brown case William plunket appellant lord viscount Kingsland and other  respondent that January Mews dig xi as to modern practice in Supreme court see  r s c order rr Webster v Friedeberg Q b d a verdict certify by the judge to be  entire to his satisfaction be never suffer to be impeach as contrary to  evidence by affidavit and though the jury state the particular evidence on  which they find the fact yet this be only surplusage and will not vitiate the  verdict decree of the Irish court of chancery reverse vide ante bro p c p in  consequence of the affirmance of the decree in this cause the issue thereby  direct be try in the court of king bench in Ireland on the that of June when  the jury find a verdict in the follow word we find it be no part of the  agreement between the right honourable Henry Lord viscount Kingsland and the  plaintiff for a lease of the warren and mill of Portmarnock in the plead in  this cause mention that the consent or approbation of Peter Daly esquire in  the plead also mention shall he have to make such lease valid and we find that  the say Peter Daly give no such consent or approbation and we find the right  honourable Francis Lord baron of Athunry and the defendant wakele have on or  before the saint of January sufficient notice of the agreement between the  plaintiff and the say Lord Kingsland for a lease of the say warren and mill of  Portmarnock this verdict be certify by the court of king bench to the court of  chancery the respondent on the that of July move that court for a new trial  upon a affidavit that the answer of Lord Kingsland be permit to be read upon  the former trial but the Lord chancellor have discourse with the judge before  who the trial be have and be by they inform that they be satisfy with the  verdict and that the jury be express tell by the court that Lord kingslands  answer be not evidence against the respondent wakele his lordship on the that  of February refuse to grant a new trial upon that foundation the appellant  apprehend the verdict to be now confirm bring on his cause to hear upon the  equity reserve and on the that of may the same be hear accord when it be  object by the counsel for the respondent that the verdict upon the second  issue be so total uncertain and insufficient as to make it impossible for the  court to find any decree upon it in favour of the appellant the Lord  chancellor be please to order that the party shall proceed to another trial at  law upon the say second issue accord on the that of June follow this issue be  again try when the jury return the follow verdict brown we find that the right  honourable Francis Lord baron of Athunry have notice before the saint day of  January of a agreement make between the plaintiff and Lord Kingsland for a  lease of the warren and mill of Portmarnock in the issue mention for a term of  year at the yearly rend of pound to commence from the saint day of November  and a fine of pound which be pay which notice appear to we by letter write and  sign by the say Lord Athunry and the testimony of Mr Cornelius Kelly and that  Thomas wakele the defendant have also notice of the say agreement before the  saint of January which notice be give he by Mr Goddart then agent and receiver  to Lord Kingsland in a few day after this verdict application be make to the  court of chancery by the respondent wakele to set it aside and grant a new  trial because the jury have not find the nature of the agreement between the  appellant and Lord Kingsland whether it be by parole or in write nor what the  notice be which Lord Athunry and Mr wakele have of such agreement also because  the commencement term and rend of the brown er p lease agree for be prove by  parole evidence only which be contrary to the statute of fraud and perjury and  ought not to have be receive by the court and because the jury have mention  the particular evidence on which their verdict be find and which they ought  not to have do to support this motion two affidavit be lie before the court  make by Mr wakele and one Nicholas Mullegan his agent state that Mullegan have  attend and take note at the last trial and that the appellant counsel have  offer to prove the agreement between the appellant and Lord Kingsland by  parole evidence the counsel for the respondent object thereto as contrary to  the statute of fraud and perjury but that the objection be overrule that Kelly  who testimony be mention in the verdict give no evidence of the commencement  of the appellant term that the only write evidence read for the appellant on  the trial be two letter of Lord Athunry and one from Lord Kingsland but in  which neither the land rend term or commencement be mention that Goddart the  other witness mention in the verdict be examine for the appellant declare he  can not say that he tell Mr wakele the term of Lord kingslands agreement with  the appellant or when the appellant term be to commence that the counsel for  the respondent insist on the trial that if the jury shall find a agreement  between the appellant and Lord Kingsland they ought to find the nature of such  agreement whether by parole or in write and if they shall find that the  respondent have notice of such agreement they ought to find what such notice  be and the nature of it that the verdict be read and no mention make when the  appellant term be to commence it be observe to the jury that the verdict do  not full answer the issue direct whereupon one of the juror inform the court  brown that it do not appear to they by any evidence when the appellant term be  to commence upon which one of the appellant counsel say they have Mr Goddart  in court to prove that matter and that Mr Goddart be thereupon examine say  that he tell Mr wakele in one of the three first holiday in Christmas that the  appellant term be to commence the saint of November after which the follow  word be interline in that part of the verdict relate to notice on Lord Athunry  videlicet to commence from the saint of November No affidavit be make by or on  the part of the appellant but his counsel inform the court that in order to  save the expense of any more trial they be ready to consent that the cause  shall be hear upon the agreement as if it have be find to be a parole  agreement because under the circumstance of the case they apprehend it do not  come within the statute of fraud the respondent counsel however insist upon  their motion for a new trial the Lord chancellor order it to stand over till  he have talk with the judge who sit on the last trial this conversation be  accord have when the judge give their opinion that the verdict be agreeable to  the evidence notwithstanding which and though the appellant counsel upon the  question be put to they admit that there be no other evidence of the  commencement term or rend but parole evidence only yet his lordship on the rd  of December be please to set aside the last verdict and grant the respondent a  new trial the appellant therefore appeal from this order insist d rider W  Murray that the former decree and the affirmance of it have already determine  what be the issue proper to be try previous to the appellant relief videlicet  saint whether the agreement be absolute or conditional depend upon Mr daily  subsequent consent which have be find in favour of the appellant be confirm by  the court below acquiesce in by the respondent and be now at peace and by the  second issue the notice of that agreement and not the agreement itself be the  subject of the inquiry in which the jury be likewise to find the nature of the  agreement of which the respondent have notice whether absolute or conditional  accord to the first issue and this second issue have be likewise determine in  the affirmative by two concurrent verdict that neither of the issue ever mean  to inquire if there be any and what agreement between the appellant and Lord  Kingsland because such issue will have be unnecessary and improper without the  previous admission of the existence of a agreement neither be there any  question between the party what the agreement be or whether in write but  whether the consent of Mr Daly be brown er p necessary and whether the  respondent have notice and as the court can not regular go into any proof of  the reality of the agreement as be out of the issue it be immaterial what kind  of proof be give of it for the nature of the agreement be brown well know and  that it be by parole and therefore a inquiry be only necessary and direct as  to collateral circumstance attend it that after the order affirm the decree  the court below have no power to vary the issue at first direct and as the two  concurrent verdict full answer the issue so direct they ought to have satisfy  the conscience of the court and especial as those verdict be to the entire  satisfaction of the judge who try the issue it be however object that the  evidence lie before the jury be of a parole agreement yet the verdict as they  stand insinuate a write agreement that parole evidence of the agreement ought  not to have be lie before the jury as be contrary to the statute of fraud and  perjury that Lord Athunrys letter which be the only write evidence lie before  the jury specify neither rend term or commencement and that therefore the jury  have not sufficient evidence to support the verdict but it may be answer that  a verdict find by twelve man upon their oath and certify by the judge to be  entire to their satisfaction be never suffer to be impeach as contrary to  evidence by affidavit that the find the particular evidence be surplusage and  will not vitiate the verdict nor can the impropriety of find what they be not  desire to find be a reason for defeat the only matter refer to they and which  they have find that the appellant never pretend to more than a parole lease  reduce into write by Lord kingslands receipt of the that of December which  ascertain all the term of the agreement as to rend commencement and term and  this receipt or write agreement be confirm by the appellant payment of his  fine and possession his improvement and payment of his rend full remove the  objection arise from the statute and the reference to the letter go only to  the point of notice and not as to the commencement rend or term that if a  parole agreement be within the word of the issue as it undoubted be parole  proof may certain be give of it and the appellant counsel admit there be no  other testimony of the term commencement or rend but what be parole that  whether the appellant be entitle in a court of equity to a specific  performance of such a agreement as he claim under attend with such  circumstance of possession improvement and expense in opposition to a  subsequent lessee with notice be a mere question of law and equity the only  fact upon which any doubt arise be whether the agreement be absolute or  whether Lord Athunry or Mr wakele have notice by direct these and no other  fact to be try the house upon the former appeal have in effect declare that if  they come out in favour of the appellant he will be entitle to relief the  direction of such issue proceed upon the agreement as a certain establish fact  and so do the verdict by which it be find that a particular condition be not  annex to the agreement and that the respondent have notice of it that if two  brown concurrent verdict upon trial at bar by special jury and to the entire  satisfaction of all the judge be not sufficient to establish so simple a fact  as notice of a agreement there can be no end but if the court be satisfy with  the fact of notice and intend by this three trial to be inform whether the  agreement be by parole or in write it ought to have be so express and declare  that the jury may see upon what point the court want further satisfaction but  sure if this be the desire information it be direct a issue to try a matter  not dispute that these repeat trial be the more grievous in the present case  because the question only concern a lease for a term of year a great part of  which be expire and the expense of the litigation have already be almost  equivalent to the value of the inheritance on the part of the respondent Lord  Kingsland who appear on this appeal it be argue W Noel that his agreement with  the appellant do not rest in parole and executory only but be immediate  execute by the appellant possession payment of his fine and improvement and  that the defeat a agreement attend with these circumstance because it be not  reduce into write will instead of prevent fraud and perjury render the statute  make for that purpose a snare in the hand of design man to defraud the more  incautious to their ruin that the brown er p controversy between the party  have not arise upon the reality term commencement or duration of the agreement  all which be full state by the bill and admit by the answer but whether the  agreement be conditional or absolute and the first verdict have full establish  it as a absolute agreement to the satisfaction of the party as well as the  court that actual and not circumstantial notice only of this agreement have be  find upon the respondent Lord Athunry and Mr wakele by two concurrent verdict  of different jury on the testimony of live witness crossexamined by the  respondent and unimpeached by other evidence which must in a court of equity  render they trustee for the appellant as have the prior equity but if it be  intend by a new trial to let in the question arise upon the statute of fraud  whether a parole agreement will under the circumstance of this case be execute  in a court of equity the benefit of that question be full save by the  appellant admission and a agreement confess parole can not admit of any other  than parole proof so that if the cause be to be try ad infinitum no other  evidence can be give of the agreement and therefore the direct a new trial be  in effect to direct the find a verdict against the appellant at least the  cause must return to the jury very much prejudice by so many repeat trial that  the verdict of twelve man upon their oath be not rash to be bring in review by  lose uncertain affidavit of two person only the one a party concern in  interest the other his agent who memory and note be not to preponderate the  balance against a solemn verdict ratify by the sanction of the judge brown  under who direction it be give that the decree and the order of affirmance  have establish the proper issue between the party and those issue have be  satisfy by repeat verdict it be not therefore in the power of the court below  to vary or depart from the issue original direct but the consideration of the  appellant relief upon the fact find by the verdict be full and proper before  the court and ought to have be determine on behalf of the other respondent it  be say I brown t clarke that two thing be necessary for the appellant to make  out in proof upon the trial of the second issue videlicet saint that a proper  agreement be enter into between he and Lord Kingsland and what be the term of  such agreement and dly that Lord Athunry or the respondent wakele have notice  of such agreement and what that notice be but in both these particular it be  apprehend the appellant have fail for the verdict on this issue as to the  agreement therein mention be find only on parole evidence of a verbal  agreement the letter of Lord Athunry not prove any agreement and much less  specify the term or any of the other essential part of a agreement that such  parole evidence of a verbal agreement ought not to have be admit as be of  itself improper and of mischievous consequence and not only contrary to the  statute of fraud and perjury but contrary to what seem to be the intention of  the court in direct the issue that though it be allege on the part of the  appellant that if the agreement be original a verbal one the same be in a  great measure carry into execution by subsequent act and transaction such as  the appellant pay the fine and half a year reserve rend and his have  possession of the estate and make improvement thereon yet those act and  transaction appear and be prove in the cause to have be extreme fraudulent on  his part and be of themselves sufficient to destroy that equity which he  attempt to set up in support of his claim but suppose the evidence lie before  the jury on the part of the appellant have be proper and unexceptionable it by  no mean warrant the verdict certify for the verdict certify substantial vary  from the verdict original bring in by the jury by the addition of a material  fact and this variation be make irregular and without proper evidence it be  therefore hope that as the order appeal from be make upon deliberate  consideration of the nature and circumstance of the case and be perfect  agreeable to the rule of equity and justice the same will be affirm and the  appeal dismiss with cost but after hear counsel on this appeal it be order and  adjudge that the order therein complain of shall be reverse and it be further  order that the court of chancery in Ireland shall proceed to the hear of the  cause on the equity reserve accord to the course of that court and that on  such hear the appellant shall be bind by the admission brown of his counsel  mention in the say order that there be no other evidence give at the trial of  the cause in the court of king brown er p bench than what be parole of the  commencement or duration of the term claim by the appellant in the premise in  question jour vol p voluntary conveyance