Cocking v Ward
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1845 |
| Date | 12 June 1845 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 781
IN THE COURT OF COMMON PLEAS.
S. C. 15 L. J. C. P. 245. Referred to, Kennedy v. Broun, 1863, 13 C. B. (N. S.) 740 Discussed, Savage v. Canning, 1867, Ir. R. 1 C. L. 447. Referred to, Knowlman v. Bluett, 1874, L. R. 9 Ex. 308. Commented on, Angell v. Duke, 1875, L. R. 10 Q. B. 178. Adopted, Sanderson v. Graves, 1875, L. R. 10 Ex. 242. Discussed, Pulbrook v. Lawes, 1876, 1 Q. B. D. 289.
1C. B. 858. COCKING V. WARD 781 [858] cocking v. ward. June 12, 1845. [S. C. 15 L. J, C. P. 245. Eeferred to, Kennedy v. Broun, 1863, 13 C. B. (N. S.) 740. Discussed, Savage v. Canning, 1867, Ir. E. 1 C. L. 447. Eeferred to, Knowlman v. .tfZweft, 1874, L. E. 9 Ex. 308. Commented on, Angell v. Duke, 1875, L. E. 10 Q. B. 178. Adopted, Sanderson v. Graves, 1875, L. E. 10 Ex. 242. Discussed, Pulbrook v. Lames, 1876, 1 Q. B. D. 289.] Held, that an agreement respeeting the transfer of an interest in land, required by the statute of frauds to be in writing and signed, cannot be enforced by an action upon the agreement against the transferee for the stipulated consideration, notwithstanding that the transfer has been effected and nothing remains to be done but to pay the consideration: but that when, after the transfer, the transferee admits to the transferor that he owes him the stipulated price, the amount may be recovered in a count upon an account stated.-A count in assumpsit stated that A. was the occupier of a farm, as tenant to one V.; that B., the defendant, was desirous of renting the farm from V., and had applied to and requested A. to surrender, and relinquish possession thereof, to V., and to endeavour to prevail upon V. to accept of such surrender, and to accept B. as tenant in lieu of A.; and that, in consideration that A. would surrender, and relinquish possession of, the farm to V., and would also apply to V. and endeavour to prevail upon him to accept of such surrender, and to accept B. as tenant in lieu of the plaintiff, B. promised to pay A. 1001. when he should become such tenant. It then averred that A. did surrender, and relinquish, &c., and did apply to and endeavour to prevail upon V. to accept of such surrender, and to accept B. as tenant in lieu of A.; and that V. accepted the surrender, and accepted B. as tenant; but that B. refused to pay the 1001,:-Held, that this was a contract for an interest in or concerning lands; and therefore that the special count could only be proved by a note or memorandum in writing, in conformity with the fourth section of the statute of frauds. But,-Held, that A. was entitled to recover the 1001. upon a count on an account stated, upon proof that B. had, since he obtained possession of the farm, acknowledged his liability and promised to pay that sum. Assumpsit. The first count of the declaration stated, that the plaintiff, before and at the time of the making of the promise by the defendant thereinafter next mentioned, was possessed of, and was the occupier of, a certain farm, lands, and premises, with the appurtenances, as tenant thereof, from year to year, to one G-. H. Vernon, and remained and continued such tenant until a certain day, to wit, the 25th of March, 1842; that, before and at the time of the making of the said promise, the defendant was desirous of taking and renting the said farm, &c., of and from the said Gr. H. Vernon, and had thereupon applied to and requested the plaintiff to surrender and relinquish possession of the said farm, &c., to the said G-. H. Vernon, on the said [859] 25th of March, 1842, and also to apply to, and endeavour to prevail upon, the said Gr. H. Vernon to accept of such surrender, and also to accept the defendant as tenant of the said farm, &c., in lieu of the plaintiff, from the said 25th of March, 1842 ; that thereupon afterwards, and whilst the plaintiff's tenancy was still subsisting, to wit, on the 1st of August, 1841, in consideration that the plaintiff would surrender and relinquish possession of the said farm, &c., to the said Gr. H. Vernon on the said 25th of March, 1842, and would apply to the said Gr. H. Vernon, and endeavour to prevail upon him to accept of such surrender, and also to accept the defendant as tenant of the said farm, &c., in lieu of the plaintiff, from the said 25th of March, 1842, the defendant promised the plaintiff to pay her 1001. when and as soon as he the defendant should become such tenant to the said Gr. H Vernon as aforesaid, in lieu of the plaintiff, as aforesaid: Averment, that afterwards, and after the making of the said promise, to wit, on the 25th of March, 1842, the plaintiff, confiding in the said promise of the defendant, and in hopes of his faithful performance thereof, did surrender and relinquish possession of the said farm, &c., to the said Gr. H. Vernon, from the day and year last aforesaid, and did also then, to wit, on the day and year last aforesaid, apply to the said Q-. H. Vernon, and endeavour to prevail upon him to accept of such surrender, and also to accept the defendant as tenant of the said farm, &c., in lieu of the plaintiff, from the day and year last aforesaid; and although the 782 COCKING V. WAKD 1C.B.860. said G. H. Vernon did afterwards, to wit, on the day and year last aforesaid, accept of such surrender, and did also then a,ccept the defendant as such tenant aforesaid, in lieu of the plaintiff; and although the defendant did...
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