to her late husband, and, if not, whether a legacy of 2,8001. bequeathed by him to her was not a satisfaction of her claim.

The will of the testator, John Sobey, was dated the 8th of September, 1824, and the bequest to the separate use of the plaintiff was as follows: "I give and bequeath to my brother Richard Sobey, and my brother-in-law, William Clogg, their executors and administrators, the sum of 600l., and direct the same. to be paid to them, without any interest, at the end of twelve calendar months after my death, and that they stand possessed thereof, upon trust to pay, apply, and dispose the same to such uses as my daughter Elizabeth, the wife of William Rowe, shall, by any writing or writings under her hand alone, notwithstanding *her coverture, and whether covert or sole, order and direct the same to be paid and applied; and in default thereof to stand possessed of the same sum, for the sole and separate use of my daughter Elizabeth Rowe, absolutely independent of her present or any future husband, and without being subject to his debts, control, or engagements; and it is my will that the receipt or receipts of my said daughter, Elizabeth Rowe, alone, from time to time shall be a sufficient discharge and discharges to my said trustees for the same, or so much thereof as shall be therein expressed to be received."

The legacy of 600l. was paid by the executor of John Sobey to Richard Sobey and William Clogg, the trustees mentioned in the will. No part of the 600l. was invested on any security, but it was with the consent of the plaintiff retained by Richard Sobey, who paid the interest to the plaintiff, for her separate use, until his death, which took place in 1829. Afterwards his executor (whose name was J. Sobey) possessed himself of the trust fund, and retained it in his own hands, giving Mrs. Rowe an acknowledgment, dated the 28th day of November, 1829, as follows:

"I, Mr. J. Sobey, of &c., do acknowledge to hold to Elizabeth

ROWE

v.

ROWE.

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