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KIEN v. STUKELEY [1722]

I BROWN.

cent; but this intention being frustrated, by some delay in making out the title, the appellant declined to complete his purchase.

Whereupon, in Hilary term 1720, the respondent exhibited his bill against the appellant in the Court of Exchequer, for a specific performance of the articles, and to have the remainder of the purchase-money paid; to which bill, the appellant, by his answer, insisted, that in regard the plaintiff had not made out his title within the time limited by the articles, and that the price thereby stipulated was extravagant and unreasonable, he ought not to have the aid of a Court of Equity to support the articles, or decree a specific performance thereof.

But when the cause came to be heard, on the 8th of February 1721, the Court decreed, that the said articles of agreement should be duly performed; and ordered, that the plaintiff's title deeds should be forthwith brought before the Deputy Remembrancer, and that he should report the plaintiff's title to the premises, and compute what was due to him from the defendant, for the interest of £680, being the remainder of the said purchase-money, from the 20th of September 1720 and that the defendant should pay the plaintiff the said £680 and interest, upon his executing the [192] conveyances of the premises, and should take and receive to his own use the rents and profits of the premises, which accrued due from Lady-day, next before the date of the said articles.

From this decree, the defendant appealed; insisting (R. Raymond, T. Bootle), that the premises lying in the Fens of Lincolnshire, were not, at any time, really worth more than fifteen years purchase, on account of the accidents and necessary out-goings, which those kind of estates are liable to; and although at the height of South-Sea stock, lands, as well as every thing else, were raised to an extravagant price; yet, as that proceeded from the general delusion which all men lay under, as to the imaginary value of South-Sea stock, and a supposed vast increase of their riches, which very soon appeared chimerical and groundless, such an agreement as the present, made at that particular juncture, under such circumstances, and upon such hard and unequal terms, ought not to be aided or carried into execution by a Court of Equity; but the party should be left to such remedy as he could have at law.

On the other side it was contended (C. Phipps, M. Johnson), that there was no pretence of fraud or surprize in obtaining the articles; but, on the contrary, the appellant entered into them with great deliberation, was well apprised of the value of the estate, and had the articles drawn by his own solicitor. That to compel a specific performance of articles, concerning the purchase of lands, was the proper business of a Court of Equity; and hardly a term passed without instances of decrees of this kind. And, that at the time of entering into these articles, lands in that part of the country were at forty years purchase; and the respondent could have sold the lands in question at that rate, for ready money.

But, after hearing counsel on this appeal, it was ordered and adjudged, that the decree therein complained of, should be reversed; and that the respondent's bill in the Court of Exchequer should be dismissed, without costs.^[1] (Jour. vol. 22. p. 31.)

↑ In the volume of reports attributed to the late Lord Chief Baron Gilbert, page 155, 156, there is the following account of the debate on this appeal: "Two points were argued in this case before the House of Fears; 1st, Whether an exorbitant bargain for forty years purchase, should be carried by the decree of a Court of Equity into execution; or whether they should be only left to their damages at law.—This was a very doubtful point among the lords; for on the one side it was argued, that if a bargain and sale was unconscionable, the person who had got such a bargain was not to demand a performance of it in a Court of Equity, but he could only demand damages for not performing the bargain, for the Court of Equity was only to assist in carrying conscionable bargains into execution, and where they did not find them fit to be carried into execution, the Court of Equity was to leave them to law. On the other side it was said, that a man was obliged in conscience to perform a bargain, though it was a hard one; and where he was obliged in conscience, it was no hardship upon him to be compelled thereto; that nothing in the world was more uncertain than the price of land; for land may be

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[1BroPC191n1-1] In the volume of reports attributed to the late Lord Chief Baron Gilbert, page 155, 156, there is the following account of the debate on this appeal: "Two points were argued in this case before the House of Fears; 1st, Whether an exorbitant bargain for forty years purchase, should be carried by the decree of a Court of Equity into execution; or whether they should be only left to their damages at law.—This was a very doubtful point among the lords; for on the one side it was argued, that if a bargain and sale was unconscionable, the person who had got such a bargain was not to demand a performance of it in a Court of Equity, but he could only demand damages for not performing the bargain, for the Court of Equity was only to assist in carrying conscionable bargains into execution, and where they did not find them fit to be carried into execution, the Court of Equity was to leave them to law. On the other side it was said, that a man was obliged in conscience to perform a bargain, though it was a hard one; and where he was obliged in conscience, it was no hardship upon him to be compelled thereto; that nothing in the world was more uncertain than the price of land; for land may be

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