he could not perform it, but also actually to perform it, where it was in his power, and on this ground a Court of Equity interposed (g).

A. agreed to execute a Lease of Premises to B. B. was let into Possession, and accepted a Bill for the Money to be paid in pursuance of the Agreement. It was held, that it was no defence to an Action on the Bill by A. against B. that the former refused to execute the Lease; his remedy being on the Agreement (h).

The earliest trace of the Equitable Jurisdiction of the Court of Chancery in decreeing Agreements, is supposed to be in a Case stated in the Year Book of 8 Ed. 4. 4 b, where it is said by Justice Genney, "that if I promise to build you a house, and do not perform my promise, you have your subpæna (i). And Fineux, Chief Justice, in the 21 Hen. 7, speaking upon the different remedies given in the Courts, on the non-performance of contracts, observes, "that if a man bargain with another that he shall have his land for 10l. and that he will make him an estate therein by such a day, and he do not make the estate, an action upon the case lies; but it is to be observed in that, he shall only recover damages; but by subpæna the Chancellor may compel him to execute the estate, or imprison him."

At whatever time the Jurisdiction began, it is now very clear, that if a contract has been entered into by

(g) See on this subject Alley v. Deschamps, 13 Ves. 228. Redesd. Tr. Pl. p. 108, 1st vol. Sch. & Lefr. 129. Lex Prætoria, MS. Wiseman v. Roper, 1 Chan. Rep. 84, 160. 1 Ves.

(h) Moggridge v. Jones, 14 East, 480.

(i) Sed quæ. if such an agree ment would now be enforced in Equity, see post.

competent Parties, and is, in the nature and circumstances of it, unobjectionable, it is as much of course in a Court of Equity to decree a specific performance as it is to give damages at Law (k). The Court, it is said, has a discretion in such cases (), and so it has but it is not an arbitrary and capricious, but a regulated and judicial, discretion (m); and governed by established Rules of Equity (n).

It has been said (0), and generally speaking, correctly (p), that in cases of Agreements, before Lord Somers's time, the Party was sent to Law, and if he recovered any thing by way of damages the Court of Chancery entertained the Suit; but there must have been exceptions to this Rule, for there are cases where the Party may be relieved in Equity, though no action is sustainable at Law (q). If, for instance, an Agreement be made for the Sale of an Estate, and the Vendor dies before the period when the Estate is to be conveyed, the Heir is bound to convey, though no Action lies. So, upon an Agreement to assign a chose in action Equity will relieve, though no damages at Law would be given for the breach of the Agreement. It will relieve also when the Action at Law has been lost by the default of the party seeking a specific performance, if it be notwithstanding

(k) Hall v. Warren, 9 Ves. 608.

(1) See 1 Ves. 279, and 1 Ves. & Bea. 527.

(m) White v. Damon, 7 Ves. 35; and see Buckle v. Mitchell, 18 Ves. 111.

(n) Goring v. Nash, 3 Atk. 186. Revell v. Hussey, 2 Ball & Bea. 288.

(0) Dodsley v. Kinnersley, Ambl. 406; and see Harnett v. Yielding, 2 Sch. & Lefr. 549, 553. Select Cases in Chan. 67, 69.

(p) Marquis of Normanby v. Duke of Devonshire, 2 Freem. 216. 1 Vern. 159.

(q) See 2 Freem. 246. Wil liams v. Steward, 3 Meriv. 486.

conscientious that the Agreement should be performed, as in cases where the terms of the Agreement have not been strictly performed on the part of the person seeking the specific performance. To sustain an Action at Law performance must be averred according to the very terms of the Contract (r). There are other cases of the kind which might be mentioned (s); the proposition, therefore, of Lord Raymond (t), that a specific performance shall never be compelled for the not doing of which the Law would not give damages, seems too broadly laid down.

The effect of a mere Contract for the Purchase of Land is in many respects very different at Law, from what it is in Equity. At Law, the Estate remains in the Vendor, and the Money in the Vendee (u). It is not so in Equity; there, in general, it is a Rule, that what is contracted to be done for a valuable consideration is considered as done (a), and nearly all the consequences follow as if a Conveyance had been made at the time to the Vendee (y). The Vendor of the Estate, whether it be Freehold or Copyhold (≈), is from the time of his Contract considered only as a Trustee for the Purchaser, and the Vendee is, as to the Purchase Money, considered as a Trustee for the

(r) See Davis v. Hone, 2 Sch. & Lefr. 348. Lennou v. Napper, Ibid. 684, in Appendix.

(s) See Wiseman v. Roper, 1 Ch. Rep. 158. Cary, 84. Attorney-General v. Day, i Vez. 222. Whitmill v. Farrell, ibid. 258.

(t) Dr. Bettesworth and Dean and Chapter of St. Paul's, Select. Cas. in Ch. 68.

274; and see the Reasons in Cave and Holford, 7 Bro. P. C. 602.

(x) See Frederick v. Frederick, 1 P. Wms. 713. Lechmere and Earl of Carlisle, 3 P. Wms. 215 Bash v. Dalway, 3 Atk. 533.

(y) Attorney-General and Day, 1 Ves. 220; and see 3 Atk. 687.

(2) Hinton v. Hinton, 2 Ves.

Vendor (a). The Estate, provided a good Title can be made (b), is considered as the real Property of the Vendee; and vendible, chargeable, and deviseable (c), by him, even under general and sweeping words in a Will (d); and it would descend to his Heir, and may be assets (e). Nor is a Devise revoked by subsequently taking the legal Estate, unless the nature of the Conveyance be such as shows an object beyond the mere completion of the contract, by taking the legal Estate (f).

A binding and valid Contract for the Sale of Lands which the Vendor had previously devised by his Will, is, in Equity, as much a Revocation as a Conveyance would be at Law (g); and it may be doubted whether an abandonment of the Contract for Sale would set up the Will again without a Re-publication (h). Judg ments obtained against the Vendor subsequent to the date of the Contract, and before the Conveyance, will not affect the Estate, if the purchase-money be paid, and the consideration is adequate (i); but all Judg ments obtained against the Vendor subsequent to the

(a) Green v. Smith, 1 Atk. 573. Polexfen v. Moore, 3 Atk. 273. Some doubt appears to have been entertained whether a Copyhold contracted to be sold could be devised before it is conveyed or surrendered to a Purchaser. See Ardesoif v. Bennett, 2 Dick. 413: but it seems it may; see Sugd. Vend. and Purch. 157.

(b) See Polexfen v. Moore, 3 Atk. 273; and see Brome and Monk, 10 Ves. 597. Buckmaster v. Harrop, 11 Ves. 607; and 13 Ves. 341. Cave v. Cave, 2 Eden, 143.

(c) Seton and Slade, 7 Ves.

274; and see Davie v. Beardsham, 1 Chan. Cas. 39. Davis's case, 3 Salk. 85. Browne v. Monk, 10 Ves. 611, 614. Rose v. Cunningham, 11 Ves. 544, 51 Cha. Cas. 93.

(d) Potter v. Potter, 1 Ves. 437. Gibson v. Lord Mountford, 1 Ves. 494.

(e) Paine v. Meller, 6 Ves. 352.

(f) Rawlins v.Burgess, 2Ves. & Bea. 388.

(g) Bennett v. Earl of Tankerville, 19 Ves. 178. (h) Ibid. 179.

(i) Finch v. Earl of Winchelsea, 1 P. Wms. 277.

date of the Contract, and prior to the completion of the Purchase, are, in Practice, considered as liens, of which it is incumbent on the Vendor to procure a discharge by release or satisfaction for the security of the Purchaser, so far as any part of the purchasemoney may remain unpaid after the Judgment, and notice thereof (k).

Money, articled or directed to be laid out in Land, is considered as Land, and has all the incidents of a Real Estate (1). It is no longer considered as personal Assets (m). A Husband may be Tenant by the Curtesy of it (n), though (a singular decision, constantly adhered to, but never approved) (0) a Wife cannot claim Dower out of it (p). It passes as Land by Will (q), though after the Will a Conveyance of the Estate be made to the Purchaser (r); and will not go as Money under a general Bequest to a Legatee(s). If the Testator has described the Money, as

(k) Preston, on Abstracts, 3d vol. 329.

(1) See what Sir Thomas Sewell says in Fletcher v. Ashburner, 1 Bro. C. C. 497.

(m) Earl of Pembroke v. Bowden, 3 Ch. Rep. 115. S. C. 2 Vern. 52. Lechmere v. Earl of Carlisle, 3 P. Wms. 217.

(n) Sweetapple v. Bindon, 2 Vern. 536. Otway v. Hudson, 2 Vern. 583. Chaplin v. Chaplin, 3 P. Wms. 232. Allen v. Allen, Mos. 123.

(0) See 3 P. Wms. 234.

(p) Crabtree v. Bramble, 3 Atk. 687. The reason why there may be a Tenantcy by the Curtesy, though no right to Dower, is explained in D'Arcy v. Blake, 2 Sch. & Lefr. 388,

389. The Rule of Courts of Equity, so far as it excludes a Widow from Dower of an Equitable Estate against an Heir or Volunteer, goes, perhaps, beyond the reason of the Rule, but the decisions are so old, so strong, and so numerous, as to be unalterable by the Courts. [See Ibid. p. 391.]

(q) Green v. Smith, 1 Atk. 573. Lingen v. Sowray, Eq. Cas. Abr. 175, confirmed 3 P. Wms. 221. Broom v. Monk, 10 Ves. 611. Rose v. Cunyngham, 11 Ves, 554, 5.

(r) Broom v. Monk, 10 Ves. 597.

(s) Lechmere v. Earl of Carlisle, 3 P. Wms. 221, in note.