Page:The English Reports v1 1900.pdf/479

and Bruning, for a specific performance of the articles; and thereupon the defendants exhibited their cross bill against the appellant, praying that the articles might be delivered up, and cancelled.

Pending these suits, Richard Caryll died; but the same having been revived against the respondent John Caryll, his son and heir, both causes were heard before the Lord Keeper Wright, in Trinity term 1702, when his Lordship was pleased to order that both the bills should stand dismissed.

From this decree, so far as it related to the dismission of the original bill, the plaintiff in that cause appealed; insisting (S. Harcourt, J. Sloane), that he had fully proved the execution of the articles, and the many instances of delay on the part of the respondents. That he had kept his money by him for a long time, in order to enable him to perform his part of the contract; which he might otherwise have disposed of to a much better advantage. That he had always been, and still was ready, to perform the agreement on his part; but that the respondents, contrary to their repeated promises, had continually declined the performance thereof on their parts; and that therefore the Court ought to have decreed a specific performance of the articles in favour of the appellant.

On the other side it was insisted (W. Dobyns, R. Acherley), that the dismission of the appellant's bill was grounded on reason and justice; for that he was not intitled to the extraordinary aid of a Court of Equity, to force the respondents to part with their inheritance in the estate. And that such extraordinary compulsion would, in this case, be both unequal and unreasonable, in respect to the conduct of the appellant, and to the alterations which had since happened to the respondents. First, In respect to the appellant's behaviour, which appeared to be very trifling in the following instances: When the writings were first laid before his counsel, the only objection was, that there was an old family entail, and that a common recovery must be suffered to bar it; this the respondents complied with, and, at a great expence, a common recovery was suffered. The next pretence was, that there was a remote remainder or re-[128]-version, after nine heirs male, and their issue, rested in one John Caryll, who was outlawed for high treason, whereby the same became vested in the crown, and was granted by the crown to Lord Cutts; but this was a vain pretence, because the said remainder or reversion, not being created by, or moving from the crown, was well barred by the common recovery; the respondents, however, in order to gratify the appellant, purchased in Lord Cutts's title. After this, it was pretended, that the grant from the crown to Lord Cutts was defective, because the word bailywick was omitted, which bailywick was rather a charge, than a profit to the estate; but, to remove this objection, the respondents offered to be at the charge of a new grant, if the appellant would procure it. Then the appellant set up the danger of an act of resumption, and insisted on having security against such an act; the respondents, accordingly, offered their personal security, which was the best they could give. And, at last, when the respondents had thus waited two years and an half, and had spent above £100 in counsel's fees, &c. the appellant positively declared, that he would proceed no further in the purchase; because, after all that had been done, he was not yet satisfied with the title. And, secondly, In respect to the following subsequent alterations which had happened in the condition and circumstances of the respondents:—The appellant's delays occasioned great difficulties to Mr. Richard Caryll, for want of the £2000 which, at much charge and disadvantage, he was forced to take up elsewhere; and that put an end to the reason, which he at first had for making the sale.—But Richard Caryll was now dead; and the respondent John, who was his son and heir, had no occasion to sell. Farther, the respondents were all Roman Catholics; and by an act of parliament made since the articles, they were disabled from purchasing in their own names, or in the names of others in trust for them; so that the performance of the articles in specie was become impossible, as no mortgage for the remaining £5000 could in any manner be taken; and therefore, to oblige the respondents, under these circumstances, to part with their land, and take the money, would be unjust in itself, and punishing them to gratify the appellant.

And, accordingly, after hearing counsel on this appeal, it was ordered and adjudged that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 17. p. 279.)