Law to convey by means of any compulsion from the Husband (r).

If a Husband covenants to settle all his real and personal Estate on his Wife, and the Heirs of her body by him begotten, and obliges her to give each of her Children by him begotten, 1,000l. a-piece at twenty-one, and to divide the residue equally amongst them at her death, this gives an Estate for Life only to the Wife, with Remainder in Fee to the Children as Tenants in common; and the property of the Testator is so tied up, that a real Estate purchased by him in his Life-time, with part of his personal Estate, will be considered as personal Estate, and be disposed of accordingly (s).

It has been held, that if one Party performs his part of an Award, the Court of Chancery may compel the other Party to perform his, though the Award was not made originally by the direction of that Court (t). That a Bill will lie for the specific performance of an Award is clear (u); and this, though the Award be unreasonable, the Arbitrator being a judge of the Party's choosing, and the Award being considered as ascertaining the terms of a previous Agreement. But though if the Award directs any thing to be done respecting Lands, the Court, it seems, will decree a specific performance of the Award; it will not execute an Award for the payment of Money.

(r) See Wheeler and Newton, Gilb. Eq. Rep. 245. S. C. Prec. Ch. 16. Gilb. Lex Prætoria, MS; and see Davis v. Jones, 1 New Rep. 267.

(s) Lowther v. Earl of Westmoreland, 1 Cox, 65.

(t) Bishop v. Bishop, 1 Cha. Rep. 142.

(u) Wood v. Griffith, 1 Swanst. 43. S. C. 1 Wils. C. C. 44.

.

Having considered those cases in which a specific performance is decreed, we may now proceed to notice those instances in which a specific performance has been refused.

The Court will not decree a specific performance of Contracts of every description. It is only where the Party wants the thing in specie (y), and where the legal remedy is inadequate or defective, that a Court of Equity interferes (≈).

A Parol Agreement concerning personal Estate to any extent, if reasonable and proved, is binding, and may be discharged by Parol (a); but, in general, a Bill will not lie for a specific performance of Contracts for Chattels, or which relate to Merchandise; as a Bargain for Corn (b), or for Stock; for damages in these cases may, with equal advantage, be recovered in an Action, and Corn or Stock bought (c). Such cases therefore are left to be decided at Law (d). Sir Joseph Jekyll decreed a specific performance in the case of a Chattel (e); but Lord Macclesfield reversed his Decree, and from that time the Rule of the Court has been not to entertain such a Bill (f). Cases of Contracts for the purchase of Lands, or things that relate to Realty, are of a permanent nature, and if a person agrees to purchase them, it is on a particular

(y) Errington v. Aynesley, 2 Bro. C. C. 341.

(z) Flint v. Brandon, 8 Ves. 163.

(a) Gibbons v. Caunt, 4 Ves. 847, 8, 9.

(b) Cud and Rutter, Vin. Abr. tit. "Contract and Agreement, (M.) C. 21. S. C. 1 P. Wms. 570.

(c) See Bunb. 135. Erring

ton v. Annesley, 2 Bro. C. C. 341. Flint v. Brandon, 8 Ves. 163. Nutbrowne v. Thornton, 10 Ves. 161; and see Mason and Armitage, 13 Ves. 37.

(d) Buxton v. Lister, 3 Atk. 383.

(e) In Cud v. Rutter, 1 P. Wms. 570.

3 Atk. 383; and see Capper v. Harris, Bunb. 135.

liking to the Land, and is quite a different thing from matters in the way of Trade. But notwithstanding this general distinction between personal Contracts for Goods, and Contracts for Lands, there are cases where persons may enforce a specific performance of Agreements relating to Personalty (g); but the Court will weigh with great nicety cases of this kind (h): as where there were Articles for the Sale of 800 tons of Iron, to be paid for by Instalments, in a certain number of years, a specific performance was decreed (i). So, where a Man contracts for the purchase of a great quantity of Timber, as a Ship Carpenter, by reason of the vicinity of the Timber; and where a Man wanting to clear his Land agrees to sell his Timber, in order to apply the Land to a particular sort of Husbandry; in such cases, as nothing could answer the justice of the case but the performance of the Contract in specie, a specific performance, it seems, would be decreed (k).

It has been said (though there are early dicta to the contrary) (1), that a specific performance of an Agreement to build a House will not be decreed (m); but Lord Hardwicke seems to have thought differently (n), and decreed a specific performance of a Covenant to rebuild, though he would not of a Cove

(g) See Buxton v. Lister, 3 Atk. 384.

(h) Ibid. 385.

(i) Taylor v. Neville, mentioned 3 Atk. 384.

(k) See Buxton v. Lister, 3 Atk. 385. That an Agreement for the Sale of Timber need not be in writing, see 1 Lord Raym. 182; but see Crosby and Wadsworth, 6 East, 602, and also 11 East, 362.

(See ante, p. 361.

(m) See Lucas against Commerford, 3 Bro. C. Č. 167. S. C. 1 Ves. jun. 236. Errington against Aynesley, 2 Bro. C. C. 343. Flint v. Brandon, 8 Ves. 164. Wilkins v. Fry, 1 Meriv. 264; but see contra, Holt v. Holt, 2 Vern. 322, and dict. 1 Ves. 461.

(n) City of London v. Nash, 3 Atk. 515.

nant to repair (o); and Lord Rosslyn held, that if on a Covenant to build the transaction is in its nature defined, a specific performance would be decreed; but if it is loose and undefined, and it is not expressed distinctly what the building is, so that the Court could describe it as a subject for the Report of the Master, the Jurisdiction does not apply (p).

Common Covenants in a Lease will not be specifically enforced in Equity, the proper remedy being at Law (q).

A Bill will not lie for a specific performance of an Agreement (r) or a Covenant (s) to refer to Arbitration.

Nor will a Bill lie for the specific performance of an Agreement to purchase the business of an Attorney; since, supposing such an Agreement not illegal, it is yet such as a Court of Equity has no means of carrying into execution (t).

If an Estate be sold under a Decree, a Bill for a specific performance will not lie, but the Purchaser must proceed under the Decree (u).

A Party calling for the aid of a Court of Equity, must come, as it is said, with clean hands (r); it being a maxim of Equity, that, "He that hath committed Iniquity shall not have Equity (y)." A Defendant,

(o) City of London v. Nash, 1 Ves. 12. S. C. 3 Atk. 512; and see Mosely v. Virgin, 3 Ves. 185, and Flint v. Brandon, 8 Ves. 164. Hill and Barclay, 16 Ves. 402, and as to covenant to repair; and see Whisler and Mainwaring, mentioned 3 Wood. Lect. 464, in note (z). (p) Mosely v. Virgin, 3 Ves. 185. (q) Rayner v. Stone, 2 Eden, 128.

(r) Street v. Rigby, 6 Ves. 818. Redesd. Tr. Pl. 214, 3rd edit.

(s) Sic dict. per Lord Eldon in Tattersal v. Groote, 2 Bos. & Pull. 135. Wellington v. Mackintosh, 2 Atk. 569.

(t) Bozon v. Farlow, 1 Meriv. 459.

(u) Annesley v. Ashurst, 3 P. Wms. 282.

(x) Cadman v. Horner, 18 Ves. 11.

(y) Francis's Maxims, p. 5.

therefore, to a Bill for a specific performance of an Agreement is allowed to resist it, by showing, that under the circumstances the Plaintiff is not entitled to the prayer of his Bill; as by evincing that there has been an Omission, or Mistake in the Agreement (y), or that it is unconscientious (z) or unreasonable (a); or Fraud, or Surprize (b); or that there has been Concealment (c), Misrepresentation (d), (whether wilful or not, latent or patent) (e) or any unfairness (f), (intoxication, for instance) (g), attending it and in these cases parol Evidence of such circumstances of defence is permitted; for though parol Evidence is inadmissible on the part

(y) Joynes v. Statham, 3 Atk. 388. Woollam v. Hearn, 7 Ves. 211; see 1 Ves. & Bea. 532. Mason v. Armitage, 13 Ves. 25. Costigan v. Hastler, 2 Sch. & Lefr. 166; and see Howel v. George, 1 Madd. Rep. 11. Flood v. Finlay, 2 Ball & Bea.

33.

(z) Vaughan against Thomas, 1 Bro. C. C. 556.

(a) Green v. Green, 25 Jan. 1710, Dom. Proc. Thompson v. Harcourt, Dom. Proc. 13 February 1721. Mocdy v. Stewart, Dom. Proc. 28 February 1728. Brain v. Wooley, 9 Feb. 1721. Don. Proc. Carrol v. Chamberlyn, Dom. Proc. 14 July 1721. Tap v. Stanhope, Dom. Proc. 24 March 1720; and see Costigan v. Hustler, 2 Sch. & Lefr. 166. Fain v. Browne, 2 Ves. 307, and note (2) to Howel v. George, 1 Madd. Rep. p. 11. Revell v. Hussey, 2 Ball & Bea. 287.

(b) Conway v. Shrumpton, 19 January 1710. Dom. Proc. noticed in Lord Harcourt's

MS. Tables. Clowes v. Higginson, 1 Ves. & Bea. 526, 7. Marquis Townshend v. Stangroom, 6 Ves. 328. Twining v. Morrice, 2 Bro. C. C. 326, alluded to in Mortlock v. Buller, 10 Ves. 305; and see 2 Ball & Bea. 33.

(c) Shirley v. Stratton, 1 Bro. C. C. 440. Olfield v. Round, 5 Ves. 508.

(d) Cadman v. Horner, 18 Ves. 11. Buxton v. Lister, 3 Atk. 386. Phillips v. Duke of Bucks, 1 Vern. 227. Howard v. Hopkins, 2 Atk. 370. The doctrine as to Misrepresentation is well considered in Lowndes v. Lane, 2 Cox, 363.

(e) Wall v. Stubbs, 1 Madd. Rep. 81. 1 Camp. 337

(f) Savage v. Taylor, For. 234; and see Child v. Danbridge, 2 Vern. 71. Scott v. Murray, 1 Ves. 2.

(g) Cragg v. Holme, mentioned in note to Cooke v. Clayworth, 18 Ves. 14, and approved (ibid.) p. 15; and see ante, p. 301, &c.