equity as in a court of law, unless in the case of fraud, &c. where equity interposes and relieves against the abuse, or allays the rigor of the law.

The case of the Marquis of Normanby v. the Duke of Devonshire, was, I believe, the first in which this point occurred; and, according to a manuscript note, it appears that Lord Somers called in the two chief justices on the point, whether the party, on the letters which had passed, could have recovered damages at law? They were of opinion that he could not, and Lord Somers accordingly dismissed the bill.

So there are very few cases in which a court of equity can decree a performance of an agreement upon which there can be no action at law, according to the words of the articles, and the events that have happened(z).

A proviso, in a contract for sale, that if either party (*)break the agreement he shall pay a sum of money to the other, will only be considered in the nature of a penalty(a); and consequently a specific performance will be decreed just as if no such proviso had been inserted. The defendant will not be allowed to forfeit the penalty, and get rid of the agreement(b)(141).

Where an action is brought for the recovery of the penalty, to entitle the party bringing it to recover, he ought punctually, exactly, and literally, to have completed his part(c). And, it has been said, that if, for

(z) Whitmel v. Farrel, 1 Ves. 256.

(a) Howard v. Hopkins, 2 Atk. 371. See 2 Scho. & Lef. 684; and Margrave v. Archbold, 1 Dow, 107; Davies v. Penton, 6 Barn. & Cress. 216; 9 Dowl. & R. 369, S. C.

(b) Hopson v. Trevor, 1 Str. 533; 2 P. Wms. 191; Parks v. WilSon, 10 Mod. 515.

(c) Duke of St. Alban's v. Shore, 1 H. Blackst. 270.

(141) See Telfair v. Telfair, 2 Des. 271. Telfair v. Telfair, ut supra.

breach of an agreement, to which a penalty was annexed, either party recover damages at law beyond the penalty, equity will relieve against the verdict, on payment of the penalty only (d); but this is not well founded, for, if the party have two remedies at law, one for breach of contract upon the covenant, or agreement, toties quoties; the other for the penalty at once(e), there appears to be no pretence for equity to relieve; although where large damages have been recovered at law, under a covenant which it was unconscientious strictly to enforce, the party may be relieved in equity, upon offering to perform the covenant according to conscience: but even this seems, in some measure, to be usurping the province of a jury, and the equity is administered with great caution(142).

Where the parties have expressly stipulated, that in case of a breach by either, he shall pay a sum named as liquidated (*)damages, the whole sum may, if the agreement be broken, be recovered at law(f)(143).

If a power be given in a contract to a purchaser to leave the purchase-money as a charge upon the property for a given period at interest, and it be stipulated that the purchaser shall be deemed a tenant to the seller at a rent equal to the interest, and the seller have power to distrain; though the agreement be acted upon, yet the instrument would not be deemed a lease, but is substantially a contract for purchase, and the power of distress does not alter the nature of the contract between the par

(d) Shenton v. Jordan, Bunb. 132; but the reporter adds a query, for this seems an extraordinary opinion.

(e) See Harrison v. Wright, 13 East, 343.

(f) Reilly v. Jones, 1 Bing. 302; 8 Moo. 244, S. C.

(142) See Skinner v. Dayton, 2 Johns. Ch. Rep. 526. Bickham, 4 Dall. 149.

Graham v.

(143) See Slosson v. Beadle, 7 Johns. Rep. 72. Hasbrouck v. Tappen, 15 Johns. Rep. 200.

ties. And this construction would be applied in the event of the bankruptcy of the purchaser(g).

10001

SECTION III.

Of the Remedies for a Breach of Contract.

Ir either the vendor or vendee refuse to perform the contract, the other may bring an action for breach of contract, or file a bill for a specific performance(h); although it appears to have been formerly thought that as a vendor only wants the purchase-money, his remedy was at law(i).

Where one party fails in performing the contract, the other, if he means to rescind the contract, should give a clear notice of his intention(k).

If a bill be filed for a specific performance, the Court (*)will enjoin either party not to do any act to the injury of the other. Therefore, if the purchaser is in possession, and has not paid the money, the Court will grant an injunction against his cutting timber(7)(144) ; so, on the oth

(g) Hope v. Booth, 1 Barn. & Adolp. 498.

(h) Lewis v. Lord Lechmere, 10 Mod. 503.

(i) See Armiger v. Clark, Bunb. 111; Withy v. Cottle, 1 Sim. & Stu. 174. See Kenney v. Wenham, 6 Madd. 315. (k) Reynolds v. Nelson, 6 Madd. 18.

(1) Crockford v. Alexander, 15 Ves. jun. 138.

(144) An injunction to stay waste will not be granted against a vendee, to whom land has been sold in fee, even where the vendor retains the title as security for the purchase money; unless he brings his suit to enforce the lien, alleging, that the defendant is committing waste in such a manner as to render the land an incompetent security; in which case, an

er hand, the vendor will be restrained from conveying away the legal estate in the property; because such a measure might put the purchaser to the expense of making another party to the suit(m); and, a fortiori, he will be restrained from selling the estate to a third person(n). But in Spiller v. Spiller(o), the Lord Chancellor expressly laid it down, that upon a bill filed for a specific performance, he wished it to be understood, that the Court would not take from a seller the disposition of his property. So injunctions may be granted against the agents of the parties. But an injunction will not be granted against a person who is not a party to the suit; and, in a late case, in which, upon a bill filed by a seller for a specific performance, and an injunction against the purchaser's proceeding at law to recover the deposit from the seller's attorney, to whom it was paid, Sir John Leach, V. C. refused the motion, with costs, because the attorney was not a party to the suit(p). But in a very recent case, the same Judge granted an injunction to restrain the purchaser from proceeding in an action against the auctioneer, although he (the auctioneer) was not a party to the suit; the seller offering to bring the deposit into Court.

In all cases where a bill in equity is filed for a specific

(m) Echliff v. Baldwin, 1 Ves. jun. 267.

(n) Curtis v. Marquis of Buckingham, 3 Ves. & Beam. 168. (o) 30 June 1819, MS. S. C. 3 Swanst. 556.

(p) Brown v. Frost, E. T. 1818. MS.

Scott v.

injunction to stay waste, pending the suit, may be awarded. Wharton, 2 Hen. & Munf. 25. An injunction will lie against a mortgagor in possession, to stay waste; although no suit be pending for foreclosure. Brady v. Waldron, 2 Johns. Ch. Rep. 148. So, an injunction will lie to restrain the defendant from cutting timber and committing other waste, he being in possession, claiming title adversely, a suit being pending, at law, to try the title. Shubrick v. Guerard, 2 Des. 616. See contra, Storm v. Mann, 4 Johns. Ch. Rep. 21.

performance, either party may in general, if he please, have a reference as to the title. The vendor is entitled to (*)this privilege in order to enable him to make out a title before a Master. The purchaser is allowed this right, in order that he may have the title assured in a manner he otherwise could not. As to a purchaser, the Court never acts upon the fact, that a satisfactory abstract was delivered, unless the party, has clearly bound himself to accept the title upon the abstract; but though the abstract is in the hands of the party who says he cannot object to it, yet he may insist upon a reference; because, by the production of papers, which can be enforced, and by the examinations and inquiries which can be made by virtue of the decree, the title may be examined in a manner it never could upon a mere abstract(q)(145). Either party may, however, wave this right.

Where a man makes a purchase of an estate, to which the vendor represents that he has a good title, in such a case the purchaser has a right to insist, that the question whether he have or have not a good title shall be sifted to the bottom before he can be called upon to adopt either alternative, and before the vendor can be let off from his original contract(r).

Where the purchaser files the bill, and insists that the vendor cannot make good a title, equity can only dismiss the bill with costs, although the Court will compel him to make out the title if he have the ability(s). But the Court has power in a suit so framed to decide whether the title is good or bad.

If, after the confirmation of a report in favor of a title,

(q) See Lord Eldon's judgment in Jenkins v. Hiles, 6 Ves. jun. 653. (r) 3 Mer. 137, per Lord Eldon.

(8) Nicloson v. Wordsworth, 2 Swanst. 365.

(145) See Beverley v. Lawson's heirs, 3 Munf. 317, 383. M'Comb v. Wright, 4 Johns. Ch. Rep. 659.